Amicus Curiae Brief — Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers

+s Supreme Gourt, U.S.

M+ FILED

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,

Petitioner,

we

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF DR. GENE LIKENS, DR. JOY ZEDLER,

DR. BILL MITSCH, DR. REBECCA SHARITZ,

DR. JOSEPH LARSON, DR. LEIGH FREDRICKSON,

DR. MARK BRINSON, DR. ORIE LOUCKS,

DR. STUART PIMM, DR. RAYMOND SEMLITSCH

DR. CURTIS BOHLEN, DR. CHRISTOPHER

WOLTEMADE, DR MICHAEL HIRSCHFELD,

DR. JOHN CALLAWAY, DR. TERRY HUFFMAN,

DR. TOM BANCROFT, DR. KLAUS RICHTER,

DR. JOHN TEAL, AND THE ASSOCIATION OF

STATE WETLAND MANAGERS AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

TIMOTHY D. SEARCHINGER

MICHAEL BEAN *

ENVIRONMENTAL DEFENSE

1875 Connecticut Avenue

Washington, D.C. 20009

(202) 387-3500

* Counsel of Record

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

Cees Ie CCT esi cncksscusesencinatensseseienen ii

STATEMENT OF INTEREST ......cccccccccccsccccccccccess l

SUMMARY OF ARGUMENT ......................000eeee: l

PERPETT csconsesascccnssinssimipainasmanniananiainaiiadan 4

A. Hydrologic Functions of Isolated Water

ITED sscscvssunenescsensvenmmannniaasanaieianala 6

B. Ecological Functions of Isolated Ponds

EF CE to inkcstnninsacddnisnndddaenmanaeeanans 14

©. PRRCTEES CRMIIEBUMIIGES ...0ccccscccscccscoccccosess 22

D. The Ecological and Hydrologic

Relationship Between the Balefill Site and

the Broader Aquatic Ecosystem ................... 26

CROUED becusisssncedaceunhbehienanmidaldieatinatenaaatal 29

TABLE OF AUTHORITIES

CASES

Page(s)

Federal Election Commission v. Democratic

Senatorial Campaign Committee, 454 U.S. 27

ea sic ei a snidlacecscesessncosccoees 26

Hodel v. Virginia Surface Mining and Reclamation

Association, 452 U.S. 264 (1981) ..................ccus. 5

PUD No. 1 v. Washington Department of Ecology,

Te 14

United States v. Riverside Bayview Homes, Inc.,

ED «a ticschcdesinpoesdsesesecesces passim

Utah v. Marsh, 740 F.2d 799 (10" Cir. 1984) ............ 25

Watt v. Alaska, 451 U.S. 259 (1981) ............ceeeeeeeees 26

STATUTES

Teen oa cs ccc sncdcnesesoedens 14

ET 25

Noni ccd ccndncunndencecesoossess 25

Tee Teac cndedinasdnsudbecésrcccesavees 13

OTHER AUTHORITIES

Bodie, R. & R.D. Semlitsch. Spatial and

Temporal Use of Floodplain Habitats by

Lentic and Lotic Species of Aquatic Turtles,

122 Oecologia 138-146 (2000) .................... cece 21

Bolen, E.G., Playa Wetlands of the U.S. Southern

High Plains: Their Values and Challenges for

* Management, in B. Gopal (ed), Wetlands

Ecology and Management (1982) ..................600. 16

Bolen, E.G., L.M. Smith & H.L. Schramm, Jr.,

Prairie Wetlands of the Southern High Plains,

EEE OO 25

TABLE OF AUTHORITIES — Continued

Page(s)

Brun, L.J., J.L. Richardson, J.W. Enz & J.K.

Larsen, Stream Flow Changes in the Southern

Red River Valley 38 N.D. Farm Res. 1-14

EEE ‘dsndesnccotontnisedssdbimiiniantabadaiiaiadaiibiinn

Burton, T.M. & G.E. Likens, Energy Flow and

Nutrient Cycling in Salamander Populations in

the Hubbard Brook Experimental Forest, New

Hampshire, 56 Ecology 1068-1080 (1975) ...........

Burton, T.M., & G.E. Likens. Salamander

Populations and Biomass in the Hubbard

Brook Experimental Forest, New Hampshire,

IGIIUEED onicccncncenccnnecnsecnsensscsonse

Campbell, K.L. & H.P. Johnson, Hydrologic

Simulation of Watersheds with Antificial

Drainage, 11 Water Resources 120-26 (1975) .......

Carter, V., Technical Aspects of Wetlands;

Wetland Hydrology, Water Quality and

Associated Functions, in J.D. Fretwell, J.S.

Williams & P.J. Redman (eds.), National

Water Summary on Wetland Resources, U.S.

Geological Survey Water-Supply Paper 2425

GEE. wincuneneondcpassiisannnnsstansusccnsoussepnansons 8,

Conant, Roger & Joseph T. Collins, A Field Guide

to Reptiles and Amphibians: [Eastern and

Central North America (1991) ....................00005.

Council on Environmental Quality, Environmental

WHEE GED ccceccccanccccnsuscoscancssncesncesess passim

Crissey, W.F., Prairie Potholes from a

Continental Viewpoint, in Saskatoon Wetlands

Seminar, Candian Wildlife Service Report

ee Oe ES CID cnccccedcasddcdedadadeciocdocss

iV

TABLE OF AUTHORITIES — Continued

Page(s)

Dahl, Thomas E., Status of Prairie Pothole

Wetlands in the United States (U.S. Fish &

Wildlife Service 1990) ................60 0c ccc cece cece ees 17

Ehrlich, Paul, David S. Dobkin & Darryl Wheye,

The Birder’s Handbook: A Field Guide to the

Natural History of North American Birds 42

GREE cccunsncincnnecsnsstnsnninnintisbianidinnslsiiians 19, 27

Elias, SP., JD. Fraser & PA. Buckley, Piping

Plover Foraging Ecology in New York Barrier

Islands, 64 J. Wildlife Management 346-54

EE ie 19

Farrar, Jon, Nebraska Game & Parks Commission,

Nebraska’s Rainwater Basin (1996) .................... 17

Gambrell, R.P., Trace and Toxic Metals in

Wetlands, A Review, 23 J. Env’! Qual. 883-91

SEITE . cicgsiicnddnibibdsibianinidinidinaamammaanimaianiedi 13

Gibbs, J.P., Wetland Loss and _ Biodiversity

Conservation, 14 Conservation Biology 314-

Se TEED - scssocashcicesshiccncineshapenitieletcaiemtciemtidanaaiameiaiaamaitiniabaiiin 21

Graham, T.E., Habitat Use and Population

Parameters of the Spotted Turtle, Clemmys

guttata, a Species of Special Concern in

Massachusetts. 1 Chelonian Conservation

SONY BOTAN CEDOED ccdaccececcccccccccccsesccsecsess 22

Hubbard, Daniel E., Glaciated Prairie Wetland

Functions and Values: A Synthesis of

Literature, U.S. Fish and Wildlife Service

Biological Rep. 88(43) (1988) ........... 10, 12, 24, 25

v

TABLE OF AUTHORITIES — Continued

Page(s)

Huffman, Wayne, G. Thomas Bancroft & Richard

J. Sawicki, Relationships Among Wading Bird

Foraging Patterns, Colony Locations, and

Hydrology in the Everglades, in Steve Davis &

John Ogden, Everglades: The Ecosystem and

its Restoration 585-614 (1994) ....................... ee.

Interagency Floodplain Management Review

Committee, Sharing the Challenge:

Floodplain Management Into the 21* Century

SEITE ercunssddnnnddenniniaienduictietgisaiatiniabinicsednin

Kantrud, H.A., G.L. Krapu & G.A. Swanson,

Prairie Basin Wetlands of the Dakotas: A

Community Profile, U.S. Fish & Wildlife

Service Biological Report 85 (1989) ...................

Korschagen, C.E., L.S. George & W.L. Green,

Feeding Ecology of Canvasbacks Staging on

Pool 7 of the Upper Mississippi River, in

Waterfowl in Winter, Milton W. Weller (ed.) .......

Krapu, G.L., G.C. Iverson, K.J. Reinecke &

C.M. Boise, Fat Deposition and Arctic-Nesting

Sandhill Cranes, 102 Auk. 362-68 .....................

Krapu, G.L., H.J. Reinecke, D.G. Jorde, & S.G.

