Amicus Curiae Brief — Rapanos v. United States

Nos. 04-1034 and 04-1384

IN THE

' «Supreme Court of the United States

JOHN A. RAPANOS, e7 itv... ef al...

Petitioners.

Vv.

UNITED STATES,

Respondent.

JUNE CARABELL. ef al...

Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS. ef a/..,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

fur the Sixth Circuit

BRIEF OF AMICI CURTAE ASSOCIATION OF

STATE WETLAND MANAGERS, ASSOCIATION OF

STATE FLOODPLAIN MANAGERS, AND

NEW ENGLAND INTERSTATE WATER POLLUTION

CONTROL COMMISSION IN SUPPORT OF

RESPONDENT UNITED STATES

STEPHEN M, JOHNSON PATRICK PARENTEAL

MERCER UNIVERSITY ENVIRONMENTAL AND NATURAL

SCHOOL OF LAW RESOURCES LAW CLINIC

1021 Georgia Avenue VERMONT LAW SCHOOL

Macon, Georgia 31207 PO Box 300

(478) 301-2192 South Royalton, Vermont 05068

Counsel for Amici Curiae (802) 831-1305

Association of State Counsel of Record for Amici

Wetland Managers. et al. Curiae Association of State

Wetland Managers, et al

WiSONn Eres PrintinGCo.. Inc. - (202) 789-0096 - WASHINGTON,O C 1001

TABLE OF CONTENTS

TABLE OF AUTHORITIEG............::scsssessessseeeeeereenenses

SOURED GOR GDI el cccscesseseresssssecnesenrsnnmensenecesstensenees

INTRODUCTION AND SUMMARY OF

L.

il.

Ii.

BY DEFINING “NAVIGABLE WATERS”

TO MEAN “WATERS OF THE UNITED

STATES” CONGRESS MEANT TO EX-

PAND THE GEOGRAPHIC SCOPE OF THE

CLEAN WATER ACT TO INCLUDE TRIB-

UTARIES AND ADJACENT WETLANDS ....

RIVERSIDE BAYVIEW UPHELD THE

AGENCIES’ INTERPRETATION THAT

“WATERS OF THE UNITED STATES”

INCLUDES TRIBUTARIES AND ADJA-

Bi, TE a iccenentiettiinannns

B. SWANCC REAFFIRMED RIVERSIDE

THE AGENCIES’ INTERPRETATION OF

“WATERS OF THE UNITED STATES” IS

BASED ON SOUND SCIENCE AND

POLICY CONSIDERATIONS ............c00000ee0e0

A. Jurisdictional Determinations Must Be

Made Within a Watershed Context That

Takes Account of the Vital Role of

Headwaters And Associated Wetlands........

(i)

11

15

ii

TABLE OF CONTENTS—Continued

B. Headwaters and Adjacent Wetlands Pro-

vide Irreplaceable Ecosystem Services

That Support Many Beneficial Uses of

STIS TOI ccenicscinienntecanvletsenstonnetetnese eg

C. Over Forty Percent of the Wastewater Dis-

charges Authorized Under the Act, Exclud-

ing Alaska, Are Located in Headwaters...... 19

D. Over Ninety Percent of the Surface Water

Intakes for Public Drinking Water Systems

Are Located in Headwaters ...............:00s0++0 20

IV. LIMITING THE GEOGRAPHIC SCOPE OF

THE ACT TO TRADITIONAL NAVIGABLE

WATERS AND ADJACENT WETLANDS

WILL UNDERMINE EFFORTS AT ALL

LEVELS OF GOVERNMENT TO PROTECT

AND RESTORE AQUATIC ECOSYSTEMS

OF NATIONAL SIGNIFICANCE ............000s0000 21

V. THE AGENCIES’ INTERPRETATION OF

“WATERS OF THE UNITED STATES” AS

INCLUDING WETLANDS ADJACENT TO

TRIBUTARIES IS ENTITLED TO CHEV-

SEEGG TE OR AI cocnccnnceccensecescenstsesentscsssenceiees 23

A. The Interpretation Is Well Within the

Limits of the Commerce Clause ................+. 23

B. The Weight of Authority Supports the

Agencies” Interpretation ...........:0:-sscsseresees 27

CONCLUSION ........sssessvsessessneessnessneesnsessnesnnecsnecensesnness 30

DPV TIIGEIEIS cccceccecescsesssresccssenevesivevssnesisnennesencnsepescssensseees la

TABLE OF AUTHORITIES

CASES Page

Babbit v. Sweet Home Chapter of Communities

for a Greater Oregon, 515 U.S. 687 (1995)...... 6

Bob Jones Univ. v. United States, 461 U.S. 574

CORI ccnrnetntmenrssecentiimnentaimeninmiioninniansdne 4

Chevron U.S.A. v. Natural Resources Defense

Council, 467 U.S. 837 (1984) ........cccccercseeeneees 4, 23

City of Milwaukee v. Illinois and Michigan, 451

| 7

City of Shoreacres v. Watterworth, 420 F.3d 440

CSE GE, Fe sereercerescenscnitnmmncmnnmsne 14

Envtl. Prot. Agency v. California ex rel. State

Water Resources Bd., 426 U.S. 200 (1976)....... 5

Gonzales v. Raich, 125 S.Ct. 2195 (2005)............. 24, 26

Headwaters, Inc. v. Talent Irrigation Dist., 243

fo} ft a 14, 28

Hodel v. Indiana, 452 U.S. 314 (1981) .........ccc0000 26

Hodel v. Virginia Surface Mining & Reclamation

Ass'n, Inc., 452 U.S. 264 (1981) .....cccccceeseeeeees 27

In re Needham, 354 F.3d 340 (Sth Cir. 2003) ....... 28

Int'l Paper Co. v. Ouellette, 479 U.S. 481 (1986)... 7

K Mart Corp. v. Cartier, Inc., 486 U.S. 281

EI neseerenaiosmseqnenantansantenisanenesinnonsemannnpeeniastes 4

Oklahoma ex rel. Phillips v. Guy F. Atchison

| eee 6

Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172 (1999) .......ccccccessseeseeeeees 27

PUD No. | of Jefferson County v. Washington

Dep't of Ecology, 511 U.S. 700 (1994)..........0. 26

Rice v. Harken Exploration Co., 250 F.3d 264

Ge SD screiscnicnnsestapentitcersernnmenteantetnnes 28

Solid Waste Auth. of Northern Cook County v.

Corps of Engineers, 531 U.S. 159 (2001)......... passim

iv

TABLE OF AUTHORITIES—Continued

Page

United States v. Ashland Oil & Transp. Co., 504

F.2d 1317 (6th Cir. 1974) ..........ccscsseesescenseescenes 27

United States v. Deaton, 332 F.3d 698 (4th

Cir. 2003), cert. denied, 541 U.S. 972

(Fa ee hccsmsesratnseensnpuiisocipsliemmmuntanntiies 3, 13, 14, 28, 29

United States v. Eidson, 108 F.3d 1336 (11th Cir.

1997), cert. denied, 522 U.S. 899 (1997).......... 28

United States v. Gerke Excavating, Inc., 412 F.3d

B96 CRO Cae, FRED ccerereternemnninna 3, 14, 28, 29

United States v. Lopez, 514 U.S. 549 (1995).....24, 25, 26

United States v. Morrison, 529 U.S. 598 (2000)... 24, 25

United States v. Riverside Bayview Homes, Inc.,

729 F.2d 321 (6th Cir. 1984) ..........:cccecceceeeeceees 10

United States v. Riverside Bayview Homes, Inc.,

GPO UBB. ES COP cantverveicentnicnictsnnniviniaitianiia passim

Wickard v. Filburn, 317 U.S. 111 (1942)..........00 24

STATUTES

Be UB. 6 BF encscnseneremeniiaaninis 6

RET ot SS Re ES 21

BS ULL. 6 Fate cesecestertswscesiesenininsininie 21

SO ULBG. ©. Bie t cccsscestscetnencesetinesineiiaiatiae 24

TO ers Fa Oe covesersentciccsinienncitebiatasinatian 4

LS | de Gy Re 4

RE TR ee 21

Clean Water Restoration Act of 1966, Pub. L.

No. 89-753, 80 Stat. 1246..........cccccccccecserseseessees 5

Federal Water Pollution Control Act Amend-

ments of 1956, ch. 518, 70 Stat. 498 ................ 5,6

Federal Water Pollution Control Act Amend-

ments of 1961, Pub. L. No. 87-88, 75 Stat.

Water Pollution Control Act of 1948, ch. 758, 62

Se 5,6

Vv

TABLE OF AUTHORITIES—Continued

Page

Water Quality Act of 1965, Pub. L. 89-234, 79

RI, GUE ccnneccesesernsecsnspntsncsesceseccsnnsresnsseosecsneamecse 5

Water Quality Improvement Act of 1970, Pub. L.

RG Ge ORR, BO ccnccszsesssssscscscsccscsscsscsssscsssnecsse 5

REGULATIONS

es Sea el baccscnsnnncsccsnsscesecserssscensesctqneesens 9

ts Oe Bi serccnpemnesincenscssencsescensemnnsensesens 4,9, 12, 13

Sk ere aoe 4

8 ee 9

I BOR, GG i crcnncccssccscsszscsscesseccsscescesecssesneces 19

LEGISLATIVE HISTORY

Congressional Research Service, 95th Cong., Ist

Sess., Legislative History of the Federal Water

Pollution Control Act Amendments, Vol. 2

(1973) (Senate Committee Report).................... 5

H.R. Rep. 87-306 (Apr. 25, 1961), reprinted in

1961 U.S.C.C.A.N, 2076 ......ccsercerseseeserseeseesennes 6

S. Rep. No. 92-414 (Oct. 28, 1971), reprinted in

1972 U.S.C.C.A.N. 36GB ......ccccrcecsocerserseesesseseees 24

S. Conf. Rep. No. 92-1236 (Sep. 28, 1972),

reprinted in 1972 U.S.C.C.A.N. 3776. .....cc000000 6

COURT RULES

hs Gis De SN GS 0 LD ccccesscescsccncesscesncsnsccnsccecees |

OTHER REFERENCES

Alexander, R.B., R.A. Smith and G.E. Schwartz,

Effect of stream channel size on the delivery of

nitrogen to the Gulf of Mexico. Nature 403

Siri atidiesicassisenncinrnsibandscemcetntnenementnegnaegeebesensentnenne 17

vi

TABLE OF AUTHORITIES—Continued

CENR, Integrated Assessment of Hypoxia in the

Norther: Gulf of Mexico. National Science

and ‘technology Council Committee on Envir-

onment and Natural Resources, Washington,

A, Ga cnsnsesssscmenssecceesasemesinenmenns

Chesapeake Bay Program, referenced in Fn. 44,

available at http://chesapeakebay.net..............«.

