Amicus Curiae Brief — Rapanos v. United States

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aaa ies. 04-1034 & 04-1384 ze Ey lee.

In The

Supreme Couri of the Anited States

JOHN A. RAPANOS, ET AL.,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

JUNE CARABELL, ETAL.,

Petitioners,

UNITED STATES ARMY CORPS OF

ENGINEERS AND UNITED STATES

ENVIRONMENTAL PROYECTION AGENCY,

Respondents.

On Writs Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

BRIEF OF THE ASSOCIATION OF

STATE AND INTERSTATE WATER POLLUTION

CONTROL ADMINISTRATORS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

TIMOTHY J. DOWLING”

DOUGLAS T. KENDALL

JENNIFER BRADLEY

COMMUNITY RIGHTS COUNSEL

1301 Connecticut Ave., NW

Suite 502

Washington, D.C. 20036

(202) 296-6889

*Counsel of Record

COCKLFE LAW BRIEF PRINTING CO (800+ 225 6964

ORC ALL OLLEOT 402) $42-2831

TABLE OF CONTENTS

Page

TABLE. OF AUTIIORITIRD q......2.0-c0cesesescccesesesescecssescees ii

INTEREST OF THE AMICUS CURIAE .........0.:0-000000 1

SUMMARY OF ARGUMENT. ............:cccecsssecesesseeteeeesee 1

EER A aE: He ee 5

I. The Despoliation of Intrastate Tributaries and

Their Adjacent Wetlands Causes Pollution and

Flooding in Downriver States, Making it Im-

possible for States to Solve this National Prob-

NE TI siciicnsdidticinnnniainanidndainiedentibipiningin 8

II. State Water Quality Protections Are Inextrica-

bly Enmeshed with Longstanding Federal Pro-

tections and Would Be Severely Undermined

by Constricting those Federal Protections........ 17

III. The Congress May Prevent the Destruction of

Intrastate Non-Navigable Waters as Necessary

and Proper Regulation of Activity that Threat-

ens Channels of Commerce ..............:c:cseseeeeeeees 22

ee inecinciousideisnisnciniieiliasnnbainieniiedpeiannndinitailaeguins 28

APPENDIX A A List of State Comments Regard-

ing the Definition of “Waters of the

United States” Urging Continued

Federal Protection for Intrastate

Tributaries and Adjacent Wetlands........ la

‘i

TABLE OF AUTHORITIES

Page

CASES

Almendarez-Torres v. United States, 523 U.S. 224

iris doinrsuptscuchisbencdiionicabpasnigninbinianesiiieniabbesbininlasiatabinensids 26, 27

City of Milwaukee v. Illinois, 451 U.S. 304 (1981).............. 8

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

Hodel v. Virginia Surface Mining & Reclamation

Ase’n, 452 U.S. 264 (1961).............cccccccesersesseceees 11, 24, 25

International Paper Co. v. Ouellette, 479 U.S. 481

READER SEI Is eae es noe ete neene Sem een 8

Oklahoma v. Atkinson, 313 U.S. 508 (1941) ......... cee 25

Rust v. Sullivan, 500 U.S. 173 (1991) ............ccccceceseeeeeeees 27

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 531 U.S.

PCIE cccriscenetsatnccddienthindtinbeneginediiinincnndinionsancel passim

United States v. Deaton, 209 F.3d 331 (4th Cir.

STITT patisserie calclieilalens abit cibietabtapietantitaendteapcibeinditainandaansill 9

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

ee HT cscs cctcistiinnniaeninettetpeiciiainigtbiednenscaatontates 25

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

CR 0 Seer 26

United States v. South Eastern Underwriters

Association, 322 U.S. 533 (1944) ..........cccseseseseseseerenees 24

CONSTITUTION, STATUTES, & REGULATIONS

USS. Const.:

Article 1, Section 8, Clause 3 (Commerce Clause)....passim

ili

TABLE OF AUTHORITIES — Continued

Page

Clean Water Act, 33 U.S ©. § 1251 et seq.:

A CI os erties a hcicieniainatmiiennntieanmntenenntenipiien 23

ee TT nicaeriitiitencaeninhciniestppiagitiiatiniaemennenigiiis 7,8

RNR CERES recone emcee vee eS Oe 18

i ceiisineniteienindnsoimeiiannisn 23

SETI: Ut III sdicstisceshadeschicesionpnecteeashesendbntniamestsilenbeadingedteun 15

40 C.F.R.:

aa al eetmatanniemnanntalte 6

ERT a ee oie eo 6

LEGISLATIVE MATERIALS

a ee ceriitarteesricceninrnniinierciciennmaiinel 27

S. Conf. Rep. No. 92-1236 (1972) ..........scccssssreseserserseeeees 27

STATE COMMENTS ON 2003 ADVANCED NOTICE OF PROPOSED

RULEMAKING

ASIWPCA: Letter from Karen Smith,

ASIWPCA President, to U.S. En-

vironmental Protection Agency

(emailed April 4, 2003).................. 1, 5,19

Arizona: Letter from Karen L. Smith,

Director, Water Quality Division,

Arizona Department of Environ-

mental Quality, to U.S. Environ-

mental Protection Agency (April

REE eS een 7

TABLE OF AUTHORITIES - Continued

Delaware:

Florida:

Illinois:

Indiana:

Massachusetts:

Letter from John A. Hughes,

Secretary, Delaware Department

of Natural Resources and Envi-

ronmental Control, to U.S. Envi-

ronmental Protection Agency

Cat BG, SGT cccccccesenissnectnsasossesenene

Letter from Janet G. Llewellyn,

Deputy Director, Division of Water

Resource Management, Florida

Department of Environmental

Protection, to U.S. Environmental

Protection Agency (April 16, 2003) ..

Letter from Joel Brunsvold, Direc-

tor, Dlinois Department of Natural

Resources, to U.S. Environmental

Protection Agency (April 11, 2003)......

Letter from Lori F. Kaplan, Com-

missioner, Indiana Department of

Environmental Management, to

U.S. Environmental Protection

Page

Agency (April 16, 2008)............. 10, 14, 15

Letter from David Van Wie,

Director, Bureau of Land and Wa-

ter Quality, Maine Department of

Environmental Protection, to U.S.

Environmental! Protection Agency

(April 16, 20038).......:s..sssessssssssssssesees

Letter from Cynthia Giles, Assis-

tant Commissioner, Massachusetts

Department of Environmental Pro-

tection, to U.S. Environmental

Protection Agency (April 16, 2003)...

ssuee 18

TABLE OF AUTHORITIES — Continued

Montana:

Nebraska:

New Jersey:

Letter from Steven E. Chester,

Director, Michigan Department of

Environmental Quality, to U.S.

Environmental Protection Agency

Page

(April 16, 2008)............c0ccsseesssee: 16, 19, 20

Letter from Gene Merriam,

Commissioner, Minnesota De-

partment of Natural Resources,

Sheryl Corrigan, Commissioner,

Minnesota Pollution Control

Agency, and Ronald Harnack, Ex-

ecutive Director, Minnesota Board

of Water and Soil Resources, to

U.S. Environmental Protection

Agency (April 8, 2003)...........-.0:0-:0-«

Letter from Jan P. Sensibaugh,

Director, Montana Department of

Environmental Quality, to U.S.

Environmental Protection Agency

TTT

Letter from Mike Linder, Director,

Nebraska Department of Envi-

ronmental Quality, to U.S. Envi-

ronmental Protection Agency

Letter from Bradley M. Campbell,

Commissioner, New Jersey De-

partment of Environmental Pro-

tection, to U.S. Environmental

Protection Agency (April 15, 2003)..

