# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A27

## Record

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

## Text

@ Dl File

+

JOHN A. RAPANOS, ET AL.,

Petitioners,
v.
UNITED STATES,
Respondent.
¢
JUNE CARABELL, ET AL..,
Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS,
Respondent.
o

On Writs Of Certiorari To The United States
___Court Of Appeals For The Sixth Circuit

°

BRIEF OF THE HONORABLE JOHN D. DINGELL, THE
HONORABLE JOHN CONYERS, JR., THE HONORABLE
ROBERT F. DRINAN, THE HONORABLE GARY W. HART,
THE HONORABLE KENNETH W. HECHLER, THE
HONORABLE CHARLES McCURDY MATHIAS, JR.,
THE HONORABLE PAUL N. McCLOSKEY, JR.,
THE HONORABLE CHARLES B. RANGEL, AND
THE HONORABLE SENATOR RICHARD SCHULTZ
SCHWEIKER, AS AMICI CURIAE IN
SUPPORT OF THE RESPONDENT

o

Kim DIANA CONNOLLY RoBERT W. ADLER
UNIVERSITY OF SOUTH Amy J. WILDERMUTH*
CAROLINA SCHOOL OF Law UNIVERSITY OF UTAH
Main & Greene Streets S.J. QUINNEY COLLEGE OF LAW
Columbia, SC 29208 332 S. 1400 East, Room 101
(803) 777-6880 Salt Lake City, UT 84112
(801) 581-6833
Counsel for Amicus Curiae
*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

No. 04-1034
Rapanos v. United States

1. Does the Clean Water Act prohibition on unpermitted
discharges to “navigable waters” extend to nonnavigable
wetlands that do not even abut a navigable water?

2. Does extension of Clean Water Act jurisdiction to every
intrastate wetland with any sort of hydrological connec-
tion to navigable waters, no matter how tenuous or remote
the connection, exceed Congress’ constitutional power to
regulate commerce among the states?

No. 04-1384
Carabell v. United States Army Corps of Engineers

1. Does the Clean Water Act extend to wetlands that are
hydrologically isolated from any of the “waters of the
United States”?

2. Do the limits on Congress’ authority to regulate
interstate commerce preclude an interpretation of the
Clean Water Act that would extend federal authority to
wetlands that are hydrologically isolated from any of the
“waters of the United States”?

TABLE OF CONTENTS
Page
po \ FT. Fy, : ,, eee eee iv
INTEREST OF AMICI CURIAE ............ccccccceeceseeeeee 2
RITE CP TI ones esccnccncececccesevecsseseveceses: 2
SUMMARY OF ARGUMENT ..;.........cc:cccceseeseeeeseeeeees 4
Se iciincictitbiinisiisiachineceiiniiasaids ree COD aE 5

I. CONGRESS PLAINLY INTENDED TO
INCLUDE ALL TRIBUTARIES AND ADJA-
CENT WETLANDS IN THE TERM “WA-
TERS OF THE UNITED STATES” AND
THEREBY SUBJECT THEM TO REGULA-
TION UNDER THE CLEAN WATER ACT ..... 5

A. Congress Intended to Include Tributaries
and Adjacent Wetlands in the Term “Wa-

ters of the United States” ...................0... 6
i. Congress Intended Comprehensive
Protections Through the 1972 Act....... 6

ii. The Act’s Goals and Purposes and
Other Provisions Indicate Congres-
sional Intent to Assert Broad Federal
Authority Over Concerns Other Than
Pe cnssencrcnegiimnuinnseptapeneiacuencenss 8

iii. The Legislative History of the Term
“Navigable Waters” Indicates Con-
gressional Intent to Broadly Cover
Waters of the United States, Not Just
Traditionally Navigable Waters........... 10

TABLE OF CONTENTS -— Continued
Page

B. To Meet the Law’s Broad Pollution Pre-
vention and Water Quality Goals, Con-
gress Adopted One Definition of “Waters
of the United States” To Govern All of

