# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A18

## Record

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

## Text

, 13/0

aaa ies. 04-1034 & 04-1384 ze Ey lee.
In The
Supreme Couri of the Anited States
.

JOHN A. RAPANOS, ET AL.,

Petitioners,

v.
UNITED STATES OF AMERICA,
Respondent.
+

JUNE CARABELL, ETAL.,

Petitioners,
v.

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

s

BRIEF OF THE ASSOCIATION OF
STATE AND INTERSTATE WATER POLLUTION
CONTROL ADMINISTRATORS AS AMICUS CURIAE
IN SUPPORT OF RESPONDENTS

SJ

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

iv

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)..

vi

TABLE OF AUTHORITIES - Continued

New Mexico:

New York:

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

ix
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]

1

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.

3

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

4

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

5

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.

t

6

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).

7

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). ,

8

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).

9

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.”).

10

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

11

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

12

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

13

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

14

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).

15

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

16

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

17

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.

18

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).

19

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

20

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

21

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”).

22

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.

23

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”).

24

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.

27

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

la

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:

Arizona:

Arkansas:

California:

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:

2a

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:

Massachusetts:

Michigan:

3a

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:

Minnesota:

Missouri:

Missouri:

Missouri:

Montana:

Nebraska:

4a

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:

New York:

North Carolina:

North Dakota:

5a

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 Carolina:

South Dakota:

South Dakota:

6a

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:

7a

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:

8a

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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A18. Public record. Not legal advice.