Simpson, Spring Staging Ecology of

Midcontinent Greater White-fronted Geese, 59

J. Wildlife Management 736-746 (1995) ..............

Krapu, G.L., P.J. Pietz, D.A. Brandt, R.R. Cox,

Jr., Factors Affecting Mallard Brood Survival

in Prairie Pothole Landscapes, 64 J. Wildlife

Management 553-61 (2000) ..................c0cccceeeee

Lamoureux, V.S. & D. M. _ Madison,

Overwintering Habitats of Radio-implanted

Green Frogs, Rana clamitans, 33 J. of

Herpetology 430-435 (1999) ....................20c000..

vi

TABLE OF AUTHORITIES — Continued

Page(s)

Laney, R.W., The Elimination of Isolated and

Limited-Flow Wetlands in North Carolina,

Proceedings of the Symposium on Coastal

Water Resources, American Water Resources

ID sicccnsicnsissindinntunientiidampeaneens 12

Loucks, O.L., Restoration of the Pulse Control

Function of Wetlands and Its Relationship to

Water Quality Objectives, in Jon A. Kulser &

Mary E. Kentula (eds), Wetland Creation and

Restoration: The Status of the Science (1990).. passim

Ludden, A.P., D.L. Frink & D.H. Johnson, Water

Storage Capacity of Natural Wetland

Depressions in the Devils Lake Basin of North

Dakota, 38 J. Soil & Water Cons. 45-48

EE eee CRN eh ee ee ene

Matihews, K.R. & K.L. Pope, A Telemetric Study

of the Movement Patterns and Habitat Use of

Rana muscosa, the Mountain Yellow-legged

Frog, in a High-elevation Basin in Kings

Canyon National Park, California, 33 J. of

Herpetology 615-624 (1999) ..................c.eeeeeees

Moll, D., Population Sizes and Foraging Ecology

in a Tropical Freshwater Stream Turtle

Community, 24 J. of Herpetology 48-53 (1990) ......

Moore, I.D. & C.L. Larson, Effects of Drainage

Projects on Surface Runoff from Small

Depressional Watersheds in the North-Central

Region, Water Res. Cent. Bull. 99 (1979) ............

National Research Council of the National

Academy of Sciences, Restoration of Aquatic

Ecosystems: Science, Technology, and Public

EPNEID sccsidanucnsuantnnddinemmantiiabanaatinihen

vii

TABLE OF AUTHORITIES — Continued

National Research Council of the National

Academy of Sciences, Wetlands

Characteristics and Boundaries 156 (1995) ........... 16

Neely, R.K., James L. Baker, J.R. Jones, V.P.

Borofka & R.W. Bachman, Factors Affecting

Nutrient Loads in Some lowa Streams, 10

Water Research 117-121 (1976) .....................4.. 12

Office of Technology Assessment, U.S. Congress,

Wetlands: Their Use and Regulation (1984) ......... 13

Phillips, P.J., Judith M. Denver, Robert J.

Shedlock & Pixie A. Hamilton, Effect of

Forested Wetlands on Nitrate Concentrations

in Ground Water and Surface Water on the

Delmarva Peninsula, 13 Wetlands 75-83

TID : eiutidideeiiadnntecesiadtaiaiseacaieiabndelibienaiadatie 12

Reinecke, K.J., R.C. Barkley & C.K. Baxter,

Potential Effects of Changing Water

Conditions on Mallards Wintering in the

Mississippi Alluvial Valley, in Milton Weller

(ed.), Waterfowl in Winter 325-37 (1988) ............ 18

Ripley, D., An Overview of North Dakota’s Water

Resources, in North Dakota Water Quality

Symposium (North Dakota State Extension

Service March 20-21, 1990) ...........c.ccccseceseeeees 24

Semlitsch, R.D., Allotopic Distribution of Two

Salamanders: Effects of Fish Predation and

Competitive Interactions, Copeia 290-298

IED dtucisdedocsdsadnetieesiaite vinotedlinpatuiadasenesess 20

Semlitsch, R.D. & J. R. Bodie, Are Small,

Isolated Wetlands Expendable ?, 12

Conservation Biology 1129-1133 (1998) ......... 20, 21

viii

TABLE OF AUTHORITIES — Continued

Page(s)

Skaggs, R.W., J.W. Gilliam, T.J. Sheets & J.S.

Barnes, Effects of Agricultural Land

Development on Drainage Waters in the North

Carolina Tidewater Region, Water Resources

Research Institute Report No. 159 (1980) ............

Skelly, D.K., E.E. Werner & S.A. Cortwright,

Long-term Distributional Dynamics of a

Michigan Amphibian Assemblage, 80 Ecology

CED innctintcunichiitniinnnessnnnnnnineteosne

Skelly, D.K., Pond Drying, Predators, and the

Distribution of Pseudacris Tadpoles, Copeia

SPIE -sccnncinsiddnsiaubadniaedninatibantinpeniiite

State of Illinois, Integrated Management Plan for

the Illinois River Watershed (1997) ....................

Stewart, R.E. & H.A. Kantrud, Ecological

Distribution of _ Breeding Waterfowl

Populations in North Dakota, 37 J. Wildlife

Management. 39-50 (1973) ..........scccscsccrcesseees

Tacha, T.C., S.A. Nesbitt & P.A. Vohs, Sandhill

Crane, in Migratory Shore and Upland Game

Bird Management in North America 77-94

SEED cdddinddadiesscenibieidanianitadddaaddiddntininevenes

Taylor, Ryan, Illinois Department of Natural

Resources Memorandum to Marvin Hubbell,

Illinois Department of Natural Resources

Regarding “Isolated Wetlands Analysis,”

Ss Till SED idcdndesacensidonmmatstnbodsntesasionttecs

Whitfield, J. Gibbons & Raymond D. Semlitsch,

Guide to Amphibians and Reptiles of the

DERE TVET TID GSE vcccccccccccccccccccccccccce:

Winter, T.C., Hydrologic Studies of Wetlands in

the Northern Prairie, in Arnold Van der Valk

(ed.), Northern Prairie Wetlands (1989) ..............

ix

TABLE OF AUTHORITIES — Continued

Page(s)

Winter, Thomas, Judson Harvery, O. Lehn Franke

& William Alley, Ground Water and Surface

Water: A Single Resource, U.S. Geological

Survey Circular 1139 (1999) ................005. 7,8, 14

Wolman, M.G.& J.F. Miller, Magnitude and

Frequency of Forces in Geomorphic

Processes, 68 J. of Geology 54-74 (1960) ............ ll

STATEMENT OF INTEREST

Pursuant to Supreme Court Rule 37, we file this brief

with the consent of the parties as amici curiae in support of

Respondent, the United States. '

Amici are distinguished scientists with broad expertise

in America’s aquatic ecosystems. Amici also include the

Association of State Wetland Managers, this country’s

professional society of state and local government scientists

and scientists in the private sector involved with the

protection, study, or mitigation of wetlands. Scientists

authoring this brief include members of the National

Academy of Sciences or its science review boards, leading

authors on _ wetlands, hydrology, migratory birds,

amphibians, and conservation biology. Amici include many

scientists who have served on panels of the National

Academy of Sciences established to advise Congress or

federal agencies on issues related to wetlands. An appendix

with a brief biography of each scientist is attached.

SUMMARY OF ARGUMENT

The essential issue in this case is whether the Clean

Water Act and Commerce Clause permit regulation of

discharges into “isolated” water bodies. Petitioner argues

that isolated waters lack the important functions of adjacent

wetlands that justified their inclusion as “waters of the

United States” in United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121 (1985). Science indicates that

' This brief was not authored in whole or in part by counsel for a

party, and no person or entity, other than amici curiae or their counsel,

made a monetary contribution to the preparation or submission of the

brief. The Director of the Association of State Wetland Managers,

however, shared a draft of the brief with an attorney for the

Environmental Protection Agency, who provided some suggestions on

language that probably influenced a few sentences of the brief.

2

Petitioner’s assertion is incorrect. Isolated waters perform

precisely the same water quality, flood protection, and other

hydrologic and biological functions highlighted by this

Court in that case. Indeed, even if Petitioner is correct that

“waters of the United States” can only encompass waters

that are “closely related” to traditional navigable waters,

isolated waters have the same close relationship as the

adjacent wetlands at issue in Riverside Bayview Homes.

So-called isolated ponds and wetlands (often isolated

only as a matter of degree) provide a basic function that

wetlands adjacent to navigable waters and their tributaries

provide - they store water. If they are left unaltered, the

water they store is used by plants, evaporates, or filters

through them and often reaches streams and rivers through

groundwater. But when isolated ponds and wetlands are

developed and drained, the water and its associated

pollutants are typically transported quickly and without

filtration into the local streams which feed into larger,

ultimately navigable, downstream rivers, lakes, and coastal

waters.

The results can be severe. Streams receive rapid

influxes of water and associated pollutants they had not

previously experienced. This may cause flooding, severe

bank erosion, and downstream water quality problems.

Furthermore, the untrapped water that now flows rapidly as

runoff into streams during the spring rainy season is no

longer available to recharge groundwater and provide the

critical “base” flow to streams in drier summer months.

Indeed, isolated water bodies are often connected to

streams and rivers precisely in the same way as the

groundwater-fed wetlands at issue in Riverside Bayview

Homes - through groundwater. The difference is the

relative proximity of the wetlands at issue in Riverside

3

Bayview Homes, a difference that does not speak to the

basic functions described by this Court in that case.

Petitioners also dismiss the “biological” relationships

between isolated ponds and wetlands and navigable waters

as an alleged secondary consideration in Riverside Bayview

Homes that should not be allowed to usurp land use

functions through the unjustified regulation of “minuscule”

areas in people’s backyards.

