Amicus Curiae Brief — Rapanos v. United States

ons

Nos. 04-1034; 04-1384

In The ; JAN 2 2005

Supreme Court _ Gnite NHS

JOHN A. RAPANOS, et ux., et al.,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

e

JUNE CARABELL, et ai.,

Petitioners,

Vv.

UNITED STATES ARMY CORPS OF

ENGINEERS; UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

S

On Writs Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

S

BRIEF OF JARED M. DIAMOND, PAUL R.

EHRLICH, HAROLD A. MOONEY, GORDON H.

ORIANS, STUART L. PIMM, SONDRA POSTEL,

PETER H. RAVEN, JOHN W. TERBORGH, DAVID S.

WILCOVE, AND EDWARD O. WILSON AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

°

JASON C. RYLANDER

DEFENDERS OF WILDLIFE

1130 17th Street, N.W.

Washington, D.C. 20036

(202) 682-9400

January 12, 2006 Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-4964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

I icciccrcrnicasininsccectieccssitninssininsii i

TABLE OF AUTHORITIES .........0:.:c0ccecescssesseseeseeeeeesess iii

INTEREST OF THE AMICI CURIAE.............0-00:0-s-00+0: 1

SUMMARY OF THE ARGUMENT. ...........-...c-0:ses0e0e00+- 5

ESE SA SERIA Agee re ERO OE 5

I. FROM A SCIENTIFIC PERSPECTIVE, PRO-

TECTION OF TRIBUTARIES AND ADJACENT

WETLANDS IS ESSENTIAL TO ACHIEVING

CONGRESS'S GOAL OF RESTORING AND

MAINTAINING THE CHEMICAL, PHYSICAL,

AND BIOLOGICAL INTEGRITY OF THE NA-

ee Cee Persccssininsuiciqsnenecusitmmnesinciuntioinn 8

A. Wetlands and tributaries have a signifi-

cant nexus to navigable waters based on

hydrological and other connections............. 10

B. Intact freshwater ecosystems provide

valuable services that sustain human life

EE citeisiecttinnintticcnatnrcicdeminitains 14

C. Alteration of stream and wetland ecosys-

tems has spillover effects on terrestrial

and downstream ecosystems ....................+. 19

D. Small impacts to ecosystems can have sud-

den, exponential, or irreversible effects....... 22

Il. DEGRADATION OF WETLANDS AND TRIBU-

TARIES SUBSTANTIALLY AND ADVERSELY

AFFECTS INTERSTATE COMMERCE AND

WARRANTS A COMPREHENSIVE FEDERAL

ii

TABLE OF CONTENTS -— Continued

Page

A. Freshwater ecosystems provide economic

services that directly affect interstate

IRS EES aE ENE enree ats Fase 23

B. Maintenance of a comprehensive national

scheme for protecting waters of the United

States is critical to achieving the goals of

the Clean Water Act and federal environ-

TABLE OF AUTHORITIES

Page

CASES

Baccarat Fremont Developers, LLC v. United States,

435 P-.Bd LABS (tds Cle. BODOG) 2.000000 ceccrceservcccsccvsccscccovesees 14

GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622 (5th

EIN IIIITT ioiciesthitinbihins dnetnaienddiabieindasabiiiteathiniidtpeuinietinks 28, 29, 30

Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000)............ 28, 29

Gonzales v. Raich, 125 S. Ct. 2195 (2005) ........ 6, 28, 29, 30

Hodel v. Virginia Surface Mining & Reclamation

Assoc., 452 U.S. 264 (1981) ............0escccrecssccssscscessersesees 29

Maryland v. Wirtz, 392 U.S. 183 (1968).................cceeeeeee 29

National Assoc. of Home Builders v. Babbitt, 130

ey es MI SUR ccistineddescctetsicpssznpenicasinceteten 26, 29

PUD No. 1 of Jefferson Co. v. Washington Dept. of

eae, GEE Tes Fee CO crrctsccesvecnncsconscnicccesennssncenees 21

Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C.

SRSA enr ee enna ee ene De 29

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

ST iensclarsciitihiiadiliacetintisintipabbetiinniienbaiiiibtiuscasutiemminianiadinid 27

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

SE, I cictaictiniidntinsiidsiunitdinieindsmaininensintn 13, 28

United States v. Lopez, 514 U.S. 549 (1995)................. 5, 28

United States v. Morrison, 529 U.S. 598 (2000)................ 28

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

STEEL. TEE CIT Atcteitesneiiteleneahchteebdleajainmieninaepenasinineiiabetes 14, 27

Wickard v. Filburn, 317 U.S. 111 (1942)..................... 27, 28

iv

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTION AND STATUTES:

oF es GY | re 30

Endangered Species Act of 1973, 33 U.S.C. §§ 1531

6B GUID, incsccoccnninctunsectsenscseninstndidnnenineigeliaeiedilial 19, 28, 29, 30

Federal Water Pollution Control Amendments of

1072, 33 U.S.C. $5 1351 €f 00. ....000cev0ssesseccecccsrsesseesssoesees 5

SD CARE, 8 BIE ccccccicsesscossisccsssectictinaniatinnindimanae 9

pis TS > ee ee 5,8

BB UG. OTRO. cnccetscctninsinnscsnndiansiiisstiniciditiiasiegiekam 9

BE UTI, © BEER ccconnsescosessascnidicnietnsteisitetalingiaamunian 8, 10

BD EI: © BIR ccncccccveveesesncssnnisintinmiasesadaiasimiaamsaaa 10

SD Ris Be Se ccnctecessccrnietinesnnsectasietianiisiieiemmmiaaa 8, 10

SB PREGA 6 BIE cscccccccnsssiinn vitenhintenininiiiniinhiammaadae 8, 10

BB CGD. © TIE nccesccserccncsssntinsncaictnetitssescsitndiaiaaindaamane 8

Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401 et

BBE, .ccsrsnconsneupsecoseseenencedbessenvenntbensssnntetentienmnecninnemmiiiiniinh 9

OTHER AUTHORITIES

GB Ba, Ghee, SEED CIITA ecenccccrsttscnrsishtnsininsninsccenidiciiinimsiod 27

S. Rep. No. 92-414 (1971) .....ccecccsescssseessseeensane sinidiansniel 29

Janet Abramovitz, Worldwatch Institute, Unnatu-

CE ERENT GIO cncecncsccsinciinscinestssinianisenenstaaaiaaaaieni 17

Akhil Reed Amar, The Constitution: A Biography

GEITE snocessinseanecsamcinenesecnenitarinimmamgionaimaaee 27

Vv

TABLE OF AUTHORITIES ~ Continued

Page

Virginia R. Burkett et al., Sea-Level Rise and

Subsidence: Implications for Flooding in New

Orleans, Louisiana, in U.S. Geological Survey

Subsidence Interest Group Conference, Proceed-

ing of the Technical Meeting, Galveston, Texas

(K. R. Prince & D. L. Galloway eds., 2003)................... 16

Patrick Comer et al., NatureServe, Biodiversity

Values of Geographically Isolated Wetlands in the

United States (2005) ..............ccccccsscecereerees adiaalitaatatitieads 19°

Coral Reef Information System, Hazards to Coral

Reefs, http://www.coris.noaa.gov/about/hazards.... .. 22

Jared Diamond, Collapse: How Societies Choose to

TEE TEE TE 2,19

Gretchen C. Daily, Introduction: What are Ecosys-

tem Services? in Nature’s Services: Societal De-

pendence on Natural Ecosystems (Daily, Gretchen

EERE SE Se ee a 14

Ecological Society of America, Ecosystem Services:

