Amicus Curiae Brief — Rapanos v. United States

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IN THE

Supreme Court of the United S , 7 ae:

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RAPANOS, ET AL.,

Petitioners,

Vv.

U.S. ARMY CORPS OF ENGINEERS, et ai.,

Respondents.

CARABELL, ET AL.,

Petitioners,

U. S. ARMY CORPS OF ENGINEERS, ef ai.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF AMICUS CURIAE OF

AMERICAN RIVERS, ENVIRONMENTAL

DEFENSE, NATIONAL AUDUBON SOCIETY,

NATURAL RESOURCES DEFENSE COUNCIL,

PHYSICIANS FOR SOCIAL RESPONSIBILITY,

SIERRA CLUB, Ti’ OF THE MITT WATERSHED

COUNCIL, AND WATERKEEPER ALLIANCE

IN SUPPORT OF RESPONDENTS

HOWARD I. FOX

EARTHJUSTICE

1625 Massachusetts Avenue, N.W., Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Counsel of Record for Amici Curiae American Rivers,

Environmental Defense, National Audubon Society, Natural

Resources Defense Council, Physicians for Social

Responsibility, Sierra Club, Tip of the Mitt Watershed

Council, and Waterkeeper Alliance

January 13, 2006

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RULE 29.6 STATEMENT

American Rivers, Environmental Defense, National

Audubon Society, Natural Resources Defense Council,

Physicians for Social Responsibility, Sierra Club, Tip of the

Mitt Watershed Council, and Waterkeeper Alliance are

nonprofit corporations. They have no parent corporations

and none are publicly held.

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TABLE OF CONTENTS

Page

ee NE icibtcinctnsienssthcnciicacieraciciiesipbcimsceaitainsanigedn i

pF eee iii

STATEMENT OF INTEREST ..............:cescscesscsseceeseseseerees l

ese eaicicchciiiitactinepeteneencnininicilimiininciatiianitinnaaianbaganes l

SUMMARY OF ARGUMENT .............:ccccsceceeseseeeeeeeeeees 4

FEET viisinistiiibntinihinsnrridaintiinpeiniasinnntiasiemaneol 6

I. THE CORPS AND EPA PROPERLY

CONCLUDED THAT THE ACT'S PERMIT

SAFEGUARDS PROTECT TRIBUTARIES

OF TRADITIONALLY NAVIGABLE WATER. .... 6

A. Coverage of Tributaries Is Consistent

With—Indeed, Required By—the Acct.. ..................04. 6

B. Exclusion of Tributaries Would Contravene

This Court's Settled Precedent, and Would

Revive Common Law Causes of Action that

This Court Has Held Preempted. .................:.0cc000000+ 16

C. Petitioners' Arguments Offer No Basis

for Overturning the Long-Standing

TIE, CUTIES cchestinietnedentncosstindeslbnstenniammeess 18

Il. THE CORPS AND EPA PROPERLY

CONCLUDED THAT THE ACT'S PERMIT

SAFEGUARDS PROTECT WETLANDS

ADJACENT TO TRIBUTARIEG.............cccccesesseeees 25

Ill. APPLYING PERMIT SAFEGUARDS TO

TRIBUTARIES AND THEIR ADJACENT

WETLANDS IS WELL WITHIN CONGRESS'S

COMMERCE CLAUSE POWER. ...........::cesseseeee0s 28

CIEL AINE ccceceserenversecsensesecsnevesnniastanetnnnmensinnnniantiais 30

TABLE OF AUTHORITIES

Page(s)

CASES

Barnhart v. Walton,

otc cneritienereenennenainmmineenmeniel 8

Borden Ranch Partnership v. U.S. Army Corps of

Engineers,

261 F.3d 810 (9th Cir. 2001),

ee EE OI icccetetnievecdebinnniennsneminententientes 27

Chao v. Mallard Bay Drilling,

ES EEE TE 13

Chevron, USA v. NRDC,

Tee e 6, 25

Citizens Bank v. Alafabco, .

nee 29

Gonzales v. Raich,

aad rcatatesrpnttnies 29

Hodel v. Virginia Surface Mining and Reclamation

Association,

Te 28, 29

Illinois v. Milwaukee,

EN ET 18

International Paper Co. v. Ouellette,

ee 4, 7, 16, 17, 18

Kaiser Aetna v. United States,

Ne 28

Koons Buick Pontiac GMC v. Nigh,

SR eee 13

Milwaukee v. Illinois,

Ge as SOD ccrrsencentetentsnnnecneesi 4,7, 16,17, 18

NRDC v. Callaway,

392 F. Supp. 685 (D.D.C. 1975) ...........ccccsessrsersereseeees 8

Norwegian Nitrogen Products Co. v. U.S.,

ey SIE aqeeenirtnnsininnacincccsingsbacnsascimssinicnsiiinn 8

Oklahoma v. Guy F. Atkinson Co.,

Rn 20

Raygor v. Regents of U. of Minnesota,

oR 13

Shepard v. U.S.,

SE 17

Solid Waste Agency of Northern Cook County v. U.S.

Army Corps of Engineers,

ee 1,2, 11,17

South Fla. Water Management District v.

Miccosukee Tribe,

ee 24

TRW v. Andrews,

SPE EI SETI cncisssntenstaphconsnnsnnpnennqninensinnaiipetine ll

US Airways, Inc. v. Barnett,

Aa ITI ahitnininiiinisitismnnntinigseniasannennioniennndii 13

U.S. v. Ashland Oil and Transport Co..,

504 F.2d 1317 (6th Cir. 1974) 00. eeseeeeee 7, 14, 22

U.S. v. Riverside Bayview Homes,

ee ID ctntretiteniteiterentintennniinenenans passim

United States v. Deaton,

332 F.3d 698 (4th Cir. 2003) ..............ccccescecceeceeee 19, 22

United States v. Eidson,

108 F.3d 1336 (11th Cir. 1997) 0. ceeeee 19, 24

STATUTES

Clean Water Act

2 & ee ee 13, 15

3 RR 4). 2, 13, 21

Ann ME EEE: U0 IIDEEES cencnenntiendinenanbepsnaineieeciinmmenineiies 21

FE, Be Cs 0 ED GD vccceciscnctsintcctstcceins 13, 15, 21, 29

2 RR eee 3

RY eee 3

SG Se MIs OF TED cccrncnenbatenmnntennesnnineninseie 2, 6, 12

8 Re passim

§ 502(7), 33 U.S.C. § 1362(7) ................-+. 1, 2, 3, 6, 22

ff . § LD ell. Se 2

§ 502(14), 33 U.S.C. § 1362(14)....cccccscvcececseeseee 22, 23

Vili

Refuse Act

| RECN eee retae eer Onn Rnres 7

REGULATIONS AND FEDERAL REGISTER

I i 6, 25

38 Fed. Reg. 13528 (May 22, 1973) ....ccceccccssssessecseesee 8

39 Fed. Reg. 12115 (April 3, 1974) ...ccccccccssceccsscssseeseonn 8

LEGISLATIVE HISTORY

Legislative History of the Water Pollution Control Act

Amendments of 1972 (Jam. 1973) ............cccccscceeseeceeeeeeees 6

Legislative History of the Clean Water Act of 1977

gg Ieee 8,9, 10, 11, 29

Section 404 of the FWPCA of 1972, Hearings before the

Senate Committee on Public Works, Serial No. 94-H49

SOEs GPTTED ccsktcintstinhielinnclenicatenibinuninitiastgbaaipetinbiathanntia 4

OTHER MATERIALS

Corps of Engineers, EP 1165-2-1, "Digest of Water

Resources, Policies, and Authorities,"

