Amicus Curiae Brief — Rapanos v. United States

[ "Baprene Guuit, Uno.

- Filep

C=C 2. 2005

OFFICE OF THE CLERK

Nos. 04-1034 and 04-1384

Jn The Supreme Court of the Anited States

JOHN A. RAPANOS, ef ux., et al., Petitioners,

V.

UNITED STATES

JUNE CARABELL, et al., Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT

s: OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN

PETROLEUM INSTITUTE SUGGESTING

REVERSAL IN NOS. 04-1034 AND 04-1384

HARRY M. NG THOMAS SAYRE LLEWELLYN

RALPH J. COLLELI JR. (COUNSEL OF RECORD)

ERIK G. MILITO 5125 MacArthur Blvd., NW

American Petroleum Institute Suite 32-A

1220 L Street, NW Washington, DC 20016

Washington, DC 20005 (202) 237-729]

(202) 682-8000

TABLE OF CONTENTS

TABLE OF AUTHORITIES...........c..cccccscccsorscesersoseessoscesseoeee ii

INTEREST OF THE AMICUS CURIAE. ......ccssssseesseesseeseesees ]

SUMMARY OF THE ARGUMENT............cccccccsesseesseesesees 2

i iccesencatittinatescesecencssnnnsnenamniinnnmiamennel 4

CONGRESS LIMITED “NAVIGABLE WATERS”

TO TRADITIONAL NAVIGABLE WATERS (AND

ABUTTING WETLANDS); DEVISED THE

“DISCHARGE” MECHANISM TO PROTECT

“NAVIGABLE WATERS” FROM UPSTREAM

POLLUTION; AND ALLOWED STATES TO

PROTECT STATE WATER. ...........ccccccecessscsceeceeseseeeceseeeeess 4

L. The Importance Of Section 311 To

Construction Of The Clean Water Act........... 4

Il. Congress’ Objectives In The 1972

PS re eT 8

Ill. | Where The Sixth Circuit Errs....................... 18

IV. Implications Of The Sixth Circuit’s

‘i

TABLE OF AUTHORITIES

Cases

Board of Governors of the Fed. Reserve Sys. v.

Dimension Fin. Corp., 474 U.S. 361 (1986)............ 19

Economy Power & Light Co. v. United States,

Is Bee Racotenteteapmemerraticineninttnsupeenenmntnnniin 12

McDermott v. Wilander, 498 U.S. 337 (1991)........c:cccceceeeeeee 5

NLRB v. Amax Coal Co., 453 U.S. 322 (1981).........ccsceseeees 5

Northern Cal. River Watch v. City of

Healdsburg, 2004 U.S. Dist. LEXIS

1008 (N.D. Cal. Jan. 23, 2004). 00... ceeeceseseeeeeseeeeees )

Rodriguez v. United States, 480 U.S. 522 (1987)...........-.0+. 19

Solid Waste Agency of N. Cook County v. Army

Corps of Eng'rs, 53\ U.S. 159 (2001).............. passim

South Fla. Water Mgt. Dist. v. Miccosukee Tribe,

Pe eh Far i erceetencnenieninecsinnctinnmnmnn 17

The Daniel Ball, 6 F. Cas. 1161 (W.D. Mich.),

rev'd, 77 U.S. (10 Wall.) 557 (1871)............. 10, 13

United States v. Appalachian Elec. Power Co.,

ee a Pe Ce icincatyittiesncinyittinsinbininceniiiiiinieieneas 12

United States v. Ashland Oil & Transp. Co.,

504 F.2d 1317 (6th Cir. 1974)... cece eececeeeeteeeees 8

ili

United States v. Deaton, 332 F.3d 698

(4th Cir. 2003), cert. denied,

124 S. Ct. 1874 (2004)......cccescsccsesceseeeen

United States v. Earth Sciences, Inc.,

599 F.2d 368 (10th Cir. 1979).........000000

United States v. Gerke Excavating Inc.,

412 F.3d 804 (7th Cir. 2005), petition

for cert. filed, 74 U.S.L.W. 3309

(U.S. Nov. 11, 2005) (No. 05-623).........

United States v. Holland, 373 F. Supp. 665

(M.D. Fla. 1974)...cccccssscccsssessccsssesessssscees

United States v. Rapanos, 376 F.3d 629

GER Ce. BD cccccevervescenescensernemennpenenneen

United States v. Riverside Bayview Homes,

474 U.S. 121 (1985)..cccssesscssssecesssessssseees

United States v. Stoeco Homes, Inc.,

498 F.2d 597 (3d Cir. 1974).......ccc0esesees

United States v. Texas Pipe Line Co.,

611 F.2d 345 (10th Cir. 1979)............000

Ward v. Coleman, 598 F.2d 1187 (10th Cir.

1979) , rev'd, 448 U.S. 242 (1980)........