TABLE OF AUTHORITIES - Continued

New Mexico:

New York:

North Dakota:

Pennsylvania:

Rhode Island:

Letter from Larry G. Bell, Direc-

tor, New Mexico Department of

Game and Fish, to U.S. Environ-

Letter from Peter Lehner, Bureau

Chief, Environmental Protection

Bureau, New York Attorney Gen-

eral’s Office, to US. Environ-

Letter from John T. Hines, Acting

Deputy Secretary for Water Man-

agement, Pennsylvania Depart-

ment of Environmental Protection,

to U.S. Environmental] Protection

Agency (April 16, 2003)................-...

Page

Vii

TABLE OF AUTHORITIES — Continued

Page

Texas: Letter from Thomas G. Heger,

Texas Parks and Wildlife Depart-

ment, to U.S. Environmental Pro-

tection Agency (April 16, 2003)............. 10

Vermont: Letter from Jeffrey Wennberg,

Commissioner, Vermont Agency

of Natural Resources, to U.S. En-

Wisconsin: Letter from P. Scott Hassett,

Secretary, Wisconsin Department

of Natural Resources, to U.S. En-

vironmental Protection Agency

| ee 19

tant Director, Office of Federal Land

Policy, John Jackson, Administrator,

Planning, Wyoming Department of

EEE SEITE IS 20

OTHER AUTHORITIES

58 Fed. Reg. 9248 (Feb. 19, 1993) .................cccccccccceceeeeeeee 15

65 Fed. Reg. 50108 (Aug. 16, 2000)... cceceeeeeee cee 22

66 Fed. Reg. 4550 (Jam. 17, 2001) ...........ee.ececeececeneeeeceeees 22

68 Fed. Reg. 1991 (Jan. 15, 2008) ...........c.scssssessseseesnces 5, 6

TABLE OF AUTHORITIES - Continued

North Dakota’s Runaway River, BOSTON GLOBE,

SO SE er Gn nicecrcstatgtemnnesrcentimnmesionteges

Amy Gardner, Loudoun Developers Sprint to File

Plans: Applications for 21,000 Homes Submitted

in Bid to Outrun Limits in County, WASHINGTON

PUR, COM. WB, BEBE, G6 TBR ccccoccccssscssessssscssccnesenessccsnes

Anthony DePalma, Winnipeg Journal: As Red River

Crests, Manitoba Holds its Breath, N.Y. TIMES,

May 3, 1997, Section 1, at 4 ..............cccccsesesseresseeeeres

Douglas T. Kendall, REDEFINING FEDERALISM:

Dirk Johnson, Flooding Crests in Ravaged City:

Residents Face Weeks of Anxiety, N.Y. TIMES, Apr.

eT | En

Jon Kusler, Ass’n of State Wetland Managers, The

SWANCC Decision: State Regulation of Wetlands

to Fill the Gap, at 13-14 (Updated and Revised

Lance D. Wood, Don't Be Misled, CWA Jurisdiction

- Extends to All Non-Navigable Tributaries of the

Traditional Navigable Waters and to Their Adja-

cent Wetlands, 34 ENvT’L L. Rep. 10187 (2004) ........

Letter from Benjamin H. Grumbles, Assistant

Administrator, U.S. EPA, to Jeanne Christie,

Association of State Wetland Managers (Jan. 9,

Lois J. Schiffer and Jeremy D. Heep, Forests,

Wetlands and the Superfund: Three Examples of

Environmental Protection Promoting Jobs, 22

IOWA J. CORP. L. 571 (1997)...........ccccccceeeseeneeeneeenerees

TABLE OF AUTHORITIES — Continued

National Audubon Society, Valuing Wetlands: The

Cost of Destroying America’s Wetlands (1994)................ 9

National Oceanic and Atmospheric Administration,

Hypoxia In the Gulf of Mexico: Progress towards

the completion of an Integrated Assessment

(available at http//oceanservice.noaa.gov/products/

ee 14

Traci Watson, Developers rush to build in wetlands

after ruling, Usa Topay, Dec. 5, 2002, at 15A.......... 21-22

Vicki Monks, The Beauty of Wetlands, 34 NATURAL

ER ETRE a ener nen nnaNNe iS]

INTEREST OF THE AMICUS CURIAE'’

This brief is the first amicus brief ever filed by the

Association of State and Interstate Water Pollution Con-

trol Administrators (ASTWPCA). ASIWPCA takes this

enprecedented step to emphasize the importance of this

case to State protections for vital natural and economic

resources.

Founded in 1961, ASIWPCA is a nonpartisan organi-

zation for State and Inte «tate officials who implement

surface water protection programs throughout the nation.

As the State and Interstate officials with direct, day-to-day

responsibility for protecting our nation’s waters, we

submit this brief to show that continued federal protection

of intrastate non-navigable tributaries and their adjacent

wetlands is necessary to preserve the effective State-

federal partnership to protect our nation’s waters estab-

lished by the Clean Water Act (CWA). ASIWPCA’s interest

in this case could not be greater.

SUMMARY OF ARGUMENT

1. The stakes in this case are extraordinarily high.

The statutory term at issue — “waters of the United

States” ~ is integral not just to the permitting require-

ments for dredge and fill material, but also to the basic

pollution control provisions in section 402 and a host of

* This brief was not authored in whole or in part by counsel for a

party, and no person or entity other than amicus, its members, and its

counsel made a monetary contribution to the preparation or submission

of this brief. The parties have consented to the filing of this brief as

reflected in letters filed with the Clerk of the Court.

other critical water quality provisions throughout the Act.

If this Court overturns the longstanding federal protec-

tions for non-navigable tributaries and adjacent wetlands

under the Clean Water Act, the Act would no longer

regulate the discharge of sewage, toxic pollutants, and fill

into these vital resources, which comprise the large

majority of our nation’s rivers, streams, and other waters.

Continued federal protection of intrastate non-

navigable tributaries and adjacent wetlands is necessary

to prevent devastating injury to downstream States, such

as pollution and flooding, which would threaten lives and

harm economic resources, including our nation’s tradi-

tional navigable waters.’ The States are deeply committed

to protecting these intrastate resources, but they recognize

the compelling national interest in protecting them, and

they lack the resources and institutional capacity to do the

job alone.

Because virtually every State is a downstream State,

an overwhelming consensus exists among the States

regarding the need for this continued federal protection.

Of particular concern to the States is the inevitable

competition for jobs and economic growth that could

prevent an upstream State from giving adequate consid-

eration to the harm to downstream States that would

result from despoliation of intrastate tributaries.

For example, the State of Montana estimates that for

every acre of wetlands destroyed in that State, one million

* Like Respondents and other amici supporting Respondents, we

use the term “traditional navigable waters” to refer to waters that are

used, or susceptible to use, in interstate or foreign commerce.

gallons of water run downstream. Destructivn of such

wetlands contributes to catastrophic economic losses such

as the 1993 flood of the Missouri and Mississippi Rivers.

This tragic event killed 70 people, caused more than $10

billion in property damage, and disrupted the use of those

rivers as channels of commerce.

So too with pollution. Intrastate tributaries of the

Little Blue River in Nebraska, for instance, receive prior-

ity protection from federal officials because they play a

vital role in preserving the Little Blue as a drinking water

source for downstream Kansas communities.

2. Existing State water quality programs depend

directly on longstanding federal protections for intrastate

non-navigable waters. Invalidation of these established

federal protections would pull the rug out from under

State officials and leave a regulatory void that the States

could not easily fill.

Most States lack independent regulatory programs

that would fully protect intrastate wetlands, but instead

rely on the longstanding state-certification requirements

under section 401 of the Clean Water Act for federally

issued permits. This certification authority allows the

States to protect valuable natural resources through the

federal permit program without undertaking prohibitively

expensive administration and enforcement of independent

State permitting programs. Excluding wetlands adjacent

to intrastate waters from federal protections would strip

the States of this longstanding authority to protect these

critical resources.

Moreover, the State-federal partnership under the

Clean Water Act is not an easily bifurcated pie, but a

mosaic of interdependent parts based on deeply rooted

understandings that federal and State officials have

reached over 30 years. Invalidation of longstanding federal

protections would not promote State prerogatives, but

instead subject the States to regulatory chaos and greatly

undermine efficient regulatory processes that have arisen

over time.