Benefits Supplied to Human Societies by Natural

Ecosystems, Issues in Ecology (1997).............cccccc0seeee 25

Malcolm Gladwell, The Tipping Point: How Little

Things Can Make a Big Difference (2002) .............0000+. 22

The Heinz Center, The State of the Nation’s Ecosys-

tems: Measuring the Lands, Waters, and Living

Resources of the United States (2002)..................... 12, 13

Kevin Hurley, Prozac Seeping into Water Supplies,

The Scotsman, August 9, 2004 .00............cccccccceceeseeeeeeees 21

Dana W. Kolpin et al., Pharmaceuticals, Hormones,

and Other Organic Wastewater Contaminants in

the U.S. Streams, 1999-2000; A National Recon-

naissance, Envtl. Sci. & Tech., March 15, 2002............ 21

vi

TABLE OF AUTHORITIES — Continued

Richard J. Lazarus, The Making of Environmental

i Gee cecnescsececsssssnesecnnapecoensnesessrsecustanntanseagereunant 6, 10

Millennium Ecosystem Assessment, World Re-

sources Institute, Ecosystem and Human Well-

Being: Biodiversity Synthesis (2005).............0.cc00000 9,15

Millennium Ecosystem Assessment, World Re-

sources Institute, Ecosystem and Human Well-

Being: A Framework for Assessment (2005)..............0+«: 24

Millennium Ecosystem Assessment, World Re-

sources Institute, Living Beyond Our Means:

Natural Assets and Human Well-Being (2005)....... 22, 24

National Research Council, Compensating for

Wetland Losses Under the Clean Water Act (2001)....... 11

National Research Council, Valuing Ecosystem

Services: Toward Better Environmental Decision-

ee icertncenccniniiincemstnapisnnemecnnnd 11, 17, 18, 23, 25

Judy L. Meyer et al., American Rivers, Where

Rivers Are Born: The Scientific Imperative for

Protecting Small Streams and Wetlands (2003)..... 13, 18

Norman Myers, Biodiversity’s Genetic Library, in

Nature’s Services: Societal Dependence on Natu-

ral Ecosystems (Daily, Gretchen C. ed., 1997) .............. 25

Stuart Pimm, The Value of Everything, Nature,

0 ae See nr ne 20

Sandra Postel, Worldwatch Institute, Liquid Assets:

The Critical Need to Safeguard Freshwater Eco-

D. J. Rappaport et al., Ecosystem Behavior under

Stress, 125 Am. Naturalist 617 (1985).......................0+ 22

Vii

TABLE OF AUTHORITIES -— Continued

, Page

Anthony Ricciardi & Joseph B. Rasmussen, Extinc-

tion Rates of North American Freshwater Fauna,

13 Conservation Biology 1220 (1999).................:ccseeeees 18

Ed Rykiel, Ecosystem Science for the Twenty-First

Century, Bio Science, October 1997 ....................0e0eee0+0 17

Joseph Sax, The Constitutional Dimensions of

Property, 26 Loy. L. Rev. 23 (1992)...........ccccsseseeeeeees 23

UPI, Large Part of Chesapeake Bay is Dead Zone,

ED veitnstretnetentsemeainthemennsinemaneanetinn 20

U.S. Fish & Wildlife Service, Economic Impact of

Waterfowl Hunting in the United States (2005),

ee raticrannnenercictiabntecinetianpiesnensinieninceanitipteninn 25

Peter M. Vitousek et al., Human Domination of the

Earth’s Ecosystems, 277 Science 494 (1997) ................. 21

Water: Is it the ‘Oil’ of the 21st Century? Hearing

Before the Subcomm. on Water Res. and the Env’t

of the House Comm. on Transp. and Infrastruc-

ture, 107th Cong., May 22, 2008 .0.0.........cccccceseeeseeeeeeeeeee 6

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 Envtl. L. Rep. 10187 (2004) ............. 10

Edward O. Wilson, The Diversity of Life (1992) .. 4, 15, 25, 26

1

INTEREST OF THE AMICI CURIAE

Amici are prominent scientists in the fields of biology,

botany, zoology, entomology, and ecology.’ They have

special knowledge of the important nexus of tributaries

and adjacent wetlands to downstream water bodies and

aquatic ecosystems, and other issues before this Court.

Their scientific expertise enables them to explain the

economic and ecological consequences of polluting or filling

wetlands and tributaries, including the resulting loss of

ecosystem functions, wildlife habitat, and biodiversity.

Understanding these impacts is necessary to appreciate

fully the substantial effects of altering wetlands and

tributaries on interstate commerce, and why, under the

Court’s jurisprudence, Congress is empowered to regulate

such activities.

Amici include, in alphabetical order:

Jared M. Diamond is Professor and Vice Chair, De-

partment of Physiology, UCLA Medical School. Dr. Dia-

mond is an explorer of New Guinea bird fauna, and

inventor of the concept of assembly rules in community

organization. Although his formal training was in physiol-

ogy and membrane biophysics, Dr. Diamond has pursued a

parallel career in ecology and evolutionary biology. Since

1977, he has devoted much of his time to popular science

writing including the bestselling books Guns, Germs and

Steel: The Fates of Human Societies, for which he was

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

party, and no person or entity other than the amici and their counsel

made a monetary contribution to the preparation or submission of this

brief. The parties have consented to the filing of amicus briefs and have

filed letters of consent with the Clerk of the Court.

2

awarded the Pulitzer Prize, and Collapse: How Societies

Choose to Fail or Survive.

Paul R. Ehrlich is President, Center for Conservation

Biology and Bing Professor of Population Studies at

Stanford University. Dr. Ehrlich is a fellow of the Ameri-

can Association for the Advancement of Science, the

American Academy of Arts and Sciences, and the American

Philosophical Society, and a member of the National

Academy of Sciences. He is a recipient of the First

AAAS/Scientific American Prize for Science in the Service

of Humanity and the Royal Swedish Academy of Sciences,

Crafoord Prize in Population Biology and the Conservation

of Biological Diversity (an explicit replacement for the

Nobel Prize for areas where the Nobel is not given).

Harold A. Mooney is the Paul S. Achilles Professor of

Environmental Biology at Stanford. Dr. Mooney is a

member of the National Academy of Sciences, the Ameri-

can Academy of Arts and Sciences, a Fellow of the Ameri-

can Association for the Advancement of Science, and past

president of the Ecological Society of America and the

American Institute of Biological Sciences. His research has

earned him the Ecological Society's Mercer Award and

Eminent Ecologist Award, Germanys Max Planck Re-

search Award and Humboldt Senior Distinguished Scien-

tist Award.

Gordon H. Orians is Professor Emeritus of Biology,

University of Washington. Dr. Orians is a member of the

National Academy of Sciences, the American Academy of

Arts and Sciences, and a past president of the Ecological

Society of America. His publications are focused on behav-

ioral ecology, plant-herbivore interactions, community

ecology, the ecology of rare plants, and human ecology.