In fact, the inclusion of “isolated water bodies” does

not dramatically alter the reach of the Clean Water Act

beyond areas Petitioner finds acceptable. Isolated wetlands

probably occupy less than 20% of all wetland acres.

Despite this limited extent, isolated waters are critical to the

“biological” integrity of aquatic ecosystems because they

play a distinct role in the life cycle of many aquatic species,

including those which travel across state boundaries and

which use navigable waters at other life stages. Most ducks

in the United States breed in isolated wetlands and ponds, as

do perhaps half of all amphibians, but they also use

navigable rivers and coastal waters in non-breeding seasons.

Migrating wading birds, like the great blue herons in this

case, also rely heavily on isolated ponds and wetlands for

breeding or other critical life stages. Unless isolated water

bodies are preserved, the ecosystems of major rivers, lakes

and coastal waters cannot be preserved as we know them.

This case illustrates these critical linkages. The ponds

and wetlands provide an important breeding area for great

blue herons, which also use major rivers. The record

further reveals many potential hydrologic effects from the

development of the ponds. One reason the Army Corps of

Engineers denied the permit was that Petitioner failed to

demonstrate properly what it would do to dispose of the

water after development - water that would otherwise reside

in the ponds at depths up to thirteen feet. The Army Corps’

ee a enn ee nee

4

final permit decision does not discuss all the downstream

potential consequences of this problem. But given the

location of the ponds less than two miles from the Fox

River, it seems likely that filling these ponds without proper

precautions could result in some of the water and associated

pollutants finding their way to the Fox River and from it

down the Illinois and Mississippi Rivers. The Corps of

Engineers also denied the permit because it found that the

proposed landfill would pose an unacceptable risk of

contamination to a critical drinking water aquifer.

ARGUMENT

All parties in this case agree that the Clean Water Act

and the Commerce Clause appropriately authorize

protection as “waters of the United States” of any stream,

wetland, or pond that flows directly or indirectly into

traditionally navigable waters. Petitioner, the Solid Waste

Agency of Northern Cook County (“SWANCC”), agrees

that this statutory conclusion follows from United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). It

held that “adjacent wetlands” are appropriately defined as

waters of the United States because of their hydrologic and

biological importance to other water bodies. Although

Petitioner focuses much of its argument on the Act’s use of

the term “navigable waters,” it concedes that any water

body that ultimately flows into a navigable water can be

protected regardless of the significance for navigation itself

because the water quality goals of the Clean Water Act

make it reasonable to address pollution at its source.

Petitioner also accepts the view that any tributary water

body and adjacent wetland can be legitimately regulated

under the Commerce Clause. Although this water quality

relationship may have no effect on navigation, Petitioner

claims that interpreting the Clean Water Act with this

limitation is sufficient to avoid a serious constitutional

5

question. Brief for the Petitioner at 26-28. Petitioner never

explains the source of this Commerce Clause authority, but

Petitioner presumably supports this Court’s prior decision

that the Commerce Clause permits Congress to regulate

activities that have environmental effects in more than one

state. Hodel v. Virginia Surface Mining and Reclamation

Association, 452 U.S. 264, 282 (1981) (“[WJe agree with

the lower federal courts that have uniformly found the

power conferred by the Commerce Clause broad enough to

permit congressional regulation of air or water pollution, or

other environmental hazards that may have effects in more

than one State.”).

Both Petitioner’s statutory and constitutional argument

in this case therefore rely heavily on a factual premise: that

isolated water bodies lack hydrologic significance for

downstream, navigable water bodies. As explained in this

brief, this premise is not valid, even as a matter of degree

because isolated water bodies store water, and keep it and

its associated pollutants from flowing downstream.

Petitioner also downplays the biological role of isolated

water bodies as a secondary concern of the Clean Water

Act. It also claims that regulation of isolated water bodies

leads to unacceptable intrusions on !ocal land use authority

in conflict with the limitations of the Commerce Clause.

This argument too has a major empirical dimension, for in

weighing the practical implications of a potential ruling, this

Court will presumably want to weigh the importance of

isolated water bodies to the biological goals of the Clean

Water Act against the degree to which their protection

expands the reach of that Act. But this case is not about

the miniscule spot in the backyard (although wetlands can

be in backyards). Isolated water bodies can be hundreds of

acres and relatively deep and can provide most of the

aquatic habitat in a few regions. Their biological value is

closely related even to navigable waters because they

nn

6

provide distinctly kinds of habitats critical for water birds

and other aquatic animals at certain seasons or life stages

even though these animals use truly navigable waters at

other times.

A. Hydrologic Functions of Isolated Water Bodies

In United States v. Riverside Bayview Homes, Inc., this

Court considered whether it was permissible for the Corps

of Engineers to regulate wetlands adjacent to a lake in

Michigan when the wetlands’ only connection to the lake

was through groundwater. This Court noted “the evident

breadth of congressional concern for protection of water

quality and aquatic ecosystems,” 474 U.S. at 133, and “the

inherent difficulties of defining precise bounds to regulable

waters.” 474 U.S. at 134. In such a context, this Court

held the regulation of such wetlands was justified because of

“the Corps’ ecological judgment about the relationship

between waters and their adjacent wetlands. ”

Hydrologic functions provided one part of this

relationship. This Court noted:

For example, wetlands that are not flooded by

adjacent waters may still tend to drain into those

waters. In such circumstances, the Corps has

concluded that wetlands may serve to filter and

purify water draining into adjacent bodies of water,

and to slow the flow of surface runoff into lakes,

rivers, and streams thus preventing flooding and

erosion.

474 US. at 134. This precise statement is equally true of

“isolated” ponds and lakes.

The term “isolated” wetland or pond is not a precise,

scientific (or even regulatory) term. In general, the term is

used loosely to define wetlands or ponds that lack a surface

outlet to downstream rivers and bays. Such wetlands and

7

ponds typically form in depressions in the landscape and are

“isolated” because the higher elevation of the land around

them keeps water from flowing further downhill and

downstream through even small rivulets. Like wetlands

generally, their hydrology is complex and varied, but also

like all other water bodies, they have two potential sources

of water. First, they typically receive the rainfall or snow

melt that runs off a local watershed. This watershed can

include millions of acres, as in the case of the Great Salt

Lake, which is also an isolated water body, or only a few

acres, in the case of small wetlands. Second, they may be

fed by groundwater. In many cases, groundwater itself

moves downhill across the landscape at various depths

below ground but intersects the surface where the surface

dips and forms a low depression. Often this groundwater

flows through the wetland or pond and then continues

underground toward a stream.’

As this statement implies, this Court should recognize

that “isolated” is generally a matter of degree and for this

reason there is no accepted scientific definition of “isolated”

ponds or wetland.» Many ponds and wetlands overflow into

small streams during extremely wet periods. And like the

precise groundwater-fed wetlands at issue in Riverside

Bayview Homes, many otherwise “isolated” wetlands and

> For a discussion of the hydrologic conditions that form wetlands

and their interactions with groundwater, see Thomas Winter, Judson

Harvey, O. Lehn Franke & William Alley, Ground Water and Surface

Water: A Single Resource, U.S. Geological Survey Circular 1139, at

19-21, 46-47 (1999).

* Because wetland scientists do not usually use the term “isolated

wetlands,” the scientific literature cited in this brief regarding isolated

wetlands usually refers to depressional wetlands or discusses specific

wetland systems, such as prairie potholes, pocosins, playa lakes or

Delmarva Bays, that are the typical examples of isolated wetlands.

a Se CEM ec eee

ponds also have important, and sometimes quite direct,

groundwater connections to streams, rivers or bays. /d.

Regardless, it is not only the degree to which so-called

“isolated” wetlands and ponds are in fact connected to

streams that determines their hydrologic functions; it is just

as much their degree of isolation. The basic function served

by “isolated” ponds and wetlands is simply that they store

water at least temporarily, often filter it through their plans

and soils, and keep it from flowing further downhill and

downstream over the surface.‘ Conversely, in the typical

case, the discharge of dredge or fill material in isolated

wetlands and ponds displaces at least some of this storage

and typically requires draining this water away and

redirecting it into local streams and from there further

downstream.’ This prolonged storage of water is the same

* Winter, et al., supra note 2, at 46 (“[{MJany areas of glacial and

dune terrain do not contribute runoff to an integrated surface drainage

network. Instead, surface runoff from precipitation falling on the

landscape accumulates in depressions, commonly resulting in the

presence of lakes and wetlands.” ). V. Carter, Technical Aspects of

Wetlands: Wetland Hydrology, Water Quality and Associated

Functions, in J.D. Fretwell, J.S. Williams, P.J. Redman (eds), National

Water Summary on Wetland Resources, U.S. Geological Survey Water-

Supply Paper 2425 (1996) (“In drainage basins with flat terrain that

contains many depressions (for example, the prairie potholes and playa

lake regions), lakes and wetlands store large volumes of snowmelt and

(or) runoff. These wetlands have no natural outlets, and therefore this

water is retained and does not contribute to local or regional flooding.”)

