# Amicus Curiae Brief — Rapanos v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2006 - **Citation:** 547 U.S. 715 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A13. Public record. Not legal advice.