-3

Stuart L. Pimm is the Doris Duke Professor of ©»

servation Ecology, Duke University. Dr. Pimm is a conser-

vation biologist and ecologist, 1993 Pew Scholar in

Conservation and the Environment, and author of The

Balance of Nature? Ecological Issues in the Conservation of

Species and Communities and The World According to

Pimm: A Scientist Audits the Earth. Dr. Pimm’s expertise

lies in species extinctions and what can be done to prevent

them. He also studies the loss of tropical forests and its

consequences to biodiversity. He has conducted research in

the Florida Everglades for fifteen years.

Sandra Postel is Director of the Global Water Policy

Project in Amherst, Massachusetts, a Visiting Senior

Lecturer in Environmental Studies at Mount Holyoke

College, and a senior fellow with the Worldwatch Institute.

A leading authority on international freshwater issues,

Postel has authored several books and more than 100

articles for popular and scholarly publications on the

nature of global water challenges and constructive solu-

tions to them. Her short book, Liquid Assets: The Critical

Need to Safeguard Freshwater Ecosystems, was released in

2005. Postel is a 1995 Pew Scholar in Conservation and

the Environment and in 2002 was named one of the

“Scientific American 50,” by Scientific American magazine.

Peter H. Raven is Director of the Missouri Botanical

Garden and the George Engelmann Professor of Botany at

Washington University in St. Louis. Dr. Raven is past

Chair of the Division of Earth and Life Studies, U.S.

National Research Council. A MacArthur Fellow and

member of the National Academy of Sciences and Ameri-

can Academy of Arts and Sciences, he is a world leader in

the fields of plant evolution and systematics.

4

John W. Terborgh is the James B. Duke Professor of

Environmental Science and Co-Director of the Center for

Tropical Conservation at Duke University. An authority on

avian and mammalian ecology in neotropical forests, Dr.

Terborgh is a member of the National Academy of Sciences.

He is a MacArthur Fellow and was awarded the National

Academy of Sciences Daniel Giraud Elliot medal for his

research and his book Diversity and the Tropical Rainforest.

David S. Wilcove is Professor of Public Affairs and

Ecology and Evolutionary Biology at the Woodrow Wilson

School, Princeton University. Dr. Wilcove previously

served as Senior Ecologist at Environmental Defense,

Senior Ecologist for The Wilderness Society, and Research

Scientist in Zoology for The Nature Conservancy. A recipi-

ent of the Distinguished Service Award of the Society for

Conservation Biology, he has authored numerous publica-

tions, including The Condor’s Shadow: The Loss and

Recovery of Wildlife in America (1999).

Edward O. Wilson is Curator of Entomology at the

Museum of Comparative Zoology, and Pellegrino Univer-

sity Professor Emeritus, Harvard University. Dr. Wilson’s

research interests include evolutionary sociobiology,

biogeography, and ethical philosophy. A recipient of the

National Medal of Science, the International Prize for

Biology, the Distinguished Humanist Award from the

American Humanist Association, and the Crafoord Prize

from the Swedish Academy of Sciences, he has written

over a dozen books, including On Human Nature and The

Ants for which he was awarded Pulitzer Prizes in 1979

and 1991, respectiv-’’. His book, The Diversity of Life, has

been described as t» sequel to Darwin’s Origin of Species.

¢

5

SUMMARY OF THE ARGUMENT

As scientists who have devoted their lives to the study

of nature and the conservation of ecosystems and biodiver-

sity, Amici come to this case with great concern for the

future of freshwater ecosystems and the laws that protect

them. In this submission, Amici will explain the importance

of tributaries and wetlands to achieving the goals of the

Clean Water Act. 33 U.S.C. §§ 1251 et seg. Amici will

further demonstrate how the loss of wetlands and degrada-

tion of aquatic ecosystems substantially affects interstate

commerce and warrants a comprehensive federal response.

Petitioners seek an interpretation of the Clean Water

Act that would largely limit its reach to navigable-in-fact

waters. From the perspective of scientists, legal “naviga-

bility” is irrelevant to the ecological and economic values

aquatic ecosystems provide and should not be a practical

or constitutional barrier to Congress’s ability to protect

and maintain the health of the nation’s waters. Limiting

the reach of the Act in this manner would seriously un-

dermine Congress’s stated purpose “to restore and main-

tain the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a).

Likewise, the Court should not adopt a reading of the

Commerce Clause that would strip Congress of its power

to regulate tributaries, adjacent wetlands, and other

similar environmental resources.’ Such an unprecedented

* Congress is empowered by the Commerce Clause to regulate

three “broad categories of activity” — the channels of interstate com-

merce; the instruments of interstate commerce, and persons or things

in interstate commerce; and activities that substantially affect inter-

state commerce. United States v. Lopez, 514 U.S. 549, 558-59 (1995). As

the government and other amici will address Congress's authority to

(Continued on following page)

6

holding could have far-reaching effects, and, importantly

from Amici’s perspective, would reflect a profound misun-

derstanding of ecosystem functions and their relation to

interstate commerce. Considered in the aggregate, degra-

dation of wetlands and tributaries impairs ecosystem

functions that are vital for human well-being and biodi-

versity. Indeed, this Court recently reaffirmed that the

commerce power extends even to purely intrastate, non-

commercial acts, provided the acts are part of a compre-

hensive statutory scheme to address activities that in the

aggregate substantially affect interstate commerce.

Gonzales v. Raich, 125 S. Ct. 2195 (2005). As the noted

environmental law professor Richard Lazarus has recog-

nized, “Environmental laws inevitably regulate and affect

commerce because the nation’s natural resources supply,

after all, what are literally the basic ingredients of com-

mercial life.” Richard J. Lazarus, The Making of Environ-

mental Law 205 (2005).

Natural resources are the building blocks of com-

merce, with none more important than water — a valuable

and increasingly scarce commodity in itself.’ In the last

century, federal water policy rarely worked in concert

with nature; water projects from the Everglades to the

regulate the degradation of tributaries and wetlands as channels of

commerce, this brief focuses on the substantial effects of these activities

on interstate commerce.

> It has been said that “if the world fought for oil in the 20th

Century, the war will be about water in the 21st Century.” Water: Is it

the ‘Oil’ of the 21st Century? Hearing Before the Subcomm. on Water

Res. and the Env't of the House Comm. on Transp. and Infrastructure,

107th Cong., May 22, 2003. The quote is attributed to Ismail

Serageldin, former World Bank Vice President and Chairman of the

Global Water Partnership.

7

Mississippi Delta to the Colorado River fundamentally

altered intact ecosystems. To be sure, these dams, levees,

river diversions, and other engineering projects provide

much of the nation’s drinking water, food, electricity, and

flood control. But intact aquatic ecosystems provide

significant economic services of their own. More than a

source of water and fish, the nation’s rivers, lakes, and

wetlands store flood waters and reduce economic devasta-

tion due to flooding. They recharge groundwater, filter

pollutants, and purify drinking water. And they provide

the habitats that sustain a diversity of species, which

themselves perform important ecological functions. These

ecosystem services — and their potential loss — profoundly

affect interstate commerce and warrant comprehensive

federal protection.

Reasonable people can disagree over language, and it

is for the Court to decide questions of law. But when it

comes to the connection of tributaries, streams, and

wetlands to navigable waters and interstate commerce,

there is no ecological ambiguity. In the opinion of Amici, if

the Clean Water Act does not protect these resources, then

it does not protect navigable waters from pollution, and it

cannot achieve its goals.

A ruling for Petitioners would elevate the short-term

interests of a few over the long-term economic and ecologi-

cai health of the nation. It would deny indisputable eco-

logical connections and compromise a generation of

environmental progress.