Gd RE aR a ET asa 26

Council on Environmental Quality, Environmental

ED cinerrecitnesinitesinittintiassatentecesussitsaininsingaeanens 23

Cheryl Dybas, "By the Dark of the Moon, Eels Slither

Out to the Sea," Washington Post (Oct. 9, 1996) ......... 15

Gov’t of the District of Columbia, Storm Water

Management Plan (D.C. Oct. 19, 2002) .............0+ 12, 15

Tom Horton, Bay Country (Johns Hopkins

TD cntcninccitiuiniinnisantinnsionduitiememmens 14, 15, 27

Jonathan Lyman, Alaska's Wild Salmon

(Alaska Dept. of Fish & Game 2002) .............ccseeeseees 14

William Mitsch, ef a/., "Reducing nitrogen loading to

the Gulf of Mexico from the Mississippi River basin:

Strategies to counter a persistent ecological problem,"

ne 19

Nancy Rabalais, ef al., "Beyond science into policy:

Gulf of Mexico hypoxia and the Mississippi River,"

Ee 19

Rock Creek Fisheries Study, prepared for National Park

I, i SE cecintorctncnnttninenssnenpiesntnnteisienns 15

U.S. v. D.C. Water and Sewer Auth., D.D.C. 00cv183

(TFH), Consent Decree Entered Mar. 23, 2005 ........... 12

L. Wood, Don't Be Misled: CWA Jurisdiction Extends

to All Non-Navigable Tributaries of the Traditional

Navigable Waters and to Their Adjacent Wetlands,

34 Envtl. L. Rptr. 10187 (2004) 00... eeceeeeeeneeece 7

STATEMENT OF INTEREST

American Rivers, Environmental Defense, National

Audubon Society, Natural Resources Defense Council,

Physicians for Social Responsibility, Sierra Club, Tip of the

Mitt Watershed Council, and Waterkeeper Alliance

(“Environmental Amici") all have a long history of

involvement in, and expertise concerning, the protection of

our Nation's waters and the implementation of the Clean

Water Act. Through testimony in Congress, comments and

other advocacy in the Executive Branch, and litigation in the

courts, they have pursued these interests repeatedly during

the three decades since-enactment of the seminal 1972

amendments that gave the Act its current structure. All of

these organizations have members and supporters who use

and rely on a wide array of waters throughout our Nation for

recreation, scientific study, and protection of their health,

safety, property, drinking water, and food supply.

INTRODUCTION

At issue is the geographic scope of the Clean Water

Act's core safeguard—the requirement to obtain a permit

before discharging pollutants to “waters of the United

States." § 502(7). In their quest to exempt their discharges

from that safeguard, Petitioners and their amici rely heavily

on Solid Waste Agency of Northern Cook County v. U.S.

Army Corps of Engineers, 531 U.S. 159 (2001), which they

' Pursuant to S. Ct. R. 37.3(a) and 37.6, the undersigned

represent that (1) all parties consented to the filing of this

brief, (2) no counsel for any party authored this brief in

whole or in part, and (3) no person or entity other than the

above-named amici curiae and their counsel made a

monetary contribution to the preparation or submission of

this brief.

interpret as conditioning permit jurisdiction on a "significant

nexus" to traditionally navigable waters. While

Environmental Amici submit that neither SWANCC nor the

Act establishes such a nexus requirement, the Court need not

address that issue here. Unlike the “isolated” waters at issue

in SWANCC, see 531 ‘U.S. at 17], these cases involve

wetlands adjoining tributaries of the Great Lakes. As this

brief will show, the Corps of Engineers’ regulations properly

apply the Act's permit requirements to tributaries of

traditionally navigable waters (Part I, infra), as well as

wetlands adjacent to such tributaries (Part II, infra).

Initially, while the specific discharges at issue here are

governed by the Act's §404 permit program, it bears

emphasis that the interpretational issue posed here goes well

beyond § 404. Specifically, both the § 404 authority to grant

permits for discharges of dredged or fill material, and the

§ 402 permit program for discharges of all other pollutants,

only come into play if a discharge is otherwise prohibited

under § 301.

The § 301 prohibition does not apply, and no Clean

Water Act discharge permit is required in the first place,

unless there is a “discharge of any pollutant." § 301(a).

Significantly, the Act defines "discharge of a pollutant” as

inter alia the addition of any pollutant to "navigable waters"

from any point source. § 502(12). The Act in turn defines

“navigable waters" as inter alia "the waters of the United

States." § 502(7).

Thus, if a given water is not among “the waters of the

United States," the § 301(a) discharge prohibition does not

apply, and—with very few exceptions’—that water can

? In the case of oil or hazardous substances, the Act bars not

only discharges of those pollutants into navigable waters, but

(... footmote continued next page)

suffer discharges of any type of pollutant whatsoever without

any Clean Water Act permit. Thus, these cases pose the

question whether the Clean Water Act regulates any

discharges into the great majority of this country's tributaries

and adjacent wetlands—involving not just discharges of

dredged or fill material, but also discharges of sewage,

sediment and toxic chemicals such as cyanide from

factories.’

Moreover, the Act grants states authority they would not

otherwise have to control discharges in connection with other

federal licenses (such as hydroelectric licenses)}—even when

no pollutant is discharged. See § 401. Because those

safeguards apply only to discharges “into the navigable

waters," § 401(a)(1), a crabbed reading of the § 502(7)

definition would work serious harm on this key Clean Water

Act program as well.

Under Rapanos's theory (Br. 9), the only rivers and

streams protected by the Act would be "traditional navigable

waters" (i.e., the same water bodies regulated by Section 10

of the Rivers and Harbors Act of 1899), and tributaries

directly abutting those waters. In Michigan, just 496 miles

out of 54,300 miles of rivers and streams—or 0.9%—are

traditionally navigable. Memo from Diana Kiemans,

Michigan Department of Environmental Quality (Jan. 10,

2006)." Under Rapanos's theory, the bedrock interpretation

(... footnote continued from previous page)

also discharges affecting maritime or federal resources.

§ 311(b)(3), § 33 U.S.C. 1321(6)(3).

> See www.earthjustice.org/brief/Region_1.pdf (comments

by EPA Region I, at 9-12); www.earthjustice.org/brief/

R3J.pdf (comments by EPA Region III, Appendix J)

* See www.earthjustice.org/brief/MichMemo.pdf.

prevalent since 1972 would be reversed, and _ the

overwhelming majority of the hundreds of thousands of

permits issued to sewage treatment plants, factories and

dredge and fill operations since that date would have been

unnecessary.

SUMMARY OF ARGUMENT

To accept Petitioners’ argument that tributaries of larger

waterways are excluded from the Act's protections, the Court

would have to conclude that the 1972 authors of the Clean

Water Act intended to dramatically cut back on the

preexisting geographic scope of water pollution law. In

language dating back to the McKinley Administration, the

predecessor statute already covered discharges into

tributaries. The notion that Congress intended the 1972 Act

to cut back on law from the previous century is untenable.

