Amicus Curiae Brief — Rapanos v. United States

le \4

Nos. 04-1034, 04-1384 — «* «oe

ne eee ee

In The i Ray

Supreme Court of hous United

JOHN A. neene et al.,

Petitioners,

a v

UNITED STATES OF AMERICA,

Respondent.

JUNE CARABELL, et al.,

Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Respondents.

+

On Writ Of Certiorari To The United States Court

Of Appeals For The Sixth Circuit

°

AMICI CURIAE BRIEF OF STATES OF ALASKA and

UTAH, WESTERN URBAN WATER COALITION,

NATIONAL WATER RESOURCES ASSOCIATION,

ASSOCIATION OF CALIFORNIA WATER AGENCIES,

CENTRAL ARIZONA WATER CONSERVATION DISTRICT,

STATE WATER CONTRACTORS, METROPOLITAN

WATER DISTRICT OF SOUTHERN CALIFORNIA,

WESTLANDS WATER DISTRICT, SAN DIEGO COUNTY

WATER AUTHORITY AND CALIFORNIA FARM BUREAU

FEDERATION IN SUPPORT OF PETITIONERS

Sf

David W. MARQUEZ RODERICK E. WALSTON

Attorney General (Counsel of Record)

RUTH HAMILTON HEESE Best Best & KRIEGER LLP

JOHN T. BAKER 2001 North Main Street,

Assistant Attorneys General Suite 390

State of Alaska Walnut Creek, CA 94596

DEPARTMENT OF Law (925) 977-3304

P. O. Box 110300 Fax: (925) 977-1870

Juneau, AK 99811 Attorney for Amici Curiae

(907) 465-3600

Attorneys for Amicus

State of Alaska

{Additional Counsel Listed On Inside Cover]

—————————————— ——————————————— ——————————— EE

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

MARK SHURTLEFF

Attoney General

State of Utah

State Capital, Room 236

Salt Lake City, UT 84114

(801) 538-9600

Attorney for Amicus State of Utah

Guy R. MARTIN

PERKINS CoIE LLP

607 Fourteenth Street, N.W.

Washington, D.C. 20005-2011

(202) 434-1650

Attorney for Amicus Western Urban

Water Coalition

NORMAN M. SEMANKO

NATIONAL WATER RESOURCES ASSOCIATION

3800 North Fairfax Drive, Suite # 4

Arlington, VA 22203

(703) 524-1544

Attorney for Amicus National Water

Resources Association

ROBERT MADDOW

BOLD, POLISNER, MADDOW, NELSON & JUDSON LLP

500 Ygnacio Valley Road, Suite 325

Walnut Creek, CA 94596

(925) 933-7777

Attorney for Amicus Association of

California Water Agencies

DOUGLAS K. MILLER

CENTRAL ARIZONA WATER

CONSERVATION DISTRICT

P. O. Box 43020

Phoenix, AZ 85080

(623) 869-2333

Attorney for Amicus Central Arizona

Water Conservation District

JEFFREY KIGHTLINGER

General Counsel

METROPOLITAN WATER DISTRICT

OF SOUTHERN CALIFORNIA

700 North Alameda Street

Los Angeles, CA 90012

(213) 217-6115

Attorney for Amicus Metropolitan

Water District of Southern California

THOMAS W. BIRMINGHAM

General Manager/General Counsel

WESTLANDS WATER DISTRICT

3130 North Fresno Street

Fresno, CA 93703-6056

(559) 224-1523

Attorney for Amicus Westlands

Water District

DANIEL S. HENTSCHKE

SAN DIEGO COUNTY WATER AUTHORITY

4677 Overland Avenue

San Diego, CA 92123

(858) 522-6791

Attorney for Amicus San Diego

County Water Authority

BRENDA JAHNS SOUTHWICK

RONDA AZEVEDO LUCAS

CALIFORNIA FARM BUREAU FEDERATION

2300 River Plaza Drive

Sacramento, CA 95833

(916) 561-5665

Attorney for Amicus California

Farm Bureau Federation

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE........esccesecessssesessesensees 1

SUMMARY OF ARGUMENT............0cccesseesseseseesereeeenss 4

ETE EST DT RET RS ONC 6

I. THIS COURTS DECISION IN SOLID

IT.

WASTE AGENCY OF NORTHERN COOK

COUNTY v. U.S. ARMY CORPS OF ENGI-

NEERS INDICATES THAT THE CLEAN WA-

TER ACT DOES NOT APPLY TO NON-

NAVIGABLE WATERS, SUCH AS THE WET-

LANDS HERE, THAT LACK A “SIGNIFI-

CANT NEXUS” TO NAVIGABLE WATERS .....

IN ENACTING THE CLEAN WATER ACT,

CONGRESS BASED FEDERAL JURISDIC-

TION ON THE FEDERAL NAVIGATION

POWER, WHICH AUTHORIZES REGULA-

TION OF NON-NAVIGABLE WATERS THAT

SIGNIFICANTLY AFFECT NAVIGATION OR

INTERSTATE COMMERCE IN NAVIGABLE

A. The Federal Navigation Power and State

Water Rights Authority .........................000

B. Expansion of the Federal Navigation

REESE eT C ea cee ne a OT

C. Enactment of Clean Water Act...................

THE COMMERCE CLAUSE DOES NOT

AUTHORIZE CONGRESSIONAL REGULA-

TION OF NON-NAVIGABLE WATERS THAT

DO NOT SIGNIFICANTLY AFFECT NAVI-

GATION OR INTERSTATE COMMERCE. .......

aD sorcrcicsiennstiininnndascnnstunninsedginasinnsceemntinivestnien

ii

TABLE OF AUTHORITIES

Page

CASES

California Oregon Power Co. v. Beaver Portland

Cement Co., 295 U.S. 142 (1935)...............ceceeeee 13, 20, 24

California v. United States, 438 U.S. 645

Gee P icsevsesnsccmseiesinsutennimitinitiimiiiimaaiieimnesiiel 14, 16, 24, 27

Cappaert v. United States, 426 U.S. 128 (1976) ............... 13

Carabell, et al. v. Army Corps of Engineers, 391

FARE POO OOD cccicwsiticnsicsenciestgvitiiichlinsiagimnbiiiasaiiiiadaal 9,10

Chevron U.S.A. v. Natural Resources Defense -

Council, Inc. , 467 U.S. 837 (1984)...........ccccccceccceeceeeeeeeees 8

Davies Warehouse Co. v. Bowles, 321 U.S. 144

CI rcecetncrvesssatcsrsnscpcqueutnidineatiiiacansinibasiaiaidiiadummeniaiiasiae: 15

Federal Power Comm'n v. Union Elec. Co., 381 U.S.

SC cccracersttecisrevcincnecesitaiassteiieiaibaiiiaianatiintmieilseiiaai 16

First-lowa Hydro-Electric Cooperative v. Federal

Power Comm’n, 328 U.S. 152 (1946) .................:ccceeeeeees 16

Friends of Mammoth v. Board of Supervisors, 8

Cal.3d 247, 104 Cal.Rptr. 761, 502 P.2d 1049

CRIP sxccrnsscsevisaveine ctntyetentensiniiastiiiidigiste adenine 15

Gibbons v. Ogden, 22 U.S. 1 (1824)... cecccceceeesseeeeeeens 12

Gilman v. Philadelphia, 70 U.S. 713 (1866)...............000. 12

Gonzales v. Raich, 125 S.Ct. 2195 (2005) ............. 26, 28, 29

Hess v. Port Authority Trans-Hudson Corp., 513

CIE, BG octscececrsssvesitininvinceschiniebidiuieiniiniinisgadainia 15

Ickes v. Fox, 300 U.S. 82 (1937) ..............:sccsecceeceserseseseseees 14

Illinois Central R.R. Co. v. Illinois, 146 U.S. 387

ill

TABLE OF AUTHORITIES — Continued

Page

Kaiser Aetna v. United States, 444 U.S. 164

a eo cc Te 13, 26, 28

Kansas v. Colorado, 206 U.S. 46 (1907)..............cccccecceeeeee 14

Lucas v. South Carolina Coastal Council, 505 U.S.