Wyoming v. Hoffman, 437 F. Supp. 114

Oe eit ee

iv

Statutes

BD USE, © GED Gare ceccesccvscsoscsssseccensnesssesocensnisuniimaesinesiotil 9

SD USC. © URGE Ci Pee ceccccsncessccescsnsesessscsvesssinonsicnpsienncioneted 4

33 U.S.C. § 1161(O)(2) (1970)... ccceeccesteeeseeseereessseneeens 4

33 U.S.C. § 1161(O)(4) (1970)... ececceeeeeeetteeeeeeeeeeeeseeenees 4

SD UBA.. © SRG RED CI Fei cceeccsccccncesessscecennvessscsntevsveensnteveeed 4

33 U.S.C. § 1161(j)(1)(C) (1970)... ceccccesseeceeeeseerseeneseeees 4

33 U.S.C. § 12510) (2000)............. cc cecessesceeseceeseeeeesseeeeeeesens 9

SS TBA. B BBE F Coie is vcescnceccccccusescssesevcessenvevenssconsmeeieaniens 8

33 U.S.C. § 1311(@) (2000)... eee cceteeeeseeereeseenenseeeeenes 16

EN Co 8) ee 2, 4, 6

33 U.S.C. § 1321(a)(2) (2000)... eceeeceeeseeeererssseresseeees 16

33 U.S.C. § 1321(O)(3) (2000)......... ee cccecesetseseeeeeeerneeees 4, 16

33 U.S.C. § 1321()(5) (2000)... eee eeeeeeeseeeereeeeteeeeeeneeees 4

33 U.S.C. § 1321(b)(6) (2000)... eee eeeeteeeeeeeeseeeeeeeeeeees 22

33 U.S.C. § 1321(0)(7) (2000)... eee eceeeeeeeeteeeeeereseeenenees 22

33 U.S.C. § 1321(f) (2000)............cceccesstecesserersseeseessseseeers 4

33 U.S.C. § 1321(j)(1 (CC) (2000)... eee ccseeeeeeeeeeeeerennees 4

BS ULB. © FO Ge i ecccscccecececosescvsecscsesscosensensssstinescunsnen 7,8

BS UBBA.. © TOG Gore istcsecsccccsesesessscscesvecsecstoncctsesnnoapens 7,8

33 U.S.C. § 1362(7) (2000)..........ccceeccseseeeeeeeseeeeees siitaial 7,9

33 U.S.C. § 1362(12) (2000)... eeceeceseeeeeeeeneeeeneeees 8, 16

FS UB. & DIG BG Cai ceccccccsccsvescssessvessvenssshosnesssieneies 16

Session Laws

Clean Water Act of 1977, Pub. L. No. 95-217,

D1 Stat. 1566 (1977).....cccrccccccrvcerscecsscessocossecososcssecsees 15

Federal Water Pollution Control Act, ch. 758,

Ga RR, FR Coe cscsctcincicticrvitnitvninitlinitvinnniinnd 4

Federal Water Pollution Control Act

Amendments of 1972, Pub. L.

No. 92-500, 86 Stat. 816 (1972)..............cceceseeeee 6, 8,9

Vv

Water Quality Act of 1965, Pub. L. No. 89-234,

AREAS ES A oe 10

Water Quality Improvement Act of 1970, Pub.

L. No. 91-224, 84 Stat. 91 (1970).....ccccccssesesseseseeeseees 4

Legislative History

116 Cong, Rec. 8985 (March 24, 1970).........e:secse-seseeeee 6, 11

Congressional Research Service, Legislative

History of the Water Pollution Control

Act Amendments of 1972 (1973).............:00+ 7,11, 13

H.R. Rep. No. 917, 91st Cong., 2d Sess. (1970)............00000 12

H.R. Rep. No. 1323, 92d Cong., 2d Sess. (1972).....12, 13, 14

S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. (1972)............. 7

Regulations

ERTS a eee NTS Seer TTEER 12

a ee Oe I ccxcccecsesecenesescnssessenncansnenseunesescsenes 7

Gr te WUE Bee Ce i cccenccscscccsccccsecsecnsessczsecsecsnsescsssescesee 2

SRT Hin ta TatT OT ne cesscncscnsnesentancsnemngtansencenenansmunesneenes 7

IA TTT cerns nsnenncetdnnmenaetsamnemnnnmsasmmenees 7

Federal Register Notices

35 Fed. Reg. 8280 (May 27, 1970)............cccccccsecesceeseeseeenens 12

67 Fed. Reg. 47042 (July 17, 2002)............cccccccccesseeeeseeeeeeeee 2

Agency Opinions

EPA General Counsel Opinion (Dec. 9, 1971)................ 6, 14

vi

Legal Treatises And Periodicals

Albrecht and Nickelsburg, Could SWANCC Be

Right? A New Look At The Legislative

History Of The Clean Water Act,

32 Envtl. L. Rep. 11042 (2002)......cccceecsseee

Black’s Law Dictionary (4th ed. rev. 1968)..............

Webster’s Ninth New Collegiate Dictionary

1

The American Petroleum Institute (“API”)

respectfully submits this brief amicus curiae, suggesting

reversal in both of these consolidated cases. All petitioners

and the respondent have granted consent to the filing of this

brief.

INTEREST OF THE AMICUS CURIAE

API is a non-profit, nationwide trade association

representing more than 400 member companies in

all aspects of the petroleum and natural gas industry. API

regularly represents the petroleum and natural gas industry in

administrative rulemaking proceedings in the various state

and federal agencies, and in litigation in state and federal

courts.

The industry operates tens of thousands of oil and gas

production wells and thousands of pipeline facilities (e.g.,

pump stations, terminals, and breakout tanks), many of

which are located great distances from any “navigable

waters” in the traditional sense of the term. Under the

reasoning of the Sixth Circuit in the cases at bar, such

remotely located facilities could nonetheless be subject to

regulation under the Clean Water Act (“CWA”) if they are

located near any land or aquatic area that eventually drains to

any “navigable waters.” This would be so even in those

cases where there is no reasonable likelihood that a release

of oil would ever reach “navigable waters.”