As this Court has recognized, the 1972 Act's authors

considered the predecessor legislation to be "inadequate in

every vital aspect," and responded by enacting a

"comprehensive" statute whose intent "was clearly to

establish an all-encompassing program of water pollution

regulation." Milwaukee v. Illinois, 451 U.S. 304, 317-19

(1981) (citation omitted). Thus, the Act “applies to all point

sources and virtually all bodies of water." Jntl. Paper Co. v.

Ouellette, 479 U.S. 481, 492 (1987).

Petitioners’ theory would also undermine two key

preemption holdings of this Court. Milwaukee and Ouellette

expressly relied on the Act's comprehensive scope in holding

that the Act preempted the common law of downstream

states as well as federal common law. Were the Court to hold

that tributaries and adjacent wetlands are outside the Act's

safeguards, the Act would be anything but "comprehensive"

and “all-encompassing,” but instead would apply only to a

tiny fraction of the Nation's waters. Under that scenario, the

rationale underlying Milwaukee and Ouellette would no

longer be viable, and the common law remedies preempted

by those precedents would spring back to life.

Once the error is recognized in Petitioners’. attempt to

exclude tributaries, their corresponding attempt to exclude

wetlands adjacent to those tributaries must likewise be

rejected. This Court long ago recognized that Congress

intended the Corps’ jurisdiction to "extend to discharges into

wetlands adjacent to any waters over which the Corps

retained jurisdiction." U.S. v. Riverside Bayview Homes, 474

U.S. 121, 138 (1985) (emphasis added).

The agencies acted reasonably in applying the Act's

safeguards categorically to tributaries and wetlands. That

~ Categorical coverage does not halt meritorious projects, but

on the contrary allows them to go forward through issuance

of discharge permits. See Bayview, 474 U.S. at 135 n.9.

The legislative history shows that Congress intended the

Act to extend to tributaries, in order to protect traditional

navigable waterbodies from pollution flowing downstream

and to avoid unequal reguiatory approaches that would give

upstream dischargers an unfair advantage over their

downstream competitors. Petitioners’ effort to subject the Act

to radical surgery would undermine these objectives, as well

as economic interests expressly protected by the Act,

including public water supplies and fisheries. This Court's

precedent has recognized all these goals as legitimate

grounds for exercise of Congress's Commerce Clause power.

ARGUMENT

I. THE CORPS AND EPA PROPERLY CONCLUDED

THAT THE ACT'S PERMIT SAFEGUARDS

PROTECT TRIBUTARIES OF TRADITIONALLY

NAVIGABLE WATERS.

A. Coverage of Tributaries Is Consistent With—Indeed,

Required By—the Act.

The Corps’ longstanding permit regulations (like EPA's)

expressly encompass tributaries of traditionally navigable

waters. 33 C.F.R. § 328.3(a)(5). Petitioners have shown

neither that this regulation contravenes clearly expressed

congressional intent under Step One of Chevron, USA v.

NRDC, 467 U.S. 837, 842-43 (1984), nor that it is an

unreasonable interpretation under Step Two. Jd. 844.

1972 Amendments. The 1972 Congress deliberately

extended the Act's protections to "the waters of the United

States," § 502(7), and did not base the key definition on "the

navigable waters of the United States" as initial versions

would have done. See Legislative History of the Water

Pollution Control Act Amendments of 1972 (Jan. 1973), at

1698 (emphasis added). Preexisting water pollution law

provides key context for Congress's pointed omission of the

word "navigable" from § 502(7).

Specifically, the Act's core permit program—the § 402

National Pollutant Discharge Elimination System program—

was designed to supersede the preexisting permit program

under the 1899 Refuse Act. Section 402 provides inter alia

that permits previously issued under the Refuse Act would

thenceforth constitute NPDES permits, and that no further

Refuse Act permits would be issued. § 402(a)(4) and (5).

Tellingly, the Refuse Act does not merely govern

discharge into traditionally navigable waters. To the contrary,

it encompasses discharge "into any navigable water of the

United States, or into any tributary of any navigable water

from which the same shall float or be washed into such

navigable water." 33 U.S.C. § 407 (emphasis added).

Thus, to conclude that tributaries of traditionally

navigable waters are exempt, one would have to believe that

the 1972 Congress cut back the geographic scope of the

predecessor statute. Indeed, the cutback would be dramatic.

In the Missouri River watershed, for example, there are by

conservative estimate 559,669 miles of traditional navigable

waters plus tributaries, of which traditional navigable waters

represent only 3,151 miles—less than 1%. L. Wood, Don't

Be Misled: CWA Jurisdiction Extends to All Non-Navigable

Tributaries of the Traditional Navigable Waters and to Their

Adjacent Wetlands, 34 Envtl. L. Rptr. 10187, 10193 n.32

(2004).

The notion that Congress intended any such cutback is

untenable. To the contrary, faced with rivers literally

catching fire due to pollution, see U.S. v. Ashland Oil and

Transp. Co., 504 F.2d 1317, 1326 (6th Cir. 1974), the 1972

Congress concluded that “the previous legislation was

‘inadequate in every vital aspect'’—and responded by

enacting a "comprehensive" statute whose intent "was clearly

to establish an all-encompassing program of water pollution

regulation." Milwaukee v. Illinois, 451 U.S. 304, 317-19

(1981) (citation omitted). Indeed, the Clean Water Act

“applies to all point sources and virtually all bodies of

water." Intl. Paper Co. v. Ouellette, 479 U.S. 481, 492

(1987). Rapanos's claim would instead dramatically shrink

federal water pollution permitting back to a narrow

geographic scope not seen since the McKinley

Administration.

EPA's contemporaneous interpretation. Given this

background, it is not surprising that the very first agency

regulation defining the scope of covered waters encompassed

not only “[ajll navigable waters of the United States," but

also “[t}ributaries” of those waters. 38 Fed. Reg. 13529 (May

22, 1973). This 1973 regulation was issued by EPA, the

agency primarily responsible for implementing the Act, and

it pre-dated the Corps’ initial, narrower 1974 regulation. See

39 Fed. Reg. 12115 (April 3, 1974). Likewise, EPA's 1973

definition was issued two years before a federal district court

overtumed the 1974 Corps regulation, see NRDC vy.

Callaway, 392 F. Supp. 685 (D.D.C. 1975), and thus was not

prompted by court order.

"(T]his Court will normally accord particular deference

to am agency interpretation of longstanding duration.”

Barnhart v. Walton, 535 U.S. 212, 220 (2002) (citation

omitted). Indeed, such deference "has peculiar weight when

it involves a contemporaneous construction of a statute by

the men charged with the responsibility of setting its

machinery in motion." Norwegian Nitrogen Products Co. v.

U.S., 288 U.S. 294, 315 (1933) (emphasis added).

1977 Amendments. The 1977 Amendments further

confirm the inclusion of tributaries. During the deliberations

on those amendments, attempts were made to narrow the

waters covered by the Act (and by the Refuse Act). Under the

proposed narrowing language, the permitting safeguards of

those statutes would have encompassed only traditionally

navigable waters, together with wetlands that were both

"contiguous or adjacent" to such waters and "periodically

inundated." See, e.g., Legislative History of the Clean Water

Act of 1977 (October 1978), at 901. However, though such

language was passed by the House, the Senate—and

ultimately Congress as a whole—rejected it. Bayview, 474

U.S. at 136-37.