Perhaps most importantly, many States simply lack

the resources and institutional capacity to protect intra-

state tributaries and their adjacent wetlands if federal

protections for these resources were struck down. Even in

States with the resources to fill the gap, experience shows

that they could suffer devastating losses during the time it

would take to enact and implement new State protections.

8. The plain meaning of “waters of the United

States” includes waters within our nation’s borders re-

_ gardiess of their navigability, a reading compelled by both

text and context. Indeed, section 404(g) — which authorizes

a State to administer its own permit program for dredge

and fill material in lieu of the federal program - would be

rendered meaningless if “waters of the United States”

were read to exclude intrastate non-navigable waters,

including their adjacent wetlands.

The doctrine of severe constitutional doubt does not

require a different conclusion. For more than a century,

the Court has recognized that Congress’s authority over

traditional navigable waters encompasses the entire

watershed, including non-navigable tributaries. This

authority may be used to promote not only navigation, but

flood control, water quality, and other values. To protect

traditional navigable waters as channels of commerce from

the ravages of flooding and pollution, the Congress may

safeguard non-navigable intrastate tributaries and adjacent

wetlands as a class, even though individual instances of

desp6liation might have only a small effect on navigable

waters.

ARGUMENT

This brief draws heavily from comments submitted in

2003 by ASIWPCA and the executive departments of more

than three-quarters of the States to the U.S. Army Corps

of Engineers and U.S. Environmental Protection Agency

arguing against modification of the regulatory definition of

“waters of the United States” under the Clean Water Act.’

The comments recognized that in Solid Waste Agency of

Northern Cook County v. U.S. Army Corps of Engineers,

531 U.S. 159 (2001) (“SWANCC”), this Court invalidated

the Migratory Bird Rule as a stand-alone basis for federal

jurisdiction under the Act. But SWANCC did not address

tributaries and adjacent wetlands, and the State com-

ments explained why the Corps and EPA should retain the

longstanding federal protections for these waters. In

response to these and thousands of other comments, the

* The comments were submitted in response to an Advance Notice

of Proposed Rulemaking (ANPRM) issued by the Corps and EPA. See 68

Fed. Reg. 1991 (Jan. 15, 2003). They reflect the views of the governors,

environmental or natural resource protection agencies, or health

departments of these States. We cite these comments as “(State name)

Comments at **.” Full citations for cited comments appear in our Table

of Authorities, and a list of the comments from these States urging

continued federal) protection is set forth in Appendix A For the Court’s

convenience, we have assembled copies of these comments at http-/

www.asiwpca.org/statecomments.htm. As the Court knows, two States

(Alaska and Utah) have filed an amicus brief in support of Petitioners.

Corps and EPA continue to exercise federal jurisdiction

over these waters.‘

As explained in the State comments and reiterated in

this brief, the stakes in this case are extraordinary for two

reasons. First, the statutory term at issue — “waters of the

United States” — is the jurisdictional lynchpin not only for

the requirements regarding dredge and fill material in

section 404 of the Act, but also for the Act’s basic pollution

controls under the “National Pollution Discharge Elimina-

tion System” established by section 402 (known as NPDES

requirements), State water quality standards under

section 303, and several other key statutory provisions.’

EPA estimates that more than 40 percent of individual

NPDES discharges outside Alaska are into headwaters,

and that more than 90 percent of drinking water intakes,

serving 110 million people, are in headwaters.® Reading

the Act as covering only traditional navigable waters and

adjacent wetlands would eliminate longstanding federal

protections for these vita] resources.

* For example, the existing regulations continue to define “waters of

the United States” to include intrastate waters if their degradation or

destruction would harm interstate commerce (see 40 C.F.R. § 230.3(8X3)),

as well as wetlands adjacent to intrastate waters. See id. § 230.3(sX7).

* See, e.g., Advance Notice of Proposed Rulemaking on the Clean

Water Act Regulatory Definition of “Waters of the United States,” 68

Fed. Reg. 1991, 1991-93 (Jan. 15, 2003) (recognizing that “waters of the

United States” defines the regulatory scope of sections 303, 311, 401,

402, and 404).

* See Letter from Benjamin H. Grumbles, Assistant Administrator,

U.S. EPA, to Jeanne Christie, Association of State Wetland Managers,

at 2 (Jan. 9, 2006) (attached as an Appendix to the Brief of Amici

Curiae Association of State Wetland Managers, et al., in Support of

Respondent United States).

Second, Petitioners’ contention that “waters of the

United States” includes only traditional navigable waters

and adjacent wetlands would eviscerate longstanding

federal protections for the large majority of our nation’s

waters. For example, in the State that gave rise to the

cases at bar, traditional navigable rivers and streams

cover an estimated 496 miles out of 54,300 total miles of

rivers and streams, or less than one percent.’ Nationally,

traditional navigable waters comprise a small fraction of

the geographic jurisdiction long recognized by the Corps,

EPA, and federal courts.*

To be sure, the Clean Water Act must be read to

preserve “the primary responsibilities and rights of States”

to protect land and water resources. 33 U.S.C. § 1251(b).

Petitioners argue that the elimination of federal protec-

tions for most of this country’s waters is necessary to

protect State prerogatives. Rapanos Br. 20-21, 28-31;

Carabell Br. 31-33. But, as this very statutory provision

indicates, the Clean Water Act preserves the States’

primary responsibilities by empowering them to “imple-

ment the permit programs,” “manage the construction

"Memorandum from Diana Klemans, Chief, Surface Water

Assessment Section, Dep’t of Envt’l Quality, to Peter Manning, Division

Chief, Dep’t of Attorney General (Jan. 10, 2006), available at http//

www.communityrights.org/michiganmemo.pdf; see also Arizona DEQ

Comments at 2 (95 percent of Arizona surface waters are ephemeral or

intermittent streams); Rhode Island Comments at 1-2 (about 85 percent

of total tributary miles in the State are non-navigable).

* See Lance D. Wood, Don't Be Misled, CWA Jurisdiction Extends to

All Non-Navigable Tributaries of the Traditional Navigable Waters and

to Their Adjacent Wetlands, 34 ENnvT’L L. REP. 10187, 10187 (2004)

(estimating that traditional navigable waters constitute less than one

percent of the geographic jurisdiction long recognized by the Corps,

EPA, and the courts). ,

grant programs,” and “consult with the Administrator in

the exercise of his authority” through the State certifica-

tion and consultation requirements under the Act, not by

limiting the geographical reach of the Act. 33 U.S.C.

§ 1251(b). As the State officials with frontline responsibil-

ity for protecting our nation’s waters, we show that these

longstanding federal protections are essential to protect

vital State interests and preserve the effective State-

federal partnership established by the Clean Water Act.

I. The Despoliation of Intrastate Tributaries and

Their Adjacent Wetlands Causes Pollution and

Flooding in Downriver States, Meking it im-

possible for States to Solve this National Prob-

lem on Their Own.

The issues raised by this case are: (1) whether the

Clean Water Act — described by this Court as an “all-

encompassing program of water pollution regulation” that

protects “virtually all bodies of water”” — authorizes the

Corps and EPA to protect intrastate tributaries, including

their adjacent wetlands; and (2) whether Congress has

authority to protect these waters under the Commerce

Clause and Necessary and Proper Clause.

Non-navigable rivers, headwater streams, and their

adjacent wetlands provide valuable economic and ecologi-

cal benefits, including direct benefits to traditional navi-

gable waters. Protecting these non-navigable tributaries

from toxic discharges is essential to maintaining the

ecological integrity of downstream navigable lakes and

* City of Milwaukee v. Illinois, 451 U.S. 304, 318 (1981).

* International Paper Co. v. Ouellette, 479 U.S. 481, 492 (1987).

rivers. In addition to these obvious benefits, wetlands act

as giant sponges to control flooding by storing excess

water during heavy rainfall, thereby greatly reducing loss

of life and economic damage in surrounding areas.”