* “The withdrawal of shallow basin wetlands {in the central regions

of the U.S.] through ditching and drainage has greatly increased the rate

at which water is discharged from the upland landscape into the

remaining wetlands, streams and floodplains. .. . The presence of the

drainage channel system increases the flood peak and greatly increases

the potential for transport of substances into the aquatic environment.”

Q.L. Loucks, Restoration of the Pulse Control Function of Wetlands

and Its Relationship to Water Quality Objectives, in Jon A. Kusler &

Mary E. Kentula (eds), Wetland Creation and Restoration: The Status

9

fundamental characteristic that gives adjacent wetlands their

hydrologic functions and explains why isolated ponds and

wetlands are also important to the functions of flood

control, water quality filtration, and streambank erosion

highlighted in Riverside Bayview Homes.

For example, most of North and South Dakota and

much of lowa and Minnesota form the prairie pothole

region of rolling hills and depressional basins. Rain and

melting snow flows from the hills into the basins, where it

is trapped, and therefore kept from flowing downstream.

For example, the Devils Lake basin of North Dakota is

already a highly floodprone area, but one study of the basin

found that potholes store about 72% of the total runoff in

the largest storm that occurred every two years and about

41% of the storm expected to occur once every 100 years.°

Similarly, an analysis for a federal interagency task force,

formed in response to the midwest floods of 1993, found

that the most effective area for restoring wetlands to reduce

flood damages downstream would be in watersheds with

prairie potholes because of their closed nature.’

of the Science 56 (1990). The discharge of dredge or fill material in

isolated wetlands or ponds typically occurs during the construction of

drainage ditches, and in any event, typically occurs for agricultural

purposes, or for developing houses, highways, or facilities like landfills,

where the economic use requires associated drainage. Filling wetlands

also has the effect of displacing all or at least some of the storage

capacity of a wetland, typically forcing the water to go somewhere else

(usually through the associated drainage devices).

°* A.P. Ludden, D.L. Frink & D.H. Johnson, Water Storage

Capacity of Natural Wetland Depressions in the Devils Lake Basin of

North Dakota, 38 J. Soil & Water Cons. 45-48 (1983).

. Interagency Floodplain Management Review Committee, Sharing

the Challenge: Floodplain Management Into the 21" Century 46-47

(1994).

10

Today roughly two-thirds of the original 15 to 17

million acres of prairie potholes have been developed,

primarily for agriculture, and the water is now drained in

elaborate systems of tile drains and drainage ditches into

flowing streams.* Several studies conclude that this

development contributes to flooding and flood damages

along the Red River of North Dakota and in sections of

Minnesota and Iowa.’ Studies in other kinds of landscapes

have also shown that drainage of such isolated wetlands

increases peak flows downstream."

Council on Environmental Quality, Environmental Trends 102

(1989).

* LJ. Brun, J.L. Richardson, J.W. Enz & J.K. Larsen, Stream

Flow Changes in the Southern Red River Valley, 38 N.D. Farm Res. 1-

14 (1981) (increased stream flows in the southern Red River were

significantly correlated with increase in drainage in each subbasin);

K.L. Campbell & H.P. Johnson, Hydrologic Simulation of Watersheds

with Artificial Drainage, 11 Water Resources 120-26 (1975) (finding

that complete drainage of isolated depressions in lowa would result in

greatly increased flood peak flows); 1.D. Moore & C.L. Larson, Effects

of Drainage Projects on Surface Runoff from Small Depressional

Watersheds in the North-Central Region, Water Res. Cent. Bull. 99

(1979) (drainage of isolated wetlands resulted in increased storm

volumes and peak discharges from average annual flows). These and

other studies are discussed in T.C. Winter, Hydrologic Studies of

Wetlands in the Northern Prairie, in Arnold Van der Valk (ed.),

Northern Prairie Wetlands (1989). A similar summary with a few

additional studies is included in Daniel E. Hubbard, Glaciated Prairie

Wetland Functions and Values: A Synthesis of the Literature, U.S.

Fish & Wildlife Service Biological Rep. 88(43), at 14-16 (1988).

10 See R.W. Skaggs, J.W. Gilliam, T.J. Sheets & J.S. Barnes, Effect

of Agricultural Land Development on Drainage Waters in the North

Carolina Tidewater Region, Water Resources Research Institute Report

No. 159 (1980) (showing three to four times increased peak runoff

rates in agriculturally developed versus undeveloped wetland soils in

Eastern North Carolina). (Although this study does not use the term

“isolated wetlands,” the areas discussed in North Carolina are often

considered isolated; see Council on Environmental Quality, supra note

_

1]

By contributing to larger flows downstream, the

drainage of isolated ponds and wetlands also contributes to

the erosion of streambanks by increasing the frequency of

high flows."' Streambank erosion is a major problem in

agricultural regions of the Upper Midwest, and contributes

significantly to sediment water quality problems in

downstream rivers, including navigable water bodies.”

The development of isolated ponds and wetlands also

has other water quality impacts. The reason is that the

pollutants that were filtered by or stored in the wetland are

moved directly into neighboring streams and eventually the

rivers and bays they feed.

8, at 103.) See also Loucks, supra note 5, at 56 (summarizing studies

of a watershed around Madison, Wisconsin, showing drainage of

depressional wetlands, along with other wetlands, contributed to

increased peak flows).

'! The relationship between more rapid drainage and flow and

streambank erosion, acknowledged by this Court in Riverside Bayview

Homes, 474 U.S. at 134, has long been known to scientists. M.G.

Wolman & J.F. Miller, Magnitude and Frequency of Forces in

Geomorphic Processes, 68 J. of Geology 54-74 (1960), discusses that it

is bankfull flows that typically occur on average once every year or two

that have the greatest effect, and these are the kinds of increased flows

some studies have associated with drainage of isolated wetlands, see

supra note 9.

‘2 The State of Illinois’s action plan for the Illinois River focuses

significantly on streambank erosion caused by increased flows from

alteration of the landscape (which includes the drainage of isolated

wetlands). The State of Illinois’s Integrated Management Plan for the

Illinois River Watershed (1997) describes how sedimentation, caused in

part by streambank erosion, is filling up backwater lakes on the Illinois

River and creating problems for navigation. Discussing how “swiftly

moving waters” due to alterations of the landscape, are “carving away

at streambanks,” the plan includes seven features to slow down the flow

of water to reduce stream erosion.

12

Because there is no inherent reason to distinguish the

water quality effects of isolated wetlands from those of

other kinds of wetlands, few studies attempt to do so. But

studies that directly measure the transformation of pollutants

in the occasional overflow from isolated wetlands types, or

studies of watersheds with a high proportion of isoiated

wetlands, support the »w that their water quality functions

are significant. For example, studies have shown that

prairie potholes significantly reduce concentrations of

pollutants in agricultural runoff, and conversely, a study in

the prairie pothole region of northwestern lowa has shown

that pollution concentrations increase as wetland acreage is

decreased by drainage.’ The U.S. Geological Survey has

also shown that on the Delmarva Peninsula (the eastern

shore of the Chesapeake Bay), the concentrations of nitrate,

a major pollutant of concern, decrease in correlation with

the presence of forested wetlands, many of which are in

isolated “closed depressions.”'* Other studies have reached

similar conclusions."

3 See e.g., Hubbard, supra note 9 at 17-18 (discussing study that

found lowa prairie blocked all runoff in dry years and removed more

than 75% of nitrogen in wet years when they had outflow); R.K. Neely

& J.L. Baker J.R. Jones, V.P. Borofka & R.W. Bachman, Factors

Affecting Nutrient Loads in Some lowa Streams, 10 Water Research

117-121, at 120-121 (1976) (discussing increase in nutrient loads in

streams with watersheds with fewer wetlands and more drainage).

'* P. J. Phillips, J. M. Denver, R. J. Shedlock & P.A. Hamilton,

Effect of Forested Wetlands on Nitrate Concentrations in Ground Water

and Surface Water on the Delmarva Peninsula, 13 Wetlands 75-83

(1993).

15

For studies in other watersheds, see Loucks, supra note 5, at 58

(summarizing series of studies showing that drainage of depressional

wetlands resulted not only in increased peak flows but also in increased

nitrogen and phosphorus concentrations to a downstream lake). See

also R.W. Laney, The Elimination of Isolated and Limited-Flow

Wetlands in North Carolina, Proceedings of the Symposium on Coastal

13

The development and drainage of isolated wetlands, as

with other wetlands, can actually reverse water quality

effects by releasing long trapped pollutants. Many wetlands

trap toxic pollutants, such as mercury, lead, and PCBs in

wetland soils where they are immobilized. When these

wetland soils are excavated and placed alongside drainage

ditches, the toxicants may be released from their bound

form into the water where they can move downstream and

cause harm to animal life and humans.”