In congressional hearings, the Department of Justice

sharply criticized the proposed limiting language. It was

“crystal clear," the Department noted, that the Refuse Act "by

express statutory language reaches pollution in non-navigable

tributaries of navigable waters." Section 404 of the FWPCA

of 1972, Hearings before the Senate Committee on Public

Works, Serial No. 94-H49 (July 27, 1976), at 108 (statement

of Assistant Attorney General Peter Taft).’ The proposed

amendment cutting back that coverage "is highly objectional

[sic] and could serve to undermine the whole national effort

under the Federal Water Pollution Control Act and the 1899

Rivers and Harbors Act to protect our waters from toxic and

harmful substances." Jd. 122 (emphasis in original).

Under that language, the Justice Department noted, "we

could not have brought the 456 counts in an indictment under

the Refuse Act against Allied Chemical for its discharges of

Kepone and other toxics between July 1971 and October

1972 into the nonnavigable Gravelly Run flowing into the

James River." Jd. Likewise, under the proposed language, "an

earth-fill dam could now be built across a major tributary

supplying much of the water flow to a navigable river,

cutting off that flow. Since such an activity would involve a

discharge of fill material into a 'non-navigable' water under

[the proposed language], it would be exempt." Jd. 123. In

sum, the proposed language was "a direct attack upon the

general ability of the United States to protect its public

waters and would send us back to the last century." Jd. 124.

By the time the proposed limiting language reached the

Senate floor, such criticisms had placed its supporters on the

defensive. The sponsor of that language—Senator Bentsen—

noted that an opponent “was calling news organizations

throughout Washington yesterday and advising them that this

legislation would permit toxic discharges into smaller, non-

navigable, waterways." 1977 Legislative History at 905.

> See www.earthjustice.org/brief/DOJ1976.pdf.

According to Senator Bentsen, "([njothing could be further

from the truth." /d. Likewise, responding to a newspaper

editorial warning that "(t]he dumping of toxic spoil in a

creek, for instance, can poison water supplies miles

downstream,” id., Senator Bentsen protested that “we do not

propose to change the law and permit any relaxation of our

efforts to clamp down on the dumping of sewage or ‘toxic

spoil’ or any other toxic discharges in even the smallest creek

in this Nation." Jd. 906. Accord, id. 939 (Sen. Dole: "The

argument has been made that the Bentsen amendment would

allow the dumping of toxic substances into a stream such as

that found in Rock Creek Park. That simply is not true.").

Notwithstanding Senator Bentsen's reassurances,

opponents of his amendment argued that it would allow toxic

discharges into tributaries. For example, Senator Hart argued

that under the amendment, "substances such as mercury and

cadmium, PCBs, arsenic, oil, and grease, which are contained

in much of the dredged material of this country, could be

dumped into the waterways and wetlands as a result of the

dredging activity." Jd. 909. For example, "if the tributaries of

the James River contain Kepone in their sediment, we could

have, under this program, a situation where those tributaries

would be dredged and that dredged spoil could be deposited

back to the waterways or into the adjacent wetlands releasing

that toxic material into those waterways." Jd. Indeed, Senator

Hart indicated that the amendment "will remove 98 percent

of all the rivers, streams, and lakes from the protection

program which the Congress has adopted.” /d. See also id.

911 (Sen. Stafford), 929-30 (Sen. Muskie), 916-19 (Sen.

Chafee).

Likewise, Senator Baker emphasized that

"{c]omprehensive jurisdiction is necessary not only to protect

the natural environment but also to avoid creating unfair

competition. Unless Federal jurisdiction is uniformly

implemented for all waters, dischargers located on

nonnavigable tributaries upstream from the larger rivers and

estuaries would not be required to comply with the same

procedural and substantive standards imposed upon their

downstream competitors." Jd 920.

Thus, in debating the unsuccessful attempt to narrow the

Act's geographic scope, neither side expressed support for the

result Rapanos urges here: open season to dump toxic

pollutants into tributaries of traditionally navigable waters.

Even the brief of the Solid Waste Agency in SWANCC

disclaimed any such argument. To the contrary, the Agency

argued that critics of the proposed 1977 narrowing

amendment "successfully advocated retaining the limits of

the 1972 Act to protect the '[flederal interest in waterways

other than those on which a ship can be floated,’ including

‘small streams, marshes, wetlands, and swamps which will

make their way into the bigger waterways of this country.”

Reply Brief of SWANCC, 2000 WL 1532361 (Oct. 13,

2000), at 14-15 (quoting Sen. Hart). Instead of limiting the

1972 Act's geographic scope, “Congress adopted a

compromise" that allowed certain activities to go forward

either without a permit (§ 404(f)) or with a general permit

(§ 404(e)). Opening Brief of SWANCC, 2000 WL 1041190

(July 27, 2000), at 25-26.

Likewise significant is another feature of that

compromise. The 1977 Amendments authorize delegation of

the § 404 program to states, but only as to waters “other

than” traditionally navigable waters and adjacent wetlands.

§ 404(g\(1). If § 404 applied only to traditionally navigable

waters and adjacent wetlands, the "other" waters referenced

by § 404(g)(1) would be an empty set. A reading that renders

Congress's carefully crafted delegation provisions a dead

letter would violate fundamental principles of statutory

See TRW v. Andrews, 534 U.S. 19, 31 (2001).

Thus, in SWANCC this Court recognized that it is plausible to

read §404(g)(1)'s reference to “other” waters as

encompassing "nonnavigable tributaries and streams." 531

U.S. at 171.

1987 and 2000 Amendments. In amendments enacted

in 1987 and 2000, Congress made clear its intent that Clean

Water Act permit requirements apply to two key categories

of discharges: separate storm sewer discharges (§ 402(p)) and

combined sewer overflow discharges (§ 402(q)). These

largely urban systems include large numbers of discharge

points, many of them on small tributary streams.

Appendix A includes photographs of examples in the

District of Columbia, including an outfall into Piney Branch

and two outfalls into Soapstone Creek. Hundreds of outfalls

line the District's small streams, which flow into the Potomac

River—either directly or via other tributaries.° The pictured

outfalls—like many thousands of others around the Nation—

are covered by NPDES permits.’ Indeed, violations of one of

those permits led to a consent decree that will require

reductions in raw sewage discharges from the Piney Branch

CSO outfall.* Yet under Rapanos's theory, these outfalls

would not be required to have Clean Water Act permits at all,

and would be free to continue uncontrolled discharge of raw

® Storm Water Management Plan (D.C. Oct. 19, 2002),

Table 3.2-1, see www.earthjustice.org/brief/DCStorm

Excerpt.pdf.

. www.epa.gov/reg3wapd/npdes/pdf/DC_MS4 Permit_

CAD-5-04.pdf; www.epa.gov/reg3wapd/npdes/Blue_Plains_

Permit_Final.pdf.

* Consent Decree in 1S. v. D.C. Water and Sewer Auth.,

D.D.C. 00cv183 TFH (entered Mar. 23, 2005), at 20-21.

sewage and a variety of other pollutants that would harm

both the tributaries and larger downstream waters.”

Statutory context and purpose. Statutes are to be read

in a "holistic" manner, Koons Buick Pontiac GMC v. Nigh,

125 S. Ct. 460, 466-67 (2004), viewing individual provisions

"in their context and with a view to their place in the overall

statutory scheme," Raygor v. Regents of U. of Minnesota, 534

U.S. 533, 545-46 (2002) (citation and internal quotations

omitted), and in light of the Congressional purpose. See US

Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002) (rejecting

reading under which statute “could not accomplish its

intended objective"); Chao v. Mallard Bay Drilling, 534 U.S.