Wetlands also act as nature’s “kidneys” by filtering out

silt, toxins, and other impurities from polluted runoff

before those waters flow into our lakes and rivers.” The

question here is whether States must protect these re-

sources alone using their police power and other authori-

ties, or whether the federal government has concurrent

constitutional and statutory authority.

The States have a pragmatic and important answer to

this question. They take seriously their responsibility to

protect their natural resources for the benefit of their

citizens, with some States supplementing federal protec-

tions with unique State protections that, for example,

establish buffer zones around streams and wetlands. But

at the same time, the States recognize that there is a

compelling national interest in protecting intrastate

tributaries and their adjacent wetlands, and they know

they cannot adequately protect these resources acting

“ Wetlands in the continental United States save an estimated

$30+ billion in annual repair costs due to flood damage. See Lois J.

Schiffer and Jeremy D. Heep, Forests, Wetlands and the Superfund:

Three Examples of Environmental Protection Promoting Jobs, 22 IOWA

J. Corp. L. 571, 590 (1997) (citing National Audubon Society, Valuing

Wetlands: The Cost of Destroying America’s Wetlands 24-27 (1994)).

* Cities save millions of dollars annually in wastewater treatment

costs because wetlands filter out pollutants. See Schiffer and Heep,

supra note 11, at 591 (citing Vicki Monks, The Beauty of Wetlands, 34

NATURAL WILDLIFE 20 (1996)); see also United States v. Deaton, 209 F.3d

331, 336 (4th Cir. 2000) (“Wetlands perform a vital role in maintaining

water quality by trapping sediment and toxic and nontoxic pollutants

before they reach streams, rivers, or other open bodies of water.”).

alone. This concern about the inadequacy of State-by-State

regulation is pervasive in the State comments on the

ANPRM. See, e.g., Indiana Comments at 2 (“Even if we

manage to fill the gaps that would be created by a redefi-

nition of ‘Waters of the U.S.’ in Indiana, nothing guaran-

tees that all of our nearby states will also fill these gaps.”),

Vermont Comments at 8 (“Vermont cannot control its own

destiny and must rely on effective, uniform regulation at

the federal level to manage these out-of-state resources

that significantly impact the state’s economy.”). Texas

effectively summarizes this concern:

Generally speaking, state regulation is an inade-

quate solution to interstate issues because no

matter how comprehensively one state regulates

wetlands or water quality, if a neighboring state

does nothing or very little, water quality and

consequently the public health, environment and

economy will be impacted in all the surrounding

states and even nationally.

Texas Parks and Wildlife Dep’t Comments at 4.

Another concern expressed throughout the State

comments is that competition among States for jobs and

economic growth might limit their ability to fill any gaps

left by a rescission of existing federal protections. See, e.g.,

Delaware Comments at 14 (“Loss of federal regulation

would put environmentally protective states at an eco-

nomic disadvantage relative to less protective neighbor

states, removing the ‘level playing fie!d’ that now exists

and creating pressure for reduced state protection.”),

Maine Comments at 1 (“[T)he competitive disadvantage

this may impose on Maine with respect to other states

might lead to pressures to roll-back our own protections.”);

New York DEC Comments at 2 (“It is imperative that we

maintain strong nationwide Clean Water Act standards to

ensure that individual states, or groups of states, cannot

benefit from the location of industry, business, or other

activities within those states, on the expectation of lower

environmental regulatory hurdles.”). As the Court ob-

served in Hodel v. Virginia Surface Mining & Reclamation

Ass'n, 452 U.S. 264 (1981), “prevention of this sort of

destructive interstate competition is a traditional role for

congressional action under the Commerce Clause.” Jd. at

282.

The on-the-ground experience of the States hammers

these points home. Montana’s comments, for example,

draw us back to one of the worst flooding disasters in our

nation’s history, the 1993 flood of the Missouri and Missis-

sippi Rivers, which took 70 lives, caused more than $10

billion in property damage, and disrupted the use of those

rivers as channels of commerce. See Montana Comments

at 4; New York Att'y Gen’] Comments at 19. Montana

explains, “The 1993 flood in the Upper Missouri River

Basin is a good case study of the value of wetlands in

absorbing and moderating flood flows.” Montana Com-

ments at 4. Wetland destruction in the basin “represents

the loss of up to 90 million acre-feet of potential flood

storage, which is more than twice the volume of the 1993

Mississippi River flood at St. Louis.” Jd. For every acre of

wetlands destroyed, Montana estimates “an average of 1

million gallons of water run off quickly downstream

instead of being stored and slowly released as the river

level drops.” Id.

Montana emphasizes that it is a “headwater state.” Jd.

Headwater States export floodwaters, with the greatest

flood damage frequently occurring hundreds of miles and

many States downstream. Much of the water that Montana

would otherwise export is contained in wetlands that play

an invaluable role by “absorbing runoff and moderating

flood flows for downstream states.” Jd. Montana recognizes

the benefits of preserving these wetlands, but concludes

that “[t]hese wetlands will be highly vulnerable to filling

and draining in the absence of protection under Section

404 of the CWA.” Id. at 2. It is politically difficult — if not

impossible — for a State to tell its own citizens that they

have to forego development on their own property in order

to prevent the risk of exacerbating flooding in a State

downstream. That, Montana argues, is the role of the

federal government.

North Dakota tells a similar story about its wetlands

and flooding on the Red River, noting that “[(wjetland

drainage is known to have contributed to the recent

flooding problems” in the river basin. North Dakota

Comments at 2. The Red River originates with headwaters

in North Dakota, South Dakota, and southern Minnesota.

It flows north, forming the border between Minnesota and

North Dakota until crossing into Canada, where it flows

through the City of Winnipeg and ultimately empties into

Lake Winnipeg.

The 1997 Red River flood was catastrophic, burying

towns including Grand Forks, North Dakota, East Grand

Forks, Minnesota, and Ada, Minnesota. At Grand Forks,

the river was more than 26 feet above flood stage. The

flood continued into Canada where it peaked just inches

below the levees that protect Winnipeg, a city of more than

650,000 that serves as a Canadian provincial capital. See,

e.g., North Dakota’s Runaway River, BOSTON GLOBE, Apr.

22, 1997 at Al4; Dirk Johnson, Flooding Crests in Ravaged

City: Residents Face Weeks of Anxiety, N.Y. TIMES, Apr. 22,

1997 at Al; Anthony DePalma, Winnipeg Journal: As Red

River Crests, Manitoba Holds its Breath, N.Y. TIMES, May

3, 1997, Section 1, at 4.

The story of the Red River flood illustrates the inter-

national dimension of the problem of protecting headwater

wetlands and streams. North Dakota and Minnesota have

every incentive to protect their citizens against catastro-

phic floods. But they cannot control the actions of the

other States in the Red River watershed. And the solution

that is best for North Dakota or Minnesota might not be

best for the United States. A decision to respond to flood

risks by increasing the size of dikes and levees - instead of

protecting wetlands — will result in the export of floods to

Canada and could cause deterioration in our nation’s

relationship with Canada. While flooding is a local prob-

lem, it is simultaneously a national and international

problem.

So is pollution of our nation’s waters. Nebraska

explains that wetlands and intermittent and ephemeral

streams that form part of the watershed of the Little Blue

River in that State have been prioritized for protection by

the federal government because of the role these resources

play in protecting the Little Blue as a drinking water

source for Kansas communities, including Kansas City.

Nebraska Dep’t of Envt’l Quality Comments at 3. Ne-

braska concludes that “[wjithout solid CWA protection,

impacts to drinking water downstream could prove serious

and extremely costly.” Id.

Indiana gives a more complex, but even more compel-

ling, example of the need for a federal role in limiting the

spread of a “dead zone” in the Gulf of Mexico. Indiana

explains: “Wetlands and headwater streams are particu-

larly valuable for their ability to filter pollutants such as

nitrate from water. Nitrate laden runoff is a growing

concern nationally and clearly moves across state lines.”