Craun, G.F., F.S. Hauchman and D.E. Robinson

(eds.), Microbial Pathogens and Disinfection

By-Products in Drinking Water: Health Effects

and Management of Risks. [LSI Press, Wash-

eee

Cuyahoga River Contamination, referenced in

Fn. 2, available at hitp://www.epa.gov/ginpo/

Oe cccncecerccsemmennnenes

Dahl, Thomas E., Status of Trends of Wetlands in

the Conterminous United States 1986-1997

(U.S. Fish and Wildlife Service 2000) ..............

Dieterich, M. and N.H. Anderson, Dynamics of

abiotic parameters, solute removal and sedi-

ment retention in summer-dry headwater

stream of Western Oregon. Hydrobiologia 379

Gomi, T., R.C. Sidle and J.S. Richardson, Under-

standing Processes and Downstream Linkages

of Headwater Systems. Bioscience 52 (2002) ...

23

21

19

15

17

Vii

TABLE OF AUTHORITIES—Continued

Goolsby, D.A., W.A. Battaglin, G.B. Lawrence,

R.S. Artz, B.T. Aulenbach, R.P. Hooper, D.R.

Keeney and G.J. Stensland. Flux and Sources

of Nutrients in the Mississippi-Atchafalaya

River Basin: Topic 3 Report for the Integrated

Assessment on Hypoxia in the Gulf of Mexico.

NOAA Costal Ocean Program Decision Anal-

ysis Series No. 17. NOAA Costal Ocean Pro-

gram, Silver Spring, MD (1999), available at

http://www.nos.noaa.gov/Products/hypox_t3fi

Great Lakes Program, referenced in Fn. 43,

available at nttp://www.epa.gov/ginpo/ ............

Hall, K.J. and B.C. Anderson, The toxicity and

chemical composition of urban stormwater

runoff. Canadian Journal of Civil Engineering

OP Ge casensesstinantennuensionenmnnmnncmns

Lake Erie Pollution, referenced in Fn. 3,

available at http://www.usatoday.com/news/

science/enviro/2002-06-14-erie.htm................-+.

Larsen, J., Dead Zones Increasing in World's

Costal Waters. Eco-Economy Update (June

16, 2004), available at http://www.earth-

policy.org/Updates/Update4 | .htm...............000000+

Leopold, L.B., M.G. Wolman, and J.P. Miller,

Fluvial Processes in Geomorphology. W.H.

Freeman and Company, San Francisco (1964)..

Lieb, D.A. and R.F. Carline, Effects of urban

runoff from a detention pond on water quality,

temperature and caged Gammarus minus

(Say) (Amphipoda) in a headwater stream.

Hydrobiologia 441 (1/3) (1988) .........cccececereees

23

21

17

22

20

17

Vili

TABLE OF AUTHORITIES—Continued

Long Island Sound Study, referenced in Fn. 45,

available at http://www.epa.gov/region0O | /eco/

Lowe, W.H. and G.E. Likens, Moving headwater

streams to the head of the class. Bioscience 55

Meyer, J.L. and J.B. Wallace, Lost linkages in

lotic ecology: rediscovering small streams.

Ecology: Achievement and Challenge (M.C.

Press, N.J. Huntly and S. Levin, eds.,

Page

21

16

Blackwell Science) (2001)..........0sesssrsereeses 17, 18, 19

Mitsch, W.J., J.W. Day, Jr., J.W. Gilliam, P.

Groffman, D.L. Randall and N. Wang, Reduc-

ing nitrogen loading to the Gulf of Mexico

from the Mississippi River basin: Strategies to

counter a persistent ecological problem.

Bioscience 52(2) (2002) .....serseeeervsrsrerererseeees

Morrice, J.A., H.M. Valett, C.N. Dahm and M.E.

Campana, Alluvial characteristics ground-

water-surface water exchange and hydro-

logical retention in headwater streams. Hydro-

logical Processes 11 (1997) ........cscssssseerserserees

National Academy of Sciences, “Sedimentation

Control to Reduce Maintenance Dredging of

Navigational Facilities in Estuaries” (1987)......

National Research Council, Wetlands: Charac-

teristics and Boundaries. National Academy

Press, Washington, D.C. (1995) ..........0seeeees

Novotny, V., Water Quality: Diffuse Pollution

and Watershed Management, (2nd ed.). John

Wiley & Sons, Inc., New York, N.Y. (2002)...

22

15

17

16

19

ix

TABLE OF AUTHORITIES—Continued

Oberstar, Hon. James, The Clean Water Act in

Peril, House Committee on Transportation

(Oct. 18, 2002), available at http://www.

house.gov/transportation_democrats/Of_Interest

/021017_CleanWaterActRept.pdf..............:.c00c00e

Rabalais, N.N., R.E. Turner and D. Scavia,

Beyond Science into policy: Gulf of Mexico

hypoxia and the Mississippi River. Bioscience

ee cetnccnsseunmennnnemnmeien

Santa Barbara Oil Spill, referenced in Fn. 4,

available at http://www.countyofsb.org/energy/

State of Ohio Environmental Protection Agency,

Nonpoint source impacts on primary head-

water streams (2003), available at http://www.

epa.state.oh.us/dsw/wqs/headwaters/HWH_

23

nonpoint_jan2003.pdf..............sseerereeeres 16, 17, 18, 19

U.S. Environmental Protection Agency, A Bene-

fits Assessment of Water Pollution Control

Programs Since 1972: Part 1, The Benefits of

Point Source Controls for Conventional

Pollutants in Rivers and Streams (Jan. 2000),

available at http://www.epa.gov/ost/economics/

U.S. Environmental Protection Agency, Liquid

Assets: A Summertime Perspective on the

Importance of Clean Water to the Nation's

Economy. EPA-800-R-96-002 (1996), Office

of Water (4101), available at hittp://

www .epa.gov/water/liquidassets/assets.pdf ......

\

TABLE OF AUTHORITIES—Continued

U.S. Environmental Protection Agency, Liquid

Assets 2000: America’s Water Resources at a

Turning Point. EPA-840-B-00-001(2000),

Office of Water (4101), available at http://

www.epa.gov/water/liquidassets/assets. pdf ......

U.S. Environmental Protection Agency, FAC-

TOIDS: Drinking Water and Ground Water

Statistics for 2004. Safe Drinking Water

Information System (SDWIS) (2006), avail-

able at http://www.epa.gov/safewater/data_

RRSORNR FIO IIGE cesscccesscsceseesssssnsensequeussssenseesseen

Wipfli, M.S. and D.P. Gregovich, Export of

invertebrates and detritus from fishless head-

water streams in southeastern Alaska: Impli-

cations for downstream salmonid production.

Freshwater Biology 47 (2002)..........ssssseseseres

25

18

INTEREST OF AMICI '

The Association of State Wetland Managers (ASWM), the

Association of State Floodplain Managers (ASFPM), and the

New England Interstate Water Pollution Control Commission

(NEIWPCC) submit this brief in support of Respondent

United States. ASWM is a nonprofit membership organiza-

tion established in 1983 to enhance protection and manage-

ment of wetland resources, to promote application of sound

science to wetland management efforts, and to provide train-

ing and education for our members and the public. ASFPM is

an organization of professionals involved in floodplain man-

agement, flood hazard mitigation, the National Flood Insur-

ance Program, and flood preparedness, warning and recovery.

NEIWPCC is a nonprofit interstate agency established by an |

Act of Congress in 1947 that serves and assists its member

states in the Northeast by providing coordination, public edu-

cation, research, training, and leadership in water manage-

ment and protection.

INTRODUCTION AND SUMMARY OF ARGUMENT

The Federal Water Pollution Control Act Amendments of

1972, the modern Clean Water Act (Act), established a

national commitment to restore and maintain the chemical,

physical, and biological integrity of the nation’s waters. The

Act has been instrumental in improving the health of rivers,

lakes, and coastal waters. It has stopped billions of pounds of

pollution from fouling the water, saved thousands of acres of

wetlands, protected public water supplies, and dramatically

increased the number of waterways that are safe for swim-

ming and fishing. Yet much remains to be done. Nearly forty

percent of the nation’s waters still do not meet water quality

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

(1) all parties consented to the filing of this brief, (2) no counsel for any

party authored this brief in whole or part, and (3) no person or entity other

than the above-named amici curiae and their counsel made a monetary

contribution to the preparation or submission of this brief.

2

standards. Continued progress depends on how the Court

resolves the fundamental jurisdictional issues presented in

these consolidated cases.

Petitioners offer crabbed and unscientific interpretations of

the term “waters of the United States” as used in the Act.

Rapanos asserts that the Act reaches no farther than “tradi-

tionally navigable waters” and wetlands that “physically

abut” them. By this measure the vast majority of the waters of

the United States that Congress intended to protect, and many

of the sources-of pollutants that Congress intended to regu-

late, would lie outside the geographic scope of the Act. Such

a dramatic reduction in the Act’s scope at this late date would

wreak havoc within a broad spectrum of water quality pro-

grams at every level of government.

Carabell takes a somewhat different tack, arguing that

“waters of the United States” can never include a body of

water that lacks a “physical connection” to a traditional navi-

gable water. According to Carabell’s theory, the Environ-

mental Protection Agency (EPA) and the Army Corps of

Engineers (Corps) must prove such a connection for every

discharge permit, a wholly unworkable and unnecessary re-

quirement that would impose substantial costs on both the

government and permit applicants.