SE ee 15

Martin v. Waddell, 41 U.S. 367 (1842) ............ccccccceeereeeeee 12

National Audubon Society v. Superior Court, 33

- Cal.38d 419, 189 Cal. Rptr. 346, 658 P.2d 709

A rsprrrntemniioncnmnscasntennen 14

Nevada v. United States, 463 U.S. 110 (1983)............ 14, 24

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co.,

Se Ee EEE caresscetereeussnsegensecsesorenies 17, 18, 19, 27

Oregon v. Corvallis Sand & Gravel Co., 429 U.S.

ITT tal cca dicen enpnennesnsncnennansensecasts 11, 12, 15

Pollard’s Lessee v. Hagan, 44 U.S. 212 (1845).................. 12

PUD No. 1 of Jefferson County v. Washington Dept.

of Ecology, 511 U.S. 700 (1994) .............ccccccceseeeeeenes 23, 24

Santiago County Water Dist. v. County of Orange, _

118 Cal.App.3d 818, 173 Cal.Rptr. 602 (1981)............. 15

Shively v. Bowlby, 142 U.S. 1 (1894) ...........ccccccccceeceeeeees 12

Solid Waste Agency v. U.S. Army Corps of

Engineers (“SWANCC”), 531 U.S. 159 (2001)....... passim

South Florida Water Management District v.

Miccosukee Tribe, 541 U.S. 95 (2004) .0...........cccccccceeeees 24

The Daniel Ball, 77 U.S. 557 (1870) ..........cccccccececeeeeneeeees 17

United States v. Appalachian Elec. Power Co., 311

STi nancies ncaa tenareneenemmenannantinie passim

iv

TABLE OF AUTHORITIES ~— Continued

Page

United States v. Chandler-Dunbar Water Power

EE eee 12, 13

United States v. Gerlach Live Stock Co., 339 US.

REARS S NAc oP v ry eS Aa ken een 16, 24

United States v. Grand River Dam Auth., 363 U.S.

TIT cciitnisdeslonseneiidanssiieiaaiciiaitaiimiienineiibadaill 17, 19, 27

United States v. Lopez, 514 U.S. 549 (1995)............. passim

United States v. Morrison, 529 U.S. 598

I tincictitiniesincedneeinnicinambinamemmnneaeenis 8, 25, 26, 28, 29

United States v. New Mexico, 438 U.S. 696 (1978)..... 13, 20

United States v. Oregon, 295 U.S. 1 (1935)...............:c0000 12

United States v. Republic Steel Corp., 362 U.S. 482

Iii ahs cacteridetenienantnntiniihinealeniictaiuadaiieiiiaaials 16, 17, 28

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

Fe Ie GD cccnctccrncinnnnioniniseatinneicmntinntennd passim

United States v. Riverside Bayview Homes, Inc., 474

es Be inci snccicsintainiainenecidideetaiieniasdaitdiialidiidiaas 9, 22, 23

United States v. State Water Res. Cont. Bd., 182

Cal.App.3d 82, 227 Cal.Rptr. 161 (1986) .............:........ 14

United States v. Texas, 339 U.S. 707 (1950)............... 11,12

United States v. Twin City Power Co., 350 U.S. 222

SI etliinteditntanciprstncctinstiitiamastginidiineniiieipdisedineninhtiencstiins 13

Utah v. United States, 403 U.S. 9 (1971)................000. 17, 22

Wickard v. Filburn, 317 U.S. 111 (1942) ........0.......ce eee 28

Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1

I icincertihiteesiesriatadinnitansmseiltaesinimaecaieatl iis alibsatdiainteadii 16

v

TABLE OF AUTHORITIES -— Continued

Page

Statutes

BN oii li iiieiciitiittaritainiat labeled 16

: eam ITED ceniitisticndingtaninciishinininecietisaitahiamiimenbdinitesaialinadl 15

RI RTRSY NTE aR te LD 16, 25

II IIIT dharani tail 16, 25

ks ERE er ene Nee 25

ne NT iciinicicirindicnnisreriinieiapntenentictiasiesipmtastiataniciiaaaiiad 23

8 SR ew eNO TE 23

I I csicntscshceicrictstncbinniniadatininitmintndenistaiiasseieci 7, 25

a ce aE ET eT 23

SR Un OO eee eS. 7

III Tat nccasiartatntininatniiapeceniliiamsaniiniadimasiadaiias 7, 20

Sa TE acicitediahesiajanscecnidnasiicinctineniiedintased 7, 20, 25

ey a hi tnincinattiintctrciinrmininenninaitiiiataaitesilaiasaaai 7

ee ane nctitiniitesascashieiininnctiinincenticninianicashaniiteitaicasaiac 23

NT ecietitteaihinaiiinlinsttitiiaiaintaiaeniaicitatiitiaiiiaaaa 16

Cal. Pub. Res. Code §§ 21000 ef seq. ............ccccccccecceeesereeee 15

CONSTITUTIONAL PROVISIONS

i 25

a ns I SIU i is icincctnssscrsittecnsienmnneniticttadinanaseaiaia 13

vi

TABLE OF AUTHORITIES - Continued

Page

REGULATIONS

BE RC Lar Oe 8

8 8 eee Eero ee 10

8 TLE LE EELS RC WE TRE 17

OTHER AUTHORITIES

123 Cong. Rec. 39212 (1977) ..........:c:cererorsesssessessseneesnceeees 24

Flood Control Act of 1944, 58 Stat. 887 (1944)................. 16

HOUSE CONSIDERATION OF REPORT OF

CONFERENCE COMMITTEE, compiled in 1

LEGISLATIVE HISTORY OF WATER POLLU-

TION CONTROL ACT AMENDMENTS OF 1972,

Ser. No. 93-1, 93d Cong., Ist Sess. 250-251 (1973)

(statement of Rep. Dingell) .......................:ccecceecceeeeenees 22

Rivers and Harbors Act of 1890, 26 Stat. 454............. 15, 18

1

INTEREST OF AMICI CURIAE'

The amici curiae are the states of Alaska and Utah;

public water agencies that are responsible for developing

urban and agricultural water supplies; and a state farm

bureau that represents farmers who depend on such

supplies.

Amici states of Alaska and Utah are responsible for

regulating all water resources, including wetlands, within

their respective jurisdictions on behalf of the public, and

represent the interests of their citizens in the regulation of

such resources.

Amicus State of Alaska manages the largest geo-

graphic area of any state in the nation. Alaska has nearly

34,000 miles of shoreline, over three million lakes, and

over 15,000 anadromous fish streams. In addition, the

State of Alaska has over 174 million acres of wetlands, which

are more wetlands than in all other states combined. Accord-

ingly, almost any public infrastructure development, such as

water and sewer, roads, or airport projects — as well as

private development projects — involve wetlands or, in many

instances, non-navigable waters.

The other amici are as follows:

* The Western Urban Water Coalition

(WUWC) is a national coalition of municipal

water agencies that serve most of the largest

cities in the western United States. WUWC

members serve over 31 million urban water

consumers in Arizona, California, Colorado,

Nevada, Utah and Washington.

* The states of Alaska and Utah are not required to obtain consent

for the filing of this amici brief (Rule 37.4). The parties have consented

to the filing of this brief by the other amici (Rule 37.3). This brief was

not written in whole or part by the parties’ counsel, and no one other

than amici made a monetary contribution to its preparation (Rule 37.6).

The National Water Resources Association

(NWRA) is a federation of state water re-

sources associations and individuals advo-

cating federal policy, legislation and

regulations that promote the protection,

sound management and beneficial use of the

nation’s water resources, and is the oldest

national association concerned with re-

sources policy and development.

The Association of California Water Agencies

(ACWA) represents approximately 90% of

the public water agencies in California,

which develop and distribute water supplies

for urban and agricultural use.

The Central Arizona Water Conservation

District (CAWCD) is the largest provider of

renewable water supplies in Arizona.

CAWCD operates a federal reclamation pro-

ject, the Central Arizona Project, which de-

livers about 1.5 million acre-feet of water

each year from Arizona’s share of Colorado

River water for municipal, industrial, agri-

cultural and Native American water uses in

Arizona.