Indiana Comments at 2.

Runoff of nutrients such as nitrate (a particularly

mobile form of nitrogen) and phosphorus harms the health

of many water bodies through eutrophication, which

occurs when an excessive supply of nutrients stimulates

the growth of algae, whose subsequent death produces

organic decay. The decay of organic matter depletes the

dissolved oxygen in the water required for aquatic life. In

the resulting hypoxic area or “dead zone,” a severe oxygen

deficiency causes most aquatic organisms to suffocate.

Locally, excessive nutrient loads decrease the resource

value of rivers, lakes, and estuaries, hindering recreation,

fishing, hunting, and aesthetic enjoyment.

Nationally, hypoxia is plaguing water bodies — includ-

ing the Gulf of Mexico, the Chesapeake Bay, and the Long

Island Sound — that are vital to the nation’s economic

future. In recent years in the Gulf, there has been a dead

zone the size of New Jersey located off the Texas and

Louisiana coasts. As the National Oceanic and Atmos-

pheric Administration explains, “the hypoxic zone forms in

the middle of the most important commercial and recrea-

tional fisheries in the coterminous United States and could

threaten the economy of this region of the Gulf.”’ Con-

gress responded directly to this problem in 1998, enacting

the Harmful Algal Bloom and Hypoxia Research and

Control Act of 1998, Title VI of Public Law 105-383.

” National Oceanic and Atmospheric Administration, Hypoxia in

the Gulf of Mexico: Progress towards the completion of an Integrated

Assessment (available at http//oceanservice noaa gov/products/pubs_hypox.

html#Intro).

Among Congress’s findings were that “53 percent of

United States estuaries experience hypoxia for at least

part of the year” and that “harmful algal blooms may have

been responsible for an estimated $1,000,000,000 in

economic losses during the past decade.” 33 U.S.C. § 1451.

While the national and loca] problems are linked, the

solution to these problems varies. The reason stems from

differences in the chemical characteristics of nitrate and

phosphorus. Nitrate is highly mobile and water soluble,

while phosphorus is immobile and quickly attaches itself

to the soil. Thus, locally, phosphorus is often the biggest

nutrient problem; nationally, tne problem is nitrate and

other forms of nitrogen. See generally Standards for the

Use or Disposal of Sewage Sludge, Part II, 58 Fed. Reg.

9248, 9276 (Feb. 19, 1993).

Because Indiana wants to protect its farmers and its

water, it regulates phosphorus, the “easier to regulate co-

limiting nutrient in Indiana’s waters.” Indiana Comments

at 5. Indiana admits that political realities mean that it

“has not regulated nitrate discharges in the past and

probably may not regulate this nutrient in the future

*** ” Id. At the same time, however, Indiana wants the

“federal government to be proactive” in protecting headwa-

ter streams and wetlands because they are effective filters

of nitrogen, and their loss could increase regulatory

burdens for downstream States. Jd. at 1. Leaving the

protection of such water resources to the States, Indiana

suggests, would be a disaster, “a patchwork quilt of »neven

regulation [that] will threaten overall water quality.” Jd.

States such as Michigan and New Jersey reach the

same conclusion but from a different perspective: that of

the downstream State. Michigan and New Jersey are the

only two States that have assumed responsibility for

implementing section 404 to protect wetlands and other

waters from dredging and filling. These states strongly

support a broad Clean Water Act because the health of

their citizens depends upon the actions of other States,

which may not fill the gaps left by the federal govern-

ment’s retreat from the field of water pollution prevention.

In Michigan’s words:

[Gliven the fundamental importance of our

freshwater resources to the public, it is essential

that the federal standards be maintained not

only in Michigan but in states whose actions im-

pact Michigan. The State of Michigan exists on

two peninsulas in the center of the Great Lakes,

and we are ever aware that the quality of those

interstate and international waters that sur-

round us is influenced not only by the actions of

our own citizens, but by those of other states

(and other nations).

Michigan Comments at 4.

New Jersey is even more pointed and specific in its

comments, noting that, in its view, its upstream neighbor

New York does not regulate certain wetland areas in New

York that provide important downstream benefits to New

Jersey. Federal regulation, New Jersey concludes, “there-

fore plays an essential role in the protection of these areas

and consequently the water resources that they affect

within New Jersey.” New Jersey Comments at 2. New

York’s comments reinforce New Jersey's concern, recogniz-

ing that there are “nu.nerous” non-navigable streams and

wetlands not covered by its environmental programs that

“are reliant upon Sections 404 and 401 of the Clean Water

Act regulation” for protection. New York DEC Comments

at 2. New York acknowledges it is “not likely that alterna-

tive conservation programs or regulations at the state or

local level will provide adequate or appropriately broad

surrogate protection should Clean Water Act jurisdiction

be reduced.” Jd. “Strong nationwide protection,” New York

argues, “ensures that upstream states cannot export

pollutants to downstre. ‘ communities.” Jd.

II. State Water Qualit, Protections Are Inextri-

cably Enmeshed with Longstanding Federal

Protections and Would Be Severely Under-

mined by Constricting those Federal Protec-

tions.

The phrase “cooperative federalism” is not a meaning-

less bromide, but a daily reality for the State officials

directly responsible for protecting our nation’s waters. The

efficacy of this State-federal partnership depends heavily

on the definition of “waters of the United States” because

this term provides a key jurisdictional limit throughout

the entirety of the Clean Water Act. See page 6, supra.

Petitioners suggest that the Court need not be con-

cerned about the harm that would result from eliminating

federal protections for intrastate non-navigable waters

because, in their view, the States could step in to fill the

regulatory gap. This argument ignores the on-the-ground

reality of our nation’s water protection programs.

First, some two-thirds of the States lack independent

regulatory programs that would fully protect intrastate

wetlands. See Jon Kusler, Ass’n of State Wetland Manag-

ers, The SWANCC Decision: State Regulation of Wetlands

to Fill the Gap, at 13-14 (Updated and Revised March 4,

2004), available at http/Avww.aswm.org/fwp/swancc/aswm-int.

pdf. Instead, they fulfill their responsibilities to the State-

federal partnership under the Act through the certification

process established in section 401, which gives each State

authority to prevent the issuance of a federal permit if the

State determines it would violate the Act.”

Through this certification authority, many States

implement vigorous protections for intrastate wetlands

without the prohibitive expense of creating and adminis-

tering independent State permitting programs. See, e.g.,

New Mexico Dep’t of Game & Fish Comments at 4-6

(discharges into wetlands and other intrastate waters

from industrial sources contaminated groundwater and

surface water used for agriculture, livestock, and other

commercial enterprises, but through its section 401

authority, New Mexico has made “significant strides” in

protecting against this harm without the burden and

expense of a separate permitting scheme); Massachusetts

Dep't of Envt’ Protection Comments at 3 (“Reduced

federal protections, and the associated contraction of 401

jurisdiction, will result in the loss of * * * valuable and

threatened habitats.”).

Second, for many years States have fully integrated

their water protection programs into the federal program.

The State-federal partnership is not an easily bifurcated

pie, but a mosaic of interlocking and interdependent parts.

It has developed over the course of 30 years, with the

States relying on federal protections for many intrastate

“ 33 U.S.C. § 1341 (requiring an applicant for a federal permit for

activity that might result in a discharge into U.S. waters to provide a

certification from the relevant State or regional water pollution control

agency that the discharge will comply with specified provisions of the

Act).

waters. See, e.g., ASTIWPCA Comments at 2 (if established

federal protections are constricted, “[rlegulatory confusion

would ensue as each state in turn adopts a different set of

procedural and substantive requirements.”); Massachu-

setts Dep’t of Envt’] Protection Comments at 1 (restricting

federal protections “will result in longer state permitting

review time for many projects”); Minnesota Comments at

+ 8,11 (changes in federal protections will jeopardize long-

standing “institutional arrangements” in the State, which

have achieved an “optimal” balance in the State-federal

partnership); Wisconsin Comments at 2 (“Any change in

federal jurisdiction will require states to analyze the

impact on their programs and enter into a costiy political

process to determine the applicable and appropriate scope

of state programs and jurisdiction.”).