There is no merit to either of these novel jurisdictional

theories.

First, petitioners’ statutory interpretations fiatly contradict

Congressional intent. Both as initially enacted in 1972 and as

amended in 1977, Congress made it clear that the purpose of

the Clean Water Act was to restore and maintain the integrity

of the nation’s waters by controlling polluting discharges at

the source. Congress intentioially abandoned its previous

reliance on concepts of navigability and instead made water

quality and ecological integrity the touchstones of the statu-

tory and regulatory program. Moreover, Congress repeatedly

demonstrated its commitment to protecting wetlands as key

3

components of aquatic ecosystems. Significantly, in 1977

Congress rejected preposals to reduce the geographic scope

of the section 404 permit program as petitioners suggest.

- Second, petitioners misconstrue this Court’s unanimous de-

cision in Riverside Bayview. Contrary to Rapanos’ argument,

Riverside Bayview did not hold that adjacent wetlands must

“physically abut” a traditional navigable water. Rather the

Court upheld the Corps’ broad, programmatic interpretation

of “waters of the United States” as including the entire

tributary system of navigable waters and adjacent wetlands.

Further, contrary to Carabell’s argument, Riverside Bayview

did not require proof of a “physical connection” between

wetlands and navigable waters. Rather the Court deferred to

the Corps’ expert judgment that wetlands in close proximity

to “waters of the United States” were “within the class of

waters” subject to regulation under the Act.

Third, petitioners’ reliance on SWANCC is misplaced.

SWANCC held that the Corps overreached when it asserted

jurisdiction over an “isolated” sand and gravel pit used by

migratory birds. Here, the Corps has asserted jurisdiction over

wetlands that are “adjacent to,” and “inseparably bound up”

with, tributaries of navigable waters within the meaning of

Riverside Bayview as reaffirmed in SWANCC.

Fourth, the weight of judicial authority strongly supports

the agencies interpretation here. Petitioners’ reliance on the

minority view of the Fifth Circuit, expressed in dictum, is

misplaced in light of the countervailing authority as reflected

in the thorough and well reasoned decisions of the Fourth

Circuit in the Deaton case and the Seventh Circuit in Gerke.

Finally, petitioners’ arguments that the regulation of these

wetlands raises Federalism concerns under the Commerce

Clause are well off the mark. Under its broad power over the

“channels of commerce,” Congress has ample authority to

prevent degradation of navigable waters by regulating dis-

charges into nonnavigable tributaries and adjacent wetlands.

4

Moreover, Congress has authority under the Commerce Clause

to regulate the discharge of pollutants as a class of economic

activity having, in the aggregate, a substantial ef‘ect on

interstate commerce.

For all of these reasons, Amici respectfully request that the

judgment of the Sixth Circuit in each of these cases be

affirmed.

ARGUMENT

____L BY DEFINING “NAVIGABLE WATERS” TO

MEAN “WATERS OF THE UNITED STATES”

CONGRESS MEANT TO EXPAND THE

GEOGRAPHIC SCOPE OF THE CLEAN

WATER ACT TO INCLUDE TRIBUTARIES

AND ADJACENT WETLANDS

The Clean Water Act prohibits the discharge of pollutants,

including dredge or fill material, into “navigable waters”

without a permit under sections 402 or 404 of the Act. 33

U.S.C. § 1331(a). The Act defines “navigable waters” as

“waters of the United States including the territorial sea.” 33

U.S.C. § 1362(7). Regulations of the Corps and the EPA

further define “waters of the United States” to include tribu-

taries and adjacent wetlands. 33 C.F.R. § 328.3(a)(5)(7); 40

C.F.R. § 122.2. Petitioners challenge the validity of these

regulations as applied to wetlands on their property. Thus, the

crux of the issue here is whether the agencies’ interpretation

of Congressional intent is entitled to deference under Chevron

U.S.A. v. Natural Resources Defense Council, 467 U.S. 837

(1984) (Chevron).

It is axiomatic that, in determining the meaning of a statute,

courts look not only to the particular statutory language, but

to the design of the statute as a whole and to its object and

policy. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291

(1988); Bob Jones Univ. v. United States, 461 U.S. 574, 586

(1983). Contrary to this core principle of statutory construc-

tion, petitioners insist on a literal reading of the words “navi-

5

gable waters” that disregards the object, structure, policy, and

historical context of the 1972 Act. To understand what Con-

gress had in mind at that time, it helps to recal! a few of the

dramatic events that stirred it to action. The Cuyahoga River

was so contaminated with industrial waste it regularly caught

fire.? Lake Erie was so polluted with untreated sewage scien-

tists pronounced it “dead.”? An oil spill in 1969 coated

the beaches of Santa Barbara.* A record-setting fish kill—

26 million fish—had just occurred in Lake Thonotasssa,

Florida.”

These conditions did not arise overnight. Congress had en-

acted no less than six federal statutes in the previous 24 years

in an effort to develop a workable approach to pollution

control,® only to conclude that the entire effort had been

“inadequate in every vital aspect.” Congressional Research

Service, 95th Cong., Ist Sess., Legislative History of the

Federal Water Pollution Control Act Amendments (hereafter

“Leg. Hist.”) Vol. 2 at 1425 (1973) (Senate Committee

Report). As this Court recognized in Envtl. Prot. Agency v.

California ex rel. State Water Resources Bd., 426 U.S. 200,

2 See http://www.epa.gov/ginpo/aoc/cuyahoga.html (accessed Jan. 5,

2006).

>See http://www.usatoday.com/news/science/enviro/2002-06- 1 4-erie.

htm (accessed Jan. 5, 2006).

‘See http://www.countyofsb.org/energy/information/1969blowout.asp

(accessed Jan. 5, 2006).

* See Hon. James Oberstar, The Clean Water Act in Peril, 6, House

Committee on Transportation (Oct. 18, 2002), available at http://www.

house.gov/transportation_democrats/Of_Interest/021017_CleanW aterAct

Rept.pdf (accessed Jan. 5, 2006).

* Water Pollution Control Act of 1948, ch. 758, 62 Stat. 1155; Federal

Water Pollution Centro] Act Amendments of 1956, ch. 518, 70 Stat. 498;

Federal Water Pollution Control Act Amendments of 1961, Pub. L. No.

87- 88, 75 Stat. 204; Water Quality Act of 1965, Pub. L. 89-234, 79 Stat.

903; Clean Water Restoration Act of 1966, Pub. L. No. 89-753, 80 Stat.

1246; Water Quality Improvement Act of 1970, Pub. L. 91-224, 84 Stat. 91.

6

203 (1976), the 1972 Act was passed to remedy these failings,

including the complete failure of the federal enforcement pro-

gram. Under the pre-1972 legislation, federal abatement suits

were limited to pollution of interstate, navigable-in-fact, or

coastal waters.’ As a result only one case had been brought

between 1948 and 1972, and it failed.

Viewed against this backdrop, petitioners’ argument that

Congress intended to do no more than tinker at the edges of

federal navigability doctrines is unpersuasive. By defining

“navigable waters” to mean “waters of the United States”

Congress clearly signaled its intent to abandon the jurisdic-

tional limits that had foiled its earlier attempts to cure the

problem of water pollution. Importantly, it is Congress’

definition that is controlling, not, as petitioners would have it,

the common law definition of traditional navigable waters.

Babbitt v. Sweet Home Chapter of Communities for a Greater

Oregon, 515 U.S. 687, 697-98 n.10 (1995) (looking to the

statutory definition of “take” instead of the common law

definition). The legislative history strongly confirms Con-

gress’ intent that the term “navigable waters” was to be given

“the broadest possible constitutional interpretation.” S. Conf.

Rep. No. 92-1236, at 144 (Sep. 28, 1972), reprinted in 1972

U.S.C.C.A.N. 3776, 3822. Indeed, even before the 1972 Act,

Congress had broad power to regulate “navigable waters,”

which included nonnavigable tributaries. °

"Id. 1948 Act, §§ 2(d) and 3(e); 195€ Act §§ 8 and I1(e); 1961 Act

§§ 8 and 8(f)(2); see also H.R. Rep. 87-306 (Apr. 25, 1961), reprinted in

1961 U.S.C.C.A.N. 2076, 2082-84 (definition of “navigable waters”).

* See Section 13 of the Rivers and Harbors Act, also known as the Re-

fuse Act, prohibiting inter alia, the “discharge . . . of any refuse matter . . .

into any navigable water of the United States, or into any tributary of any

navigable water from which the same shall float or be washed into such

navigable water.” 33 U.S.C. § 407 (emphasis added); see also Oklahoma

ex rel. Phillips v. Guy F. Atchison Co., 313 U.S. 508, 525 (1941) (Con-

gress’ Commerce Clause power also extends to nonnavigable intrastate

tributaries which flow into traditional navigable streams).

7

Further, this Court has repeatedly recognized the compre-

hensive nature of the Act and its geographic scope. See, e.g.,

City of Milwaukee v. Illinois and Michigan, 451 U.S. 304,

318 (1981) (Act was intended to “establish a comprehensive

long-range policy for the elimination of water pollution.”);

see also Int'l Paper Co. v. Ouellette, 479 U.S. 481, 486 n.6

(1986) (“While the Act purports to regulate only ‘navigable

waters,” this term has been considered expansively to cover

waters not navigable in the traditional sense.”’).

In the seminal case of United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 133 (1985) (Riverside Bayview),

the Court, after thoroughly examining the text, purpose, and

history of the Act, reached the unanimous conclusion that

Congress intended “to repudiate limits that had been placed

on federal regulation by earlier pollution control statutes and

to exercise its powers under the Commerce Clause to regulate

at least some waters that would not be deemed ‘navigable’

under the classical understanding of that term.” The Court

reaffirmed Riverside Bayview’s core holding in Solid Waste

Auth. of Northern Cook County v. Corps of Engineers, 531

U.S. 159 (2001) (SWANCC).”