Also, many petroleum refining facilities and natural

gas plants operate storm water retention basins that, while

located near “navigable waters” in the traditional sense of the

No counsel for any party in these consolidated cases has

authored this brief in whole or in part. No entities other than API and its

members have made monetary contributions to the preparation and

submission of this brief.

2

term, have no surface hydrological connection with such

“navigable waters.” Under the Sixth Circuit's ruling in the

Carabell case that mere proximity to a regulated water body

renders a given aquatic area itself subject to CWA

regulation, storm water retention basins could be subject to

regulation, even though they lack any surface hydrological

connection to “navigable waters.”

Section 311 of the CWA, 33 U.S.C. § 1321 (2000),

regulates discharges of oil to the “navigable waters of the

United States,” and directs the Environmental Protection

Agency (“EPA”) to promulgate regulations to prevent and

remediate such discharges. In July 2002, EPA promulgated

revised regulations known as the Spill Prevention Control

and Countermeasure or “SPCC” regulations under section

311. 67 Fed. Reg. 47042 (July 17, 2002) (codified at 40

C.F.R. Part 112 (2005)). The SPCC regulations contain a

definition of “navigable waters” nearly identical to the one

that the Sixth Circuit applied in the present cases. API is

currently prosecuting an action for judicial review of that

definition in federal district court. American Petroleum

Institute v. Johnson, No. 02-2247 (D.D.C. filed Nov. 14,

2002).

SUMMARY OF THE ARGUMENT

The Sixth Circuit erred in holding that any

hydrological connection with traditional navigable waters

renders an area a “navigable water” and in holding that mere

proximity to a regulated water renders an area a “navigable

water.” A review of the language and the full legislative

history of the CWA makes clear Congress intended

“navigable waters,” “waters of the United States,” and

“navigable waters of the United States” to include only

traditional navigable waters and their abutting wetlands.

3

This does not mean that pollution of non-navigable

waters cannot be regulated under the CWA if such pollution

results in the addition of pollutants to traditional navigable

waters. Congress deliberately employed the “discharge”

mechanism to provide for regulation of pollution of

traditional navigable waters from upstream sources. But this

is quite different from (1) designating as “navigable waters”

any and all areas or water bodies that have any hydrological

connection with traditional navigable waters or (2)

designating as “navigable waters” any water that is merely

near traditional navigable waters. Moreover, as this Court

emphasized in Solid Waste Agency of N. Cook County v.

Army Corps of Eng’'rs, 531 U.S. 159 (2001) (“SWANCC’”),

Congress intended to preserve primary state authority over

activities affecting only state waters.

Under the Sixth Circuit’s theory in the Rapanos case

few areas of the United States (including normally dry land

areas) would not be “navigable waters” subject to pervasive

federal regulation, because most areas have a drainage path

that eventually leads to traditional navigable waters. Worse,

under the Sixth Circuit’s theory in the Carabell case, mere

proximity to another area that eventually drains to traditional

navigable waters would render an area a “navigable water”

subject to federal regulation. The judgments in both cases

are founded on a faulty construction of the CWA and should

be reversed.

4

ARGUMENT

CONGRESS LIMITED “NAVIGABLE WATERS” TO

TRADITIONAL NAVIGABLE WATERS (AND

ABUTTING WETLANDS); DEVISED THE

“DISCHARGE” MECHANISM TO PROTECT

“NAVIGABLE WATERS” FROM UPSTREAM

POLLUTION; AND ALLOWED STATES TO PROTECT

STATE WATERS.

I. The Importance Of Section 311 To Construction

Of The Clean Water Act

The Federal Water Pollution Control Act (“FWPCA,”

now commonly known as the Clean Water Act or “CWA”)

was originally enacted in 1948, ch. 758, 62 Stat. 1155

(1948), and has been amended many times. Often

overlooked in the construction of the scope of the CWA is

the history of section 311, 33 U.S.C. § 1321 (2000). Section

311 traces its roots to the Water Quality Improvement Act of

1970, Pub. L. No. 91-224, 84 Stat. 91 (1970). That Act

added to FWPCA a new section 11, entitled “Control Of

Pollution By Oil” and codified at 33 U.S.C. § 1161 (1970)

(current version at 33 U.S.C. § 1321 (2000)).

Section 11 prohibited the discharge of oil in harmful

quantities “into or upon the navigable waters of the United

States, adjoining shorelines, or into or upon the waters of the

contiguous zone.” 33 U.S.C. § 1161(6)(2) (1970) (current

version at 33 U.S.C. § 1321(b)(3) (2000)). It also required

reporting of discharges; established liability for discharges;

and directed the President to issue regulations “establishing

procedures, methods, and requirements for equipment to

prevent discharges.” 33 U.S.C. §§ 1161(b)(4), (f), and

())(1 XC) (1970) (current versions at 33 U.S.C. §§

1321(65), (f), and (j)(1)(C) (2000)).

Although the term “navigable waters of the United

States” was used throughout section 11, the term was not

defined by statute. However, the term already had a well-

established meaning in federal law, i.e., those waters that are,

were, or with reasonable improvements could be, used for

navigation in interstate commerce.’ See United States v.

Stoeco Homes, Inc., 498 F.2d 597, 608-611 (3d Cir. 1974);

United States v. Holland, 373 F. Supp. 665, 669-70 (M.D.

Fla. 1974). See also Black’s Law Dictionary 1179 (4th ed.

rev. 1968). Congress must be presumed to have used the

term in 1970 in its traditional sense, unless the statute

dictates otherwise. McDermott v. Wilander, 498 U.S. 337,

342 (1991); NLRB v. Amax Coal Co., 453 U.S. 322, 329

(1981).