235, 245 n.9 (2002) (an interpretation that would leave “large

gaps in the regulation of occupational health and safety"

would be “plainly inconsistent with the purpose of the

[Occupational Safety and Health] Act"). These principles

further support the Corps’ conclusion that the Act's permit

safeguards apply to tributaries.

The Act's overarching purpose -is to "restore and

maintain the chemical, physical, and biological integrity of

the Nation's waters." § 101(a). In furtherance of that goal, the

Act's substantive provisions require establishment and

achievement of water quality standards sufficient inter alia

"to protect the public health or welfare." § 303(c)(2)(A). See

also 301(b)(1)(C). Section 404 itself expressly safeguards

against unacceptable adverse impacts on several enumerated

environmental indicators. § 404(c).

* According to EPA's Region III office, stormwater "is

responsible for 21 percent of impaired lakes and 45 percent

of impaired estuaries in the United States. In addition, in the

Mid-Atlantic Region alone, storm water is responsible for

5,265 miles of impaired streams." See

www.epa.gov/reg3wapd/stormwater/index.htm.

Pollutant discharge into tributaries works against these

provisions by inter alia harming water quality in traditionally

navigable waters downstream. If Congress's "authority to

control pollution was limited to the bed of the navigable

stream itself," "[t}he tributaries which join to form the river

could then be used as open sewers as far as federal regulation

was concerned. The navigable part of the river could become

a mere conduit for upstream waste." Ashland, 504 F.2d at

1326.

Beyond the harms caused when pollutants are

transported from tributaries into larger waters downstream,

discharges into tributaries work against the statute by

harming the iibeterien @ nea

First, altered hydrology caused by discharges of

pollutants affects the flow of water from upstream tributaries

into the traditionally navigable waters—increasing the flow

so as to cause flooding, or reducing it so as to shrink the

downstream waterway. Indeed, § 404 embodies special

concern about such effects. While offering a conditional

exemption for certain agricultural and silvicultural activities,

§ 404 provides that the exemption does not apply—and a

permit is required—"“where the flow or circulation of

navigable waters may be impaired or the reach of such waters

be reduced.” § 404(f)(2).

Second, discharge of pollutants can harm fish species in

tributaries, which spend part of their life cycle in larger

waters downstream. For example, anadromous salmon spawn

far upstream, often in tiny streams "small enough to step

across," and that are dry part of the year. Jonathan Lyman,

Alaska's Wild Salmon (Alaska Dept. of Fish & Game 2002),

at 22. In the eastern United States, anadromous fish that

venture far upstream include herring, a widely distributed

fish found in small streams five feet across. Tom Horton, Bay

Country (Johns Hopkins Press 1987), at 41.

Likewise, catadromous American eels—a commercial

species supporting a multimillion dollar fishery in the

Chesapeake Bay and along the Atlantic coast—spend much

of their life upstream in tiny tributaries, then travel

downstream to spawn in the Atlantic Ocean. /d. 51-52. Eels

"live in nearly every stream in the eastern United States."

Chery! Dybas, "By the Dark of the Moon, Eels Slither Out to

the Sea," Washington Post (Oct. 9, 1996), at H1 (quoting

fisheries scientist). In the District of Columbia, eels have

been found in small streams—including Piney Branch,'®

which has numerous outfalls that would not require Clean

Water Act permits under Rapanos's theory."'

Protection of fisheries is a central feature of the Act,

appearing not only in its general purposes statement,

§ 101(a)(2), but also in its substantive provisions. For

example, water quality standards must account for

propagation of fish and wildlife," § 303(c)(2)(A), and § 404

itself safeguards against discharges that unacceptably harm

"shellfish beds and fishery areas (including spawning and

breeding areas)." § 404(c) (emphasis added).

Third, both the Act's water quality standards provision

and § 404 itself provide for protection of public water

supplies. §§ 303(c)(2)(A) ("public water supplies"), 404(c)

("municipal water supplies"). In the mid-Atlantic states

alone, "between 148 and 526 surface drinking water intakes,

serving populations ranging from 535,000 to 3 million people

are potentially affected should first and second order streams

10 See Rock Creek Fisheries Study, prepared for National

Park Service (Nov. 5, 1993), at 51, see

www.earthjustice.org/brief/RockCreekExcerpt. pdf.

"See D.C. Storm Water Management Plan, supra n.6, at

Table 3.2-1.

be removed from Clean Water Act jurisdiction." Comments

by EPA Region II (May 2003), at 26.'* Removal of Clean

Water Act protection “will likely increase risks to human

health and require additional infrastructure expenditures by

public utilities using surface water intakes." /d.

B. Exclusion of Tributaries Would Contravene This

Court's Settled Precedent, and Would Revive

Common Law Causes of Action that This Court Has

Held Preempted.

This Court's precedent further confirms the Corps’

conclusion that the Act's coverage extends to tributaries. As

indicated above, Ouellette held that the Act "applies to all

point sources and virtually all bodies of water," 479 U.S. at

492, and Milwaukee emphasized that the 1972 Act was a

“comprehensive” statute whose intent “was clearly to

establish an all-encompassing program of water pollution

regulation." 451 U.S. at 317-19. These rulings refute the

interpretation advanced by Rapanos and his allies, under

which the Act's permit programs would extend only to a tiny

fraction of the nation's waters.

These rulings were holdings, not dicta. Ovellette's

holding concerning the breadth of waters covered by the Act

was integral to the Court's conclusion that the Act preempted

downstream-state common law. While recognizing that

courts should not "lightly infer" preemption, Ouellette found

that preemption "may be presumed when the federal

legislation is sufficiently comprehensive to make reasonable

the inference that Congress left no room for supplementary

state regulation." 479 U.S. at 491 (citation and internal

quotations omitted). The Court went on to cite the Act's

broad geographic coverage as a key basis for concluding that

2 www.earthjustice.org/brief/R3.pdf.

its regulatory scope was “pervasive,” and that "the only state

suits that remain available are those specifically preserved by

the Act." Jd. 492.

Likewise in Milwaukee, the Court's characterization of

the Act's regulatory program as “comprehensive” and “all-

encompassing" (451 U.S. at 317-19) was integral to its

conclusion that the Act preempted federal common law.

According to the Court itself, the Act's comprehensive scope

was "quite relevant" to the preemption question. Jd. 319 n.14.

This Court has emphasized that "[cjonsiderations of

stare decisis have special force in the area of statutory

interpretation.” Shepard v. U.S., 125 §. Ct. 1254, 1261 (2005)

(citation and internal quotations omitted). The holdings of

Ouellette and Milwaukee are just as entitled to that respect as

SWANCC, which neither expressly nor implicitly overruled

those two decisions. Indeed, it is unlikely that Chief Justice

Rehnquist intended his opinion for the Court in SWANCC to

overturn prior decisions that he had authored (Milwaukee)

and joined (Ouellette).

In Shepard, the Court found that "time ha[d] enhanced

even the usual precedential force" of a prior decision,

because "nearly 15 years hav[e] passed since [the decision]

came down, without any action b- Congress to modify” the

decision. 125 S. Ct. at 1261. Here, an ever longer time has

passed without Congressional action repudiating or even

questioning the holdings of Ouellette or Milwaukee

concerning the Act's comprehensive scope. Accordingly, the

Court should reject Rapanos's frontal assault on those

holdings.