8

ARGUMENT

I. FROM A SCIENTIFIC PERSPECTIVE, PRO-

TECTION OF TRIBUTARIES AND ADJACENT

WETLANDS IS ESSENTIAL TO ACHIEVING

CONGRESS’S GOAL OF RESTORING AND

MAINTAINING THE CHEMICAL, PHYSICAL,

AND BIOLOGICAL INTEGRITY OF THE NA-

TION’S WATERS.

Section 301 of the Clean Water Act, 33 U.S.C. § 1311,

prohibits discharges of pollutants into navigable waters

unless authorized by permits granted under other sections

of the Act. Principle authorizing sections include Section

402, which governs the discharge of waste, 33 U.S.C.

§ 1342, and Section 404, which authorizes the U.S. Army

Corps of Engineers (“the Corps”) to issue permits “for the

discharge of dredged or fill material into the navigable

waters at specified disposal sites.” 33 U.S.C. § 1344.

Although the statute’s reach is linked to the term “naviga-

ble waters,” Congress broadened the traditional definition

to include “the waters of the United States, including

the territorial seas.” 33 U.S.C. § 1362(7). Moreover, Con-

gress made clear that the purpose of the Act is “to restore

and maintain the chemical, physical, and biological integ-

rity of the Nation’s waters.” 33 U.S.C. § 1251(a). These

goals extend beyond traditional notions of navigability

and manifest Congress’s farsighted desire to achieve

through comprehensive national policies “water quality

which provides for the protection and propagation of fish,

9

shellfish, and wildlife and provides for recreation in and

on the water.” 33 U.S.C. § 1251(a)(2).*

Aquatic ecology makes clear the complex interdepend-

encies of freshwater ecosystems and the many valuable

benefits they provide. Rivers, lakes, streams, wetlands, and

aquifers - in concert with forests, grasslands and other

terrestrial ecosystems — provide water supplies for irriga-

tion, industry, cities, and homes; purification and filtration

of pollutants; flood mitigation; drought mitigation; ground-

water recharge; water storage; wildlife habitat and nursery

grounds; soil fertility maintenance; nutrient delivery to

deltas and estuaries; freshwater flows to maintain estua-

rine salinity balances; recreational opportunities; and

conservation of biodiversity, which provides resilience and

options for the future. Sandra Postel, Worldwatch Institute,

Liquid Assets: The Critical Need to Safeguard Freshwater

Ecosystems 12 (2005); Millennium Ecosystem Assessment,

World Resources Institute, Ecosystem and Human Well-

Being: Biodiversity Synthesis 15 (2005).

These functions and relationships are important

national interests protected directly and indirectly by the

Clean Water Act. As the term “navigable waters” applies to

the entire Act, not merely section 404, a restrictive inter-

pretation of that term would seriously undermine Con-

gress’s ability to protect and maintain the integrity of the

Nation’s waters and the services they provide. Indeed,

such a ruling would limit Congress’s reach over wetlands

* Indeed, protection of navigation is not even a stated purpose of

the Act (presumably because the Rivers and Harbors Act of 1899, 33

U.S.C. § 401 et seq., already does so). 33 U.S.C. § 1251.

10

and point sources alike.’ Lance D. Wood, Don’t Be Misled:

CWA Jurisdiction Extends to All Non-navigable Tributar-

ies of the Traditional Navigable Waters and to Their

Adjacent Wetlands, 34 Envtl. L. Rep. 10187, 10187 (2004).

As this brief demonstrates, wetlands and tributaries are

inexorably bound up with navigable waters and are a critical

part of riverine ecosystems. Traditiona) navigability may be

relevant to waters that serve literally as channels of com-

merce, but the national interest in clean water is much more

extensive and its protection substantially affects interstate

commerce. “Whether or not a specific water body is ‘naviga-

ble,’ ‘nonnavigable,’ or physically ‘adjacent’ to another navi-

gable body is generally irrelevant [to protecting aquatic

ecosystem functions) and is certainly not dispositive of the

question of whether national regulation is needed or appro-

priate.” Lazarus, supra, at 205. To effectuate Congress’s

intent in passing the Clean Water Act — to protect and

restore the waters of the United States — federal protections

must extend beyond merely traditional navigable waters.

A. Wetlands and tributaries have a significant

nexus to navigable waters based on hydro-

logical and other connections.

Wetlands are complex ecosystems that are seasonally

or permanently covered with shallow water, or lands in

which the water table is near enough to the surface to

* The wetlands provisions of section 404, like sections 402 (discharge

0: waste) and 311 (governing oil facilities), are not themselves prohibitive.

33 U.S.C. §§ 1321, 1342, 1344. Taken together, each provides for excep-

tions to section 301, which prohibits discharges into waters of the United

States. 33 U.S.C. § 1311. A definitiona) ruling affecting section 404 thus

also impacts all discharges regulated by section 301.

11

cause the formation of hydric soils and growth of hydro-

philic plants. Despite the myriad benefits wetlands pro-

vide humans and animals alike, until the mid-1970s

federal policy specifically encouraged draining and filing

of wetlands for mosquito control and to promote agricul-

tural, commercial, and residential development. By the

mid-1980s, approximately fifty-three percent of the na-

tion’s original wetlands were lost. National Research

Council, Compensating for Wetland Losses Under the

Clean Water Act 1 (2001). Although wetland loss has

slowed in the past decade, the U.S. Fish and Wildlife

Service estimates an average of 58,545 acres of wetlands

were lost each year from 1986 to 1997. Id. at 3.

Many wetlands, like marshes that border lakes and

streams, have obvious connections to surface waters.

Others may appear to be isolated, but wetlands are almost

always linked to stream networks and other wetlands

through groundwater. Although freshwater ecosystems are

diverse, depending on type, location, climate, and other

factors, their structure and functions are intricately linked

to the watershed of which they are a part. Through the

hydrological cycle ~ the sun-fueled movement of water

among the sea, air, and land — water moves through a

landscape in three dimensions. Water connects upstream

to downstream ecosystems, stream channels to floodplains

and wetlands, and surface waters to ground water. This

process also delivers natural materials —- and man-made

pollutants — into rivers, lakes, and estuaries.

Ecologists frequently refer to “aquatic and related

terrestrial ecosystems” in recognition of the difficulty of

analyzing aquatic environments without considering

linkages to adjacent terrestrial environments. National

Research Council, Valuing Ecosystem Services: Toward

12

Better Environmental Decision-Making 59 (2005). The

connection between rivers and their floodplains is readily

apparent, but what happens on land equally impacts these

systems.

For example, the amount of nitrogen carried by major

U.S. rivers has increased dramatically in recent decades

as a result of terrestrial activities and wetland loss.