The 1970 enactment did not dictate otherwise. In

fact, the Senate floor manager’s summary of conference

action on the 1970 Water Quality Improvement Act

confirmed that Congress used the term in its traditional

sense:

One matter of importance throughout

the legislation is the meaning of the term

“navigable waters of the United States.”

The conference agreement does not

define the term. Based on the history of

consideration of this legislation it is obvious

that its provisions and the extent of

application should be construed broadly. It is

intended that this term include all water

bodies, such as lakes, streams, and rivers,

regarded as public navigable waters in law

. API refers to such waters throughout this brief as “traditional

navigable waters.”

6

which are navigable in fact. It is further

intended that such waters shall be considered

to be navigable in fact when they form, in

their ordinary condition by themselves or by

uniting with other waters or other systems of

transportation, such as highways or railroads,

a continuing highway over which commerce

is or may be carried on with other states or

with foreign countries in the customary means

of trade and travel in which commerce is

conducted today. In such cases, the

commerce on such waters would have a

substantial economic effect on interstate

commerce.

116 Cong. Rec. 8985 (March 24, 1970).? Moreover, in 1971,

EPA’s General Counsel opined that the term “navigable

waters of the United States” was used in its traditional sense

in the 1970 Act. See EPA General Counsel Opinion (Dec. 9,

1971).

Two years after enactment of section 11, Congress

enacted the Federal Water Pollution Control Act

Amendments of 1972 (hereafter, “1972 Amendments”).

Pub. L. No. 92-500, 86 Stat %16 (1972). The 1972

Amendments carried forward the oil pecliution control

provisions of section | 1, with some amendments not relevant

here, and redesignated section 11 as section 311. Pub. L.

No. 92-500, § 2, 86 Stat. 862 (1972) (current version at 33

U.S.C. § 1321 (2000)). The Conference Report stated that

section 311 was intended to be “basically the same as

. Senator Muskie later used similar language to describe the

CWA section 502(7) definition of “navigable waters” ~— added by the

Federal Water Pollution Control Act Amendments of 1972, Pub. L. No.

92-500, 86 Stat. 816 (1972) — in his manager’s statement on those 1972

Amendments. See infra at 11.

7

existing law,” i.e., basically the same as the 1970 enactment.

S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. 132, 133

(1972), reprinted in 1 Congressional Research Service,

Legislative History of the Water Pollution Control Act

Amendments of 1972 at 315, 316 (1973) (hereafter, “1972

Legislative History”). Under then existing law, the

“navigable waters of the United States” meant traditional

navigable waters, as shown above.

It is possible, of course, that Congress intended

section 311 to have a narrower scope than other provisions

of the CWA.* However, it is the position of the United

States that section 311 has the same scope as sections 404

and 502(7), 33 U.S.C. §§ 1344, 1362(7) (2000) (at issue

here), as well as section 402, 33 U.S.C. § 1342 (2000). This

is demonstrated by the practically identical language of the

several definitions of “navigable waters” or “waters of the

United States” in the regulations that purportedly implement

those statutory provisions. Compare 33 C.F.R. § 328.3(a)

(2005) with 40 C.F.R. § 112.2 (2005) and 40 C.F.R. § 122.2

(2005). If all of those statutory provisions do have the same

scope, then the history of section 311 must be considered in

defining that scope.

The history of section 311 establishes that its original

scope was limited to traditional navigable waters, and that

Congress did not intend to enlarge that scope (i.e., did not

intend to depart dramatically from “existing law’) in the

1972 Amendments. Assuming, arguendo, that the scope of

section 31] is the same as the scope of the rest of the CWA,

. In fact, in its pending motion for summary judgment in API v.

Johnson, No. 02-2247 (D.D.C. filed Nov. 14, 2002), API has argued in

the alternative that if other provisions of the CWA are held to reach far

beyond traditional navigable waters in their use of the term “navigable

waters” or “waters of the United States,” then section 311 must have a

narrower scope than the rest of the CWA.

¢-——

any suggestion that Congress intended to go far beyond

traditional navigable waters in sections 404 or 502(7) is

extremely difficult to reconcile with the history of section

311.° In fact, as shown below, the language and legislative

history of those other provisions establish a continued focus

upon protecting traditional navigable waters (waters subject

to the federal servitude), while otherwise preserving state

authority to protect state waters.

I]. Congress’ Objectives In The 1972 Amendments

In addition to carrying forward the oil spill

prevention provisions of former section 11 (now section

311), the 1972 Amendments added significant new

regulatory programs aimed at protecting water quality. In

particular, the 1972 Amendments established the National

Pollutant Discharge Elimination System (“NPDES”), which

requires a permit from EPA for the discharge of “pollutants”

to the “navigable waters;” and the section 404 program,

which requires a permit from the Army Corps of Engineers

(“Corps”) for the discharge of “dredged or fill material” to

the “navigable waters.” Pub. L. No. 92-500, § 2, 86 Stat.

844, 880, 884, 886 (1972) (current versions at 33 U.S.C. §§

1311, 1342, 1344, 1362(12) (2000)).

: In the late 1970's, the courts of two federal circuits held that the

section 502(7) definition of “navigable waters” governs the scope of

section 311, and that navigability is irrelevant. However, those cases

were decided long before SWANCC, and it does not appear that the courts

considered the fuil history of section 311, as discussed herein. United

States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979); United

States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1324-25 (6th Cir.

