# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 715

## Text

[ "Baprene Guuit, Uno.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A15. Public record. Not legal advice.