Nitrogen levels in the Mississippi River, which drains forty

percent of the coterminous United States, have tripled

since the 1950s. Nitrogen causes excess algae growth,

reduces recreational and aesthetic values, and contributes

to low dissolved oxygen conditions that can kill aquatic

organisms. The Heinz Center, Th State of the Nation's

Ecosystems: Measuring the Lands, Waters, and Living

Resources of the United States 21, 36 (2002). As a result,

wetlands lost in the Mississippi watershed far upstream

from the Gulf of Mexico can nonetheless contribute to the

formation of “dead zones” that threatens the Gulf’s

fisheries and aquatic resources.°

Additionally, some 20% of groundwater wells and 10%

of streams in farmland areas exceed drinking water

standards for nitrate, while more than half of America’s

larger rivers, three-quarters of farmland streams, and

two-thirds of urban/suburban streams contained phospho-

rous levels at or above Environmental Protection Agency

(“EPA”) recommended levels for avoiding excess algae. Id.

at 21. Three-quarters of stream samples and half of stream

* “Dead zones” form when fertilizers and other pollutants high in

nitrogen and phosphorus are washed by rain into rivers, bays, and

estuaries. The compounds feed an explosive growth of algae, which, in

13

sediments tested were found to contain one or more chemical

compounds exceeding guidelines for protection of aquatic life,

and 60% of estuary sediments exceeded levels that indicate

negative effects on aquatic life. Jd. at 37.

Tributaries, streams, and adjacent wetlands have

important connections that affect the ecological and

economic functions of navigable waters. Surface and

subsurface hydrological connections include overbank flow

and flood connections, groundwater and drainage connec-

tions, and man-made conveyances such as ditches, cul-

verts, dams, canals, and channels. Waste discharged into

streams and tributaries can thus have significant deleteri-

ous downstream impacts. As Judge Posner correctly noted,

“A ditch can carry as much water as a stream; many

streams are tiny. It wouldn't make much sense to interpret

the regulation as distinguishing between a stream and its

manmade counterpart.” United States v. Gerke Excavating,

Inc., 412 F.3d 804, 805-06 (7th Cir. 2005).

Biological connections include the use of streams, ponds,

and wetlands by fish, waterfowl and wetland-dependent

wetlands, streamside wetlands, and stream channels.

Animals, including many spawning fish, often use different

parts of the aquatic environment at different points in their

life cycles; thus wildlife and food webs also link wetlands to

larger waterways. See generally Judy L. Meyer et al., Ameri-

can Rivers, Where Rivers Are Born: The Scientific Imperative

for Protecting Small Streams and Wetlands (2003). Finally,

as discussed in greater detail infra tributaries and wetlands

are connected economically to navigable waters through

tourism, recreation, and the municipal, commercial, and

industrial uses of the waters they provide.

14

Notably, neither the text of the Clean Water Act, the

implementing regulations, nor this Court currently condi-

tions federal jurisdiction over wetlands and tributaries on

the presence of hydrological or ecological connections to

navigable waters. Baccarat Fremont Developers, LLC uv.

United States, 425 F.3d 1150, 1154 (9th Cir. 2005). Indeed,

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

U.S. 121 (1985), this Court did not require such a connec-

tion, noting “[t]hat the definition may include some wet-

lands that are not significantly intertwined with the

ecosystem of adjacent waterways is of little moment”

because the Corps can always grant a permit in such

cases. Jd. at 135 n.9. The Riverside Court correctly recog-

nized the reasonableness of the Corps’ determination that

“in the majority of cases, adjacent wetlands have signifi-

cant effects on water quality and the aquatic ecosystem.”

Id. Yet even if this Court were to impose a hydrological or

ecological] connection standard, such a test is easily met.’

B. Intact freshwater ecosystems provide valu-

able services that sustain human life and

biodiversity.

through which natural ecosystems, and the species that

make them up, sustain and fulfill human life.” Gretchen C.

Daily, Introduction: What are Ecosystem Services? in Nature’s

” In Baccarat, the Ninth Circuit found such a connection based on

the wetlands’ proximity to flood control channels; functions that

contribute to the aquatic environment, particularly in light of wetland

loss in the San Francisco Bay area; location within a 100-year flood

plain; and inclusion in a hydric soil unit contiguous with an area

covered by tidal waters. Baccarat, 425 F.3d at 1157-58.

15

Services: Societal Dependence on Natural Ecosystems 3

(Daily, Gretchen C. ed., 1997). These include provisioning

services such as water and food; regulating services such as

regulation of floods, drought, land degradation, and disease;

supporting services like soil formation and nutrient cycling;

and cultural services such as recreational, spiritual, reli-

gious, and other nonmaterial benefits. See generally Mil-

lennium Ecosystem Assessment, World Resources Institute,

Ecosystem and Human Well-Being: Biodiversity Synthesis

(2005). As Amicus Edward O. Wilson has written:

It is also easy to overlook the services that eco-

systems provide humanity. They enrich the soil

and create the very air we breathe. Without

these amenities, the remaining tenure of the

human race would be nasty and brief. The life-

sustaining matrix is built of legions of micro-

organisms and mostly small, obscure animals, in

other words, weeds and bugs... .They run the

world precisely as we would wish it to be run.

Edward O. Wilson, The Diversity of Life 347 (1992).

Streams, tributaries, and wetlands, even those with-

out obvious surface water connections, are integral parts

of broader watersheds, and perform essential functions

that affect the health of these systems. They are nature’s

filters and are essential to clean water. Abundant scientific

evidence proves that pollution entering these upstream

waters not only damages these waters and the creatures

that inhabit them but will harm lakes, rivers, and waters

further downstream as well. Simply put, the more wet-

lands and streams are destroyed, the more contaminants

turn up in drinking water.

Many communities are beginning to recognize the

water purification values of watersheds and are turning to

16

natura! solutions to avoid construction of expensive water

treatment facilities. New York City depends on the reser-

voirs and forested wetlands of the Catskill region — two-

thirds of which is privately owned — for ninety percent of

its water. Faced with capital costs of more than $6 billion

and annual maintenance costs of $300 million for water

treatment, New York City entered into an agreement in

1997 with state and federal officials, seventy towns and

villages, an’ environmental organizations to invest $1.5

billion to restore and protect the Catskill watershed. The

investment has had the desired effect; despite population

pressures crater quality is maintained naturally without

the need for expensive filtration. New York City’s prograrr

is perhaps most remarkable, but similar eff rts are un-

derway in Boston, Seattle, and other cities, with a savings

of hundreds of millions of dollars in expenditures for water

purification. Postel, supra, at 27-29.

Flood control and storm water retention are other

vide, and the loss of these functions can contribute to the

magnitude of natural events like storms and floods. The

tsunami that claimed at least 227,000 lives in coastal Asia in

2004 cast a spotlight on the storm and wave protection

afforded by mangrove swamps and coral reefs. Jd. Similarly,

the devastating impact of Hurricanes Katrina and Rita in

the Gulf of Mexico highlighted what happens when water

abilities. See Virginia R. Burkett et al., Sea-Level Rise and

Subsidence: Implications for Flooding in New Orleans,

Louisiana, in U.S. Geological Survey Subsidence Interest Group

Conference, Proceeding of the Technical Meeting, Galveston,

Texas 63-73 (K.R. Prince & D. L. Galloway eds., 2003).

Clearing trees, filling wetlands, and engineering rivers fray

17

the natural safety nets that healthy ecosystems provide, at a

natural disasters in the last ten years (not including the

devastating hurricanes of 2005) totaled $566.8 billion,

topping the combined losses from 1950 to 1989. Postel,

supra, at 48.

After the Great Midwest Floods of 1993, when the

upper Mississippi and Missouri Rivers reached record

heights and floodwaters breached miles of levees, re-

searchers turned to natural solutions for flood manage-

ment. They concluded that an investment of $2-3 billion to

restore 5.3 million hectares of water-absorbing wetlands in

the Upper Mississippi watershed would have substantially

reduced flood damage, which totaled $16-19 billion. Ed

Rykiel, Ecosystem Science for the Twenty-First Century,

Bio Science, October 1997, at 705-08; Janet Abramovitz,

Worldwatch Institute, Unnatural Disasters 158 (2001).