1974). See Ward v. Coleman, 598 F.2d 1187, 1188 n.1 (10th Cir. 1979)

(dictum), rev'd, 448 U.S. 242 (1980); Wyoming v. Hoffman, 437 F. Supp.

114, 115-16 (D. Wyo. 1977) (dictum).

9

In a new section 502(7), the 1972 Amendments

defined the pivotal term “navigable waters” as “the waters of

the United States, including the territorial seas.” Pub. L. No.

92-500, § 2, 86 Stat. 886 (current version at 33 U.S.C. §

1362(7) (2000)). At the same time, Congress declared its

policy “to recognize, preserve, and protect the primary

responsibilities and rights of States to prevent, reduce, and

eliminate pollution [and] to plan the development and use

... of land and water resources ....” Pub. L. No. 92-500, §

2, 86 Stat. 816 (1972) (current version at 33 U.S.C. §

1251(b) (2000)).

A. The language of the definition of

“navigable waters”

Exactly why Congress chose to define “navigable

waters” as “the waters of the United States” is not clear from

the face of the statute. However, given Congress’ stated

policy of preserving state primacy over state water resources,

it may well be that Congress wanted to distinguish federal

waters (covered under the Act) from other waters (to be

regulated by the states). After all, the term “navigable

waters” has been described as “defin[ing} a federal servitude,

derived from the commerce clause, that overlays what might

otherwise be considered state waters,” Northern Cal. River

Watch v. City of Healdsburg, 2004 U.S. Dist. LEXIS 1008,

*18 (N.D. Cal. Jan. 23, 2004).

In any event, both the phrase “navigable waters” and

the phrase “waters of the United States” had an established

meaning in federal law, i.e., traditional navigable waters.

Congress had previously used the terms “waters of the

United States” and “navigable waters of the United States”

interchangeably in section 10 of the Rivers and Harbors Act,

33 U.S.C. § 403 (2000). Section 10 has been held to apply

only to traditional navigable waters. United States v. Stoeco

10

Homes, Inc., 498 F.2d 597, 608-10 (3d Cir. 1974).

Moreover, as long ago as 1871, the District Court in The

Daniel Ball case had used the phrase “waters of the United

States” to mean traditional navigable waters:

I regard it to be well settled doctrine of the

supreme court of the United States, that all

waters within thc United States which are

navigable for the purpose of commerce, or in

other words, waters whose navigation

successfully aids commerce, are waters of the

United States.

The Daniel Ball, 6 F. Cas. 1161, 1163 (W.D. Mich.), rev'd

on other grounds, 77 U.S. (10 Wall.) 557 (1871) (emphasis

added). See Black’s Law Dictionary 1761 (4th ed. rev.

1968) (defining “Waters of the United States” and citing The

Daniel Ball).

Moreover, had Congress intended in the 1972

Amendments to cover purely state waters, in addition to

traditional navigable waters, it knew how to say so. In the

Waici Quality Act of 1965, Congress had provided for

development grants to states and cities for controlling

discharges of inadequately treated sewage into “any waters.”

Pub. L. No. 89-234, § 3, 79 Stat. 903, 905 (1965). Congress

could have employed the same term in the 1972

Amendments, but instead used the narrower term “waters of

the United States.”

B. The legislative history of the definition

The legislative history of the 1972 Amendments

confirms that Congress used the terms “navigable waters”

and “waters of the United States” in their traditional sense.

It also demonstrates Congress’ intent that the concept of

11

traditional navigable waters be understood by reference to

modern federal case law. See generally Albrecht and

Nickelsburg, Could SWANCC Be Right? A New Look At The

Legislative History Of The Clean Water Act, 32 Envtl. L.

Rep. 11042, 11044-46, 11048-49 (2002).

The explanatory statements of the Senate and House

floor managers both describe “navigable waters” with

reference to their use as a “highway” or part of a “highway”

in interstate commerce. See 1 1972 Legislative History at

178 (Statement of Senator Muskie), 250-251 (Statement of

Congressman Dingell). Senator Muskie used language in his

statement nearly identical to language he had used to

describe the term “navigable waters of the United States” in

section 11 two years earlier. Compare | 1972 Legislative

History at 178 with 116 Cong. Rec. 8985 (March 24, 1970).

At the same time, the two floor managers’ statements

and the Conference Report all expressed a desire that the

term “navigable waters” be given “the broadest possible

constitutional interpretation unencumbered by agency

determinations which have been made or may be made for

administrative purposes.” 1 1972 Legislative History at 178,

251, 327. The legislative history compiled by the

Congressional Research Service does not explain what were

the “agency determinations” made for “administrative

purposes” about which Congress had been concerned.

However, a broader look at the legislative history shows that

Congress had been frustrated with the Corps of Engineers’

implementation of the Rivers and Harbors Act and with

EPA’s interpretation of the 1970 version of FWPCA.

Before enactment of the 1972 amendments to

FWPCA, the Rivers and Harbors Act had been viewed as a

potentially useful federal mechanism for controlling water

pollution. However, until 1970, the Corps had not regulated

12

dredging or fi!.:ing in aquatic areas shoreward of harbor lines,

even though under the old Daniel Ball definition of

“navigable waters of the United States,” the Corps plainly

had the authority to regulate such areas. The House

Committee on Government Operations expressly found fault

with the Corps’ policy, as reflected in its report of March

1970, entitled “Our Waters And Wetlands: How The Corps

of Engineers Can Help Prevent Their Destruction And

Pollution.” H.R. Rep. No. 917, 91st Cong., 2d Sess. 6-10

(1970).°

Another concern was that the Corps had not been

regulating waters not presently navigable in fact, even

though under c&ses such as Economy Power & Light Co. v.