Il. RIVERSIDE BAYVIEW UPHELD THE AGEN-

CIES’ INTERPRETATION THAT “WATERS OF

THE UNITED STATES” INCLUDES TRIBU-

TARIES AND ADJACENT WETLANDS

Petitioner Rapanos contends that the decisions in Riverside

Bayview and SWANCC establish a “strict significant nexus”

requirement that can only be satisfied if wetlands “actually

abut and are inseparably bound up with a traditional naviga-

ble water.” (Rapanos Br., 16). Petitioner Carabell contends

that Riverside Bayview and SWANCC together stand for the

proposition that the Corps must establish a “continuous hy-

* As explained in II. B., infra, SWANCC’s holding that certain “iso-

lated” waters were not within the Act’s scope is inapposite given the facts

presented here.

8

drological connection,” via surface or groundwater, between

a wetland and a navigable water before it can assert jurisdic-

tion. (Carabell Br., 23-28). Petitioners misconstrue both

decisions.

A. Riverside Bayview

As framed by the Court, the issue in Riverside Bayview

was whether the Corps had authority to require landowners to

ob‘ain permits “before discharging fill material into wetlands

adjacent to navigable bodies of water and their tributaries.”

474 U.S. at 123 (emphasis added). The Court answered in the

affismative: “We are thus persuaded that the language, poli-

cies and history of the Clean Water Act compel a finding that

the Corps has acted reasonably in interpreting the Act to

require permits for the discharge of fill material into wetlands

adjaceiit to the ‘waters of the United States’.” /d. at 139. The

Court specifically found that Congress intended the term

“waters of the United States” to be given broad geographic

scope because “[p]rotection of aquatic ecosystems . . . de-

manded broad federal authority to control pollution” at the

source. /d. at 132-33.

Petitioners, however, seize on the fact that the wetland at

issue in Riverside Bayview was adjacent to a navigable creek

that flowed into Lake St. Clair, and attempt to draw two

untenable inferences. First, Rapanos argues that the Court’s

holding must be limited to wetlands that “immediately abut”

navigable waters. However, a careful reading of the Court’s

rationale rebuts this suggestion.

The threshold question in Riverside Bayview was whether

the EPA and Corps regulations defining “waters of the United

States” to include wetlands was a reasonable interpretation of

the statute.'” The regulations in existence at the time covered

'° As the Court noted: “On a purely linguistic level, it may appear un-

reasonable to classify ‘lands,’ wet or otherwise, as ‘waters’. Such a sim-

plistic response, however, does justice neither to the problem faced by the

Corps in Getining the scope of its authority under § 404 nor to the realities

9

the entire tributary system of navigable waters, including

“primary, secondary and tertiary” tributaries and wetlands

adjacent thereto.'' Significantly, the Court acknowledged that

the regulations “include not only navigable waters but also

tributaries of such waters, interstate waters and their tributar-

ies, and nonnavigable intrastate waters whose use or misuse

could affect interstate commerce.” 474 U.S. at 123 (emphasis

added). Moreover, the Court took note of the fact that Con-

gress had rejected proposals in 1977 to overturn these regula-

tions by restricting the scope of section 404 to “waters

navigable in fact and their adjacent wetlands.” 474 U.S. at

137 (emphasis original). Instead, Congress “acquiesced in the

Corps’ definition of waters as including adjacent wetlands.”

Id. at 138. Finally, the Court stated “we therefore conclude

that a definition of ‘waters of the United States" encompass-

ing all wetlands adjacent to other bodies of water over which

the Corps has jurisdiction is a permissible interpretation of

the Act.” /d. at 135 (emphasis added).

In sum, the Riverside Bayview decision cannot fairly be

read as establishing a categorical rule that wetlands must

“immediately abut” a traditional navigable water. To the con-

trary, the Court issued a broad ruling that the Corps had au-

thority to regulate adjacent wetlands as a special jurisdictional

class of “waters of the United States.” /d. at 139 (“The

regulation in which the Corps has embodied this interpre-

tation by its terms includes the wetlands on respondent's

property within the class of waters that may not be filled

without a permit.”’) (emphasis added).

Second, Carabell stretches too far in suggesting that the

Riverside Bayview Court conditioned its holding on proof of a

hydrological connection between the adjacent wetland and

of the problem of water pollution that the Clean Water Act was intended

to combat.” 474 U.S. at 132.

" See 33 CER. § 209.120(e)(2Xc); 40 Fed. Reg. 31,320 (July 25, 1975)

(since recodified at 33 C.F.R. § 328.3).

10

a navigable water body. Contrary to Carabell’s assertion

(Carabell Br., 25 n.3), the District Court in Riverside did not

find a direct hydrological connection between the wetland

and Lake St. Clair. At most, according to the Sixth Circuit

Opinion, the record showed that there was “periodic” flooding

of the wetland.'* More significantly, the Riverside Bayview

Court specifically rejected the argument, on which the

Sixth Circuit had relied, that a wetland must be “frequently

flooded” by a navigable water in order to be considered a

“water of the United States.” 474 U.S. at 129. Indeed, the

Court said that “wetlands that are not flooded by adjacent

waters may still tend to drain into those waters.” Jd. More-

over, the Court noted that Congress singled out wetlands for

special protection because of the important functions they

perform including filtering pollutants, slowing runoff, con-

trolling flooding, and providing feeding, spawning, rearing

and resting areas for aquatic species. /d. at 134. As discussed

in Itl. B., infra, these functions do not depend on whether

there is a “physical connection” between the wetland and the

adjacent water body.

Finally, petitioners misread the Riverside Bayview Court by

suggesting that its use of the term “open waters” implied “tra-

ditional navigable waters.” (Rapanos Br., 13; Carabell Br.,

25-26) Petitioners cite a footnote in which the Court reserved

the question of “the authority of the Corps to regulate dis-

charges of fill material into wetlands that are not adjacent to

bodies of open water.” 474 U.S. at 131 n.8. However, as the

Solicitor General has pointed out, “when that footnote is read

in context it is clear that the Court in Riverside Bayview was

reserving the question of jurisdiction over wetlands that are

isolated from, rather than adjacent to, any other regulated

waters, without regard to those waters’ navigability.” See

Brief for the United States in Opposition to the Petition for

'? United States v. Riverside Bayview Homes, Inc., 729 F.2d 321, 396-

97 (6th Cir. 1984).

11

Certiorari, 15. Moreover, petitioners’ aigument that “open

waters” is synonymous with “navigable waters” conflicts

with Riverside Bayview’s clear holding that “a definition of

waters of the United States encompassing all wetlands adja-

cent to other bodies of water over which the Corps has juris-

diction is a permissible interpretation of the Act.” /d. at 135.

More plausibly, the Court used “open waters” as shorthand

for “rivers, streams, and other hydrographic features more

conventionally identified as ‘waters’,” to distinguish them

from wetlands areas such as “shallows, marshes, mudflats,

swamps and bogs.” 474 U.S. at 131-32.

B. SWANCC REAFFIRMED RIVERSIDE BAY-

VIEW

Just as Riverside Bayview recognized the breadth of the

Act’s geographic scope, SWANCC noted its limits. In

SWANCC the Corps asserted jurisdiction over an abandoned

sand and gravel pit on the sole basis that it had become

habitat for migratory birds. 531 U.S. at 171-72. Noting that

the pit was a “nonnavigable, intrastate, isolated” body of

water, the SWANCC Court rejected this construction of the

statute, reasoning that if use by migratory birds was all it took

to turn an isolated pond into a water of the United States, then

the word “navigable” in the statute would be rendered super-

fluous. /d. at 172. While acknowledging Riverside Bayview’ s

observation that the word “navigable” was “of limited im-

port,” the SWANCC Court said, “it is one thing to give a word

limited effect and quite another to give it no effect whatever.”

Id. The Court clearly differentiated the case before it from

Riverside Bayview: “We thus decline respondents’ invitation

to take what they see as the next ineluctable step after River-

side Bayview Homes: holding that isolated ponds, some only

seasonal, wholly located within two Illinois counties, fall

under § 404(a)’s definition of ‘navigable waters’ because they

serve as habitat for migratory birds.” /d. at 171-72.

12

SWANCC did not, as petitioners seem to suggest, implicitly

overrule Riverside Bayview by making navigability rather than

protection of aquatic ecosystems the touchstone for determin-

ing Clean Water Act jurisdiction. The ruling in SWANCC was

quite narrow: “We hold that 33 CFR § 328.3(a)(3) (1999), as

an and applied to petitioner’s balefill site pursuant to

the ‘Migratory Bird Rule,’ exceeds the authority granted to

respondents under § 404(a) of the CWA.” /d. at 174 (citation

omitted). Thus, SWANCC invalidated the Corps’ application

of its regulations to isolated ponds based exclusively on mi-

gratory bird use.'? The Court did not invalidate the regula-

tions themselves, nor did it make any ruling on the adjacency

issues presented here.

The cases at bar are easily distinguished from SWANCC.

First, these cases deal with wetlands adjacent to nonnavigable

tributaries, not isolated, artificial ponds with no connection of

any kind to any other body of water. Second, unlike gravel

pits, these wetlands provide the specific functions that help

se the chemical, physical, and biological integrity of

adjoining waters as well as the larger aquatic ecosys-

al Third, the Corps based its jurisdictional determina-

tions on the hydrological and ecological relationships of these

wetlands to the adjoining water bodies and the downstream

navigable waters, not simply on migratory bird habitat.’

"The “Migratory Bird Rule” was not a published rule; it refers to

language in the preamble to the 1986 revision of the Corps’ regulations

meant to “clarify” the reach of jurisdiction over intrastate waters used by

migratory birds. See SWANCC, 531 U.S. at 164.

'* These functions include flood peak diminution and water quality

enhancement through sediment trapping and nutrient recycling. JA Vol. Il

at 684-86 (testimony of Dr. Willard). They also support the larger aquatic

ecosystem, including carp spawning ground, /d. at 516-17 (testimony of

Dr. Harrington), and other vegetation and wildlife habitat. /d. at 557-58

(testimony of Dr. Goff).