Even the Corps of Engineers, which is responsible for

most of the nation’s flood control dams and levees, has

found that wetlands and floodplains can often provide the

same services at less cost, with important side benefits.

Purchasing development rights to 3,440 hectares of flood-

plain wetlands in the headwaters of the Charles River in

Massachusetts for $10 million provided storage for sixty-

two million cubic meters of water, negating the necessity

of a proposed $100 million dam and levee project. This

natural wetlands flood control system helped contain large

floods in 1979 and 1982 that would otherwise have caused

considerable damage. National Research Council, Valuing

Ecosystem Services: Toward Better Environmental Deci-

sion-Making 170 (2005). In Napa Valley, California, the

Corps is relocating homes, roads and businesses to restore

the Napa River's natural floodplain. The $155 million

18

project cost is one-tenth the amount that would be needed

to repair flood damage over the next century if the flood-

plain were not restored. Jd. Napa Valley residents s\.--

ported a sales tax increase to pay for the projec,

recognizing that in addition to flood control, tie project

would lower flood insurance rates, provide parks and trails

for recreation and wildlife watching, increase tourism

revenues, and revitalize town centers. Postel, supra, at 51.

Headwaters systems trap sediment, which moves

downstream in runoff from rain, snow, and floods. Toc

much sediment can fill reservoirs and navigation chan-

nels, impede transportation, damage commercial and

recreational fisheries, harm aquatic habitats, and increase

water filtration costs. Suspended sediment turns water

murky, blocking light to underwater plants and reducing

the spawning productivity of fish. As it settles, sediment

can smother fish eggs and fill the gravel homes of small

but important organisms at the bottom of the food chain.

For municipalities, sediment poses significant financial

costs. Dredging and removing sediment from the Patapsco

River to keep Baltimore Harbor navigable costs more than

$10 million each year. Meyer et al., supra, at 12.

Tributaries, streams, and wetlands also provide habitat

for diverse flora and fauna, including numerous threatened

and endangered species. Unfortunately, many species are

now at risk due to alteration of freshwater ecosystems. At

least 123 species of freshwater fish, mollusks, crayfish, and

amphibians have gone extinct since 1900 and the extinction

rate for such species is expected to be five times greater

than that of terrestrial species. Anthony Ricciardi & Joseph

B. Rasmussen, Extinction Rates of North American Fresh-

water Fauna, 13 Conservation Biology 1220, 1220-22

(1999). Freshwater mussels are called “living filters”

19

because of their skill at purifying water. The United States

has more known species of freshwater mussels than any

other country with 292; yet sixty-nine percent are at risk of

extinction or have already gone extinct. Postel, supra, at 22.

Wetlands contribute significantly to the nation’s

ecological diversity and provide habitat for wildlife and

plants. According to a new study, 274 at-risk plant and

animal] species are supported by wetlands. Patrick Comer et

al., NatureServe, Biodiversity Values of Geographically

Isolated Wetlands in the United States 1 (2005). A total of

eighty-six plants and animals listed as threatened, endan-

gered or candidates for listing under the Endangered Species

Act (“ESA”), 33 U.S.C. §§ 1531 et seg. - roughly six percent of

all listed and candidate species in the United States - are

supported by isolated wetlands. Nearly half of the wetland

types studied are known to support at least one ESA listed

species. Id. Loss of wetland habitats could seriously impact

the survival of these species. The Clean Water Act plays an

indirect yet critical role in protecting these biodiversity values.

C. Alteration of stream and wetland ecosys-

tems has spillover effects on terrestrial and

downstream ecosystems.

Human-caused disruptions to the hydrological cycle,

over time, diminish these and other ecosystem benefits

and can even lead to societal collapse —- what Amicus Jared

Diamond calls “self-inflicted ecological suicides.” Jared

Diamond, Collapse: How Societies Choose to Fail or Sur-

vive (2004). Although collapse may seem far fetched in our

modern, technologically-advanced world, the fact is human

society is intrinsically dependent on the water cycle.

Alterations to that cycle — including loss of wetland func-

tions — have serious implications. As Amicus Stuart Pimm

20

has noted, “wetlands provide unusually high ecosystem

services and once destroyed are almost impossible to

restore.” Stuart Pimm, The Value of Everything, Nature,

May 15, 1997, at 231-32.

Although human manipulation of water through

irrigation, dams, canals, deep pumps, and levees — pro-

vides the skeleton upon which the world’s $55 trillion

annual economic output depends, these advances have

come at a cost that society is only beginning to appreciate.

The signs of ecosystems in peril include disappearing

species, falling water tables, plunging fish populations,

shrinking lakes, diminished river flows, loss of wetlands,

declining water quality, and pollution-induced “dead

zones.” Last summer, thirty-six percent of the Chesapeake

Bay ~— formerly one of the world’s most productive and

economically valuable estuaries — had less than five

milligrams per liter of dissolved oxygen, the minimum

level needed by aquatic life. UPI, Large Part of Chesa-

peake Bay is Dead Zone, July 26, 2005.

The Missouri River — the longest in the continental

United States — is another example of a failing ecosystem.

Highly dammed and channelized for barge traffic, the

river's modified flow patterns have dramatically affected

habitat. The loss of natural floodplains, sandbars, and

shallow-water habitats on the Missouri have led to steep

declines in fish and bird species and riparian vegetation.

State and federal agencies list as endangered, threatened

or rare sixteen species of fish, fourteen birds, three mam-

mals, and two mussels in that watershed. Populations of

caddis flies, mayflies and other invertebrates have de-

clined seventy percent, even in the unchannelized portions

of the river. Postel, supra, at 21.

21

According to Amicus Sandra Postel, “This syndrome of

flow modification, habitat destruction, and species imper-

ilment is playing out in river systems all over the world.

Although biodiversity loss does not necessarily equate

with the loss of ecosystem services, it offers a rough proxy

for impacts on ecosystem health and resilience.” Jd. at 21-

22. There is substantial overlap, for instance, between

lands protected for their biodiversity and conservation

values (such as national parks and nature reserves) and

lands that supply cities with drinking water. Jd. at 29; see

also PUD No. 1 of Jefferson Co. v. Washington Dept. of

Ecology, 511 U.S. 700, 719 (1994) (“[A) sufficient lowering

of the water quantity in a body of water could destroy all

of its designated uses, be i: for drinking water, recreation,

navigation or, as here, a fishery.”).

The pervasiveness of chemical contaminants in river

systems and groundwater further illustrates the spillover

effects of upstream discharges. In Great Britain, scientists

discovered traces of the anti-depressant Prozac in rivers

and groundwater used for drinking. Kevin Hurley, Prozac

Seeping into Water Supplies, The Scotsman, August 9, 2004.

Closer to home, the U.S. Geological Survey tested 139

streams in thirty states and found that eighty percent

contained traces of at least one drug, endocrine-disrupting

hormone, insecticide, or other chemical — some at levels

that are known to harm fish and aquatic life. Dana W.