United States, 256 U.S. 113 (1921) and United States v.

Appalachian Elec. Power Co., 311 U.S. 377 (1940), the

“waters of the United States” included waters that had at one

time been navigable in fact (although presently obstructed)

and waters that could be navigable, with reasonable

improvement. In 1972, the Conservation and Natural

Resources Subcommittee of the House Committee on

Government Operations held hearings “concerning the role

of the Corps of Engineers in administering and protecting

our Nation’s wetlands and waterways,” and in August the

full committee issued a report, entitled “Increasing

Protection For Our Waters, Wetlands, And Shorelines: The

Corps Of Engineers.” H.R. Rep. No. 1323, 92d Cong., 2d

Sess. 1 (1972). In its report, the committee criticized the

Corps for its narrow approach:

The corps’ regulations currently

define navigable waters as those “which are

’ In May 1970, the Corps changed course and promulgated a rule

regulating activities shoreward of harbor lines. 35 Fed. Reg. 8280 (May

27, 1970) (amending 33 C.F.R. § 209.150).

13

navigable in fact when they are used, or are

susceptible of being used, in their ordinary

condition,” for conducting trade or travel “in

the customary modes of trade and travel on

water.” (33 C.F.R. 209.260 (a).) That

language is based on similar language used

over 100 years ago in the Supreme Court’s

opinion in The Daniel Ball... .

However, more recent judicial

opinions have substantially expanded that

limited view of navigability to include

waterways which would be “susceptible of

being used * * * with reasonable

improvement,” as well as those waterways

which include sections presently obstructed

by falls, rapids, sand bars, currents, floating

debris, etc.

Id. at 29-30.’

Finally, the Corps had declined to exercise

jurisdiction over intrastate lakes, even if navigable-in-fact,

because such lakes did not, in the precise words of The

Daniel Ball, “form . . . by themselves, or by uniting with

other waters, a continued highway over which commerce is

. . . conducted by water,” 77 U.S. (10 Wall.) at 563. The

Committee on Government Operations apparently believed

that railroad or highway links between navigable intrastate

lakes and other states should be sufficient to establish federal

jurisdiction, and that modern case law supported this view:

. Congressman Dingell repeated language from this hearing

report in his floor statement on the 1972 Amendments. See | 1972

Legislative History at 250-51.

14

Although most interstate commerce 150 years

ago was accomplished on waterways, there is

no requirement in the Constitution that the

waterway must cross a State boundary in

order to be within the interstate commerce

power of the Federal Government. 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, etc.). The

“gist of the Federal test” is the waterway’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); U.S. v. Underwood, 4

ERC 1305, 1309 (D.C., Md., Fla., Tampa

Div., June 8, 1972).

H.R. Rep. No. 1323, 92d Cong., 2d Sess. 30 (1972).

Although Congress’ expressed discontent was

focused on the Corps, Congress presumably also was aware

that in 1971, EPA’s General Counsel had issued an opinion

concerning the scope of the term “navigable waters of the

United States” in then section 13 of the FWPCA, which

regulated sewage discharges from vessels. EPA General

Counsel Opinion (Dec. 9, 1971). The opinion addressed

navigable intrastate waters lacking a water connection to

other states, which might nonetheless be linked to other

states by railroads or highways (essentially the same issue on

which the Committee on Government Operations had

disagreed with the Corps, discussed immediately above).

The opinion said that “[s}uch waters have never been

held to be within the ‘navigable waters of the United States,’

15

and the possibility of securing such a holding is remote.” /d.

Significantly, the General Counsel recommended against

would only marginally increase federal regulatory coverage,

and “(t]his additional margin . . . does not appear to justify

the legal and administrative difficulties it presents.” Id.

(emphasis added).

Thus, it is clear that the “agency determinations”

made for “administrative purposes” about which Congress

complained in the 1972 legislative process involved the

federal agencies’ failure to assert jurisdiction over traditional

navigable waters as fully as justified under modern federal

case law. The focus of Congress’ frustration appears to have

been the Corps, but Congress was likely also disappointed

with EPA’s position.

Thus, in defining “navigable waters” as the “waters

of the United States” in the 1972 FWPCA Amendments,

Congress intended only to reach traditional navigable waters,

although it intended that such waters be understood to be as

extensive as described in modern federal case law. In other

words, Congress wanted to ensure that the agencies would

exercise their full constitutional power over navigation.

In SWANCC, this Court confirmed that Congress’

focus in 1972 was upon traditional navigable waters. 531

U.S. at 168 & n.3, 172. This Court also confirmed its

opinion in United States v. Riverside Bayview Homes, 474

U.S. 121 (1985), that in the Clean Water Act of 1977, Pub.

L. No. 95-217, 91 Stat. 1566 (1977), Congress had

acquiesced in the Corps of Engineers’ assertion of CWA

jurisdiction over wetlands abutting traditional navigable

waters. 531 U.S. at 167, 170-72.

16

C. The regulation of the “discharge of

pollutants”

Although Congress focused the federal effort upon

protection of water quality in traditional navigable waters

(and their abutting wetlands), and chose to have the states

retain primary authority to protect water quality in waters

traditionally regarded as state waters, see SWANCC, 531

U.S. at 166-67, Congress gave EPA and the Corps adequate

tools to protect traditional navigable waters from pollution

from or through upstream sources, such as non-navigable

tributaries. Specifically, Congress prohibited the

“discharge” of pollutants, except in compliance with a

section 402 NPDES permit or a section 404 permit to

discharge “dredged or fill material.” 33 U.S.C. § 1311(a)

(2000). See also 33 U.S.C. §§ 1321(a)(2), (b)(3) (2000).