'* The Corps’ determinations in this case rested on the general adverse

effects on the aquatic ecosystem and downstream waters, including major,

a eee ten ee + _ -

13

With regard to the Rapanos property, it is undisputed that the

wetlands are hydrologically connected to the adjacent tribu-

taries, which ultimately flow into Lake Huron."* In Carabell,

the record shows that the wetland is not “isolated” despite the

existence of a manmade “berm” separating it from a ditch that

connects to a tributary that flows into Lake St. Clair.'’ In both

cases the wetlands are “inseparably bound up” with tributar-

ies that affect the chemical, physical, and biological integrity

of traditional navigable waters. See United States v. Deaton,

332 F.3d 698, 712 (4th Cir. 2003), cert. denied, 541 U.S. 972

long term, negative impacts on water quality, as well as impacts upon the

ecological balance and integrity of forested wetland cover areas and

floodplains, in addition to the impacts upon a migratory bird stopover and

foraging point. JA Vol. 1 at L111, 116, 126 (Dept. of the Army Permit

Evaluation, File No. 99-250-002-1).

'© The wetlands at the Salzburg site are connected by a drain to Hoppler

Creek which flows into the Kawkawlin River, which flows into Saginaw

Bay in Lake Huron. JA Vol. I at 249 (testimony of Drs. Willard and

Goff). The Hines site has a surface water connection to the Rose Drain

which is connected to the Tittabiwasse River which empties into Saginaw

Bay. /d. The Pine River site is connected by surface water flow to the

nearby Pine River which flows into Lake Huron. JA Vol. I at 271.

'’ Carabell’s property is in the shape of a right triangle, which is bor-

dered by an unnamed ditch. JA Vol. |, at 37 (Carabell Permit Applica-

tion). The record indicates that this ditch was created to drain the wetland

on petitioner's property. JA Vol. 3 at 571-72 (Administrative Appeal

Decision). When the ditch was excavated from the wetland, the excavated

spoil was placed alongside the ditch to create an artificial berm. /d. Army

Corps regulations provide that the existence of a man-made spoil berm

does not eliminate the adjacency between this wetland and the navigable

waters beyond. 33 C.F.R. § 328.3(c); JA Vol. 3 at 570. Though the berm

limits surface water flow to the ditch, JA Vol. | at 110 (Dept. of the Army

Permit Eval.), it cannot eliminate sub-surface flow. Water also flows from

the wetland via drainage cuts in the ditch. JA Vol. 3 at 639: 16-23 (Wet-

land Application Hearing, Testimony of Timothy Stoepker). Water that

enters the unnamed ditch flows into the Sutherland-Oemig Drain and

eventually the Auvase Creek and Lake St. Clair. JA Vol. | at 107 (Dept.

of the Army Permit Eval.); JA Vol. 3 at 571-72 (Admin. Appeal Deci-

sion).

14

(2004) (“discharges into nonnavigable tributaries aid adja-

cent wetlands have a substantial effect on w .<i quality in

navigable waters.”) (Deaton); accord, United States v. Gerke

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

Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526,

533-34 (9th Cir. 2001) (Headwaters).

Contrary to Rapanos’ contention, SWANCC does not cate-

gorically prohibit federal regulation of wetlands that do not

immediately abut a traditional navigable water. Nor is it rea-

sonable to infer such a rigid rule from the SWANCC Court’s

reference to what it called the “significant nexus” test em-

ployed in Riverside Bayview. Indeed, the Riverside Bayview

Court made it clear that a broad, ecological test for the Act’s

jurisdiction was more appropriate than one based strictly on

navigability. 474 U.S. at 134 (“water moves in hydrologic

cycles,” and pollution of waters that do not themselves meet

traditional tests of navigability “will affect the quality of the

other waters within that aquatic system.”’).

Similarly, Carabell is incorrect in asserting that SWANCC

“repudiated the proposition that federal jurisdiction could be

based solely on an ecological connection between a wetland

and a navigable water.” (Carabell Br., 28). The question in

SWANCC was whether migratory bird habitat by itself was a

sufficient basis on which to regulate an isolated, artificial

pond. The question here is whether the Corps made a reason-

able determination, based on the best available information,

that the wetlands on Carabell’s property are hydrologically

and ecologically connected, via surface and groundwater, to

Lake St. Clair. The record shows that the Corps’ decision was

not arbitrary and it should therefore be upheld. See City of

Shoreacres v. Watterworth, 420 F.3d 440, 446 (Sth Cir. 2005)

(“The Corps generally has broad discretion to decide whether

a sufficient hydrological nexus exists to bring wetlands under

regulatory contro].”’).

15

Ii. THE AGENCIES’ INTERPRETATION OF

“WATERS OF THE UNITED STATES” IS

BASED ON SOUND SCIENCE AND POLICY

CONSIDERATIONS

A. Jurisdictional Determinations Must Be Made

Within a Watershed Context That Takes

Account of the Vital Role of Headwaters and

Associated Wetlands

A watershed is composed of rivers, streams, lakes, wet-

lands and estuaries in a treelike pattern with the leaves and

twigs (first and second order streams, ditches, and wetlands)

at the top of the tree forming the headwaters of a watershed

linked by branches (tributaries of ever-increasing size) that

reach to the trunk of the tree (mainstem) and extend to the

roots (estuary). Like a tree, each part of the watershed per-

forms specific roles or functions that cannot be performed by

other parts of the tree. Eliminating and altering small streams,

ditches, and wetlands have impacts similar to stripping the

outermost leaves and twigs from a tree. Small alterations have

little impact, but many alterations in aggregate severely im-

pair the overall health of the tree. Over the past 200 years half

the wetlands in the United States have been drained or filled,

and millions of miles of streams and rivers have been

straightened and altered. '*

Headwaters serve as a key transitional area between land

and water resources because they collect water, sediment,

energy, and chemicals from the surrounding landscape and

deliver them to the larger streams, rivers, lakes, estuaries, and

oceans downstream, linking the terrestrial habitats in the upper

watershed with the aquatic habitats in the lower watershed.'”

'* See Thomas E. Dahl. tus and Trends of Wetlands in the Contermi

nous United States 1986 i» 997,9(U.S. Fish & Wildlife Service 2000).

'* Morrice, J.A., H.M. Valett, C.N. Dahm and M.F. Campana. 1997.

Alluvial characteristics groundwater-surface water exchange and hydro-

logical retention in headwater streams. Hydrological Processes 1|1:253-

16

This happens because water moves slowly through these

areas allowing these chemical processes to work. Headwaters

also regulate Salinity and fertility of estuaries and coastal

areas.” Consequently, a close connection exists between the

water quality of the headwater streams and the water quality

of downstream water bodies.”'

B. Headwaters and Adjacent Wetlands Provide

Irreplaceable Ecosystem Services That Support

Many Beneficial Uses of Navigable Waters

Headwater streams and associated wetlands affect hydrol-

ogy, geomorphology, and biological conditions in down-

stream reaches, including navigable waters.’ Functions of

headwater streams include but are not limited to: regulation

of sediment export, retention of nutrients, maintenance of

water quality characteristics, processing of terrestrial organic

matter, and maintenance of natural discharge patterns.~ The

following list further summarizes the functions and values of

headwater streams.

Sediment Control Headwaters and associated wetlands re-

duce the amouni of sediment delivered to downstream waters

267; Wipfli, M.S. and D.P. Gregovich. 2002. Export of invertebrates and

detritus from fishless headwater streams in southeastern Alaska: Implica-

tions for downstream salmonid production. Freshwater Biology 47(5):

957-969 13).

* National Research Council. 1995. Wetlands: Characteristics and

Boundaries. National Academy Press, Washington, D.C., p. 287.

*" State of Ohio Environmental Protection Agency. 2003. Nonpoint

source impacts on primary headwater streams, at http://www.epa.state.

oh.us/dsw/wqs/head waters/HWH_nonpoint_jan2003.pdf (accessed Jan. 5,

2006) (hereafter, Ohio EPA 2003).

* Gomi, T., R. C. Sidle and J. S. Richardson. 2002. Understanding

processes and downstream linkages of headwater systems. BioScience

52:905-916.

* Lowe, W. H. and G. E. Likens. 2005. Moving headwater streams to

the head of the class. BioScience 55:196-197, p. 196.

17

by stabilizing stream banks to reduce | bank erosion and filter-

ing sediment from water and runoff.”* This overall reduction

in sediment decreases the need for and cost of dredging in

downstream waterways while lowering flood frequency, water

treatment costs, and deposition in downstream habitats.” Each

year the Corps of Engineers and contractors spend more than

$500 million annually on maintenance dredging of mavigable

waters.”°

Pollutant Control The smallest streams are responsible for

most nutrient removal.”’ Headwaters and associated riparian

buffers reduce the amount of nutrients and other pollutants

delivered to downstream waters by filtering them from water

and runoff.’* Nutrients are removed from streams by biotic

and abiotic (e.g. physical or chemical) processes; headwaters

are more efficient at nutrient transformation and removal,

which reduces nutrient loadin ng in downstream ecosystems

and improves water quality.” This overall reduction in

pollutants decreases the cost of water treatment, the

** Dieterich, M. and N.H. Anderson. 1998. Dynamics of abiotic pa-

rameters, solute removal and sediment retention in summer-dry head-

water stream of Western Oregon. Hydrobiologia 379:1-15.

*° Ohio EPA 2003.

2° National Academy of Sciences, “Sedimentation Control to Reduce

Maintenance Dredging of Navigational Facilities in Estuaries” (1987).

” Meyer, J.L. and J.B. Wallace. 2001. Lost linkages in lotic ecology:

Rediscovering small streams. Ecology: Achievement and Challenge (M.C.

Press, N.J. Huntly and S. Levin eds., Blackwell Science), at 310.

* Hall, K.J., and B.C. Anderson. 1988. The toxicity and chemical com-

position of urban stormwater runoff. Canadian Joumal of Civil Engi-

neering 15:98-106; Lieb, D.A., and R.F. Carline. 2000. Effects of urban

runoff from a detention pond on water quality, temperature and caged

Gammarus minus (Say) (Amphipoda) in a headwater stream. Hydrobiolo-

gia 441 (1/3).107-116; Alexander, R.B., R.A. Smith and G.E. Schwarz.