The State Water Contractors (SWC) repre-

sents 27 public water agencies in California

that have contracted for water deliveries

from the State Water Project, one of the na-

tion’s largest reclamation projects. The SWC

members provide agricultural water sup-

plies for more than one million acres of land,

and municipal water supplies to about 23

million people, approximately two-thirds the

population of California.

The Metropolitan Water District of Southern

California (MWD) is the nation’s largest ur-

ban water district. MWD is a consortium of

26 cities and water districts located in all or

part of six counties in southern California.

3

MWD provides water on a wholesale basis to

water districts that distribute water to cus-

tomers in their service areas, which include

about 18 million people.

¢ The Westlands Water District (WWD), lo-

cated in Fresno and King Counties, Califor-

nia, is the nation’s largest agricultural water

district in terms of irrigated acreage. WWD

provides irrigation water and drainage ser-

vice to the farmers located within its district,

and also provides municipal and industrial

water to local residents and entities.

* The San Diego County Water Authority

(SDCWA) is the wholesale water supplier to

its 23 member public agencies in San Diego

County, California, and provides approxi-

mately 80-90% of the urban and agricultural

water consumed annually in the county.

* The California Farm Bureau Federation

(CFBF) is California’s largest farm organiza-

tion, with over 88,000 members in 53 county

Farm Bureaus, and is charged with protect-

ing and improving the ability of farmers and

ranchers to provide reliable food and fiber

supplies. CFBF members contribute the ma-

jority of agricultural production in Califor-

nia, the marketing of which reached $31.8

billion in 2004.

Although the amici represent many different govern-

mental and non-governmental organizations, they have a

mutual interest in proper interpretation of federal jurisdic-

tion under the Clean Water Act. Pursuant to this Court’s

decisions and under federal law, amici states of Alaska and

Utah have the primary right and responsibility for manag-

ing and protecting their lands and water. The amici public

water agencies and farm bureau have acquired water rights

under state or federal laws, or represent agencies, groups

or individuals who have acquired such rights, or have

4

contracted with entities who have acquired such rights.

These water rights in some instances authorize large water

diversions from major navigable waterways, and in other

cases authorize diversions from small, local, non-navigable

waterways. The amici believe that state and local laws are

proper for regulating non-navigable waters, like many

wetlands, that do not significantly affect navigable water-

ways. The Army Corps of Engineers, in administering its

section 404 permit program, has assumed jurisdiction over

all non-navigable waters that have any hydrologic connec-

tion to navigable waters, regardless of whether such waters

have any significant effect on interstate commerce in

navigable waters. The Corps’ exercise of such jurisdiction

effectively limits the traditional authority of state and local

governments to regulate water use and land use, unlaw-

fully encroaches on the states’ sovereign rights, and poten-

tially impairs the rights of those, like many amici here, who

rely on state and local laws for their water supplies. In the

amici’s views, the Clean Water Act does not authorize

federal jurisdiction over non-navigable waters that do not

significantly affect interstate commerce in navigable

waters, such as the wetlands here.

SUMMARY OF ARGUMENT

These cases raise the question whether federal juris-

diction under the Clean Water Act (CWA) applies to non-

navigable waters, including wetlands, that are not directly

adjacent to navigable waters. The CWA authorizes federal

jurisdiction over “navigable waters,” defined as “waters of

the United States.” In Solid Waste Agency of Northern

Cook County v. Army Corps of Engineers (“SWANCC”), 531

U.S. 159 (2001), this Court held that these definitional

terms include navigable waters, and also non-navigable

waters that have a “significant nexus” to navigable waters;

therefore, they do not include “isolated” wetlands that are

not “adjacent” to navigable waters and have no connection

5

to them. SWANCC held that Congress intended only to

assert the federal government’s “traditional jurisdiction” over

navigable waters, or waters that could be made navigable.

531 U.S. at 172. Under SWANCC, the CWA does not apply to

non-navigable waters, including wetlands, that are con-

nected remotely but not directly to navigable waters, because

such waters do not have a “significant” nexus to such waters.

Hence, under SWANCC, federal jurisdiction does not extend

to the wetlands in these cases.

The history of the federal navigation power, as devel-

oped by this Court's jurisprudence, demonstrates that the

CWA does not authorize federal jurisdiction over non-

navigable waters that do not significantly affect interstate

commerce in navigable waters. This Court has held that the

federal navigation power — which derives from the commerce

power — authorizes regulation not only of navigable waters,

but also of non-navigable waters that significantly affect

navigation or interstate commerce in navigable waterways,

or at least that significantly affect their flows or conditions.

The Court has not, however, expanded the federal navigation

power beyond these limits, and has instead recognized the

authority of state and local governments to regulate water

use and land use for all other purposes.

In enacting the CWA, Congress patterned federal

jurisdiction on the navigation power and thus maintained

the historic balance between federal sovereign authority

and state and local authority. Congress explicitly author-

ized federal jurisdiction over “navigable waters,” and thus

directly invoked the navigation power as the basis of

jurisdiction. Congress defined this teria more amorphously

as “waters of the United States,” to ensure that federal

jurisdiction is not strictly limited to navigation and navi-

gable waters per se, but instead extends to non-navigable

waters in circumstances where the navigation power has

been applied — and, as noted above, this Court has recog-

nized that the navigation power applies to non-navigable

6

waters that significantly affect interstate commerce in

navigable waters, or at least that significantly affect their

flows or conditions. Therefore, the CWA does not authorize

federal regulation of non-navigable waters, like the wet-

lands here, that do not significantly affect navigation or

interstate commerce in, or the flows or conditions of,

navigable waters. The CWA, like the navigation power

itself, protects the national interest in navigable water-

ways while otherwise recognizing the primacy of state and

local laws to regulate water and land use.

Since federal jurisdiction under the CWA is based on

the navigation power, which in turn defines the federal

commerce interest in navigable waters, no constitutional

question arises here concerning whether Congress over-

stepped its bounds in authorizing federal regulation

beyond the limits of the navigation and commerce power.

Under the Sixth Circuit’s interpretation, however, a

constitutional question would arise because its decisions

would extend federal jurisdiction beyond the limits of the

federal navigation and commerce power. The Commerce

Clause does not authorize federal regulation of non-

navigable waters that do not seriously implicate naviga-

tion or commerce interests in navigable waters. Therefore,

the Sixth Circuit’s interpretation would render the CWA

unconstitutional as applied here.

ARGUMENT

I. THIS COURT'S DECISION IN SOLID WASTE

AGENCY OF NORTHERN COOK COUNTY v. U. S.

ARMY CORPS OF ENGINEERS INDICATES

THAT THE CLEAN WATER ACT DOES NOT AP-

PLY TO NON-NAVIGABLE WATERS, SUCH AS

THE WETLANDS HERE, THAT LACK A “SIG-

NIFICANT NEXUS” TC NAVIGABLE WATERS.

The Clean Water Act (CWA) establishes two major

permit programs in furtherance of its goal of controlling

7

water pollution. First, section 402 establishes the National

Pollutant Discharge Elimination System (NPDES), which

prohibits the “discharge of any pollutant” without an

NPDES permit. 33 U.S.C. §§ 1342, 1311(a). The phrase

“discharge of a pollutant” is defined as “any addition of

any pollutant to navigable waters from any point source.”

Id. at § 1362(12). Second, section 404 prohibits the dis-

charge of dredged or fill materials into “navigable waters”

without a permit issued by the Army Corps of Engineers

(“Corps”). Id. at § 1344. Thus, both permit programs apply

to “navigable waters.” The term “navigable waters” is

defined as “waters of the United States.” Jd. at § 1362(7).

The question presented here is whether these permit

programs apply to the non-navigable wetlands in these

cases. Although these cases involve the Corps’ section 404

permit program, the question whether federal jurisdiction

extends to non-navigable wetlands applies to the section

402 NPDES permit program as well.

In Solid Waste Agency of Northern Cook County v.