Kolpin et al., Pharmaceuticals, Hormones, and Other

Organic Wastewater Contaminants in the U.S. Streams,

1999-2000; A National Reconnaissance, Envtl. Sci. & Tech.,

March 15, 2002, at 1202-11; Postel, supra at 37. Indeed, “no

ecosystem on the earth’s surface is free of pervasive human

influence.” Peter M. Vitousek et al., Human Domination of

the Earth’s Ecosystems, 277 Science 494, 494 (1997).

22

D. Small impacts to ecosystems can have sud-

den, exponential, or irreversible effects.

The pace of human-induced change raises the very real

possibility of irreversible consequences. Ecosystems have a

threshold character that does not always allow for predict-

able analyses of cause and effect. At a certain point, ecosys-

tem alteration — be it by filling of wetlands or chemical

contamination of streams — will reach what Malcolm Glad-

well has popularized as a “tipping point” and result in

sudden, exponential, or irreversible change.’ A small amount

of additional pollution or habitat disturbance could lead to

catastrophic consequences. Millennium Ecosystem Assess-

ment, World Resources Institute, Living Beyond Our Means:

Natural Assets and Human Well-Being 15 (2005); D. J.

Rappaport et al., Ecosystem Behavior under Stress, 125 Am.

Naturalist 617, 626, 635 (1985). Coral reefs, for example, will

collapse ecologically in response to incremental increases in

contaminant concentrations or maximum water temperature.

Coral Reef Information System, Hazards to Coral Reefs, http://

www.coris.noaa.gov/about/hazards (visited January 9, 2006).

The waste assimilation and transport services of lakes,

rivers, and estuaries are particularly relevant. Increases in

nutrients from runoff and upstream tributaries can increase

biotic productivity to the point of harmful eutrophicatior.

That can accumulate organic matter, deplete oxygen in the

water, and alter levels of nourishment — the trophic struc-

ture — in the system. But at a certain point, even if nutri-

ent loads are reduced, these changes may persist. “From

the perspective of ecosystem service assessment, waste

* Malcolm Gladwell, The Tipping Point: How Little Things Can

Make a Big Difference (2002).

23

assimilation may still be occurring, but habitat services,

recreational services, and maintenance of biodiversity may

all be significantly changed. The point at which this abrupt

shift in services occurs may be controversial and unpredict-

able.” NRC, Valuing Ecosystem Services, supra, at 86-87.

Wetland loss can dramatically impact nutrient storage.

The dynamic complexity of ecosystems and the nature

of ecological injury is the context for any law or policy that

would seek to manage human impacts on the environment,

and ecology has shattered tidy notions of a bounded do-

main. Joseph Sax aptly frames the consequential dilemma

for courts ad policymakers: “Many things that a short time

ago were thought entirely the business of a landowner

within the confines of his or her own land are now revealed

to be intimately interconnected with other lands and with

public resources that have never been thought to belong to

the owner of a given tract.” Joseph Sax, The Constitutional

Dimensions of Property, 26 Loy. L. Rev. 23, 33 (1992). Under-

standing ecosystem functions and values — and the down-

stream impacts of human activities — is thus essential to

properly reconciling conflicts in environmental regulation.

II. DEGRADATION OF WETLANDS AND TRIBU-

TARIES SUBSTANTIALLY AND ADVERSELY

AFFECTS INTERSTATE COMMERCE AND

WARRANTS A COMPREHENSIVE FEDERAL

RESPONSE.

A. Freshwater ecosystems provide economic

services that directly affect interstate com-

merce.

Throughout this brief, Amici have illustrated the

many ways that freshwater ecosystems affect human life

24

and contribute to the nation’s prosperity. Tributaries,

streams, suid wetlands are a pivotal part of these aquatic

systems, and their alteration has demonstrable down-

stream consequences that compromise water quality and

quantity. Loss of wetlands and degradation of tributaries

diminishes the entire system’s services in water storage,

water purification, sediment control, habitat for game and

non-game species, and recreation.

Economic valuation can help assess the total contribu-

tion that particular ecosystems make to human well-being.

See Millennium Ecosystem Assessment, World Resources

Institute, Ecosystem and Human Weil-Being: A Frame-

work for Assessment (2005). Knowledge of the value of

ecosystems services, in turn, can influence governments

and industry alike to evaluate the consequences of alter-

native actions that may affect those services. In the last

few decades, the field of environmental economics has

made significant progress developing new approaches and

methodologies to quantify the value of natural services.

The total value of a wetland — taking into account water

and habitat functions, as well as agricultural, industrial,

and recreational values — often greatly exceeds the direct

value of the wetland property for development.

For example, wetlands and floodplains benefit the

public through wastewater reclamation and reuse, pollu-

tion abatement, aquifer recharge, and recreation. One

recent study attempted to quantify the values of a range of

ecosystem services provided by the Salt Creek Greenway

in Illinois. The sum of the natural values of floodplain

land, other than for flood control, was estimated at $8,177

per acre, while the estimated value of regional floodwater

storage was $52,340 per acre. Combined, the total esti-

mated value of preserved floodplain land in the greenway

25

was $60,517 per acre. NRC, Valuing Ecosystem Services,

supra, at 170.

Biodiversity, which of course depends on water, has

tremendous economic value as commodities traded in

interstate commerce. Of the top 150 prescription drugs

used in the United States, 118 are derived in whole or in

part from natural sources: 74% from plants, 18% from

fungi, 5% from bacteria, and 3% from one vertebrate snake

species. Nine of the top ten drugs are based on natural

plant products. Ecological Society of America, Ecosystem

Services: Benefits Supplied to Human Societies by Natural

Ecosystems, Issues in Ecology (1997), at 6; see also Nor-

man Myers, Biodiversity’s Genetic Library, in Nature’s

Services, supra, at 263. The commercial value of plant-

derived drugs to developed nations alone during the 1990s

amounted to some $500 billion. Jd. at 264.°

Additionally, wetlands and tributaries contribute

tremendous value for recreational pursuits. The value of the

freshwater sport fishery in the U.S. as of 1991 was $16

billion. When aggregated with the employment value gener-

ated by sportfishing activities, the total reaches $46 billion.

Ecological Society of America, supra, at 4. Nearly 2 million

people participated in waterfow] hunting in 2001, spending

$495 million on trip expenditures and $440 million on

equipment in that year alone. U.S. Fish & Wildlife Service,

* Amicus Edward O. Wilson’s words reinforce the point. “It is

fashionable in some quarters to wave aside the small and obscure, bugs

and weeds, forgetting that an obscure moth from Latin America saved

Australia’s pastureland from overgrowth by cactus, that the rosy

periwinkle provided the cure for Hodgkin's disease and childhood

lymphocytic leukemia, that the bark of the Pacific yew offers hope for

victims of ovarian and breast cancer, that a chemical] from the saliva of

leeches dissolves blood clots during surgery . . .” Wilson, supra, at 347.

26

Economic Impact of Waterfowl Hunting in the United

States, at 3 (2005), http://library.fws.gov/nat_survey2001_

waterfowlhunting.pdf (visited January 9, 2006). In total,

people engaged in wildlife watching, fishing, and hunting

activities contributed more than $108 billion in revenue in

2001 to local communities across the country.

These numbers demonstrate a significant impact on

the economy, but they still do not capture the full contribu-

tion of wetlands and freshwater ecosystems to interstate

commerce. Amicus Edward O. Wilson explains:

The traditional econometric approach, weighing

market price and tourist dollars, will always un-

derestimate the true value of wild species. None

has been totally assayed for all of the commercial

profit, scientific knowledge, and aesthetic pleas-

ure it can yield. Furthermore, none exists in the

wild all by itself. Every species is part of an eco-

system, an expert specialist of its kind, tested re-

lentlessly as it spreads its influence through the

food web. To remove it is to entrain changes in

other species, raising the populations of some,

reducing or even extinguishing others, risking a

downward spiral of the larger assemblage.