2000. Effect of stream channel size on the delivery of nitrogen to the Gulf

of Mexico. Nature 403:758-761.

*? Meyer and Wallace 2001, at 309.

degradation of downstream water quality, and the risks to

human health and aquatic life while improving recreational

opportunities such as fishing.”

Fish and Wildlife Habitat Headwaters and associated ripar-

ian buffers provide habitat and protection for wildlife, fish,

and other organisms living in and near the stream. They also

serve as migratory corridors for birds and fish. These areas

can improve or maintain biological integrity, stabilize stream

banks, and controi water temperatures in the downstream

system. They also provide recreational hunting and fishing

opportunities and aesthetic enjoyment and may increase prop-

erty values.*' Degradation of headwater streams reduces bio-

logical diversity and threatens the survival and recovery of

endangered species.”

Water Supply Headwaters serve as a source of water for

downstream water bodies, helping to maintain base flow in

the larger streams and rivers in times of drought. They also

may be sources of high quality drinking water in some areas.”°

Over 185 million people are served by over 14,000 public

water systems using streams, rivers, lakes, tributaries and

surface-water storage impoundments.** Discharge of agricul-

tural, industrial, sanitary or other waste into any surface water

poses a public health risk downstream: excessive upstream

discharge may overwhelm a public water system filtration

unit, allowing microbial pathogens into the drinking water

* Ohio EPA 2003.

*' Ohio EPA 2003.

® Meyer and Wallace 2001, at 310.

* Ohio EPA 2003.

* U.S. Environmental Protection Agency. 2005. FACTOIDS: Drinking

Water and Ground Water Statistics for 2004. Safe Drinking Water Infor-

mation System (SDWIS), at http://www.epa.gov/safewater/data/pdfs/data

_factoids_2004.pdf (accessed Jan. 5, 2006).

19

system.*° Disease outbreaks attributed to drinking water treat-

ment plant failures have been documented.** EPA’s Science

Advisory Board cited drinking water contamination by patho-

gens as one of the most important environmental risks.”’

Drinking water treatment to address microbial pathogens has

little effect on many toxic chemicals, metals and pesticides

discharged into drainage ditches, canals or other surface

Flood Control WHeadwaters are closely connected with

groundwater, wetlands, and subsurface water flows, and are

important in regulating the flow of water into downstream

water bodies. A healthy network of headwater streams can

regulate baseflow of downstream water bodies, thereby re-

ducing local and downstream flooding, mitigating low flow

and high flow extremes, and preventing excess erosion caused

by flooding.*’ The destruction of small streams, such as head-

waters and intermittent or ephemeral waters, can increase the

flood Frequency | in the watershed and change water flow pat-

terns.” Increases in flood frequency results in increases in

bank erosion, channel widening, and channel incision.‘

C. Over Forty Percent of the Wastewater Dis-

charges Authorized Under the Act, Excluding

Alaska, Are Located in Headwaters.

According to a recent EPA estimate, over forty percent of

the discharges authorized under section 402 of the Act, out-

*® Novotny, V. 2002. Water Quality: Diffuse Pollution and Watershed

Management (2nd Ed.). John Wiley & Sons, Inc., New York, NY.

*° Craun, G.F., F.S. Hauchman and D.E. Robinson (eds.). 2001. Micro-

bial Pathogens and Disinfection By-Products in Drinking Water: Health

Effects and Management of Risks. ILSI Press, Washington, DC.

*” 68 Fed. Reg. 47,646. (Aug. 11, 2003).

* Novotny 2002.

*® Ohio EPA 2003.

“ Meyer and Wallace 2001, at 307.

*" Id.

20

side of Alaska, are into headwater streams including intermit-

tent and ephemeral streams. See Appendix A, at 2.“ Of these

discharges, approximately 28% are from municipal sewage

treatment systems. The other 72% include an array of dis-

charges from over 500 industrial categories, ranging from ele-

mentary and secondary schools to petroleum refining to in-

dustrial organic chemical facilities. /d.

Limiting the jurisdiction of the Act to tradit‘onal navigable

waters and adjacent wetlands would exclude a substantial

number of discharges from its coverage.

D. Over Ninety Percent of the Surface Water

Intakes for Public Drinking Water Systems Are

Located in Headwaters.

EPA also estimates that over ninety percent of the identi-

fied source water protection areas, where the surface water

intakes for public water supply systems are located, contain

intermittent, ephemeral, or headwater streams. See Appendix

A, at 2. EPA estimates that the public systems that use these

intakes (as well as other sources) provide drinking water to

over 110 million people. /d.

Limiting the jurisdiction of the Act to traditional navigable

waters and adjacent wetlands could jeopardize these vital

public drinking water supplies.

*? This is a conservative estimate that may actually understate the num-

ber of discharges to nonnavigable waters. According to one reputable

study, approximately 73% of the nation’s waters are nonnavigable.

Leopold, L.B., M.G. Wolman, and J.P. Miller, Fluvial Processes in Geo-

morphology. W.H. Freeman and Company, San Francisco (1964). The

EPA estimate uses data on intermittent and ephemeral streams as proxies

for nonnavigable tributaries. The EPA relies on such data because it can

be correlated with data on discharge permits and water intake structures,

resulting in a conservative approximation of the number of discharges and

intake structures that would be found in nonnavigable tributaries. See

http://aswm.org/swp/nead waters. htm (accessed Jan. 10, 2006).

21

IV.LIMITING THE GEOGRAPHIC SCOPE OF

THE ACT TO TRADITIONAL NAVIGABLE

WATERS AND ADJACENT WETLANDS WILL

UNDERMINE EFFORTS AT ALL LEVELS OF

GOVERNMENT TO PROTECT AND RESTORE

AQUATIC ECOSYSTEMS OF NATIONAL

SIGNIFICANCE

Within the Act’s comprehensive framework, federai, state,

tribal and local governments have initiated a variety of coop-

erative, intergovernmental efforts to protect and restore eco-

systems of national significance. These include the Great

Lakes,*? Chesapeake Bay,“* and Long Island Sound.** While

states have played important roles in each of these efforts, the

regulatory jurisdiction of EPA and the Corps of Engineers

over tributaries and wetlands has been crucial to pollution

control and restoration efforts.

The phenomenon of the “dead zone” in the Gulf of Mexico

illustrates how the degradation of headwaters streams and

wetlands can have dramatic negative effects on navigable

waters hundreds or thousands of miles away. The “dead zone”

* 33 U.S.C. § 1268(a) (creating the Great Lakes program and directing

EPA to “take the lead” in the effort to meet water quality goals “working

with other Federal agencies and State and local authorities.”). A descrip-

tion of the Great Lakes Program is available at http://www.epa.gov/ginpo/

(accessed Jan. 5, 2006).

“ 33 U.S.C. § 1267(a) (establishing the Chesapeake Bay Program with

a goal of “restoring and protecting the Chesapeake Bay ecosystem and the

living resources.””). A description of the Chesapeake Bay Program is avail-

able at http://www.chesapeakebay.net/ (accessed Jan. 5, 2006).

“33 U.S.C. § 1369 (establishing the Management Conference of the

Long Island Sound Study). The Long Island Sound Study was tormed in

1985 by EPA, New York, and Connecticut, as a bi-state partnership con-

sisting of federal and state agencies, user groups, concerned organizations,

and individuals dedicated to restoring and protecting the Sound. Infor-

mation available at http://www.epa.gov/regionO1/eco/lis/epane.htm! (ac-

cessed Jan. 5, 2006).

22

refers to a condition known as hypoxia where oxygen levels

are too low to support aquatic life. The source of the dead

zone is the polluted water of the Mississippi River. The dead

zone in the Gulf of Mexico is the world’s second largest

oxygen-depleted coastal water.“ It varies in size from year to

year but has covered an area equal to Massachusetts and New

Jersey. Scientists have linked this condition to wetland de-

struction throughout the Mississippi River watershed.“’

The Upper Mississippi River system includes the Upper

Mississippi, Illinois, Minnesota, St. Croix, Black and

Kaskaskia Rivers. These rivers drain an area of 190,000 square

miles in Minnesota, Wisconsin, lowa, Illinois, lowa, and

Missouri and a small portion of Indiana and South Dakota.

Only about 1300 miles—less than 1% of the entire hydrologic

system—are navigable. The rest of the system consists of

nonnavigable tributaries, ditches and wetlands. These tribu-

taries, ditches, and wetlands contribute to the base flows of

the navigable portions of the system. The tributaries and

ditches carry large amounts of nutrients and sediment—

particularly nitrogen—into the navigable waters which create

the dead zone.

Wetlands and headwaters in the upper Mississippi water-

shed serve as nutrient “sinks.” The filling of these wetlands

therefore results in rapid transmission of agricultural fertiliz-

ers in storm runoff into the mainstem of the Mississippi sys-

tem: the loss of 80% of riparian wetlands in the Midwest has

increased the amount of nitrogen entering the Gulf by three-

“ Larsen, J. 2004. Dead Zones Increasing in World's Coastal Waters.

Eco-Economy Update (June 16, 2004), available at http://www.earth-

policy.org/Updates/Update4 | .htm (accessed Jan. 5, 2006).

” Mitsch, W.J., J.W. Day Jr., J.W. Gilliam, P. Groffman, D.L. Hey,

G.W. Randall and N. Wang. 2001. Reducing nitrogen loading to the Gulf

of Mexico from the Mississippi River basin: Strategies to counter a

persistent ecological problem. BioScience $1:373-388.

23

fold over the past 40 years.“ Eight-five percent of nitrogen

arriving at the hypoxic zone in the Gulf originates in the

upper Mississippi (north of Cairo, Illinois).“” At the mouth of

the Mississippi, pulses of nitrogen and phosphorus originating

in northern Minnesota, western Montana, and eastern Ohio

(from as far as 1,700 linear miles away) converge to feed

massive algal blooms which consume all available oxygen.”

This phenomenon has resulted in the devastation of commer-

cial and recreational fisheries in the northem Gulf of

Mexico.”"