Army Corps of Engineers (“SWANCC”), 531 U.S. 159

(2001), this Court held that the Corps’ section 404 program

does not apply to wetlands “isolated” from — that is, having

no connection to — navigable waters. Although the Court

was not called on to decide the question raised here —

whether the CWA applies to wetlands hydrologically-

connected but not immediately adjacent to navigable

waters’ — its analysis suggests that the CWA does not

apply to such wetlands. The Court held that the phrase

“waters of the United States” includes both navigable

waters and waters that have a “significant nexus” to

navigable waters. 531 U.S. at 167. According to the Court,

* Although the wetlands in Carabell were separated by a berm from

an adjacent ditch that eventually flowed into a navigable lake, we will

not address whethe~ the berm severs the jurisdictional connection

between the wetlands and the lake, and instead will assume for the sake

of discussion that the wetlands were hydrologically connected to the lake.

8

Congress intended to assert its “traditional jurisdiction

over waters that were or had been navigable in fact or

which could reasonably be so made.” Jd. at 172, citing

United States v. Appalachian Elec. Power Co., 311 U.S.

377, 407-408 (1940). The Court noted that the Corps’ original

regulations, adopted two years after enactment of the CWA,

limited the Corps’ jurisdiction to its traditional authority to

regulate navigable waters. 531 U.S. at 168; 33 C.FR.

§ 209.120(dX1). The Court rejected the Corps’ argument that

“waters of the United States” include all waters found

anywhere in the United States regardless of their navigabil-

ity, stating that Congress apparently did not intend to “exert

anything more than its commerce power over navigation.”

531 U.S. at 168 n.3. “[I]}t is one thing,” the Court stated, “to

give a word [navigable] limited effect and quite another to

give it no effect whatever.” Jd. at 172.

Since SWANCC held that the CWA does not authorize

federal regulation of “isolated” wetlands, the Court de-

clined to reach the constitutional question whether Con-

gress might have exceeded its commerce powers in

authorizing such regulation. Nonetheless, the Court’s

statutory analysis was substantially driven by its constitu-

tional concerns. The Court stated that the application of

the CWA to “isolated” wetlands would result in a “signifi-

cant impingement of the States’ traditional and primary

authority over land and water use,” and that Congress

presumptively would not have “significantly changed the

federal-state balance” unless it “clearly” so provided. 531

U.S. at 173, 174. The Court noted that it had recently

ruled in other cases that Congress’ commerce power,

“though broad, is not unlimited.” Jd. at 173, citing United

States v. Morrison, 529 U.S. 598 (2000), and United States

v. Lopez, 514 U.S. 549 (1995). Because of these constitu-

tional concerns, the Court declined to grant deference to

the Corps’ regulation under Chevron U.S.A. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984). 531

U.S. at 172.

9

The SWANCC Court distinguished its earlier decision

in United States v. Riverside Bayview Homes, Inc., 474

U.S. 121 (1985), which, the Court stated, had held that the

Corps’ jurisdiction under section 404 extends to wetlands

that are “adjacent” to and “actually abutted” navigable

waters. 531 U.S. at 167. That decision, the Court stated,

does not apply where, as in SWANCC, the wetlands lack

any “significant nexus” to navigable waters. Jd. Thus,

SWANCC and Riverside Bayview, taken together, hold

that the Corps’ jurisdiction under section 404 extends to

wetlands that have a “significant nexus” to — that is, are

“adjacent” to — navigable waters, but not wetlands lacking

this nexus.

In Rapanos, the Sixth Circuit held that the wetlands

were “waters of the United States” because there was a

“hydrologic connection” between them and navigable

waters, in that the wetlands eventually drained into

navigable waters. Pet. App. Al3-A17, A20-A29. In Cara-

bell, the Sixth Circuit held that the wetlands were “waters

of the United States” because there was a hydrological

connection between them and a navigable lake, even

though a berm separated the wetlands from a tributary

that flowed into the lake. Carabelli, et al. v. Army Corps of

Engineers, 391 F.3d 704, 710 (2004).

In fact, the wetlands in these cases did not have a

“significant nexus” to navigable waters because they were

not adjacent to navigable waters; did not significantly

affect navigation or interstate commerce in such waters;

and had no apparent, significant effects on the actual

flows or condition of such waters. In Rapanos, the wet-

lands intermittently drained into a manmade ditch that

emptied into a non-navigable creek that eventually

reached a tributary that flowed into a navigable bay,

which was located a substantial distance from the wet-

lands. Pet. App. B9-B12. In Carabell, the wetlands were

separated by a berm from an adjacent ditch, which emptied

10

into a drainage, which emptied into a creek, which emp-

tied into a navigable lake. Carabell, 391 F.3d at 705-706.

Thus, the connection between the wetlands and navigable

waters in both cases was highly attenuated, and the

distance between them substantial, and there was no

“significant nexus” between them. Under SWANCC, the

“nexus” must not only exist but must also be “significant.”

The nexus is not “significant” if the wetlands do not

significantly affect navigation or commerce in, or the flows

or condition of, navigable waters, even though there may

be a bare, tenuous connection between them.’

SWANCC held that a “significant nexus” exists if the

wetland is “adjacent” to navigable waters. 531 U.S. at 167.

Thus, the test under SWANCC is one of proximity and

contiguity, not eventual connection. The Corps’ regulations

define “adjacent” as “bordering, contiguous or neighbor-

ing.” 33 C.F.R. § 328(c). The wetlands in these cases -

although adjacent to small waterbodies that eventually

connected to navigable waters —- were not themselves

adjacent to navigable waters. Hence, like the wetlands in

SWANCC, they did not have a “significant nexus” to

navigable waters and did not significantly affect naviga-

tion or interstate commerce.

* The notion that a highly attenuated hydrologic connection to

navigable waters subjects wetlands or other non-navigable waters to

federal jurisdiction is particularly confounding in Alaska, since many of

the wetlands or waters that may be subject to public or private devel-

opment are often located many miles from a navigable water body, or

the waters that emanate from them have no significant impact on the

flow or condition of the navigable water body. For example, areas of

Alaska, such as the North Slope and the Yukon-Kuskokwim Delta,

consist of vast, wet or frozen - but arguably hydrologically-

interconnected — tundra complexes spanning hundreds of miles in every

direction. Under the Sixth Circuit analysis, wetlands located tens, or

even hundreds, of miles from the nearest navigable water body would

be subject to federa! jurisdiction.

11

The Sixth Circuit made no inquiry into the substanti-

ality of any nexus between the wetlands and navigable

waters, in terms of whether the wetlands significantly

affected interstate commerce in, or the flows or condition

of, the navigable waters. Under the lower court’s analysis,

federal jurisdiction attaches if even a minor amount of

water — a trickle - makes its way from the wetland to the

navigable waters. The Sixth Circuit decisions are not

consistent with SWANCC, which held that federal jurisdic-

tion depends on whether a “significant nexus” exists. No

such nexus exists here.

Il. IN ENACTING THE CLEAN WATER ACT, CON-

GRESS BASED FEDERAL JURISDICTION C's

THE FEDERAL NAVIGATION POWER, WHivH

AUTHORIZES REGULATION OF NON-NAVI-

GABLE WATERS THAT SIGNIFICANTLY AFFECT

NAVIGATION OR INTERSTATE COMMERCE IN

NAVIGABLE WATERS.

In enacting the CWA, Congress based federal jurisdic-

tion on the federal government's traditional authority to

regulate navigable waters, which includes authority to

regulate non-navigable waters that significantly affect

navigation or interstate commerce in the navigable artery.

The wetlands in these cases do not fall within the scope of

the traditional navigation power, and thus are beyond

federal jurisdiction under the CWA.

A. The Federal Navigation Power and State

Water Rights Authority

After the American Revolution, the English Crown

and Parliament's sovereign control of waters — including

navigable waters and underlying beds — was transferred to

the original] thirteen states. Oregon v. Corvallis Sand &

Gravel Co., 429 U.S. 363, 372-374 (1977); United States v.

Texas, 339 U.S. 707, 717 (1950); United States v. Oregon,

12

295 U.S. 1, 14 (1935); Shively v. Bowlby, 142 U.S. 1, 49-50

(1894); Pollard’s Lessee v. Hagan, 44 U.S. 212, 224-229

(1845); Martin v. Waddell, 41 U.S. 367, 410 (1842).