The term “discharge of pollutants” is defined as “any

addition of any pollutant to navigable waters from any point

source.” 33 U.S.C. § 1362(12) (2000). The term “point

source” is defined to include “any discernible, confined and

discrete conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete fissure .. .

from which pollutants are or may be discharged.” 33 U.S.C.

§ 1362(14) (2000) (emphasis added). Thus, the addition of

pollutants to navigable waters through a ditch is prohibited,

except in compliance with a permit. But that does not mean

the ditch is a “navigable water.”

Similarly, a common dictionary definition of

“channel” is “the bed where a natural stream of water runs.”

Webster’s Ninth New Collegiate Dictionary 226 (1988).

Thus, a non-navigable tributary adding pollutants to a

navigable water (either directly or through another non-

17

navigable tributary*) can be a “point source” and subject to

regulation, but not because the non-navigable tributary is a

“navigable water” or “water of the United States.”

Conversely, a ditch or non-navigable channel that receives

pollutants but that itself cannot reasonably be expected to

convey pollutants to navigable waters (either directly or

through another point source) is not subject to regulation

under the CWA. However, it can still be regulated as a state

water by the applicable state. See S. Novick (ed.), | Law Of

Environmental Protection § 7:9 & n.2 (2004) (“[C]ommon

. . . iS a provision prohibiting the ‘discharge’ of any

‘pollutant’ into the ‘waters of the state’ without a permit.

Virtually every state has a provision of this type.”’).

There are many cases where it is highly probable that

a discharge to a tributary (in particular a primary tributary)

will result in an addition of pollutants to traditional navigable

waters. But there are also many cases where a discharge to a

remote “tributary” cannot reasonably be expected to reach

traditional navigable waters.

This is certainly true in the oil and gas industry,

where many production wells and pipeline facilities are

located in arid areas near normally dry streambeds or washes

that eventually lead through a lengthy series of drainages to

traditional navigable waters. A spill of oil or produced water

could reasonably be expected to reach the dry streambed or

wash, but in many such cases could not reasonably be

expected to reach traditional navigable waters. While such a

spill may never reach traditional navigable waters, such a

spill can be cleaned up before a precipitation event even

. See South Fla. Water Mgt. Dist. v. Miccosukee Tribe, 541 U.S.

95, 105 (2004) (“a point source need not be the original source of the

pollutant; it need only convey the pollutant to ‘navigable waters,’ which

are, in turn, defined as ‘the waters of the United States." ”’).

18

begins to cause any migration toward traditional navigable

waters.

In such instances, the CWA would not apply.

However, the states may, and generally do, regulate

——discharges of oil to state waters, and require that they be

cleaned up promptly. See D. Selmi & K. Manaster, State

Environmental Law § 18:1 (2003) (“Liability for oil spills

has long been a prominent feature on the landscape of state

environmental law”). See generally id. at ch. 18.

III. Where The Sixth Circuit Errs

Underlying the Sixth Circuit’s opinions in the present

cases is the notion that the CWA was intended to protect

water quality in traditional navigable waters. That much of

the Sixth Circuit’s reasoning is surely correct, given this

Court’s conclusion in SWANCC that “The term ‘navigable’

has at least the import of showing us what Congress had in

mind as its authority for enacting the CWA: its traditional

jurisdiction over waters that were or had been navigable in

fact or which could reasonably be so made.” 531 U.S. at

172.

But the Sixth Circuit errs in its understanding of how

Congress went about protecting traditional navigable waters.

In essence, the Sixth Circuit’s theory is that because A (a

non-navigable water or wetland) might somehow affect B (a

traditional navigable water), therefore A is B. See United

States v. Rapanos, 376 F.3d 629, 639 (6th Cir. 2004) (“‘[a)ny

contamination of the Rapanos wetlands could affect the

Drain, which, in turn could affect pavigable-in-fact

waters.”””) (citation omitted). Yet this theory enjoys no

support in the statute. It is made of whole cloth, presumably

in an effort to accomplish the perceived ends of the statute.

19

This Court has often cautioned against reliance upon

the general ends of a statute to enlarge or otherwise alter its

intended reach. This Court has explained that

Application of “broad purposes” of legislation

at the expense of specific provisions ignore.

the complexity of the problems Congress is

called upon to address and the dynamics of

legislative action. Congress may be

unanimous in its intent to stamp out some

vague social or economic evil; however,

because its Members may differ sharply on

the means for effectuating that intent, the final

language of the legislation may reflect hard-

fought compromises.

Board of Governors of the Fed. Reserve Sys. v. Dimension

Fin. Corp., 474 U.S. 361, 373-74 (1986). See also

Rodriguez v. United States, 480 U.S. 522, 526 (1987) (“{I}t

frustrates rather than effectuates legislative intent

simplistically to assume that whatever furthers the statute’s

primary objective must be the law.”) (emphasis in the

original).

In fact, CWA jurisprudence in most of the lower

federal courts appears to have been largely purpose-driven

both before and after this Court’s decision in SWANCC.

Before SWANCC, the prevailing theory was that to protect

water quality as broadly as possible, Congress had directed

EPA and the Corps to regulate any waters that might be

regulated under the federal power to regulate interstate

commerce. See United States v. Earth Sciences, Inc., 599

F.2d 368, 375 (10th Cir. 1979) (“Every court to discuss the

issue has used a commerce power approach... .”).