The views of the State of Michigan are especially

salient because it is one of two States (with New Jersey)

that have directly assumed responsibility for the section

404 program. Michigan emphasizes that “[a]lthough it

may appear counterintuitive, * * * a patchwork reduction

in federal jurisdiction would significantly decrease the

efficiency of the state/federal program, due to the need to

differentiate between ‘federal’ and ‘non-federal’ wetlands,

and impose much greater responsibility for coordination

with other federal resource programs on the permit

applicant.” Michigan Comments at 2.

Under Michigan’s existing section 404 program, the

landowner nies a single application with the State, which

is then reviewed for compliance with a wide range of State

and federal requirements, including endangered species

protections, water quality standards, coastal] zone protec-

tions, historic preservation requirements, and floodplain

impacts. The process is seamless, and State law requires a

final decision within 90 days. Id. at 14. To the extent that

federal jurisdiction is curtailed, however, Michigan’s

ability to coordinate with other federal programs would be

el minated, leaving the applicant to negotiate with those

programs individually, an extremely burdensome process.

Id. A patchwork system would require far more bureau-

cracy and undercut the efficient State-federal partnership

currently in place. It would be especially ironic if this

active partner, the first State to assume administration of

the section 404 program, were to suffer harm to its ecosys-

tems and economy due to a misguided notion of federalism

and State prerogatives.

Third, many States simply do not have the resources

and institutional capacity to protect intrastate waters if

longstanding federal] protections were invalidated. Wyo-

mirig put it bluntly, insisting that it is “naive” to expect the

States to fill the regulatory gap in an adequate fashion,

particularly in rural settings where the need for protection

is the greatest. Wyoming Comments at 6; see also Ne-

braska Dep't of Envt’l Quality Comments at 1 (curtailment

of federal protections would “strain state resources and

dramatically reduce our ability to protect the waters of the

State.”); Pennsylvania Comments at 3 (any assumption

that States would fill the regulatory gap ignores “political,

budgetary [and] staffing realities”).

The State that gave rise to SWANCC, Illinois, likewise

opposes any modification of the regulatory definition of

“waters of the United States.” This position is especially

noteworthy because the landowner in SWANCC repre-

sented to this Court that federal protections were “objec-

tionably intrusive into a well-functioning state regulatory

scheme.”” But two years later the Illinois Department of

Natural Resources forcefully argued to the Corps and EPA

that curtailment of federal jurisdiction “would undermine

the State of Illinois ‘no net loss’ goals, adversely impact

Illinois’ important wetland resources and degrade our

recreational economy.” Illinois Comments at 2. Illinois

stressed that restricting the federal role would imperil

some of the most pristine wetlands that remain, and “[iJf

we destroy non-navigable streams (tributaries), we will

soon imperil the larger waterways as well.” Jd. at 1.

Finally, even in States with the resources to help fill a

regulatory gap, during the time it would take to enact gap-

filling measures many developers would rush to destroy

unprotected streams and wetlands, and the States could

suffer devastating and irreplaceable losses. E.g. Florida

Comments at 9 (if federal protections for intrastate non-

navigable waters were reduced, there could be significant

wetland loss in rapidly developing areas of Florida during

the lag time prior to implementation of new State protec-

tions).

The States’ experience in the aftermath of SWANCC is

instructive. Less than two years after the SWANCC ruling,

developers already had destroyed thousands of acres of

isolated wetlands and other isolated waters even though

the ruling left open other bases for federal jurisdiction

over those waters. See Traci Watson, Developers rush to

build in wetlands after ruling, USA Topay, Dec. 6, 2002, at

15A. Indeed, the bulldozers were ready to move as soon as

“ Brief for the Petitioner, at 30, Solid Waste Agency of Northern

Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001)

(“SWANCC”).

developers received notice of the SWANCC ruling: “The

very day [SWANCC] hit the press, I was driving from

Galveston to Houston, and I counted no less than six huge

tracts of land where bulldozers were knocking everything

down,” says James Jones, a senior consultant with a

wetlands firm and a former wetlands regulator. “And they

hadn’t been developed because there were isolated wet-

lands in them.” Jd.”

In short, Petitioners have it exactly backwards in

arguing that the Court should read the Clean Water Act

narrowly to avoid a change in the State-federal balance. As

described above, the Corps’ and EPA’s longstanding read-

ing of the Act is essential to maintaining the well-

established State-federal partnership.

Ill. The Congress May Prevent the Destruction of

Intrastate Non-Navigable Waters as Necessary

and Proper Regulation of Activity that Threat-

er.s Channels of Commerce.

The natural meaning of the phrase “waters of the

United States” includes waters within our nation’s borders

regardless of their navigability. This plain meaning is fully

* During an unrelated, temporary regulatory gap at the federal

level, more than 20,000 acres of wetlands were drained and more than

150 miles of streams channelized without section 404 reviews, signifi-

cantly increasing the risk of flooding and harm to downstream proper-

ties and pollution of streams and rivers. 65 Fed. Reg. 50108 (Aug. 16,

2000). Some developers evidently concluded that “if you don’t ask, you

don’t have to worry about being told no.” 66 Fed. Reg. 4550, 4569 (Jan.

17, 2001). For a similar, recent example from the context of zoning, see

Amy Gardner, Loudoun Developers Sprint to File Plans: Applications

for 21,000 Homes Submitted in Bid to Outrun Limits in County,

WASHINGTON Post, January 10, 2006, at B1.

consonant with the Act’s express purpose to restore and

maintain the ecological integrity of “the Nation’s waters.”

33 U.S.C. § 1251(a). And the explicit statutory reference to

the protection of “wetlands” in section 404(g)(1) of the Act

provides clear textual evidence that these waters include

adjacent wetlands. Id. § 1344(g)(1).

Indeed, the entirety of section 404(g) would be ren-

dered nugatory if the term “navigable waters” were read to

reach only traditional navigable waters and their adjacent

wetlands. That provision authorizes a State to administer

its own permit program for the discharge of dredge and fill

material into “navigable waters” in lieu of the federal

program, but it expressly prevents a State from assuming

authority over traditional navigable waters, thereby

retaining federal jurisdiction over these waters.” If the

phrase “navigable waters” were limited to traditional

navigable waters, there would be nothing left for the

States to regulate under section 404(g), and the entire

provision would be without effect. See Brief of the States of

New York, Michigan, et al. as Amicus Curiae in Support of

Respondents, at Section II.

The doctrine of grave constitutional doubt does not

require a different analysis. The State comments shed

important light on this question. They illustrate how the

protection of intrastate tributaries and their adjacent

wetlands — even those streams and adjacent wetlands

miles from traditional navigable waters — is essential to

" 33 U.S.C. § 1344(g)(1) (a State may not assume exclusive

authority over “waters which are presently used, or are susceptible to

use in their natural condition or by reasonable improvement as a

means to transport interstate or foreign commerce * * * including * * *

wetlands adjacent thereto”).

any comprehensive effort to protect our traditional navi-

gable waters. There is no attenuated string of connections

necessary to link the concerns expressed by the States to

interstate commerce. Rather, the States show that protect-

ing wetlands is critical to preventing floods and protecting

the quality of our nation’s traditional navigable waters.

Limiting the destruction of tributaries is both a necessary

and a proper congressional action to protect traditional

navigable waters - the quintessential “channel of inter-

state commerce.”