“[W]hen the revolution took place, the people of each state

became themselves sovereign; and in that character hold

the absolute right to all their navigable waters, and the

soils under them, for their own common use, subject only

to the rights since surrendered to the general govern-

ment.” Martin, 41 U.S. at 410. The states hold their

navigable waters in trust for the public, for the protection

of navigation, commerce and fisheries. Illinois Central

R.R. Co. v. Illinois, 146 U.S. 387, 452 (1892). When new

states joined the Union, they were admitted on the same

terms as — that is, on an “equa! footing” with — the original

thirteen states, and thus acquired the same sovereign

control of their waters. Corvallis, 429 U.S. at 372-374;

Texas, 339 U.S. at 717; Shively, 142 U.S. at 49-50.

When the states formed the nation, the Constitution

they prepared and ratified delegated substantial powers to

the federal government, including the power, contained in

the Commerce Clause, art. I, § 8, cl. 3, to regulate com-

merce among the states. Gibbons v. Ogden, 22 U.S. 1, 189-

190 (1824); United States v. Lopez, 514 U.S. 549, 552-553

(1995). The federal commerce power includes the power to

regulate navigable waters in order to ensure their contin-

ued navigability; navigable waters are among the “natural

highways” of interstate commerce and hence are the

“public property of the nation.” United States v. Rio

Grande Dam & Irrigation Co., 174 U.S. 690, 703 (1899)

(“highways”); Gilman v. Philadelphia, 70 U.S. 713, 724-

725 (1866) (“public property”); see United States v. Appala-

chian Elec. Power Co., 311 U.S. 377, 426-427 (1940). “For

these purposes [of protecting navigation and navigable

capacity], Congress possesses all the powers which existed

in the States before the adoption of the national Constitu-

tion, and which have always existed in the Parliament in

England.” United States v. Chandler-Dunbar Water Power

13

Co., 229 U.S. 53, 63 (1913). The federal navigation power

limits the states’ historic water rights authority by pre-

cluding them from granting rights that impair water

navigability. Rio Grande Dam, 174 U.S. at 703. The

federal navigation power is a “servitude” that allows the

federal government to protect navigable waters without

always having to pay compensation to those whose rights

are impaired. Kaiser Aetna v. United States, 444 U.S. 164,

178 (1979); United States v. Twin City Power Co., 350 U:S.

222 (1955); Chandler-Dunbar, 229 U.S. 53.

In its landmark decision in California Oregon Power

Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935),

this Court held that certain congressional enactments -

the Desert Land Act of 1877 and the Mining Acts of 1866

and 1870 — “severed” the water on the public !ands from

the lands themselves; as a result of the “severance,” the

states regulate and control the use of water, while the

federal government owns and controls the public lands.

295 U.S. at 158, 162-164. The states’ control of water,

however, is subject to the federal government’s paramount

authority to “secure the uninterrupted navigability of all

navigable streams within the limits of the United States,”

and to regulate water “as might be necessary for the

beneficial use of the government property.” Id. at 159.

Otherwise, the states have full control of all waters within

their jurisdiction, including “plenary control” of all non-

navigable waters. Jd. at 163-164.

Thus, while the federal government has authority to

regulate navigable waters and reserve water for use on

federal lands,‘ the states possess authority under “equal

* Under the Constitution’s Property Clause, art. IV, §3, d. 2,

Congress has authority to reserve water for use on federal reserved

lands, and impliedly exercises this authority for the “primary” purposes

of reserved lands. United States v. New Mexico, 438 U.S. 696 (1978),

Cappeaert v. United States, 426 US. 128 (1976).

14

footing” and “severance” principles to regulate the use of

water, both navigable and non-navigable, for all other

purposes. California v. United States, 438 U.S. 645, 657-

658 (1978); Nevada v. United States, 463 U.S. 110, 123-124

(1983); Ickes v. Fox, 300 U.S. 82, 94-96 (1937); Kansas v.

Colorado, 206 U.S. 46, 94-95 (1907); United States v. Rio

Grande Dam & Irrigation Co., 174 U.S. 690, 704-706

(1899). In regulating water, the states allocate water

among different consumptive uses — urban, agricultural

and industrial — and also allocate water for environmental

purposes, such as for protection of fish and wildlife,

recreation, and scenic beauty. National Audubon Society v.

Superior Court, 33 Cal.3d 419, 189 Cal.Rptr. 346, 658 P.2d

709 (1983); United States v. State Water Res. Cont. Bd.,

182 Cal.App.3d 82, 227 Cal.Rptr. 161 (1986). Although

much major water development takes place because of

diversions from the great navigable rivers, like the Colo-

rado and the Columbia, much local development depends

on diversions by smal! communities and agricultural areas

from small, local waterways, like streams and canals. In

California v. United States, written by then-Associate

Justice William Rehnquist, this Court summarized the

relationship between federal and state authority to regu-

late water:

[E]xcept where the reserved rights or navigation

servitude of the United States are invoked, the

State has total authority over its internal waters.

438 U.S. at 662, quoting from Rio Grande Dam, 174 U.S.

at 705.

In regulating land use, local governments often

balance the need for residential and commercial develop-

ment that will provide housing and promote economic

growth, and the competing need to protect environmental

resources, including wetlands, that may be affected by

development. In balancing these needs, local governments

may approve development projects because the public

15

benefits outweigh the environmental harm (although they

may impose conditions to avoid or mitigate the harm), or

instead they may disapprove the projects because the

environmental costs are unacceptably high; these deci-

sions are typically made at the local level. See, e.g., Cali-

fornia Environmental Quality Act, Cal. Pub. Res. Code

§§ 21000 et seg.; Friends of Mammoth v. Board of Supervi-

sors, 8 Ca).3d 247, 104 Cal. Rptr. 761, 502 P-2d 1049 (1972);

Santiago County Water Dist. v. County of Orange, 118

Cal.App.3d 818, 173 Cal.Rptr. 602 (1981) (local govern-

ment approval of development project affecting wetlands).

In our federal system, state and local laws generally define

property, including the right to use both land and water;

the impacts of property uses on wetlands and other re-

sources are considered by local governments in deciding

whether to grant the property right or attach conditions to

it. See Oregon v. Corvallis Sand & Gravel Co., 429 US.

363, 378 (1977); Davies Warehouse Co. v. Bowles, 321 U.S.

144, 155 (1944); cf Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1029 (1992). This Court has

recognized that regulation of land use is “‘a function

traditionally performed by local governments.’” SWANCC,

531 U.S. at 174, quoting from Hess v. Port Authority

Trans-Hudson Corp., 513 U.S. 30, 44 (1994).

B. Expansion of the Federal Navigation Power

As the nation’s industry expanded and its commerce

developed, Congress has expanded its regulation of navi-

gable waterways. The Rivers and Harbors Act of 1899

{RHA) prohibits any “obstruction” to the “navigable

capacity of any of the waters of the United States” without

congressional approval (§ 10); prohibits erection of certain

structures, like dams and bridges, in any “navigable

water” without Corps approval (§ 9); and prohibits the

deposit of any “refuse matter” into a “navigable water”

except as authorized by the Corps (§ 13). 33 U.S.C. §§ 401,

16

403, 407. The RHA was enacted in response to this Vourt’s

decision in Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1

(1888), which had held that no federal common law bars

“obstructions and nuisances” in navigable waters. See

United States v. Republic Steel Corp., 362 U.S. 482, 486

(1960). “The true intent of the Act of Congress [RHA] was

that unreasonable obstructions to navigation and naviga-

ble capacity were to be prohibited....” Wisconsin uv.

Illinois, 278 U.S. 367, 413 (1929). Additionally, Congress

enacted various flood control measures, such as the Flood

Control Act of 1944, 58 Stat. 887 (1944), which authorize

the Corps to build flood control projects to protect the

navigability of the nation’s waterways. The 1944 act

contains a savings clause protecting the states’ water

rights authority; the congressional policy is “to recognize

the interests and rights of the States in determining the

development of the watersheds within their borders and

likewise their interests and rights in water utilization and

control.” Jd. at 888."