Perhaps most simply, while the facts of this case

involve the discharge of dredge or fill material under

Section 404 of the Clean Water Act, this Court’s decision

will have equal significance for Section 402 of the Act,

which regulates the discharge of other wastes. (All

regulation under the Clean Water Act is tied to the

definition of the term “discharge,” which incorporates the

term “navigable waters.” See 33 U.S.C. Sec. 1362(12)). If

regulation of isolated water bodies is impermissible, then

the federal government equally cannot regulate the

discharge of industrial waste or sewage into isolated lakes

and ponds. Because of the many different ways in which

water in isolated ponds and wetlands can reach flowing

streams, any discharge of waste itself into these water

bodies risks of contamination of these streams and

downstream rivers as well.

Finally, many isolated wetlands affect water quality by

holding water back during wet seasons and feeding the

water slowly to streams and rivers through groundwater

during the drier months of the year. This water is called

Water Resources, American Water Resources Association (1988)

(making similar finding in North Carolina).

'° Office of Technology Assessment, U.S. Congress, Wetlands:

Their Use and Regulation, 48-52 (1984); R.P. Gambrell, Trace and

Toxic Metals in Wetlands - A Review, 23 J. Env’! Qual. 883-91 (1994).

14

“base flow,” and it is what keeps streams from drying up

during drier months. Base flow also helps keeps streams

cool and dilutes pollution loads by creating sufficient flow.

In coastal regions, this flow of fresh groundwater may help

maintain a proper balance between fresh and saltwater in

estuaries.” Drainage of any wetlands that recharge

groundwater, whether isolated or not, can decrease this base

flow to streams."

In short, as this Court recognized in Riverside Bayview

Homes, 474 U.S. at 133 (quoting legislative history),

“*water moves in hydrologic cycles and it is essential that

discharge of pollutants be controlled at the source.’” This

principle applies equally to “isolated” ponds and wetlands

and to “adjacent wetlands.”

B. Ecological Functions of Isolated Ponds and Wetlands

Riverside Bayview Homes did not just rely on the

hydrological relationships between adjacent wetlands and

larger water bodies as a ground for defining “waters of the

United States.” It also recognized the importance of purely

biological linkages. It noted that adjacent wetlands “serve

significant natural biological functions, including food chain

production, general habitat, and nesting, spawning, rearing

and resting sites for aquatic . . . species.” 474 U.S. at 134-

35 (citations omitted).

Petitioner dismisses this form of linkage as secondary,

but the Clean Water Act lists as its purposes the

preservation not only of the “chemical” but also the

“physical and biological integrity of the Nation’s waters.”

Council on Environmental Quality, supra note 8, at 103.

See generally Winter, et al., supra note 2, at 67. See also Loucks,

supra note 5, at 56 (discussing how the drainage of depressional

wetlands not only increased peak flows downstream but reduced

downstream groundwater flows).

15

33 U.S.C. Sec. 1251(a). This Court has recognized this

goal as “a condition in which the natural structure and

function of ecosystems is maintained.” Riverside Bayview

Homes, 474 at 132. This Court has relied on this language

not only in Riverside Bayview Homes but also in other cases

to interpret the meaning of terms in the Act. For example,

in PUD No. 1 v. Washington Department of Ecology, 511

U.S. 700, 714 (1994), this Court upheld the establishment

of minimum flow limits below a dam under Section 401 of

the Clean Water Act because it directly “reflects the Clean

Water Act’s goal of maintaining the ‘chemical, physical and

biological integrity of the Nation’s waters.’ ” The Court

noted that even the word “pollution” is defined to include

not just chemical alterations of water but the “man induced

alteration of the . . . physical [and] biological . . . integrity

of water.” :

“Isolated” ponds, lakes, and wetlands do not just

provide more habitat of the same type provided by other

water bodies. Their habitat functions are in many cases

distinct. Moreover, these distinct functions are interrelated

with the functions of the other water bodies. Just as there

are hydrological cycles, there are also biological cycles, and

many aquatic animals use isolated water bodies for critical

stages of their lives even while depending on flowing water

bodies at other times.

Ducks and geese as a whole are particularly dependent

on isolated wetlands. Part of the reason is that isolated

wetlands provide seasonal oases of wet habitat in the

relatively arid portions of the United States. Waterfowl

need a combination of wintering habitats in the southern

United States or central America, migratory “stopover”

habitats in the central United States, and breeding habitats

in the north. Their migrations are timed to the weeks when

snow melt and spring rains form depressional wetland ponds

in what are otherwise relatively dry landscapes.

16

Isolated wetlands and ponds also provide a valuable

diversity of habitat for the simple reason that the water

levels of isolated wetlands can be unrelated to those of

nearby rivers - they can be wet when rivers are dry or visa

versa. Shallow, isolated wetlands also tend to thaw earlier

in spring than larger, more connected wetlands. These

conditions allow early arriving waterfowl and other birds to

feed on the insects and other invertebrates produced in these

wetlands, which in turn enables them to build critical fat

reserves necessary for successful nesting. '°

Specific complexes of isolated ponds and wetlands

therefore provide many of the most important habitats for

waterfowl in the United States. One of the major wintering

habitats in the United States consists of so-called playa lakes

of the southern High Plains, including parts of New Mexico

and Texas. Approximately 20,000 to 30,000 separate

basins, covering 250,000 acres, provide winter habitat for

approximately one million waterbirds, including ducks,

geese, and cranes.”

The isolated wetlands and ponds of the Nebraska

Rainwater Basin provide one of this country’s important

migratory habitats for waterfowl and many other species of

waterbirds. Although most of these basins have been

drained, the Rainwater Basin still consists of thousands of

“isolated” wetland ponds in an area south of Nebraska’s

Platte River. These ponds form in depressions, within what

was once prairie but is now farm fields, when they collect

the melting snow around them. Although they may be

inundated only through the early spring migration period,

'9 National Research Council of the National Academy of Sciences,

Wetlands: Characteristics and Boundaries 156 (1995).

» E.G. Bolen, Playa Wetlands of the U.S. Southern High Plains:

Their Values and Challenges for Management, in B. Gopal (ed),

Wetlands: Ecology and Management (1982).

17

between two and three million migratory waterfowl and a

huge variety of shorebirds and wading birds use them, often

for several weeks, as a rest and refueling stop on their

northward migration precisely during this period. Some

species are particularly dependent on these ponds, including

90% of the entire population of white-fronted geese and

50% of the mallards that use the mid-continental flyway.”

Moreover, the Rainwater Basin highlights the linkages

between isolated water bodies and rivers. During the early

weeks of spring migration, waterfowl move freely between

the Platte and the marshes of the basin. And while the

isolated wetlands meet the primary habitat and nutritional

demands of waterfowl, the Platte probably serves as a

“release valve” that migrating birds can rely on when the

shallow basins are dry or locked in ice.”

The prairie pothole area is arguably the most important

breeding habitat in North America for waterfowl. At least

fifteen species of ducks nest in these potholes, including an

estimated 70 to 90 percent of the continent’s mallards (the

most populous species), pintails, and canvasbacks. By

some estimates, 50% of the total annual production of ducks

comes from the potholes.” The ducks rely on all the

+ Council on Environmental Quality, supra, note 8; G.L. Krapu,

H.J. Reinecke, D.G. Jorde, and S.G. Simpson, Spring Staging Ecology

of _ Midcontinent Greater White-fronted Geese, 59 J. Wildlife

Management 736-746 (1995).

22 Jon Farrar, Nebraska Game & Parks Commission, Nebraska’s

Rainwater Basin (1996).

* — Thomas E. Dahl, Status of Prairie Pothole Wetlands in the United

States (U.S. Fish & Wildlife Service 1990); H.A. Kantrud, G.L. Krapu

& G.A. Swanson, Prairie Basin Wetlands of the Dakotas: A Community

Profile, U.S. Fish & Wildlife Service Biological Report 85, at 15

(1989) (prairie pothole region, comprising only 10% of the waterfowl

breeding area of the continent, produces 50% of North American ducks

in an average year and more when water conditions are good).

18

different sizes of isolated wetlands, typically using different

kinds of basins as the spring and summer progress.

Although Petitioner states that the connection between

isolated wetlands and their effects on bird populations and

therefore the recreational use of birds is attenuated, the

connection is among the most well known in ecology. As

early as 1969, a high correlation was demonstrated between

the availability of isolated ponds in the prairie pothole area

of North America in July and the size of the subsequent

year’s duck population.” A recent paper has shown that the

risk of mallard nesting failure is eleven times higher when

dry years in the prairie potholes reduce the acreage of

seasonal, isolated wetlands.”

Ducks and geese, of course, also spend time along

navigable rivers and coastal waters. But many of these

birds were hatched in isolated ponds and wetlands by

parents who also relied on isolated ponds and wetlands to

build fat reserves needed for successful nesting. Méallards,

for example, winter in large numbers along the major

bottomland river systems of the south.” And canvasback

ducks, whose annual migrations provide one of the great

* _W.F. Crissey, Prairie Potholes from a Continental Viewpoint, in

Saskatoon Wetlands Seminar, Canadian Wildlife Service Report Series

6, 161-71 (1969).