Following SWANCC’s rejection of this “full extent of the

commerce power” theory, many of the federal circuits

20

(including the Sixth Circuit here) have shifted to a new

purpose-driven theory, i.e., since Congress wanted to protect

traditional navigable waters, any aquatic area with any

hydrological connection with traditional navigable waters

must itself be deemed a traditional navigable water, and

subject to federal protection. See United States v. Gerke

Excavating Inc., 412 F.3d 804, 807 (7th Cir. 2005), petition

for cert. filed, 74 U.S.L.W. 3309 (U.S. Nov. 11, 2005) (No.

05-623); Rapanos, 376 F.3d at 639; United States v. Deaton,

332 F.3d 698, 711-12 (4th Cir. 2003), cert. denied, 124 S. Ct.

1874 (2004).

Yet Congress’ very specific regulatory scheme in the

CWA must be given effect, even though some may believe

that scheme does not go far enough to serve the ends of the

statute or represent the perfect balance of policy choices. In

the CWA, Congress asserted authority over traditional

navigable waters (and their abutting wetlands), including the

authority to protect such waters from upstream pollution.

But Congress chose te protect traditional navigable waters

by regulating additions of pollutants to such waters (whether

directly or through ditches, channels, or other “point

sources”’) -- not by rendering subject to federal regulation all

activities affecting non-navigable, state waters. Congress

relied upon the states to regulate activities affecting only

state waters.

Here, if the Corps can show Mr. Rapanos’ wetland-

filling activities result in an addition of pollutants to

traditional navigable waters, then those activities may be

regulated. But this is quite different from the Corps’ current

approach, approved by the Sixth Circuit, under which the

mere potential for drainage from a distant wetland to a

traditional navigable water renders the wetland itself a

“navigable water.”

21

Similarly, if the Corps can show that filling of the

Carabells’ property results in an addition of pollutants to

traditional navigable waters, then that activity may be

regulated. But mere proximity to a traditional navigable

water, in the absence of any hydrological connection, cannot

render a wetland a “navigable water.” In fact, in the

Carabell case, the only proximity is to a non-navigable

“tributary” of a traditional navigable water. Thus, the

wetlands on the Carabells’ property cannot even be said to

be “inseparably bound up” (SWANCC, 531 U.S. at 167) with

traditional navigable waters.

IV. Implications Of The Sixth Circuit’s Holdings

If, as the Sixth Circuit holds, any hydrological

connection with a traditional navigable water renders an area

a “navigable water,” then even normally dry hillsides would

be “navigable waters,” assuming there is at least occasional

precipitation. One could start tracing paths of drainage at the

highest point in the Rocky Mountains and follow them to the

sea — and every land mass drained along the way would be

“navigable waters.” Thus, the potential area of the nation

covered as “navigable waters” could be far greater even than

the 100 million acres of wetlands (an area itself the size of

California) that petitioners Rapanos, et a/. referred to in their

reply brief on the petition for certiorari, see Reply Br. of

Petitioners Rapanos, et a/. (On Petition) at 10.

As a result, remote oil and gas production and

pipeline facilities could be required to prepare and

implement SPCC plans under section 311, even where they

have no reasonable likelihood of ever affecting traditional

navigable waters. Also, such facilities currently are subject

to fines for spills to remote, dry stream beds and washes,

even if the spills are promptly cleaned up and never get

22

anywhere near navigable waters. See 33 US.C. §§

1321(b)(6), (6)(7) (2000).

Moreover, under the mere proximity test of the

Carabell case, man-made retention ponds at industrial

facilities, such as petroleum refineries, pipeline facilities, or

natural gas plants (located close to, but with no surface

hydrological connection to, traditional navigable waters),

could be “navigable waters.” This would make no sense, as

such ponds are specifically designed to prevent or limit the

addition of pollutants to traditional navigable waters. Their

mere operation in catching and holding pollutants could now

be subject to NPDES permitting.”

Even assuming, arguendo, that a “significant nexus”

with traditional navigable waters is enough to render any

non-navigable water or wetland “navigable waters,” see

Rapanos, 376 F.3d at 639, the Sixth Circuit’s theories make

a mockery of this Court’s concept. Cf SWANCC, 531 U.S.

at 167 (“It was the significant nexus between the wetlands

and ‘navigable waters’ that informed our reading of the

CWA in Riverside Bayview Homes.”). If, as under Rapanos,

any hydrological connection constitutes a “significant

nexus,” then very little land area would not have a

“significant nexus” with traditional navigable waters.

Carabell makes the mockery complete, holding that merely

being close to an area that has any hydrological connection

with traditional navigable water establishes a “significant

"uexus” with traditional navigable waters.

. In some cases, water from the retention basins is pumped to the

facility's waste water treatment plant and discharged to navigable waters.

That discharge is subject to NPDES permitting. Put that is quite

from regulating the retention basins themselves as “navigable

waters.”

23

CONCLUSION

The judgments in cases 04-1034 and 04-1384 are

based on a faulty construction of the CWA and should be

reversed.

Respectfully submitted,

December 2, 2005 THOMAS SAYRE LLEWELLYN

(COUNSEL OF RECORD)

5125 MacArthur Blvd., NW

Suite 32-A

Washington, DC 20016

(202) 237-7291

HARRY M. NG

RALPH J. COLLELI JR.

ERIK G. MILITO

American Petroleum Institute

1220 L Street, NW

Washington, DC 20005

(202) 682-8000