This Court has held that Congress’ expansive exercise

of its navigation powers is within the scope of its com-

merce authority, and that the navigation power is not

* Acting under its navigation powers, Congress has created federal

programs to develop the nation’s navigable waterways for purposes

unrelated to protection of navigation. The Federal Power Act of 1935, 16

U.S.C. §§ 791 et seg., authorizes federal regulation of hydroelectric

power development. First-lowa Hydro-Electric Cooperative v. Federal

Power Comm'n, 328 U.S. 152 (1946). The Reclamation Act of 1902, 43

U.S.C. §§ 371 et seq., authorizes federal water projects to reclaim the

arid lands of the western states. California v. United States, 438 U.S.

645 (1978); United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950).

This Court has upheld Congress’ authority under the navigation power

to adopt these water development programs, even though they are not

strictly related to navigation. United States v. Appalachian Elec. Power

Co., 311 U.S. 377 (1940) (hydropower developn.ent); Federal Power

Comm'n v. Union Elec. Co., 381 U.S. 90 (1965) (same); cf Gerlach, 339

U.S. at 742-750 (upholding reclamation program under spending

power).

17

strictly limited to protecting navigation in navigable

waters per se. The navigation power applies not only to

actually-navigable waters, but also to waters “susceptible”

of navigation, that is, capable of supporting navigation by

physical improvements. United States v. Appalachian Elec.

Power. Co., 311 U.S. 377, 406 (1940); The Daniel Ball, 77

U.S. 557, 563 (1870); see 33 C.F.R. § 329.4 (1978). The

navigation power authorizes federal regulation of naviga-

ble waters for purposes unrelated to navigation, such as

for production of hydroelectric power; thus, once the

waters are deemed navigable, the federal interest extends

beyond navigation. Appalachian Power, 311 U.S. at 406-

420; United States v. Grand River Dam Auth., 363 U.S.

229, 232-233 (1960); see note 5, supra. The navigation

power applies to all the nation’s navigable waters, includ-

ing those located wholly within a single state. Utah v.

United States, 403 U.S. 9, 10 (1971). The navigation power

authorizes regulation of deposits of materials, like indus-

trial solids, into navigable waters, because such deposits

impair the condition of the waters to support interstate

commerce and thus are an “obstruction” to “navigable

capacity.” United States v. Republic Steel Corp., 362 US.

482 (1960).

More importantly here, this Court has held that the

federal navigation power is not strictly confined to naviga-

ble waters, but instead extends to non-navigable waters

that significantly affect navigation or interstate commerce

in the navigable artery. United States v. Rio Grande Dam

& Irrig. Co., 174 U.S. 690 (1899); United States v. Grand

River Dam Auth., 363 U.S. 229 (1960); Oklahoma ex rel.

Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941).

“Congress may exercise its control over the non-navigable

stretches of a river in order to preserve or promote com-

merce on the navigable portion.” Atkinson, 313 U.S. at

523. Since the purpose of the federal navigation power is

to protect navigable waters that are the highways of

interstate commerce, this federal power necessarily

18

extends to non-navigable waters that directly influence

the capacity of navigable waters to bear such commerce.

In the seminal case of Rio Grande Dam, this Court

enjoined a private party from building a dam over a non-

navigable tributary of the Rio Grande in New Mexico, even

though the dam was authorized under local law, because

the dam threatened to “destroy” the navigability of the Rio

Grande itself. 174 U.S. at 706, 707, 708. According to the

Court, although Congress’ desert land and mining laws

granted broad authority to the states to administer their

water rights systems, Congress did not grant authority to

“destroy” the navigability of rivers by allowing obstructive

structures, like navigation-destroying dams, to be placed

in the tributaries. Jd. at 704-705. As the Court noted, the

Rivers and Harbors Act of 1890, 26 Stat. 454, the prede-

cessor of the RHA of 1899, prohibited structures that

impaired the navigable capacity of the nation’s navigable

waterways. Jd. at 707. The Court stated:

Although this power of changing the common law

rule [of riparian rights] as to streams within its

dominion, undoubtedly belongs to each State, yet

two limitations must be recognized: First, that in

the absence of specific authority from Congress a

State cannot by its legislation destroy the right

of the United States, as the owner of lands bor-

dering on a stream, to the continued flow of its

waters; so far at least as may be necessary for

the beneficial uses of government property. Sec-

ond, that it is limited by the superior power of

the General Government to secure the uninter-

rupted navigability of all navigable streams

within the limits of the United States.

Id. at 703.

In Atkinson, this Court rejected an attempt by the

Governor of Oklahoma to enjoin construction of a federal

flood control project on the Red River in Oklahoma, which

was a non-navigable tributary of the Mississippi River.

19

The Court stated that the federal project was part of a

“comprehensive flood-control program for the Mississippi

itself,” and Congress has authority to create flood control

projects in non-navigable waterways in order to “protect[]

the nation’s arteries of commerce through control of the

watersheds.” 313 U.S. at 525-526, 529.

In Grand River, this Court, following Rio Grande Dam

and Atkinson, upheld Congress’ authority to create a flood

control project on the Grand River in Oklahoma, a non-

navigable tributary of the Arkansas River. The Court

stated that Congress has authority “to ‘treat the water-

sheds as a key to flood control on navigable streams and

their tributaries.’” 363 U.S. at 232, quoting from Atkinson,

313 U.S. at 525.

Although the Court in these cases broadened the

federal navigation power to include certain non-navigable

waters, the Court did not sanction a wholesale federal

intrusion into the traditional authority of state and local

governments to regulate water use and land use. The non-

navigable waters subject to federal regulation in these

cases had major impacts on navigation or interstate

commerce; they were capable of supporting major flood

control projects, as in Atkinson and Grand River, or their

obstruction would have “destroyed” navigability in the

main artery, as in Rio Grande Dam. In Atkinson and

Grand River, the Court emphasized that Congress’ author-

ity to regulate the “watersheds” was necessary to provide

for flood control and ensure navigability of the main

artery. Atkinson, 313 U.S. at 529; Grand River, 363 U.S. at

232. Thus, these cases authorize federal regulation of non-

navigable waters that significantly affect navigation or

interstate commerce, but otherwise preserve the authority

of state and local governments to regulate water, naviga-

ble and non-navigable, for all other purposes. This Court

in other contexts has balanced federal and state interests

in determining the scope of federal authority to regulate

20

water, see United States v. New Mexico, 438 U.S. 696

(1978) (holding that federal reserved water rights apply to

“primary” reservation uses but not “secondary” uses), and

the Court has done the same in the context of the federal

navigation power. As this Court stated in California

Oregon Power, the states have “plenary control” of non-

navigable waters except where significant federal naviga-

tion issues arise. 295 U.S. at 163-164. Therefore, the

federal navigation power, as developed by this Court’s

jurisprudence, does not extend to intrastate, non-

navigable bodies of water that do not significantly affect

navigation or commerce interests, such as the wetlands

here.

C. Enactment of Clean Water Act

In enacting the CWA in 1972, Congress was fully

aware of this Court’s decisions defining the federal naviga-

tion power, and based federal jurisdiction under the CWA

on the navigation power. Under the CWA, federal jurisdic-

tion for the section 402 NPDES program and the Corps’

section 404 program applies to “navigable waters.” 33

U.S.C. §§ 1344, 1362(12). Thus, the CWA directly invokes

the navigation power as the basis for federal jurisdiction

under both programs. The term “navigable waters” is

defined as “waters of the United States.” Jd. at § 1362(7).

The latter phrase, although undefined and somewhat

amorphous, extends federal jurisdiction to the limits of the

navigation power as defined in this Court’s decisions —

and, as noted above, this Court has extended the naviga-

tion power to non-navigable waters that significantly

affect navigation or interstate commerce in navigable

waters. See, e.g., Rio Grande Dam, 174 U.S. 690. Thus, the

anchor of federal jurisdiction under the CWA is the navi-

gation power, albeit broadly defined. The CWA’s jurisdic-

tional provisions cannot be read in isolation, devoid of the

larger history surrounding the navigation power. Under

21

this construction, federal jurisdiction under the CWA

applies, first, to navigable waters, and, second, to non-

navigable waters that significantly affect the navigable

artery, such as by affecting navigation or interstate com-

merce in the artery, or by significantly affecting its flows

or condition.