*° GL. Krapu, P.J. Pietz, D.A. Brandt & R.R. Cox, Jr., Factors

Affecting Mallard Brood Survival in Prairie Pothole Landscapes, 64 J.

Wildlife Management 553-61 (2000).

*° K.J. Reinecke, R.C. Barkley & C.K. Baxter, Potential Effects of

Changing Water Conditions on Mallards Wintering in the Mississippi

Alluvial Valley, in Waterfowl in Winter, Milton W. Weller (ed), 325-

36 (1988).

19

sights on the wildlife refuges of the Upper Mississippi

River, also breed primarily in prairie potholes.”

Ducks and geese therefore illustrate the important

ecological relationship between isolated wetlands and ponds,

and navigable water bodies. But other waterbirds also use

both kinds of water bodies at different parts of their life

cycles. Examples include sandhill cranes, which spend

critical weeks each spring fattening on the Platte River in

Nebraska, but that winter in large numbers on isolated lakes

in West Texas,” and shorebirds such as the piping plover,

which winters in coastal areas and uses sandbars in major

rivers for some nesting, but also relies heavily on isolated

lakes in the Prairie Pothole Region.”

- While less visible than waterfowl and wading birds,

amphibians and reptiles - including frogs, salamanders,

snakes, and turtles - also play an important role in aquatic

ecosystems that is illustrated by their sheer collective

weight. In some ecosystems, they comprise a majority of

the total living mass of vertebrate animals, and thus form an

- Compare R.E. Stewart & H.A. Kantrud, Ecological Distribution

of Breeding Waterfowl Populations in North Dakota, 37 J. Wildlife.

Management 39-50 (1973) (discussing canvasback use of prairie

potholes) with C.E. Korschagén, L.S. George & W.L. Green, Feeding

Ecology of Canvasbacks Staging on Pool 7 of the Upper Mississippi

River, in Weller, supra note 26, at 237-249.

* GL. Krapu, G.C. Iverson, K.J. Reinecke & C.M. Boise, Fat

Deposition and Arctic-Nesting Sandhill Cranes, 102 Auk 362-68

(discussing importance of growth in fat reserves at Platte River staging);

T.C. Tacha, S.A. Nesbitt & P.A. Vohs, Sandhill Crane, in Migratory

Shore and Upland Game Bird Management in North America 77-94

(1994) (discussing wintering on shallow saline lakes in West Texas).

*° _ §.P. Elias, J.D. Fraser & P.A. Buckley, Piping Plover Foraging

Ecology in New York Barrier Islands, 64 J. Wildlife Management 346-54

(2000).

20

important part of the food chain, eating insects and plants

and, in turn, being eaten by fish and waterfowl.”

Amphibians as a whole rely heavily on isolated, often

seasonal, wetland ponds for breeding or feeding sites.

Many species prefer isolated ponds precisely because they

harbor fewer predators such as fish that eat amphibian eggs

and larvae.’ For example, out of thirty-four species of

amphibians at a highly-studied site in South Carolina,

sixteen species depend on temporary wetlands for

breeding.” This percentage is probably typical of

amphibians generally.”

In addition to their value as breeding sites, isolated

ponds also provide critical “ecological connectivity” for

30 Although amphibians are difficult to study, one major study site in

the United States is Hubbard Brook, New Hampshire, where scientists

have estimated that salamanders alone account for more than half of the

total vertebrate biomass. T.M. Burton and G.E. Likens, Salamander

Populations and Biomass in the Hubbard Brook Experimental Forest,

New Hampshire,” Copeia 541-546 (1975); T.M. Burton & G.E. Likens,

Energy Flow and Nutrient Cycling in Salamander Populations in the

Hubbard Brook Experimental Forest, New Hampshire, 56 Ecology

1068-1080 (1975).

31 RD. Semlitsch & J.R. Bodie, Are Small, Isolated Wetlands

Expendable?, 12 Conservation Biology 1129-1133 (1998). For

examples of studies showing the importance of isolated ponds and

wetlands, see D.K. Skelly, E.E. Werner & S.A. Cortwright, Long-term

Distributional Dynamics of a Michigan Amphibian Assemblage, 80

Ecology 2326-2337 (1999); D.K. Skelly, Pond Drying, Predators, and

the Distribution of Pseudacris Tadpoles, Copeia 599-605 (1996); R.D.

Semlitsch, Allotopic Distribution of Two Salamanders: Effects of Fish

Predation and Competitive Interactions, Copeia 290-298 (1988).

32 J. Whitfield Gibbons & Raymond D. Semlitsch, Guide to

Amphibians and Reptiles of the Savannah River Site (1991).

33 Roger Conant & Joseph T. Collins, A Field Guide to Reptiles and

Amphibians: Eastern and Central North America (1991).

21

many amphibians. Changing conditions in water bodies can

cause local species to become extinct, so the long-term

presence of amphibians depends on the ability of other

amphibians to recolonize sites after extinction. But

individual amphibians have limited abilities to migrate long

distances, often travelling less than one kilometer. Habitats

must therefore be close enough together to allow successful

migration among sites. Small isolated wetlands provide a

sufficient density of aquatic habitat in some areas to allow

amphibians to migrate and recolonize lost sites.*

Because they are themselves a food source for

migratory waterfowl and wading birds, amphibians play an

important function in the national aquatic system. But like

many waterbirds, many amphibians that rely at some part of

their life cycles on isolated ponds also use permanent

Streams and rivers at other seasons or parts of their life

cycle, often as winter habitat. Several recent studies of

turtles highlight these interactions. A detailed study on the

floodplain of the Missouri River demonstrated that turtles of

several of the most abundant species, especially juveniles,

use flooded temporary wetlands for feeding during the

summer months and then migrate to a nearby river to spend

the winter in deep protected waters.” Other species of

* — Semlitsch & Bodie, supra at note 31; see also J.P. Gibbs, Wetland

Loss and Biodiversity Conservation, 14 Conservation Biology 314-317

(2000) (calculating how loss of some isolated wetlands can eliminate

conditions for survival of amphibians in others).

** -V.S. Lamoureux & D.M. Madison, Overwintering Habitats of

Radio-implanted Green Frogs, Rana clamitans, 33 J. of Herpetolog

430-435 (1999). .

* J.R. Bodie & R.D.Semlitsch, Spatial and Temporal Use of

Floodplain Habitats by Lentic and Lotic Species of Aquatic Turtles, 122

Oecologia 138-146 (2000).

22

turtles use more permanent aquatic habitats during droughts

and small, isolated ponds during wet conditions.”

All of these conditions highlight a simple fact: Isolated

water bodies are critical to the overall biological integrity of

the nation’s waters.

C. Practical Considerations

Petitioner asks this Court to ignore the close biological

links between isolated ponds and wetlands and navigable

waters largely on the grounds that regulation on that basis

could lead to practical results it considers undesirable. It

variously phrases these results as regulation of “seasonally

wet areas in homeowners’ backyards” or regulation of “any

miniscule body of water capable of attracting a migrating

duck.” It also considers this result unconstitutional on the

ground that the regulation of isolated waters puts the federal

government into the business of local land use regulation.

In weighing these practical arguments, this Court may

wish to consider factual information about the prevalence

and importance of isolated wetlands. Petitioner accepts that

regulation all streams and adjacent wetlands tributary to

navigable waters is permissible under the Clean Water Act

and under the Constitution. Although no precise estimate is

available, it is the view of the scientists on this brief that

probably no more than 20% of the roughly 100 million

acres of wetlands in the contiguous United States could be

37 K.R. Matthews & K.L. Pope, A Telemetric Study of the Movement

Patterns and Habitat Use of Rana muscosa, the Mountain Yellow-legged

Frog, in a High-elevation Basin in Kings Canyon National Park,

California, 33 J. of Herpetology 615-624 (1999); T.E. Graham, Habitat

Use and Population Parameters of the Spotted Turtle, Clemmys guttata,

a Species of Special Concern in Massachusetts, 1 Chelonian

Conservation Biology 207-214 (1995); D. Moll, Population Sizes and

Foraging Ecology in a Tropical Freshwater Stream Turtle Community,

24 J. of Herpetology 48-53 (1990).

23

characterized as isolated.“ This means that protection of

isolated wetlands constitutes roughly 1% of the total land in

the contiguous 48 states (roughly two billion acres),

compared to the roughly 4% of the country occupied by

other wetlands that Petitioner agrees are appropriately

waters of the United States. It is not clear therefore why

regulation of isolated water bodies takes the regulatory

program into an area unlike that which sec meant

finds acceptable.

And while it is possible that isolated wetlands and

ponds can be found in backyards - just as small streams and

the surrounding wetlands are found in backyards - that does

not mean that every wet spot can be regulated as a water

body. To be protected, an area must also constitute a water

body and must therefore meet wetness criteria. The water

bodies at issue in this case are relatively deep ponds, but at

the drier end of the spectrum of wetlands, where the criteria

normally require that water be present long enough to result

in a predominance of vegetation adapted to at least saturated

soil conditions. Riverside Bayview Homes, 474 U.S. at

124-25. In other words, the mere fact that a duck uses a

damp spot does not automatically make it a regulated water

body.