Indeed, were the Court to accept Rapanos's invitation to

revisit Ouellette and Milwaukee, the underlying preemption

holdings of those cases would have to be revisited as well,

with serious disruptive consequences. If discharges to

tributaries do not even require Clean Water Act permits,

application of a neighboring state's common law to such

discharges (e.g., of Maryland common law to discharges into

a Virginia tributary of the Potomac River) could no longer be

said to "circumvent the NPDES permit system.” Ouellette,

479 US. at 494. The specter feared by Ouellette could come

to pass: "But consider, for example, a plant that discharges

effluents into the Mississippi River. A source located in

Minnesota theoretically could be subject to the nuisance laws

of any of the nine downstream States." /d. 496 n.17. Under

Rapanos's interpretation, these nine downstream states could

indeed pursue nuisance actions against a Minnesota source,

simply by taking aim at a source discharging into a

Minnesota tributary of the Mississippi.

In Milwaukee, this Court ruled that the 1972 Act

preempted federal common law. The Court relied on the

Act's comprehensive scope to distinguish (Jilinois vv.

Milwaukee, 406 U.S. 91 (1972), where the Court had

recognized federal common law notwithstanding the pre-

1972 Act. See Milwaukee, 451 U.S. at 318 2.10. By

abrogating the 1972 Act's comprehensive scope, Rapanos's

theory would erase the preemption holding of Milwaukee and

revive the federal common law cause of action recognized in

Illinois.

C. Petitioners’ Arguments Offer No Basis for

Overturning the Long-Standing Inclusion of

Tributaries. ;

The arguments advanced by Rapanos and his allies offer

no basis for overturning the longstanding regulations

extending the Act's permit programs to tributaries.

“Remote” tributaries. There is no merit to the

suggestion that tributaries should per se be excluded from

permitting based on mere distance from a traditionally

navigable waterway, or on intermittency of flow. Water from

a so-called "remote" tributary of a traditionally navigable

waterbody flows downstream into that larger waterbody—or

else the upstream tributary would not be a tributary. If the

water itself can reach the larger downstream waterbody, then

pollutants in the water can do the same. And pollutants

entering a traditional navigable waterway from upstream do

not magically stop posing a threat to that waterway simply

because they traveled a long way to get there, or because the

waterway does not flow continuously throughout the year.

Careful scientific analysis has, in fact, shown that many

of this country's most significant water quality challenges

originate in the discharge of pollutants into very small

streams and the loss of wetlands adjacent to them hundreds

of miles away.'

Thus, "[a]ny pollutant or fill material that degrades water

quality in a tributary of navigable waters has the potential to

move downstream and degrade the quality of the navigable

waters themselves." United States v. Deaton, 332 F.3d 698,

707 (4th Cir. 2003) (emphasis added). Moreover,

"[pjollutanis need not reach interstate bodies of water

immediately or continuously in order to inflict serious

environmental damage." United States v. Eidson, 108 F.3d

1336, 1342 (11th Cir. 1997). "Rather, as long as the tributary

would flow into the navigable body of water during

significant rainfall, it is capable of spreading environmental

damage and is thus a water of the United States under the

Act." /d. (citation and internal quotations omitted). Indeed, as

See, e.g., Nancy Rabalais, er al., "Beyond science into

policy: Gulf of Mexico hypoxia and the Mississippi River,"

52 BioScience 129, 135 (2002); William Mitsch, ef al.,

"Reducing nitrogen loading to the Gulf of Mexico from the

Mississippi River basin: Strategies to counter a persistent

ecological problem," 51 BioScience 373, 373 (2001).

shown above, pollutants can harm the operation and goals of

the Act by causing effects in the tributaries themselves.

Adjacent wetlands. This Court has also recognized that

regulation of adjacent wetlands follows from the regulation

of tributaries, because even those members of Congress who

wished to restrict jurisdiction in 1977 agreed that "whatever

jurisdiction the Corps would retain over discharges of fill

material after passage of the 1977 legislation should extend

to discharges into wetlands adjacent to any waters over

which the Corps retained jurisdiction." Bayview, 474 US. at

138. Because the Corps retained jurisdiction over tributaries,

it also retains jurisdiction over wetlands adjacent to those

tributaries.

Case-by-case showing. Rapanos and his allies also

suggest that the applicability of permitting to a given

tributary should depend on a case-by-case showing that the

discharge causes harm in a traditionally navigable waterway

downstream. The argument is baseless.

As this Court has recognized, the relevant inquiry is

whether the challenged regulations target a class of waters

properly within the statute's reach, not whether each

individual water within the class is significant. See Bayview,

474 U.S. at 135 n.9 ("If it is reasonable for the Corps to

conclude that in the majority of cases, adjacent wetlands have

significant effects on water quality and the aquatic

ecosystem, its definition can stand.") (emphasis added).

Similarly, this Court has recognized the wisdom of a

cumulative effects approach. In a case involving a flood

control project on a tributary, the Court refused to consider in

isolation whether a single reservoir on a single tributary "will

effect a substantial reduction in the lower Mississippi

floods." Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508,

527 (1941). "To say that no one of those projects could be

constitutionally authorized because its separate effect on

floods in the Mississippi would be too conjectural would be

to deny the actual or potential aggregate benefits of the

integrated system as a whole." Jd. 527-28.

The effect of pollutants on waters downstream is

cumulative, and the Clean Water Act explicitly requires

limitation of pollutants to prevent their cumulative

downstream impacts.'* Under the case-by-case approach,

therefore, identical streams would be regulated in some

watersheds but not others because of the cumulative effects

of all potential discharges, and streams would be regulated in

some years but not others depending on the likely cumulative

discharges within the watershed. This approach would

determine whether a particular discharger was covered under

the Act by the order he arrived at the stream, rather than the

nature of the discharge. Those who had the "good fortune” of

polluting a tributary early on—even larger polluters—might

be exempt from the Act's protections, whereas those who

arrived later would be covered—even if their individual

'* Section 404(e) does so explicitly, prohibiting general

permits even for small activities if they have more than de

minimis impacts downstream when measured not just

individually but cumulatively. Beyond § 404, the basic

permitting program for discharges of pollutants from

factories and sewage treatment plants also requires that

permits include effluent limits adequate to prevent violations

of water quality standards when measured cumulatively, in

combination with all other sources of pollutants. See

§ 301(b)(1)(C) (requiring limits to prevent violations of water

quality standards); § 302(a) (requiring effluent limitations

more stringent than technology based limits to meet water

quality goals when a "group of point sources" would

otherwise cause violations); §303(d) (requiring

establishment of total maximum daily loads from all sources

to attain water quality standards).

discharge was small. There is no support for this approach in

the Clean Water Act, and no practical way of accomplishing

it since dischargers would have no obligation to inform

agencies of the nature of their discharges unless the receiving

waters were regulated in the first place. |

The Courts have recognized the practical impossibility

of this approach. In Ashland, the polluter wanted to place the

burden on the government to prove, "not merely that oil was

discharged into a tributary of a navigable stream, but also

that, in fact, the oil reached and polluted the navigable river."

504 F.2d at 1329. The Sixth Circuit rejected this approach:

"To state the question is to recognize the impossibility of

such proof in many if not all cases. Drops (or barrels) of oil

carry no fingerprints. At the juncture of the Pond River and

the Green River water analysis which might show oil

pollution could not possibly prove which polluter discharged

it, in what proportion, or on what occasion.” /d.