Notably, the CWA’s broader jurisdictional phrase —

“waters of the United States” — does not provide a sepa-

rate, independent basis of federal jurisdiction, but instead

defines the more limited term — “navigable waters” — that

establishes the basis of federal jurisdiction. Thus, “waters

of the United States” does not, and cannot, fundamentally

change the meaning of the term it defines, “navigable

waters.” “(I]t is one thing to give a word [navigable]

limited effect and quite another to give it no effect what-

ever.” SWANCC, 531 U.S. at 172.

If Congress had intended to expand federal jurisdic-

tion beyond the traditional limits of the navigation power,

Congress presumably would have expressed its intent with

untnistakable clarity, because that would have caused a

major rearrangement of the traditional balance of federal

and state power. The CWA evinces no clear congressional

intent to rearrange the federal-state balance. On the

contrary, the CWA, by grounding federal jurisdiction on

the navigation power, maintains the traditional balance

between federal navigation authority and state and local

authority to regulate land and water use.

The legislative history of the CWA supports this

analysis. According to the House Conference Committee

report:

The new and broader definition [of federal juris-

diction] is in line with more recent judicial opin-

ions which have substantially expanded that

limited view of navigability — derived from the

Daniel Ball case [citation omitted] — to include

waterways which would be “susceptible of being

22

used ... with reasonable improvement,”....

United States v. Appalachian Electric Power Co.,

331 U.S. 377, 407-410, 416 (1940) [other citations

omitted.} {{] [T)here is no requirement in the

Constitution that the waterway must cross a

State boundary in order to be within the inter-

state commerce power of the Federal Govern-

ment. Rather, it is enough that the waterway

serves as a link in the chain of commerce among

the States as it flows in the various channels of

transportation — highways, railroads, air traffic,

radio and postal communication, waterways, et

cetera. The “gist of the Federal test” is the wa-

terway’s use “as a highway,” not whether it is

“part of a navigable interstate or international

commercial highway.” Utah v. United States, 403

U.S. 9, 11 (1971) [other citations omitted.]

HOUSE CONSIDERATION OF REPORT OF CONFER-

ENCE COMMITTEE, compiled in 1 LEGISLATIVE

HISTORY OF WATER POLLUTION CONTROL ACT

AMENDMENTS CF 1972, Ser. No. 93-1, 93d Cong., 1st

Sess. 250-251 (1973) (statement of Rep. Dingell). Thus,

Congress intended that federal jurisdiction under the CWA

would extend to the limits of the navigation power as

broadly defined by this Court’s recent decisions, and that

federal jurisdiction would apply if the waterway serves as

a “link in the chain of commerce among the States,”

irrespective of whether the waters are strictly “navigable,”

as held in Appalachian Power, 311 U.S. 377, or whether

they are wholly intrastate, as held ir Utah v. United

States, 403 U.S. 9 (1971).

SWANCC and Riverside Bayview also support this

analysis. SWANCC held that Congress intended to assert

its “traditional jurisdiction” over navigable waters and its

“commerce power over navigation.” 531 U.S. at 172, 168

n.3. As SWANCC noted, the Corps’ original regulations

limited its jurisdiction to its traditional regulatory author-

ity over navigable waters. 531 U.S. at 168. SWANCC

23

concluded that federal jurisdiction applies only to waters

that are navigable or have a “significant nexus” to them.

Id. at 167. In Riverside Bayview, the Court held that the

CWA does not confine federal regulation to “navigable

waters” under the “classical understanding of that term,”

474 U.S. at 133, thus indicating that federal jurisdiction

extends beyond strictly navigable waters to waters that

fall within the navigation power. Read together, SWANCC

and Riverside Bayview state the rule that the CWA author-

izes federal regulation of non-navigable waters that have a

“significant nexus” to navigable waters, but not non-

navigable waters lacking this nexus.

The CWA contains other provisions, in addition to the

“navigable waters” limitation, indicating that Congress

intended to preserve the historic federal-state balance.

Section 101(b) declares that the states have the “primary

responsibilities and rights” to control water pollution, and

to “plan the development and use ... of land and water

resources, ... ” 33 U.S.C. § 1251(b). Section 510 declares

that the CWA is not to be construed as “impairing or in

any manner affecting any right or jurisdiction of the

States with respect to the waters (including boundary

waters) of such States,” and does not preclude the states

from adopting standards, limitations or requirements

relating to water quality not “less stringent” than federal

standards. Id. at § 1370. Section 401(a) provides that an

applicant for a federal license or permit that would author-

ize a discharge into “navigable waters” must obtain a

permit from the affected state that the discharge complies

with the state’s water quality requirements. Id. at

§ 1341(a); see PUD No. 1 of Jefferson County v. Washington

Dept. of Ecology, 511 U.S. 700 (1994).

Perhaps more importantly, section 101(g) declares

that “the authority of each State to allocate quantities of

water within its jurisdiction shall not be superseded,

abrogated or otherwise impaired by” the Act. 33 U.S.C.

24

§ 1251(g). This provision expressly preserves the states’

traditional authority to regulate water, as such authority

has been recognized by this Court in California Oregon

Power, California v. United States, Nevada v. United

States, Gerlach, and other cases.°

The Sixth Circuit decisions below are not consistent

with the limitations of federal jurisdiction under the CWA,

as based on the navigation power. The decisions would

expand federal jurisdiction to include non-navigable

wetlands that have no significant nexus to navigable

waters and no substantial relationship to navigation or

interstate commerce. As the SWANCC Court recognized

* Senator Malcolm Wallop, who sponsored section 101(g), stated in

the legislative history that the provision ensures that the CWA does not

abridge state water rights authority except in cases involving “inciden-

tal” effects. 123 Cong. Rec. 39212 (1977) (“the purpose of this amend-

ment [is] to insure that State allocation systems are not subverted,” but

“(t]he requirements of section 402 and 404 permits may incidentally

affect individual water rights,” and “[iJt is not the purpose of this

amendment to prohibit those incidental effects.”) In Jefferson County,

511 U.S. 700, this Court cited Senator Wallop’s statement in concluding

that section 401(a) of the CWA — which, as noted above, requires that

federal licenses or permits are consistent with state water quality

requirements — applied in that case because its effect on state water

rights laws was “incidental.” 511 U.S. at 721. Since section 401(a)

requires deference to state water quality laws, the provision does not

overtly conflict with the objective of section 101(g), which requires

deference to state water rights laws.

In South Florida Water Management District v. Miccosukee Tribe,

541 U.S. 95 (2004), this Court stated that section 101(g) might exempt

western water projects from compliance with CWA requirements in

cases involving interbasin water transfers — although the Court did not

decide the question — because such compliance might “raise the costs of

water distribution prohibitively” and thus impair section 101(g)'s

purpose. 541 U.S. at 108. In our view, section 101(g) was intended to

preserve the states’ sovereign authority to regulate water, not simply

protect them from the potentially-prohibitive “costs” of compliance with

CWA requirements, and therefore section 101(g)’s applicability should

not depend on whether the compliance “costs” are “prohibitive.”

25

with respect to the Corps’ regulation in that case, tbe

Sixth Circuit decisions would result in a “significant

impingement” on the states’ traditional authority to

regulate land and water use. SWANCC, 531 U.S. at 173,

174. Such impingement is not permissible in the absence

of a clear congressional expression, which is not found in

the CWA.

Ill. THE COMMERCE CLAUSE DOES NOT AU-

THORIZE CONGRESSIONAL REGULATION

OF NON-NAVIGABLE WATERS THAT DO NOT

SIGNIFICANTLY AFFECT NAVIGATION OR

INTERSTATE COMMERCE.

The Constitution’s Commerce Clause, art I, § 8, cl. 3,

authorizes Congress to “regulate Commerce . . . among the

several States.” This Court has held that the federal

commerce power authorizes congressional regulation of (1)

the “channels” of interstate commerce, (2) the “instrumen-

talities” of interstate commerce, and (3) “activities” that

“substantially affect” interstate commerce. United States

v. Morrison, 529 U.S. 598, 609 (2000); United States v.