Vv. THE AGENCIES’ INTERPRETATION OF

“WATERS OF THE UNITED STATES” AS

INCLUDING WETLANDS ADJACENT TO

TRIBUTARIES IS ENTITLED TO CHEVRON

DEFERENCE

A. The Interpretation Is Well Within the Limits of

the Commerce Clause

Regulation of these wetlands under the Act is clearly

authorized by the Commerce Clause, either as regulation of

the “channels of interstate commerce” or as regulation of a

class of activities that substantially affects interstate com-

“ Id.; Rabalais, N.N., R.E. Tumer and D. Scavia. 2002. Beyond science

into policy. Gulf of Mexico hypoxia and the Mississippi River. BioScience

$2(2): 129-142.

” Govisby, D.A., W.A. Battaglin, G.B. Lawrence, R.S. Artz, B.T.

Aulenbach, R.P. Hooper, D.R. Keeney and G.J. Stensland. 1999. Flux and

Sources of Nutrients in the Mississippi—Atchafalaya River Basin: Topic 3

Report for the Integrated Assessment on Hypoxia in the Gulf of Mexico.

NOAA Coastal Ocean Program Decision Analysis Series No. 17. NOAA

Coastal Ocean Program, Silver Spring, MD, available at hitp://www.nos.

noaa.gov/Products/hypox_t3final.pdf (accessed Jan. 5, 2006).

® CENR. 2000. “Integrated Assessment of Hypoxia in the Norther

Gulf of Mexico.” National Science and Technology Council Committee

on Environment and Natural Resources, Washington, D.C.

* td.

24

merce. Gonzales v. Raich, 125 S.Ct. 2195, 2205 (2005)

(Gonzales); Wickard v. Filburn, 317 U.S. 111, 118-29 (1942).”

The Court's task in reviewing the petitioners’ Commerce

Clause challenge is modest, as federal legislation is accorded

a “presumption of constitutionality.” United States v. Morri-

son, 529 U.S. 598, 607 (2000). The Court “need not deter-

mine whether [petitioners’] activities, taken in the aggregate,

substantially affect interstate commerce, but only whether a

‘rational basis’ exists for so concluding.” Gonzales, 125 S.Ct.

at 2197 (citing United States v. Lopez, 514 U.S. 549, 557

(1995)). That test is easily satisfied here.

Although petitioners focus their constitutional argument on

section 404(a) of the Act, the appropriate question to ask is

whether the activities regulated by section 301 of the Act,”

point source discharges of pollutants into navigable waters,

substantially affect interstate commerce. While section 404(a)

authorizes the issuance of permits for discharges of dredged

and fill material into navigable waters, it is section 301 that

prohibits those discharges as well as discharges of pollutants

in general. When viewed in its proper context, the question is

an easy one.

This case does not involve the regulation of noneconomic,

criminal conduct, like the activities in Lopez, 514 U.S. at 561,

or Morrison, 529 U.S. at 613. The discharges of pollutants

into navigable waters are caused primarily by industrial and

commercial operations.“ Indeed, one of the policies that

motivated passage of the Act in 1972 was Congress’ desire to

end the use of the nation’s rivers, lakes, streams, and oceans

as “waste treatment systems.”

* The “channels of interstate commerce” argument is addressed in the

Respondent's brief and will not be repeated here.

* 33 U.S.C. § 1311.

™ Indeed, the activities of the petitioners were clearly economic activities.

** S. Rep. No. 92-414 (Oct. 28, 1971), reprinted in 1972 U.S.C.CAN.

3668, 3674.

25

Unlike the Lopez and Morrison cases, there is a clear and

direct connection between point source discharges of pollut-

ants into navigable waters and interstate commerce. Surface

walters _ yes drinking water for approximately half of the

country” and about 9 trillion gallons of fresh water are used

each year to manufacture goods.°’ Americans spend about 44

billion dollars each year on trips to coastal areas; the Ameri-

can fishing industry produces more than 1|0 billion pounds of

fish and shellfish each year; and farmers, who produce food

and fiber products worth 197 billion dollars per year, rely

heavily on irrigation. ** Point source discharges contribute to

surface water pollution and reduce opportunities to use those

waters as drinking water sources or for recreational purposes;

harm many plants and animals that may be articles of com-

merce; increase flooding, which impedes navigation ancé can

have other clear effects on interstate commerce; and destroy

the habitat of endangered and threatened plant and animal

species.”

Although there may be individual instances in which dis-

charges of pollutants, including dredged material, into navi-

gable waters, do not substantially affect interstate commerce,

this Court has held that “[wjhere a general regulatory scheme

** U.S. EPA. 1996. Liquid Assets: A Summertime Perspective on the

Importance of Clean Water to the Nation's Economy. EPA-800-R-96-002.

Office of Water (4101), United States Environmental Protection Agency,

Washington, D.C.., at 10.

*’ U.S. EPA. 2000. Liquid Assets 2000: America’s Water Resources at

a Turning Point. EPA-840-B-00-001. Office of Water (4101), United States

Environmental Protection Agency, Washington, D.C., at 2, available at

http://www.epa.gov/water/liquidassets/assets.pdf (accessed Jan. 5, 2006).

* Id. at 6-7.

* See U.S. EPA, A Benefits Assessment of Water Pollution Control

Programs Since 1972: Part 1, The Benefits of Point Source Controls

for Conventional Pollutants in Rivers and Streams (January 2000), avail-

able at hitp://www.epa.gov/ost/economics/assessment.pdf (accessed Jan.

5, 2006).

26

bears a substantial relation to commerce, the de minimis char-

acter of individual instances arising under that statute is of no

consequence.” Lopez, 514 U.S. at 558 (citation omitted).

Regulation of those intrastate activities is appropriate when

the activity is “an essential part of a larger regulation of

economic activity, in which the regulatory scheme could be

undercut unless the intrastate activity were regulated.” /d. at.

561; see also Hodel v. Indiana, 452 U.S. 314, 329 n.17

(1981).

As described in Section III.B., supra, regulation of dis-

charges of dredged or fill material into wetlands that are

adjacent to nonnavigable tributaries of traditionally navigable

waters is an essential part of Clean Water Act section 301

regulation, as the wetlands provide irreplaceable ecosystem

services that support beneficial uses of navigable waters.”'

Furthermore, this case does not upset a balance between

the state and federal governments regarding the regulation of

land and water uses. As this Court has noted, the Act “in-

volves [a] complex statutory and regulatory scheme . . . that

implicates both federal and state administrative responsibili-

ties.” PUD No. | of Jefferson County v. Washington Dep’ t of

Ecology, 511 U.S. 700, 704 (1994). Further, this Court has

long recognized that “the power conferred by the Commerce

Clause [is] broad enough to permit congressional regulation

* While this Court has identified a “jurisdictional limit” as one factor

to consider in determining whether a statute falls within Congress’ Com-

merce Clause power, the Court has never required Congress to include

such a provision in a statute. Indeed, just last term, the Court upheld,

against a Commerce Clause challenge, the application of the federal Con-

trolled Substances Act (CSA), without identifying a jurisdictional limit in

the CSA. Gonzales, supra.

*' Even if it were not an essential part of the section 301 program, regu-

lation of discharges of dredged or fill material into wetlands that are adja-

cent to nonnavigable tributaries of traditionally navigable waters could be

justified as regulation of a class of activities that, in the aggregate, sub-

stantially affects interstate commerce.

27

of activities causing air or water pollution, or other environ-

mental hazard.” Hodel v. Virginia Surface Mining & Recla-

mation Ass’ n, Inc., 452 U.S. 264, 282 (1981).

Since point source discharges of pollutants into navigable

waters have a substantial effect on interstate commerce and

regulation of the wetlands in these cases is an essential part of

the regulation of that class of activities, the regulation is

clearly authorized under the Commerce Clause.

B. The Weight of Authority Supports the Agen-

«.es’ Interpretation

From the earliest cases interpreting the Act, courts have

recognized the logic of including tributaries within its geo-

graphic scope. As the Sixth Circuit stated in one of the first

enforcement cases:

It would, of course, make a mockery of wmose powers if

its authority to control pollution was limited to the bed

of the navigable stream itself. The tributaries which join

to form the river could then be used as open sewers as

far as federal regulation was concerned. The navigable

part of the river could become a mere conduit for up-

stream waste.

United States v. Ashland Oil & Transp. Co., 504 F.2d 1317,

1326 (6th Cir. 1974).

The courts have also consistently rejected petitioners’ argu-

ment that ditches, many of which were once natural streams,

should not be treated as tributaries. As the Eleventh Circuit

noted:

There is no reason to suspect that Congress intended to

regulate only the natural tributaries of navigable waters.

Pollutants are equally harmful to this country’s water

quality whether they travel along man-made or natural

® See also Minnesota v. Mille Lacs Band of Chippewa Indians, 526

U.S. 172, 204 (1999) (State authority over land use control “is shared with

the federal government when [it] exercises one of its enumerated powers.”).

28

routes. The fact that bodies of water are man-made

makes no difference. . . That the defendants used them to

convey the pollutants without a permit is the matter of

importance.

United States v. Eidson, 108 F.3d 1336, 1342 (11th Cir. 1997),

cert. denied, 522 U.S. 899 (1997) (citation omitted).

This trend has continued since the SWANCC decision. Five

Circuit Courts have ruled on jurisdictional questions similar

to those presented here. With the exception of the Fifth Cir-

cuit,” all have concluded that the Act reaches the kinds of

tributaries and adjacent wetlands at issue.” The Deaton and

Gerke decisions are particularly informative.

In Deaton, the Fourth Circuit held that a wetland adjacent

to a roadside ditch that followed a “winding, thirty-two-mile

path to the Chesapeake Bay” was subject to the Corps’ juris-

diction. The court rejected Deaton’s claim that the Corps’ in-

terpretation was not entitled to deference because it overran

the limits of the Commerce Clause:

Congress passed the Clean Water Act ‘to restore and

maintain the chemical, physical, and biological integrity

of the Nation’s waters and gave the Corps, along with

the Environmental Protection Agency, the job of getting

this done. The Corps has pursued this goal by regulating

nonnavigable tributaries and their adjacent wetlands.

This use of delegated authority is well within Congress’s

traditional power over navigable waters.