On the other hand, protection of the biological integrity

of the nation’s aquatic ecosystems is simply not possible

= For estimated total wetland acreage in the contiguous 48 states, see

Council of Environmental Quality, supra note 8, at 100 (putting

estimate at 95 million acres). We have been unable to find any

documented estimate of the percentage of wetland or pond acres that are

isolated probably because “isolated” is largely a matter of degree and

because scientists do not consider this term to be particularly useful in

distinguishing different wetland functions. Despite this lack of a clear

estimate, there is a general consensus among wetland scientists that

isolated wetlands are unlikely to exceed 20% of the total acreage of

wetlands.

24

without protection of isolated lakes, ponds, and wetlands.

This is true not only because of their ecological linkages to

navigable waters discussed above, but also because isolated

water bodies (while a modest minority of wetlands

nationally) can form much of the entire aquatic ecosystem in

critical areas. While officials in Illinois recently estimated,

in preparation for this case, that only around 15% of all

wetlands remaining in the state are “isolated,”” prairie

potholes comprise 93% of the total water/wetland surface

area in the prairie pothole area of North Dakota, a majority

of the state’s territory.“ Moreover, wetlands in North

Dakota hold the vast majority of the state’s surface storage

apart from that provided by two man-made reservoirs.”

Moreover, while Petitioner focuses attention on

backyards, Petitioner's statutory theory would exclude not

merely isolated wetlands, but large isolated lakes as well

because they too do not flow by surface water into

navigable water bodies. There are more than 22 million

acres of lakes in the United States, including 100,000 lakes

The Illinois Department of Natural Resources has estimated that

isolated wetlands in Illinois comprise roughly 12% of the wetland

acreage. See Memo from Ryan Taylor, Illinois Department of Natural

Resources to Marvin Hubbell, Illinois Department of Natural Resources

Regarding “Isolated Wetlands Analysis,” (Sept. 18, 2000). This

estimate may be an overestimate. however, since the analysis combined

both truly isolated wetlands and those wetlands adjacent to small,

headwater streams.

* Daniel E. Hubbard, Glaciated Prairie Wetland Functions and

Values: A Synthesis of the Literature, U.S. Fish & Wildlife Service

Biological Report 7 (1988); for a map showing the portion of North

Dakota in the prairie pothole region, see id. at 2.

“_D. Ripley, An Overview of North Dakota’s Water Resources, in

North Dakota Water Quality Symposium (North Dakota State Extension

Service March 20-21, 1990).

25

with more than 100 acres.” An unknown number of these

lakes are “isolatec,” but isolated lakes can be very large,

including Utah Lake and Lake Tahoe in California and

Nevada.

In these landscapes in particular, isolated water bodies

are not merely important because of their relationships to

other water bodies; they are relied upon for all of the basic

functions that may elsewhere be served by rivers and

connected lakes. Both large isolated lakes and smaller

isolated ponds are used for fishing (isolated wetlands are a

major source of the country’s bait fish). They may also

serve as an important source of drinking water for cattle and

irrigation water for crops.“ Perhaps most important, many

isolated wetlands are a major source of groundwater

recharge, including recharge for major aquifers like the

Ogallala® - a function that can be lost or greatly reduced if

the water is drained into streams.

Petitioner’s theory of the Clean Water Act would

preclude protection of all isolated water bodies because of

42

National Research Council of the National Academy of Sciences,

Restoration of Aquatic Ecosystems: Science, Technolog ic

Policy 89 (1992). eee

43

See Utah v. Marsh, 740 F.2d 799, 803 (10" Cir. 1984) (noti

, , , noting that

Utah Lake supported “the State’s most valuable water fishery which

markets most of the catch out of state”); Hubbard, supra note 40, at 30

_— _ wetlands are important to the commercial baitfish

“See Utah v. Marsh, 740 F.2d at 803; H.A. Kantrud, supra note

23, at 33 (prairie potholes used to graze cattle, sheep, and horses); E.G.

Bolen, L.M. Smith & H.L. Schramm, Jr., Prairie Wetlands of the

Southern High Plains,” 39 BioScience 615-23, 619 (playa lakes are

used for irrigation and grazing).

45

Carter, supra note 4, at 44 (playa lakes in West Texas and New

Mexico are major source of recharge to Ogallala aquifer).

26

their lack of relationship to navigable waters, and it would

do so not merely under Section 404 of the Clean Water Act

but also under Section 402, which regulates the discharge of

waste. See discussion, supra. Petitioner would therefore

even bar regulation of sewage or industrial discharges into

lakes as large as Utah Lake.

The purposes of the Clean Water Act, to preserve the

“chemical, physical and biological integrity of the nation’s

waters,” appear to have little to do with navigation. In

general, this Court has frequently held that the “object” of

statutes “is the surest guide to their meaning.” Watt v.

Alaska, 451 U.S. 259, 266 n. 9 ©1981) (citations omitted)

and that an agency interpretation that “frustrate[s] the policy

that Congress sought to implement” is unreasonable.

Federal Election Commission v. Democratic Senatorial

Campaign Committee, 454 U.S. 27, 32 (1981). It would

not be possible to protect the integrity of the nation’s waters

without equally addressing isolated lakes, ponds, and

wetlands.

D. The Ecologica! and Hydrologic Relationship Between

the Balefill Site and the Broader Aquatic Ecosystem

Although presented to this Court as a case solely

concerned with the protection of migratory birds, this case

actually encompasses the broad hydrological and biological

functions of isolated water bodies. The Corps of Engineers

needs a simple jurisdictional test for waters of the United

States because many functions of water bodies or potential

harm from their loss or pollution only become evident after

the analysis undertaken through the permit process. The

Corps therefore asserted jurisdiction in this case because of

use by migratory birds. But the final decision denying the

permit found many potential environmental impacts that the

Corps could presumably also have used to identify

connections to commerce. This case therefore illustrates

27

why it is appropriate that threshold jurisdictional tests,

whether statutory or constitutional, should focus on the

likely functions of water bodies as a group.

According to one of the reports submitted by

SWANCC, the site contains twenty-one acres of ponds

ranging from six feet to thirteen feet in depth. Inventory of

Fish at the SWANCC Balefile Site, A.R. 40313-15.

SWANCC’s expert collected ten species of fish, including

such sportfish as largemouth bass, bluegill, carp, and grass

pickerel, and noted that a sport fishery existed on the site.

Id. The site contains salamanders, toads, frogs, and turtles

that breed in the isolated ponds. Inventory of Herpetofauna

at the SWANCC Balefill Site, A.R. 40401-03. The site also

contains an exceptionally diverse variety of bird species,

with at least 128 species. Fish & Wildlife Coordination Act

Report, A.R. 16383. Perhaps most important, the site

contains what the U.S. Fish & Wildlife Service (FWS)

called the second largest heron rookery in northern Illinois

with more than 130 birds, 15% of the region’s herons.

A.R. 16386-88. Great blue heron rookery sites are rare

because herons nest primarily in locations that can support

many birds with a combination of high trees for nesting,

and abundant shallow waters and saturated wetland soils to

produce sufficient food - such as the amphibians - for adult

herons and their young.

According to the U.S. Fish & Wildlife Service, these

biological riches are “due to the complex interspersion of

habitat features, including semi-permanent ponds, saturated

soils, drainageways, and ridge crests.” Department of the

Army Permit Evaluation and Decision Document, A.R.

15582 (summarizing comments of FWS). In other words,

this site illustrates why aquatic animals rely on a diversity

of aquatic habitats, including isolated wetlands. And the

fact that great blue herons are spectacular inhabitants also of

large rivers and wetlands such as the Everglades highlights

28

the ecological interdependence between the ecology of those

systems and isolated wetlands and ponds.“

The site also illustrates the hydrologic significance of

isolated isolated water bodies. It holds enough water to fill

the Pentagon four feet deep. Faced with a proposal to fill it

with a landfill, an obvious question to any hydrologist is

where will the water go that is now captured by the site.

Any development needs a stormwater management plan for

rainfall, but developing water bodies usually makes the

potential ‘mpacts greater because it displaces a storage area.

Absent strict controls, this water could easily end up

directly or indirectly in the Fox River, less than two miles

from the site, which in turn flows into the navigable Illinois

and Mississippi Rivers.

To address this question, SWANCC’s application

included a Stormwater Management Plan. It promised large

ef:ntion basins designed to capture almost all the runoff

from huge storms, but it still proposed to bypass some flows

into a ditch flowing offsite to the north. Stormwater

Management Plan, A.R. 219-26. The record does not

reveal where the ditch eventually flows. But the Corps

ultimately denied the permit in part because it believed that

“stormwater volumes and associated sediment coming off

the landfill could be significantly larger” than that described

by SWANCC. Decision Document, A.R. 15645-15647.

Faced with what it considered faulty calculations, the Corps

never bothered to analyze the potential downstream effects.