The State comments also explain why States acting

alone cannot effectively address the harm to traditional

navigable waters caused by the destruction of headwater

streams and wetlands. Downriver States cannot control

the actions of their upriver neighbors, and these upriver

States have strong incentives to choose growth over

resource protection because much of the cost of resource

destruction is exported. As the Court declared in United

States v. South-Eastern Underwriters Association, 322

U.S. 533 (1944), “[t]he power granted Congress [under the

Commerce Clause] is a positive power *** to govern

affairs which the individual states, with their limited

territorial jurisdictions, are not fully capable of govern-

ing.” Id. at 552. Specifically in the context of environ-

mental law, the Court held in Hodel v. Virginia Surface

Mining & Reclamation Ass'n, 452 U.S. 264 (1981), that

“the power conferred by the Commerce Clause [is] broad

enough to permit congressional regulation of activities

causing air or water pollution, or other environmental

hazards that may have effects in more than one State.” /d.

at 282.

The States also warn that a reduction in federal

protections could lead to a regulatory “race-to-the-bottom.”

The existence of interstate externalities skews the political

incentives against environmental protection in both

upstream and downstream States. Voters in upstream

States might well reject regulatory measures that will

impose significant costs where they live while delivering

benefits only to communities downstream. Voters in

downstream States might well conclude that regulation in

their State is not worthwhile because it cannc. » ‘Ive the

environmental problem by itself due to the lack x protec-

tions in upstream States. See generally REDEFINING FED-

ERALISM: LISTENING TO THE STATES IN SHAPING “OUR

FEDERALISM” 21-28 (Douglas T. Kendall ed., 2004). As the

Court observed in Hodel, “prevention of this sort of de-

structive interstate competition is a traditional role for

congressional action under the Commerce Clause.” 452

U.S. at 282.

Due to the tremendous harm to navigable channels of

commerce and downstream States that would result from

the loss of intrastate non-navigable waters, federal protec-

tions for these waters lie at the very heart of federal

Commerce Clause authority. For more than 100 years, the

Court has recognized that federal Commerce Clause power

over navigable waters as channels of commerce extends to

the entire watershed, including non-navigable tributaries.

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

174 U.S. 690, 703, 708 (1899) (upholding federal jurisdic-

tion over non-navigable portions of the Rio Grande).

The early cases like Rio Grande Dam largely involved

navigability, but the Court soon recognized that Congress

may use the same broad Commerce Clause power to

promote other values and interests, such as flood control.

In Oklahoma v. Atkinson, 313 U.S. 508 (1941), for exam-

ple, the Court unanimously upheld the assertion of federal

Commerce Clause authority over 150,000 acres (including

vast expanses of uplands) surrounding the Red River, a

non-navigable tributary of the Missouri River, to improve

flood control and produce hydropower. The Court stressed

it is entirely appropriate to exercise this authority

throughout “the entire basin” (id. at 525) even where the

flood control enhancement was “somewhat conjectural” (id.

at 526). In language that could not be clearer, the Court

emphasized “[tJhere is no constitutional reason why

Congress cannot, under the commerce power, treat the

watersheds as a key to flood contro] on navigable streams

and their tributaries.” Jd. at 525 (emphasis added).

Unlike the Migratory Bird Rule at issue in SWANCC,

which was untethered from channels of commerce, the

federal protections at issue here are essential to the

protection of our nation’s navigable waters, which serve as

channels of commerce. Moreover, Congress may regulate

the destruction of intrastate non-navigable wetlands and

other waters as a class of activity due to harm caused by

the class as a whole, even though certain instances might

have only a trivial impact. See, e.g., Gonzales v. Raich, 125

S. Ct. 2195, 2206 (2005). The Court applied this class-of-

activity analysis to the Clean Water Act in United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 135 n.9

(1985) (the Corps may regulate wetlands adjacent to

traditional navigable rivers even though “it may well be

that not every adjacent wetland is of great importance to

the environment of adjoining bodies of water”).

Accordingly, the doctrine of grave constitutional doubt

has no application here. This doctrine should not be used

to create “statutes foreign to those Congress intended,

simply through fear of a constitutional difficulty that,

upon analysis, will evaporate.” Almendarez-Torres v.

United States, 523 U.S. 224, 238 (1998). It properly applies

only where the statute is “genuinely susceptible to two

constructions after, and not before, its complexities are

unraveled. Only then is the statutory construction that

avoids the constitutional question a fair one.” Jd.; accord,

Rust v. Sullivan, 500 U.S. 173, 190-191 (1991) (declining

to apply doctrine although petitioner’s constitutional

claims were not “without some force”).

The underlying purpose of the doctrine — the effectua-

tion of congressional will — makes it especially inappropri-

ate where, as here, the Congress sought to exercise its full

constitutional authority. See S. Conf. Rep. No. 92-1236, at

144 (1972) (the conferees intend that the Act “be given the

broadest possible constitutional interpretation”); S. Rep.

No. 95-370, at 75 (1977) (the Act “exercise[s) comprehen-

sive jurisdiction over the Nation’s waters to control pollu-

tion to the fullest constitutional extent.”). To implement

congressional will in this context, the Court needs to

decide the Commerce power issue, and not avoid that

responsibility through a narrowing construction that

would directly undercut Congress’s express intent to

exercise its full constitutional authority.

—¢

CONCLUSION

The judgments of the United States Court of Appeals

for the Sixth Circuit should be affirmed.

January 2006

Respectfully submitted,

TIMOTHY J. DOWLING*

DOUGLAS T. KENDALL

JENNIFER BRADLEY

COMMUNITY RIGHTS COUNSEL

1301 Connecticut Avenue, NW

Suite 502

Washington, D.C. 20036

(202) 296-6889

*Counsel of Record

APPENDIX A

A LIST OF STATE COMMENTS REGARDING

THE DEFINITION OF “WATERS OF THE

UNITED STATES” URGING CONTINUED

FEDERAL PROTECTION FOR INTRASTATE

TRIBUTARIES AND ADJACENT WETLANDS

(The comments are available at

http://www.asiwpca.org/statecomments.htm)

Arizona:

Arkansas:

California:

Delaware:

Letter from Duane L. Shroufe, Director,

Arizona Game and Fish Department, to

U.S. Environmental Protection Agency

(April 15, 2003)

Letter from Karen L. Smith, Director,

Water Quality Division, Arizona Depart-

ment of Environmental Quality, to U.S.

Environmental Protection Agency (April

15, 2003)

Letter from Scott Henderson, Director,

Arkansas Game and Fish Commission, to

U.S. Environmental Protection Agency

(April 15, 2003)

Letter from Arthur G. Baggett, Jr., Chair,

State Resources Control Board, to U.S.

Environmental Protection Agency (March

14, 2003)

Letter from Mary D. Nichols, Secretary,

California Resources Agency, and Winston

mental Protection Agency, to U.S. Envi-

ronmental Protection Agency (July 3, 2003)

Letter from John A. Hughes, Secretary,

Delaware Department of Natural Re-

sources and Environmental Control, to

Florida:

Hawaii:

Idaho:

Indiana:

Iowa:

U.S. Environmental Protection Agency

(April 16, 2003)

Letter from Janet G. Llewellyn, Deputy

Director, Division of Water Resource

Management, Florida Department of En-

vironmental Protection, to U.S. Envi-

ronmental Protection Agency (April 16,

2003)

Letter from David Waller, Director,

Georgia Department of Natural Re-

sources, to U.S. Environmental Protec-

tion Agency (April 17, 2003)

Letter from June F. Harrigan-Lum,

Manager, Environmental Planning Of-

fice, Hawaii Department of Health, to

U.S. Environmental Protection Agency

(April 16, 2003)

Letter from Dirk Kempthorne, Governor

of Idaho, to U.S. Environmental Protec-

tion Agency (April 16, 2003)

Letter from Joel Brunsvold, Director,

Illinois Department of Natural Re-

sources, to U.S. Environmental Protec-

tion Agency (April 11, 2003)

Letter from Lori F. Kaplan, Commissioner,

Indiana Department of Environmental

Management, to U.S. Environmental Pro-

tection Agency (April 16, 2003)