The Corps quite properly avoided these pitfalls by

defining tributaries categorically as covered waters, based on

the “potential” for harm. Deaton, 332 F.3d at 707.

Nonetheless, the categorical approach still allows less

harmful projects to go forward on a case-by-case basis,

through granting of a discharge permit. See Bayview, 474

U.S. at 135 n.9.

Manmade streams. Rapanos's allies argue that some of

the streams at i:.sue cannot be "waters of the United States”

because they should be viewed as ditches, which would fall

within the § 502{14) definition of “point source." This

argument is untenable.

According to the National Association of Home Builders

(Br. 4-5), an item that expressly appears within the point

source definition cannot possibly constitute a “water[] of the

United States" under § 502(7), and thus is not a "navigable

water" under § 404. This approach is a frontal assault on the

longstanding application of Clean Water Act protections to

all branches of a tributary system—-whether natural or

manmade—by which pollutants eventually flow into larger

downstream waters. See, e.g., Deaton, 332 F.3d at 710-11.

Indeed, by this theory, a very large portion of the rivers

and streams in the U.S. would lose their jurisdictional status

because they have been transformed into “ditches” and

"drains" through rerouting, deepening, straightening, and

other alterations. Indeed, the Council on Environmental

Quality has estimated that 10% of all perennial streams in the

United States have been channelized in this way. Council on

Environmental Quality, Environmental Trends (1989) at 35.

See also Appendix B, infra (map indicating large number of

channelized streams in Ohio). Even though the effect and

purpose of this channelization is to increase downstream

effects by speeding the flow of water and pollutants, by this

theory the engineering work would deprive these

watercourses, and downstream waters that receive their

pollutants, of key water quality safeguards.

Moreover, the purported textual basis for the "ditches"

argument will not withstand scrutiny. As the oil industry

notes, the "point source" definition includes not only

“any...ditch," but also "any...channel." American Petroleum

Institute Br. 16-17 (citing § 502(14)). Given their forays

across the English Channel, William the Conqueror and

General Eisenhower would have been surprised to learn that

a channel is per se not a navigable water—as would the boat

owners who moor their craft in the District of Columbia's

Washington Ship Channel.

In addition to the impact on waters, a per se exclusion of

"ditches" and "drains" (or of natural tributaries, see API Br.

16-17) would adversely impact landowners. Many tributary

streams—natural ones as well as artificial ones—are not

under the control of a single owner, but instead cross

multiple properties before flowing into larger downstream

waterbodies. If such multi-owner watercourses were treated

as point sources but not as waters of the United States, the

"discharge" would occur at the point where the watercourse

empties into the larger downstream waterbody. Whoever

happens to own the mouth of the ditch or stream would bear

the responsibility of obtaining such a permit, and would be

held responsible for all pollutants present there—even those

originating in upstream properties outside their control. See

South Fla. Water Mgmi. 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").

Treating these watercourses as waters of the United

States avoids such problems, while fulfilling the Act's intent

to control pollutants “at the source." See Bayview, 474 U.S. at

132-33. "Pollutants are equally harmful to this country's

water quality whether they travel along man-made or natural

routes." Eidson, 108 F.3d at 1342.'°

'S In a variant of the “point source" argument, the Home

Builders allege (Br. 8-12) that one of the drains at issue in

Carabell has been designated by the County as part of a

municipal stormwater system, and therefore must be a point

source and not a water of the United States. But the drain at

issue long predated the existence of the Act's stormwater

permitting program. Record Vol. 1 at 312:21-24 (Robert

Leighton testified that the drain on Rapanos' property was

built 100 years ago). A preexisting watercourse does not lose

its status as a water of the United States simply because a

stormwater authority designates it as part of a treatment

system. Were it otherwise, adjacent wetlands such as those in

Bayview could cease being waters of the United States

(... footnote continued next page)

Il. THE CORPS AND EPA PROPERLY CONCLUDED

THAT THE ACT'S PERMIT SAFEGUARDS

PROTECT WETLANDS ADJACENT TO

TRIBUTARIES.

Under the longstanding regulations of the Corps (and

EPA), waters of the United States encompass not merely

tributaries, but wetlands adjacent to them. 33 C.F.R.

§ 328.3(a)(7). Those same regulations provide that

"[w]etlands separated from other waters of the United States

by man-made dikes or barriers, natural river berms, beach

dunes and the like are ‘adjacent wetlands.” Jd. § 328.3(c). As

in the case of tributaries, Petitioners have shown neither that

this regulation contravenes clearly expressed congressional

intent under Chevron Step One, nor that it is an unreasonable

interpretation under Step Two.

Carabell argues (Br. 39-40) that the status of a given

adjacent wetland as a water of the United States should

depend on a _ case-specific showing of hydrological

connection to the tributary. Bayview rejected such an

approach. Though "it may well be that not every adjacent

wetland is of great importance to the environment of

adjoining bodies of water," the Court upheld the Corps’

decision to define "all" adjacent wetlands as United States

waters. 474 U.S. at 135 n.9. "If it is reasonable for the Corps

to conclude that in the majority of cases, adjacent wetlands

have significant effects on water quality and the aquatic

ecosystem, its definition can stand." Jd. (emphasis added).

Such a conclusion is just as reasonable for the majority

of wetlands adjoining tributaries, as for the majority of

(... footnote continued from previous page)

whenever a municipality designated them as part of a

stormwater management and treatment system.

wetlands adjoining traditionally navigable waters. Adjacent

wetlands may be connected hydrologically to streams, either

receiving water from them, or draining water to them. See

Bayview, 474 U.S. at 134. Likewise, “adjacent wetlands may

serve significant natural biological functions, including food

rearing and resting sites for aquatic species." Jd 134-35

(citation. internal quotations, and ellipsis omitted).

On their face, Carabell's case-specific allegations

concerning the alleged lack of connection between the

tributary and the adjacent wetland are unpersuasive. First,

Carabell's arguments are invalid as to hydrology. In Bayview,

could only be regulated if flooded by the river (the view

taken by the court below), reasoning that these wetlands may

still “tend to drain" into the adjacent body of open water even

when they are not flooded. /d. 134. As a class, this drainage

does not depend on a surface water connection but instead

occurs largely through drainage beneath the surface.’

Moreover, Carabell has ignored the ecological

connections that Bayview expressly found relevant. Not only

birds, mammals and amphibians, but even commercially

valuable fish species can cross obstacles such as berms. For

example, "[bJecause the eel breathes quite nicely through its

skin as long as it is moist, it can travel over land some

Water Resources, Policies, and Authorities,” July 30, 1999, at

13-12 (available at http://www.wbdg.org/ccb/ARMYCOE/

COEPAM/1165_2 |.pdf) (visited Dec. 29, 2005) ("Other

than overtopping, levees principally fail due to one or a

combination of four causes: surface erosion, internal erosion

(piping), underseepage, and slides within the levee

embankment or foundation soils").

distance if there is so much as a heavy dew on the ground.

Sometimes, if it cannot climb a dam, it just goes around it.”

Bay Country, supra, at 54. Indeed, eels travel “overland to

ponds and wells more than a mile from flowing water." /d.