Lopez, 514 U.S. 549, 559 (1995). The CWA regulates the

“channels” of interstate commerce because it applies to

“navigable waters,” defined as “waters of the United

States.” 33 U.S.C. § 1362(7). The CWA is the successor of

the RHA of 1893, which regulated “obstructions” and

“refuse” deposits in “navigable waters” that are considered

channels of interstate commerce. 33 U.S.C. §§ 403, 407; see

Wisconsin v. Illinois, 278 U.S. 367, 413 (1929).’

"To be sure, the CWA also regulates activities affecting the

channels, in that it prohibits unpermitted “discharges” of pollutants

into “waters of the United States.” 33 U.S.C. § 1311(a). Such activities,

however, are incidental to the CWA’s main purpose of regulating the

channels. See id. at § 1251(a) (“objective” of CWA “is to restore and

maintain the chemical, physical, and biological integrity of the Nation's

(Continued on following page)

strictly on SMUnEE ecehettins > aacdboae came am

involved, but instead depends on whether the regulated

activity substantially, and actually, affects interstate

commerce in navigable waters. “In truth the authority of

the United States is the regulation of commerce on its

waters.” Appalachian Power, 311 U.S. at 426-427. “The

understood when viewed in terms of mere traditional

Commerce Clause analysis than by reference to whether

the stream in fact is capable of supporting navigation or

may be characterized as ‘navigable water of the United

States.’” Kaiser Aetna v. United States, 444 U.S. 164, 173-

174 (1979).

Nonetheless, this Court has analyzed the federal

commerce power as applied to water regulation in the

context of the navigation power — that is, whether the

waters are navigable, or, if they are not, whether they

affect interstate commerce in navigable waters, or at least

significantly affect the flows or condition of navigable

waters. Thus, the constitutional focus is not on navigation

or navigability per se, but instead on whether the regu-

lated waters support interstate commerce or significantly

affect the capacity of waters to bear such commerce. In

Appalachian Power, this Court held that Congress has

authority under its commerce powers to regulate hydropower

waters”). Thus, the CWA’s focus is on the channels of interstate

federal statutes in Morrison, Lopez, and Gonzales v. Raich, 125 S.Ct.

2195 (2005), which regulated various forms of conduct unrelated to

interstate commerce channels.

27

production in navigable waters — even though hydropower

production is not related to navigation — because the

waters in that case were in fact navigable or “susceptible”

of navigation, a factual issue the Court reviewed and

decided de novo. 311 U.S. at 406-420. In Rio Grande Dam,

Grand River and Atkinson, this Court held that the federal

commerce power authorizes federal regulation of non-

navigable tributaries to the extent the tributaries affect

the capacity of the navigable arteries to support interstate

commerce. In California v. United States, this Court stated

that the states have “total control” over their “internal

waters” except where the “navigation servitude” or re-

served rights are involved, 438 U.S. at 662, which means

that the federal commerce power in the context of water

regulation depends on whether the navigation servitude

applies, which in turn depends on whether the waters are

navigable or otherwise significantly affect interstate

commerce in navigable waters. In SWANCC, this Court

stated that constitutional concerns would arise if the CWA

were construed as applying to wetlands that lack a “sig-

nificant nexus” to navigable waters, thus suggesting the

constitutional necessity of a significant link between the

regulated waters and navigable waters. 531 U.S. at 173-

174.

The overarching theme of these cases is that the

federal commerce power, as applied to non-navigable

waters, depends on whether such waters have a substan-

tial relationship with navigable waters, in that they

directly affect or influence the capacity of navigable waters

to support interstate commerce, or at least significantly

affect the flows or condition of navigable waters — which

are the same factors that apply in determining the appli-

cability of the navigation power. “The navigation servitude

... gives rise to an authority in the Government to assure

that such [navigable] streams retain their capacity to

serve as continuous highways for the purpose of naviga-

tion in interstate commerce.” Kaiser Aetna v. United

States, 444 U.S. 164, 177 (1979). If, for example, someone

discharges pollutants into a local pond that is connected to

a navigable waterway, and the pollutants reach the navi-

gable waterway and substantially degrade its water

quality, the federal navigation power — and the commerce

power on which it is based — authorize regulation of the

discharge; as noted earlier, the deposit of industrial solids

into navigable waters is an “obstruction” to “navigable

capacity” and hence subject to federal regulation. United

States v. Republic Steel Corp., 362 U.S. 482 (1960). If,

instead, the pollutants do not cause substantial degrada-

tion of water quality in the navigable waterway, then there

is no “obstruction” to “navigable capacity” and the pond

has only local impacts and is subject to local regulation."

* In terms of the “commerce” interest necessary to sustain congres-

siona! regulation under the Commerce Clause, this Court has held that

“commerce” denotes “economic” activity of an interstate nature.

Morrison, 529 U.S. at 612; Lopez, 514 U.S. at 561; see Gonzales v.

Raich, 125 S.Ct. 2195, 2211 (2005) (marijuana use on national basis

involves “quintessentially economic” activities relating to the “produc-

tion, distribution and consumption of commodities” for which there was

an interstate market). Wetlands do not involve “economic” interests

except in a highly attenuated sense, and this Court in Lopez and

Morrison held that a “tenuous” and “attenuated” economic connection is

not sufficient to sustain congressional commerce regulation. Lopez, 514

U.S. at 564; Morrison, 529 U.S. at 612. This Court has sometimes

aggregated otherwise-local economic “activities” in sustaining congres-

sional commerce regulation. Raich, 125 S.Ct. at 2207-2208, 2211;

Wickard v. Filburn, 317 U.S. 111, 127-129 (1942). In Lopez and Morri-

son, however, this Court expressed its reluctance to aggregate essen-

tially non-economic activity. Lopez, 514 U.S. at 561; Morrison, 529 US.

at 611 n.4, 613, 617. Moreover, this Court has never aggregated, as a

that do not significantly affect interstate commerce, and that have been

traditionally regulated by state and local governments. In our view, the

aggregation principle should not be applied where its effect would be to

substantially rearrange the federal-state balance.

29

In our view, this case raises no constitutional question

concerning whether Congress exceeded its powers in

authorizing federal jurisdiction under the CWA. As the

SWANCC Court held, such federal jurisdiction authorizes

regulation of navigable waters, and also non-navigable

waters having a “significant nexus” to them. 531 U.S. at

172. Thus, the CWA provides an accommodation of federal

and state authority that is consistent with, and indeed

based on, this Court’s interpretation of the navigation

power. This is not a case, as in Raich, Lopez and Morrison,

where Congress clearly overrode state laws and the

question was whether Congress had overstepped its

constitutional bounds. Here, Congress anchored federal

jurisdiction on the traditional navigation power and

evinced no intent to otherwise override state and loc il

laws regulating water and land use.

The Sixth Circuit’s interpretation of federal jurisdic-

tion does raise constitutional issues, however, because its

interpretation would expand such jurisdiction beyond the

limits of the traditional federal navigation power — and

hence beyond the limits of the commerce power. Under the

Sixth Circuit’s interpretation, federal jurisdiction pre-

sumably would extend to virtually every body of water in

the nation - every brook and pond, every dry wash — that

has any connection with navigable waters, no matter how

remote the connection or how inconsequential or non-

existent its effect on navigation or interstate commerce.

This Court has never held or suggested that federal

jurisdiction over the nation’s waterways extends this far,

and its navigable waters decisions clearly indicate it does

not. The Sixth Circuit’s expansive interpretation of federal

jurisdiction would, in the words of the SWANCC decision,

allow “federal encroachment upon a traditional state

power.” 531 U.S. at 174. The Commerce Clause does not

allow this encroachment.

30

CONCLUSION

The CWA authorizes federal jurisdiction up to the

limits of the navigation power but not beyond. Thus, the

statute authorizes federal regulation of navigable waters,

and of non-navigable waters that significantly affect

navigation or commerce interests in navigable waters. The

wetlands in these cases do not fall into these categories

and are beyond the scope of federal regulation under the

CWA. Therefore, the Sixth Circuit’s decisions should be

reversed.

Respectfully submitted,

Davip W. MARQUEZ

Attorney General

RUTH HAMILTON HEESE

JOHN T. BAKER

Assistant Attorneys General

Attorneys for Amicus State

of Alaska

RODERICK E. WALSTON

(Counsel of Record)

Best Best & KRIEGER LLP

Attorney for Amici Curiae