Letter from Jeffery R. Vonk, Director,

Iowa Department of Natural Resources,

to U.S. Environmental Protection Agency

(March 31, 2003)

Kentucky:

Louisiana:

Maine:

Massachusetts:

Michigan:

Letter from Chris Hase, Environmental

Services Section, Kansas Department of

Wildlife and Parks, to U.S. Environ-

mental Protection Agency (April 15,

2003)

Letter from Jeffery W. Pratt, Director,

Division of Water, Kentucky Natural Re-

sources and Environmental Protection

Cabinet, to U.S. Environmental Protec-

tion Agency (March 13, 2003)

Letter from James H. Jenkins Jr., Secre-

tary, Louisiana Department of Wildlife

and Fisheries, to U.S. Environmental

Protection Agency (April 1, 2003)

Letter from David Van Wie, Director,

Bureau of Land and Water Quality,

Maine Department of Environmental

Protection, to U.S. Environmental Pro-

tection Agency (April 16, 2003)

Letter from Cynthia Giles, Assistant

Commissioner, Massachusetts Depart-

ment of Environmental Protection, to

U.S. Environmental Protection Agency

(April 16, 2003)

Letter from Russ Cohen, Rivers Advo-

cate, Massachusetts Riverways Program,

Massachusetts Department of Fish and

Wildlife, to U.S. Environmental Protec-

tion Agency (February 28, 2003)

Letter from Steven E. Chester, Director,

Michigan Department of Environmental

Quality, to U.S. Environmental Protec-

tion Agency (April 16, 2003)

Minnesota:

Missouri:

Montana:

Nebraska:

Letter from Gene Merriam, Commis-

sioner, Minnesota Department of Natural

Resources, Sheryl Corrigan, Commis-

sioner, Minnesota Pollution Control

Agency, and Ronald Harnack, Executive

Director, Minnesota Board of Water and

Soil Resources, to U.S. Environmental

Protection Agency (April 8, 2003)

Letter from Tim Pawlenty, Governor of

Minnesota, to U.S. Environmental Pro-

tection Agency (April 14, 2003)

Letter from John D. Hoskins, Director,

Missouri Department of Conservation, to

U.S. Environmental Protection Agency

(February 28, 2003)

Letter from Norman P. Stucky, Fisheries

Division Administrator, Missouri De-

partment of Conservation — Fisheries, to

U.S. Environmental Protection Agency

(March 12, 2003)

Letter from Scott B. Totten, Division

Director, Water Protection and Soil Con-

servation, Missouri Department of Natu-

ral Resources, to U.S. Environmental

Protection Agency (March 4, 2003)

Letter from Jan P. Sensibaugh, Director,

Montana Department of Environmental

Quality, to U.S. Environmental Protec-

tion Agency (April 16, 2003)

Letter from Mike Linder, Director,

Nebraska Department of Environmental

Quality, to U.S. Environmental Protec-

tion Agency (April 11, 2003)

Nebraska:

New Jersey:

New Mexico:

New York:

North Carolina:

North Dakota:

Letter from Kirk Nelson, Assistant

Director, Nebraska Department of Game

& Parks, to U.S. Environmental Protec-

tion Agency (April 2, 2003)

Letter from Bradley M. Campbell,

Commissioner, New Jersey Department

of Environmental Protection, to U.S. En-

vironmental Protection Agency (April 15,

2003)

Letter from Larry G. Bell, Director, New

Mexico Department of Game and Fish, to

U.S. Environmental Protection Agency

(April 15, 2003)

Letter from Bill Richardson, Governor of

New Mexico, to U.S. Environmental Pro-

tection Agency (March 5, 2003)

Letter from Peter Lehner, Bureau Chief,

Environmental Protection Bureau, New

York Attorney General’s Office, to U.S.

Environmental Protection Agency (April

16, 2003)

Le.ter from Erin M. Crotty, Commis-

sioner, New York Department of Envi-

ronmental Conservation, to U.S. Envi-

ronmental Protection Agency (March 27,

2003)

Letter from David R. Cox, Technical

Guidance Supervisor, North Carolina

Wildlife Commission, to U.S. Environ-

mental Protection Agency (April 15, 2003)

Letter from Dean Hildebrand, Director,

North Dakota Game and Fish Depart-

ment, to U.S. Environmental Protection

Agency (April 14, 2003)

Ohio:

Oklahoma:

Pennsylvania:

Rhode Island:

South Carolina:

South Dakota:

Letter from Samuel W. Speck, Director,

Ohio Department of Natural Resources,

to U.S. Environmental Protection Agency

(March 3, 2003)

Letter from Greg D. Duffy, Director,

Oklahoma Department of Wildlife Con-

servation, to U.S. Environmental Protec-

tion Agency (April 14, 2003)

Letter from John T. Hines, Acting Deputy

Secretary for Water Management, Penn-

sylvania Department of Environmental

Protection, to U.S. Environmental Pro-

tection Agency (April 16, 2003)

Letter from Jan H. Reitsma, Director,

Rhode Island Department of Environ-

mental Management, to U.S. Environ-

mental Protection Agency (April 16, 2003)

Letter from Alton C. Boozer, Chief,

Bureau of Water, South Carolina Depart-

ment of Health and Environmental Con-

trol, to U.S. Environmental Protection

Agency (April 16, 2003)

Letter from Robert E. Duncan, Environ-

mental Programs Director, South Caro-

lina Department of Natural Resources, to

U.S. Environmental Protection Agency

(March 21, 2003)

Letter from John L. Cooper, Department

Secretary, Department of Game, Fish and

Parks, to U.S. Environmental Protection

Agency (April 14, 2003)

Letter from Steven M. Pirner, Secretary,

South Dakota Department of Environ-

ment and Natural Resources, to US.

Tennessee:

Vermont:

Virginia:

Washington:

West Virginia:

Envir mental Protection Agency (April

16, 2003)

Letter from Gary T. Myers, Executive

Director, Tennessee Wildlife Resources

Agency, to U.S. Environmental Protec-

tion Agency (February 26, 2003)

Letter from Margaret Hoffman, Executive

Director, Texas Commission on Environ-

mental Quality, to U.S. Environmental

Protection Agency April 16, 2003)

Letter from Thomas G. Heger, Texas Parks

and Wildlife Department, to U.S. Environ-

mental Protection Agency (April 16, 2003)

Letter from Jeffrey Wennberg, Commis-

sioner, Vermont Agency of Natural Re-

sources, to U.S. Environmental Protection

Agency (April 16, 2003)

Letter from S. René Hypes, DCR-DNH

Project Review Courinator, Virginia De-

partment of Conservation, to U.S. Environ-

mental Protection Agency (April 14, 2003)

Letter from William L. Woodfin, Jr.,

Director, Virginia Department of Game,

to U.S. Environmental Protection Agency

(April 15, 2003)

Letter from Sabra W. Hull, Wetlands

Specialist, Land Management Division,

Washington Department of Natural Re-

sources, to U.S. Environmental Protec-

tion Agency (April 15, 2003)

Letter from William D. Brannon, Acting

Director, Division of Water and Waste

Management, West Virginia Department

West Virginia:

Wisconsin:

Wyoming:

of Environmental Protection, to U.S. En-

vironmental Protection Agency (April 16,

2003)

Letter from Curtis I. Taylor, Chief,

Wildlife Resources Section, West Virginia

Department of Natural Resources — Wild-

life, to U.S. Environmental Protection

Agency (February 26, 2003)

Letter from P. Scott Hassett, Secretary,

Wisconsin Department of Natural Re-

sources, to U.S. Environmental] Protection

Agency (April 8, 2003)

Letter from Julie Kozlowski, Assistant

Director, Office of Federal Land Policy,

John Jackson, Administrator, Planning,

Wyoming Department of Fish and Game,

and Bill Wichers, Deputy Director, Wyo-

ming Water Development Commission, to

U.S. Environmental Protection Agency

(March 3, 2003)

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.