In this particular case, Carabell relies heavily on a berm

and a clay soil layer that allegedly prevent water exchange

between the wetland and the tributary. However, the Carabell

record itself shows that there are cuts in the berm. JA Vol. 3

at 639: 16-23 (Wetland Application Hearing, Testimony of

Timothy Stoepker). Likewise, it cannot simply be assumed

that the clay layer has no gaps whatsoever along its entire

length. Nor can it be assumed that the excavation activity

associated with Carabell's project will not poke holes in that

layer, allowing water to drain underneath the berm,’’ or that

it will not alter flow patterns to allow water to overtop the

berm. Section 404's permit requirement is expressly designed

to address projects “where the flow or circulation of

navigable waters may be impaired.” § 404(f)(2).

In the end, however, Carabell's case-specific arguments

are irrelevant. As Bayview confirms, the Corps’ regulation

validly encompasses adjacent wetlands as a category. "That

the definition may include some wetlands that are not

significantly intertwined with the ecosystem of adjacent

waterways is of little moment, for where it appears that a

wetland covered by the Corps’ definition is in fact lacking in

importance to the aquatic environment—or where its

importance is outweighed by other values—the Corps may

always allow development of the wetland for other uses

simply by issuing a permit." 474 U.S. at 135 n.9.

'" See Borden Ranch Partnership v. U.S. Army Corps of

Engineers, 261 F.3d 810, 815 (9th Cir. 2001), aff'd, 537 U.S.

999 (2002) (excavation activity in wetlands poked through

impermeable layer, allowing water to drain through).

Ill. APPLYING PERMIT SAFEGUARDS TO

TRIBUTARIES AND THEIR ADJACENT

WETLANDS IS WELL WITHIN CONGRESS'S

COMMERCE CLAUSE POWER.

Contrary to Petitioners’ suggestion, application of the

Act's permit safeguards to tributaries and their adjacent

wetlands is well within Congress's Commerce Clause power.

As shown above, tributary systems have potential to effect

traditionally navigable waters by inter alia conveying

pollutants, reducing or increasing water flow, and impairing

fisheries. Indeed, this Court has already “agree[d]" with a

Sixth Circuit decision upholding Clean Water Act regulation

of tributaries against Commerce Clause challenge. Hodel v.

Virginia Surface Mining and Reclamation Assn., 452 U.S.

264, 282 (1981), citing Ashland, 504 F.2d at 1325.

Moreover, as this Court has emphasized: "Reference to

the navigability of a waterway adds little if anything to the

breadth of Congress’ regulatory power over interstate

commerce. It has long been settled that Congress has

extensive authority over this Nation's waters under the

Commerce Clause." Kaiser Aetna v. United States, 444 U.S.

164, 173 (1979). That authority “does not depend on a

stream's ‘navigability,"" and indeed "a wide spectrum of

economic activities ‘affect’ interstate commerce and thus are

susceptible of congressional regulation under the Commerce

Clause irrespective of whether navigation, or, indeed, water,

is involved." Jd. 174.

As the discussion supra reveals, Clean Water Act

regulation of tributaries and adjacent wetlands derived from a

combination of Congressional concerns. They included

Congress's recognition that because pollution flows down

into navigable waters, it must be regulated “at the source,”

see Bayview, 474 U.S. at 132-33, and its related recognition,

as Senator Baker expressed, that "[cjomprehensive

jurisdiction" was necessary to avoid “unfair competition"

because otherwise "dischargers located on nonnavigable

tributaries upstream from the larger rivers and estuaries

would not be required to comply with the same procedural

and substantive standards imposed upon their downstream

competitors." 1977 Legislative History at 920. This Court has

held that creating minimum, uniform national standards to

prevent this kind of destructive competition between states to

relax water quality standards is an appropriate justification

for Congressional action under the Commerce Clause.

Hodel, 452 U.S. at 281-82.

While the Clean Water Act considers waters’ value for

"navigation," § 303(c)(2)(A), it goes well beyond that to also

encompass “their use and value for public water supplies,

propagation of fish and wildlife, recreational purposes, and

agricultural, industrial, and other purposes." Jd. Accord,

§ 404(c) ("municipal water supplies, shellfish beds and

fishery areas (including spawning and breeding areas),

wildlife, or recreational areas"). Pursuit of these economic

objectives through regulation of tributaries and adjacent

wetlands is well within Congress's Commerce Clause

power—especially as applied to Petitioners’ economic

activities.

Assuming arguendo there might be some tributaries or

adjacent wetlands that do not by themselves affect

downstream waters or other interests protected by the Act,

that would not defeat Congress's Commerce Clause

authority. "[W]Jhen a general regulatory statute bears a

substantial relation to commerce, the de minimis character of

individual instances arising under that statute is of no

consequence." Gonzales v. Raich, 125 S. Ct. 2195, 2206

(2005) (citation and internal quotations mitted). Accord,

Citizens Bank v. Alafabco, 539 U.S. 52, 56-57 (2003). Where

appropriate, the Corps can allow such activities to proceed by

issuing a permit. See Bayview, 474 U.S. at 135 n.9.

CONCLUSION

The judgments of the Sixth Circuit should be affirmed.

Respectfully submitted,

HOWARD IL. FOX

EARTHJUSTICE

1625 Massachusetts Avenue, N.W.

Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Counsel of Record for Amici Curiae

American Rivers, Environmental Defense,

National Audubon Society, Natural

Resources Defense Council, Physicians for

Social Responsibility, Sierra Club, Tip of

the Mitt Watershed Council, and

Waterkeeper Alliance

APPENDIX A-l

Outfall located on Piney Branch, a tributary of Rock Creek in

the District of Columbia.

View of Piney Branch, downstream of above outfall,

showing small size of stream. Fisheries study in early 1990's

found catadromous American eels in this stream.

— sas

y = 6 COMBINED SEWER OVERFLOW

DISCHARGE POINT

POLLUTION MAY OCCUR

DURING RAINFALL

CSO OUTFALL NO 048

PERMIT NO. DC 0021199

TO REPORT PROBLEMS CALL

DISTRICT OF Col UMBIA

WATER AND SEWER AUTHORITY

TELEPHONE NO. (202) 612-3400

ers.

aw we.

Piney Branch: sign warning of combined sewer overflows

into creek.

Outfall discharging into Soapstone Creek, tributary of Broad

Branch, which in turn is a tributary of Rock Creek. Outfall is

located behind 4411 Connecticut Avenue, NW.

Another view of the outfall discharging into Soapstone

Creek behind 4411 Connecticut Avenue, NW. Note also the

other outfalls, and the discoloration of the water.

View of Soapstone Creek further downstream, near eastern

end of Audubon Terrace, NW, showing another outfail, and

small size of stream.

> +i iprene &

: JA ~. Oe + ™ n 7 ,

“a ‘ A a rT. &

as OSme ER

View of Melvin Hazen Branch, a tributary of Rock Creek,

showing small size of stream. Fisheries study in early 1990's

found a catadromous American eel in this stream.

B-1

The figure below indicates stream locations in Ohio with

degraded habitat due to channelization. Each of these

channelized streams is effectively a “ditch.”

Stream sampling locations in Ohio counties with degraded habitat

due to agricultural-related channel modifications. Site

characteristics include recent channelization or past channelization

with no or limited recovery, low or no stream channel sinuosity and

a prevailing row crop or conservation tillage surrounding land use.

(Source: Ohio EPA habitat assessment database; 743 sites sampled

between 1979 and 2004).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.