Deaton, 332 F.3d at 707 (citation omitted).

In Gerke, the Seventh Circuit held that the Corps had juris-

diction over “wetlands . . . drained by a ditch that runs into a

® Rice v. Harken Exploration Co., 250 F.3d 264 (Sth Cir. 2001); In re

Needham, 354 F.3d 340 (Sth Cir. 2003). As explained in Respondent's

brief these cases are distinguishable and not persuasive.

™ In addition to the Fourth Circuit (Deaton) and the Seventh Circuit

(Gerke), the Ninth Circuit (Headwaters) is in agreement with the Sixth

Circuit decisions involved here.

29

nonnavigable creek that runs into the nonnavigable Lemon-

weir River, which in tum runs into the Wisconsin River,

which is navigable.” 412 F.3d at 805. In response to Gerke’s

argument that a ditch is not tributary, the court observed:

A stream can be a tributary; why not a ditch? A ditch van

Carry as much water as a stream, or more; many streams

are tiny. It wouldn’t make much sense to interpret the

regulation as distinguishing between a stream and its

man-made counterpart.

Id. at 805-06.

Like petitioners, Gerke tried to argue that SWANCC pre.

hibits regulation of wetlands that do not physically abut navi-

gable water. The Seventh Circuit disagreed:

Gerke fastens on the sentence in the [SWANCC] opinion

that states that the Clean Water Act does not extend ‘to

ponds that are not adjacent to open water.’ It is dan-

gerous, however, to take judicial language out of con-

text; the case was about a pond that was “lhe

isolated from any navigable waterway, tributary, etc. .

‘TA]}djacent’ can just mean ‘connected,’ and ‘open

water’ can just mean water that is part of the waters of

the United States because it flows into navigable water-

ways.

Id. at 808 (emphasis in original) (citations omitted).

Judge Posner also made short work of the claim that the

Corps’ interpretation raised serious constitutional issues:

Nothing in the Constitution forbids interpreting the Clean

Water Act to cover any wetlands that are connected to

navigable waters. Whether the wetlands are 100 miles

from a navigable waterway or 6 feet, if water from the

wetlands enters a stream that flows into the navigable

waterway, the wetlands are ‘waters of the United States’

within the meaning of the Act. /d. at 807.

The logic of Deaton and Gerke applies here as well. Peti-

tioners’ wetlands are adjacent to streams and ditches that are

30

tributaries of traditional navigable waters. The wetlands are

integral components of aquatic ecosystems. The fact that

these systems have been significantly modified by ditches and

berms does not mean that they are no longer “waters of the

United States.” Indeed, nearly all of the waterways in this

country have undergone s~\bstantial alterations. If the national

goal of restoring these systems is to be realized, it must start

by saving the pieces that remain.

CONCLUSION

For the foregoing reasons, and in the interests of continuing

the progress the nation has made in restoring and maintaining

the integrity of its priceless aquatic ecosystems, Amici re-

spectfully request that the decisions of the Sixth Circuit be

affirmed.

Respectfully Submitted, _

STEPHEN M. JOHNSON PATRICK PARENTEAU

MERCER UNIVERSITY ENVIRONMENTAL AND NATURAL

SCHOOL OF LAW RESOURCES LAW CLINIC

1021 Georgia Avenue VERMONT LAW SCHOOL

Macon, Georgia 31207 PO Box 300

(478) 301-2192 South Royalton, Vermont 05068

Counsel for Amici Curiae (802) 831-1305

Association of State Counsel of Record for Amici

Wetland Managers, et al. Curiae Association of State

Wetland Managers, et al.

* Counsel wish to acknowledge the contributions of Jason Klotz,

third year student clinician, and Justin Kolber, Clinic Fellow, to

this brief.

la

APPENDIX

—

()

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

WASHINGTON, D.C. 20460

January 9, 2005

Ms. Jeanne Christie

Executive Director

Association of State Wetland Managers

2 Basin Road |

Wjndham, Maine 04062

Dear Ms. Christie:

Thank you for your letter of December 19, 2005, indicating

that the Association of State Wetland Managers (ASWM) is

developing an amicus brief in support of the federal govern-

ment in the two cases currently before the U.S. Supreme

Court, Rapanes v. United States and Carabell v. U.S, Army

Corps of Engineers. 1 appreciate ASWM’s interest in these

important cases.

Your letter requests information on a nationwide scale re-

garding the extent of nun-navigable tributaries and adjacent

wetlands, as well as on the number of drinking water intakes

and Clean Water Act (CWA) National Pollutant Discharge

Elimination System (NPDES) permits on such waters. The

Environmental Protection Agency (EPA) has received infor-

mation from the public and conducted its own data search on

these and related issues. Much of the data, for example, are

extracted from national data sets and compared to information

provided to EPA in public responses to the 2003 Advance

Notice of Proposed Rulemaking (ANPRM) for the Clean

Water Act Regulatory Definition of “Waters of the United

States.” Most of the data used to conduct these analyses is

publicly available. While thcse data represent a factual sum-

mary of information obtained from the public and from gov-

2a

ermment data sets, we have included any appropriate caveats

where assumptions have been necessary in order to respond

to your specific questions.

Some of the analyses and data are identified below as pre-

liminary because they are still being peer reviewed. Data and

analyses reviewed and approved through an outside peer re-

view process include the NHD methodology and analysis

using start reaches and intermittent/ephemeral waters as a

conservative approximation for “non-navigable” waters, and

the location of NPDES dischargers into such waters

The extent of non-navigable tributaries is difficult to esti-

mate nationwide because navigability is not a parameter in-

cluded in national databases. For example, the publicly avail-

able National Hydrology Dataset (NHD) maintained by the

U.S. Geological Survey docs not distinguish between naviga-

ble and non-navigable waters. Instead, ine NHD characterizes

stream reaches based on flow characteristics such as perennial

and intermittent/ephemeral. We are providing data on the

linear extent of intermittent/ephemeral streams and “start

reaches,” stream segments in the NHD that lie at the head of

the tributary system and have no other streams flowing into

them, because streams with these characteristics arc likely to

be non-navigable waters. We believe that the length of streams

in these two categories provides a conservative range of the

extent of non-navigable waters in the U.S.

Based on available |:100,000 scale data from the NHD, we

estimate that 53% of stream kilometers (2,915,824 km) in the

U.S. outside Alaska are start reaches. Similarly, queries to

the NHD indicate that 59% (3,214,641 km) of the total kilo-

meters of streams in the U.S., excluding Alaska, are intermit-

tent/ephemeral. This information suggests that the linear ex-

tent of non-navigable waters ranges from between 53%-59%

of the total length of streams in the U.S., excluding Alaska.

These estimates appear consistent with those submitted dy

states Commenting in response to the ANPRM.

3a

EPA has conducted a preliminary analysis to estimate the

number of wastewater sources authorized under the Clean

‘Water Act’s Section 402 permits program to discharge into

either start reaches or intermittent/ephemeral streams nation-

wide based on data from the NHD and EPA’s national data-

base for the NPDES program, the Permit Compliance System

(PCS), excluding Alaska. An analysis of PCS data from June

2004 shows that approximately 85% of the individual permits

(approximately 37,000 out or 43,000 permits in PCS at that

time) have data necessary for determining the location of

discharges with respect to intermittent/ephemeral streams and

Start reaches. As noted above, these water features from NHD

nave characteristics of non-navigable waters. EPA estimates

that over 40% of the 37,000 permits with locational data

discharge into either start reaches or intermittent/ephemeral

streams, excluding Alaska. Approximately 28% of these dis-

charges are from municipal sewage treatment systems, sys-

tems that treat domestic sewage as well as wastewater from

commercial and industrial users. The other 72% include an

array of discharges from over 500 industrial categories, rang-

ing from elementary and secondary schools to petroleum re-

fining to industrial organic chemical facilities. The discharges

covered by this estimate represent most of the individual dis-

charges but do not include the much larger number of dis-

charges covered by storm water and non-storm water general

permits (permits that cover multiple, typically smaller, dis-

charges, for which EPA lacks sufficient locational data).

These data also are consistent with data submitted by states

commenting in response to the ANPRM.

We have also developed a preliminary estimate of public

drinking water system intakes receiving water from start

reaches or ephemeral/intermittent streams, based on NHD

‘data and information regarding source water protection areas

(SWPAs). Preliminary estimates indicate that over 85% of

identified SWPAs (for surface water intakes used us a drink-

ing water source) included s‘art reaches, and approximately

4a

60% contain intermittent/ephemeral streams. In total, over

90% of surface water protection areas contain start reaches or

intermittent/ephemeral streams. Public drinking water sys-

tems which use these intakes (as well as other sources) are

estimated to provide drinking water to over 110 million people.

Of the over 14,000 public water supply systems using surface

waters, RPA has located (on the NHD) and mapped SWPAs

for over 7,400 intakes (excluding Alaska but including Puerto

Rico) serving 5,646 public water supply systems. For the pur-

poses of this analysis, SWPAs encompass the drainage area

of up to 15 miles upstream from a drinking water intake, and

any SWPA that contains at least one start. reach or intermit-

tent/ephemeral stream is included in the count. Please note

that this analysis is preliminary, but nonetheless illustrates the

important relationsiip between public health and the water

quality of headwater, intermittent, and ephemeral streams.

EPA remains committed to the protection of aquatic re-

sources under the CWA. AS you know, President Bush an-

nounced an aggressive new national goal to move beyond no

net loss of wetlands in America to achieve an overall increase

of the Nation’s wetlands. The President's challenge is to re-

store, improve and protect at least three million additional

acres of wetlands over the next five years. For the President’s

Initiative, EPA committed to restore 6,000 acres of wetlands

by 2009 and to improve 6,000 acres of wetlands by 2009. We

are Currently putting together a tracking and reporting system

to measure progress towards these goals.

Thank you again for your interest in these cases. If you

have further questions, please feel free to contact me or call

Dave Evans, Director of the Wetlands Division, at (202) 566-

0535.

Sincerely

/s/ BENJAMIN H. GRUMBLES

Benjamin H. Grumbles

Assistant Administrator