*° See Paul Ehrlich, David S. Dobkin & Darryl Wheye, The Birder’s

Handbook: A Field Guide to the Natural History of North American

Birds 42 (1988); Wayne Huffman, G. Thomas Bancroft & Richard J.

Sawicki, Relationships Among Wading Bird Foraging Patterns, Colony

Locations, and Hydrology in the Everglades, in Steve M. Davis & John

C. Ogden, Everglades: The Ecosystem and its Restoration 585-614, at

593 & 596 (1994).

29

Whether ihe Corps was correct or not, this case illustrates

one of the hydrologic reasons to regulate the filling of

“isolated” waters: The water has to go somewhere, and

that creates a serious potential for downstream water

quantity and pollution problems.

Another obvious concern presented by siting a landfill

in a pond is the threat of contamination because it increases

the likelihood that water will come into contact with waste

material. As the Corps stated in its permit decision, “We

believe that the site conditions of the proposed project do

not provide the best landfill siting conditions because of the

projects [sic] close proximity to potable groundwater

supplies.” A.R. 15652 In this case, a primary concern of

the permitting process was whether the landfill would in the

long run contaminate the Newark Aquifer, a major drinking

water source for thousands of people. A.R.15653. The

Corps of Engineers acknowledged that “heroic” engineering

efforts, combined with long-term monitoring and control of

landfill “leachate” could protect the aquifer. But the Corps

found that SWANCC had not made proper financial

allowance for the long-term maintenance of the site, and it

considered the risks ultimately unacceptable in light of other

good waste disposal options. Decision Document at 15649-

53. Even if the permit had been granted with the conditions

proposed by SWANCC, this case would still illustrate the

role of the permit to address the potential effects of

discharging pollutants into isolated water bodies.

Petitioner repeatedly asks this Court to think about the

miniscule damp spot in the backyard. But the precise

question in this case is whether the federal government has

the authority to regulate the construction of a landfill on

twenty-one acres of ponds as much as thirteen feet deep that

support a recreational fishery and a huge rookery for

migrating great blue herons, and under conditions that

30

threaten off-site flooding, and contamination of drinking

water supplies for thousands of people.

CONCLUSION

For the foregoing reasons, amici urge this Court to

conclude that the regulation of discharges into isolated

ponds and wetlands in general and in this case is authorized

by the Clean Water Act and the Commerce Clause of the

U.S. Constitution.

Respectfully submitted,

TIMOTHY D. SEARCHINGER

MICHAEL J. BEAN *

ENVIRONMENTAL DEFENSE

1875 Connecticut Avenue, N.W.

Washington, D.C. 20009

(202) 387-3500

September 20, 2000 * Counsel of Record

Attorneys for Amici Curiae

APPENDIX

— : eine

APPENDIX A

Dr. Gene Likens is President and Director of the Institute

for Ecosystem Studies, Vice President of the New York

Botanical Garden, Director of the Mary Flagler Arboretum,

and Professor of Biology at Yale University. A member of

the National Academy of Sciences and Past President of the

Ecological Society of America, he has been awarded nine

honorary degrees from universities around the world,

among numerous international professional awards. His

more than 400 articles and 14 books explore a wide range

of ecological fields with a particular emphasis on

biogeochemistry.

Dr. Joy Zedler is Aldo Leopold Chair of Restoration

Ecology at the University of Wisconsin and a former

member of the National Academy of Science’s Water

Science and Technology Board. She is presently chairing a

panel of the National Academy of Sciences studying wetland

mitigation and previously served on panels that analyzed

wetland identification and classification and restoration of

aquatic ecosystems.

Dr. Bill Mitsch is Professor of Natural Resources and

Environmental Science at Ohio State University. The

coauthor of the leading textbook on wetlands among a large

number of other publications, he is the editor-in-chief of

Ecological Engineering and chaired the 1992 INTECOL

conference on wetlands. He served on a panel established

by the National Academy of Sciences to advise Congress on

wetland identification and classification, and is presently

serving on a panel to evaluate wetland mitigation.

2a

Dr. Rebecca R. Sharitz is a Professor of Botany at the

University of Georgia and a Senior Research Ecologist at

the Savannah River Ecology Laboratory, where she

previously served as director. She serves as Secretary

General of the International Association of Ecology, and has

served on National Academy of Sciences’ panels regarding

restoration of aquatic ecosystems and restoration of the

Everglades system.

Dr. Joseph Larson, Professor Emeritus of the University of

Massachusetts, developed the first models for functional

assessment of freshwater wetlands and for predicting

wildlife species habitat in New England freshwater

wetlands. He has been a U.S. delegate to the meetings of

the contracting nations under the RAMSAR treaty on

wetlands of international importance. He was awarded the

national Chevron Conservation Award for his work on

wetlands and was the founding Executive Chairman of the

National Wetlands Technical Council.

Dr. Leigh H. Fredrickson is Rucker Professor of Fisheries

and Wildlife at the University of Missouri and Director of

Gaylord Memorial Laboratory. He is the author of

innumerable articles and books on waterfowl, waterbirds,

and wetlands, and is considered by many the dean of

American waterfowl scientists.

Dr. Mark Brinson is Professor of Biology at East Carolina

University and is a leading expert on the cycling of

nitrogen, phosphorus, and carbon in wetlands. He served

on National Academy of Sciences panel to evaluate wetland

identification and classification.

3a

Dr. Orie Loucks is Ohio Eminent Scholar in Applied

Ecosystem Studies and Professor of Zoology at Miami

University of Ohio. The author of more than 200 scientific

publications, he served ten years on the National Academy

of Science’s Board on Water Science and Technology, and

also on the Science Advisory Board of the International

Joint Commission, and the Board of Governors of The

Nature Conservancy. He is an elected Fellow of the Ohio

Academy of Sciences and the American Association for the

Advancement of Science, and was given the Distinguished

Service Award of the American Institute for Biological

Sciences in 1994.

Dr. Stuart Pimm is Professor of Conservation Biology at the

Center for Environmental Research and Conservation at

Columbia University. His awards include a Pew

Fellowship in Conservation and the Environment, and the

Kempe Prize for Distinguished Ecologist. He is author of

roughly 200 published papers and three books, including the

widely aclaimed The Balance of Nature.

Dr. Raymond Semlitsch is Professor of Biology at the

University of Missouri. One of this country’s leading

experts on amphibians, he has published more than 100

articles, including many of the leading papers on the use of

isolated wetlands by amphibians.

Dr. Curtis Bohlen is Assistant Professor of Environmental

Studies at Bates College and a former researcher of the

Center for Environmental and Estuarine Studies of the

University of Maryland. An ecologist, he has published

more than a dozen articles and reports on wetland science

and policy.

4a

Dr. Christopher Woltemade is Associate Professor of

Geography at Pennsylvania State University at

Shippensburg. A hydrogeomorphologist, his published

work has examined watershed influences on flood flows,

wetland capability to improve water quality, and the

relationship between river management and wetland quality.

Dr. Michael Hirshfield is currently Vice President for

Resource Protection at the Chesapeake Bay Foundation, and

previously served as Director of the Chesapeake Bay

Research and Monitoring Division for the State of Maryland

and Director of the Academy of Natural Sciences of

Philadelphia's Estuarine Research Laboratory in Benedict,

Maryland. He received his Ph.D. in Zoology from the

University of Michigan in 1977.

Dr. John Callaway is an Assistant Professor in the

Department of Environmental Science at the University of

San Francisco and served as Associate Director of the

Pacific Estuarine Research Laboratory at San Diego State

University. He has published many articles regarding the

restoration of wetland soils and plants and their sediment

dynamics.

Dr. Terry Huffman, a botanist by training, was a primary

author of the manual used by the federal government to

identify wetlands and is the author of many publications on

wetlands.

Dr. G. Thomas Bancroft is Vice President of the Ecology

and Economics Research Department of the Wilderness

Society, and the former Director of the MacArthur Agro-

ecology Research Center in Florida . He has published

numerous articles on migratory water birds with a particular

Sa

emphasis on wading bird use of the Greater Everglades

ecosystem.

Dr. Klaus O. Richter is the Senior Wetland Ecologist in

King County’s Department of Natural Resources in

Washington State. For the past 15 years Dr. Richter has

specialized in freshwater wetland science, management,

protection, and regulation. A recipient of the 1996 National

Wetlands Award in Science Research sponsored by the

Environmental Law Institute and the US Environmental

Protection Agency, Klaus has authored numerous scientific

papers on the monitoring, distribution, and decline of

amphibians, particularly near Puget Sound.

Dr. John M. Teal is a Senior Emeritus at Woods Hole

Oceanographic Institution and past president of the Society

of Wetland Scientists. He is a recipient of the National

Wetlands Award for Science Research from _ the

Environmental Law Institute, US Environmental Protection

Agency, US Fish & Wildlife Service, and National Marine

Fisheries Service, and the 1999 Odum Award from The

Estuarine Research Federation. The author of over 140

scientific publications, his 1969 book, Life and Death of a

Salt Marsh, played a major role in increasing public

awareness of the importance of wetlands.