Wilson, supra, at 308; National Assoc. of Home Builders v.

Babbitt, 130 F.3d 1041, 1053 n.19 (D.C. Cir. 1997) (same).

The more scientists and economists are able to translate

these ecosystem services into monetary terms, the more

readily grasped is their substantial impact on commence.

Courts have long considered the regulation of activi-

ties affecting the nation’s waters to be within the ambit of

27

the Commerce Clause.” United States v. Deaton, 332 F.3d

698, 707 (4th Cir. 2003) (“[Tihe principle that Congress

has the authority to regulate discharges into nonnavigable

tributaries in order to protect navigable waters has long

been applied to the Clean Water Act.”). Indeed, the Corps

and EPA regulations defining the term “waters of the

United States” are premised on the fact that, because

“[wlater moves in hydrological cycles,” pollution of waters

that do not themselves meet traditional tests of navigabil-

ity “will affect the water quality of the other waters within

that aquatic system,” Riverside Bayview, 474 U.S. at 134

(quoting 42 Fed. Reg. 37,128 (1977)). It follows that, to

achieve its statutory aims, Congress can aggregate the

effects of individual discharges to tributaries or fillings of

wetlands to justify regulating each of them. See Wickard v.

Filburn, 317 U.S. 111 (1942).

As Judge Posner aptly notes, filling a single upstream ~

wetland “is not going to have a measurable effect on the

depth of the Wisconsin or Mississippi Rivers. But that

cannot be the test. The sum of many small interferences

with commerce can be large, and so to protect commerce

Congress must be able to regulate an entire class of acts if

the class affects commerce, even if no individual act has a

” Professor Akhi] Amar notes that “‘commerce’ also had in 1787, and

retains even now, a broader meaning referring to all forms of intercourse

in the affairs of life.” So read, Congress's power to act would hinge not on

the question of whether an activity had a potentia) economic effect but

whether “a given problem genuinely spilled across state or national

lines.” Akhil Reed Amar, The Constitution: A Biography 107-08 (2005). In

our view, the loss of wetlands and its consequences for biodiversity, water

quality, and aquatic ecosystems generally, is a national problem with

species contribute significantly to ecosystem health and their impact

cannot be arbitrarily delimited to state lines.

perceptible effect.” Gerke, 412 F.3d at 806 (citing Gonzales

v. Raich, 125 S. Ct. 2195, 2205-07 (2005); Wickard, 317

US. at 118-29).

B. Maintenance of a comprehensive national

scheme for protecting waters of the United

States is critical to achieving the goals of

the Clean Water Act and federal environ-

mental policy.

Alteration of tributaries, streams, and wetlands

implicates both the “use of the channels of interstate

commerce” and “those activities having a substantial

relation to interstate commerce.” United States v. Morri-

son, 529 U.S. 598, 609 (2000). But even if this Court

decides there is no rational basis for concluding that these

resources substantially affect interstate commerce - a

highly dubious proposition from a scientific perspective —

it should permit their regulation as a necessary part of a

broader statutory scheme to protect and enhance our

nation’s waters.

In United States v. Lopez, this Court suggested that

federal regulation of noncommercial, intrastate activity is

constitutionally permissible under the Commerce Clause if

the regulation was an “essential! part of a larger regulation

of economic activity, in which the regulatory scheme could

be undercut unless the intrastate activity were regulated.”

United States v. Lopez, 514 U.S. 549, 561 (1995). Lower

courts have employed this rationale to uphold the Endan-

gered Species Act, which is a comprehensive regulatory

scheme aimed at preserving the economic benefits of

biodiversity and mitigating the negative effects of inter-

state economic competition. GDF Realty Inuvs., Lid. v.

Norton, 326 F.3d 622 (5th Cir. 2003); Gibbs v. Babbitt, 214

F.3d 483 (4th Cir. 2000).” The same rationale applies here;

the “major purpose” of the Clean Water Act was “to estab-

lish a comprehensive long-range policy for the elimination

of water pollution.” S. Rep. No. 92-414, at 95 (1971) (em-

phasis added).

Last term, in Gonzales v. Raich, this Court affirmed

this principle’s validity in Commerce Clause jurispru-

dence. If a class of activities is properly regulated within

the ambit of the Commerce Clause, the local character of a

particular activity that falls within the class is immaterial.

Raich, 125 S. Ct. at 2209; id. at 2217 (Scalia, J. concur-

ring) (“Congress may regulate even non-economic local

activity if that regulation is a necessary part of a more

genera! regulation of interstate commerce.”); Maryland v.

Wirtz, 391 U.S. 183, 196 n.27 (1968) (“[WJhere a general

regulatory statute bears a substantial relation to com-

merce, the de minimis character of individual instances

arising under the statute is of no consequence.”). More-

over, beth the Raich majority and Justice Scalia in concur-

rence recognized that the comprehensive scheme principle

flows equally from Congress's authority to “‘make all Laws

” At least three circuits have upheld the ESA as a valid economic

regulatory scheme. GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622, 640

(5th Cir. 2003), Gibbs v. Babbitt, 214 F.3d 483, 494 n.3 (4th Cir. 2000),

Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1073-74 (D.C. Cir. 2003);

see also National Ass'n of Homebuilders v. Babbitt, 130 F.3d 1041 (D.C.

Cir. 1997). In those cases, as here, an economic regulatory statute

passed constitutional muster because Congress could rationally

conclude that regulation of a broad class of activities is essential to its

functionality. “The court must defer to a congressional finding that a

regulated activity affects interstate commerce, if there is any rational

basis for such a finding.” Hodel v. Virginia Surface Mining & Reclama-

tion Assoc., 452 U.S. 264, 276 (1981). As Amici have demonstrated, such

a conclusion is not only rationa! but firmly grounded in science.

30

which shall be necessary and proper’ to ‘regulate Com-

merce .. . among the several States.’” Raich, 125 S. Ct. at

2209 (quoting U.S. Const., Art. I. § 8). Not only is a ruling

for the United States in the present cases consistent with

the Commerce Clause, it is also supported by the Neces-

sary and Proper Clause because regulation of upstream

tributaries and adjacent wetlands is essential to the

statutory scheme. GDF Realty, 236 F.3d at 641-42 (Dennis,

J. concurring) (noting that the Necessary and Proper

Clause supports the constitutionality of the ESA).

The Clean Water Act establishes a comprehensive

scheme to eliminate water pollution and preserve aquatic

ecosystems. Congress's intent to restore and maintain the

chemical, physical, and biological integrity of the nation’s

waters will be seriously undercut if the modification of

tributaries, streams, and adjacent wetlands “were ex-

cepted from its general scheme of regulation.” Raich, 125

S. Ct. at 2220.

S

CONCLUSION

The judgments of the U.S. Court of Appeals for the

Sixth Circuit in Rapanos and Carabell should be affirmed.

Respectfully submitted,

JASON C. RYLANDER*

DEFENDERS OF WILDLIFE

1130 17th Street, NW

Washington, D.C. 20036

(202) 682-9400

January 12, 2006 *Counsel for Amici Curiae