I criicinccctnnintiiicanastepsenseies 15
C. The Court Should Not Disregard the
Agencies’ Definition ................c.ccseesseeeeeees 17

Il. UNDER THE FACTS OF BOTH CASES,
AFFIRMANCE IS WARRANTED UNDER
UNITED STATES v. RIVERSIDE BAYVIEW

ET SN ERIN Ne CP, He OO Tee wD 23
A. Both Cases Are on All Fours With River-
BE SD is scsishinsihiiisinencttnitncicbiiitnbabtieteniies 23

B. The History of the 1977 Amendments Re-
lied on in Riverside Bayview Further
Supports Affirmance ....................ccseeeeeeees 24

SN eniiinitninsncsdesvontpegenseinnevsnnssatesenecnseseneree 30

iv

TABLE OF AUTHORITIES
Page
CASES
American Dredging Co. v. Dutchyshyn, 480 F. Supp.

GG GA BU Biri incciccorssvcsticmastanvcateliteaidtieiniaeniabeminians 15
American Petroleum Institute v. EPA, 540 F.2d 1023

CR: FTG cxevtescsicvestinistninieasinduiiiniadatiniiecieiiaaiae 8
Arkansas v. Oklahoma, 503 U.S. 91 (1992) ................cceeeee 8
Bayou Des Familles Development Corp. v. U.S.

Corps of Engineers, 541 F. Supp. 1025 (E.D. La.

REID cchacececcsercsensenetisateniviicienbaptiindiidliniaiediiaian caida 15
Bell v. New Jersey, 461 U.S. 773 (1983)............ccccccceeereeess 28
Carabell v. United States Army Corps of Engineers,

391 F.3d 704 (6th Cir. 2004) 0.00.0... eee ecceeeeeeees 3, 21, 24
Chemical Manufacturers Ass’n v. NRDC, 470 U.S.

SD CRED ccccssctsscecvncseviotnnstaietnsonintadiniahesbaieibiametaiieaiie 29
Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)............ccceceeeeeeneeee 6, 21
Hanson v. U.S., 710 F. Supp. 1105 (E.D. Tex. 1989)......... 15
Kaiser Aetna v. United States, 444 U.S. 164 (1979).......... 19
Kennecott Copper Corp. v. EPA, 612 F.2d 1232 (10th

EAR TID ccccrccntoscrsccqueneectsisneoiadencianniineniniiaiicmmiamaaaiiel 8
Kernan v. American Dredging Co., 355 U.S. 426

CIID concecusstsccnscsnenscnrentupianteninianimmaiienmimemmaaiadaaa 19
Minnehaha Creek Watershed Dist. v. Hoffman, 597

ee GF GR Gils BGG cccccsvssscncentsecctenninvittnenidiataticbei 24
Motor Vehicle Manufacturer’s Ass’n v. State Farm

Mutual Automobile Ins. Co., 463 U.S. 29 (1983) .......... 22

NRDC v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).... 15, 26

a

TABLE OF AUTHORITIES — Continued

Page
Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S.

EE A cc 19
Pauley v. BethEnergy Mines, Inc., 501 U.S. 680

Ici dietitian mencindeenanencenemnaneennmeengeennnssnnes 22
PUD No. 1 of Jefferson County v. Washington Dept.

of Ecology, 511 U.S. 700 (1994) ...........ccccccccceececeeeseeeneceees 8
Rust v. Sullivan, 500 U.S. 173 (1991) ..............cccccccccecceeeeees 5
Solid Waste Agency of Northern Cook County v.

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

tit itinrcitat tiaientetineitiemnmmenactnanes 17, 18, 19, 23, 24
United States v. Appalachian Electric Power Co.,

ee 19
United States v. Ashland Oil & Transportation Co.,

504 F.2d 1317 (6th Cir. 1974) .0..........ccccccecceceeeeeeeeceneeeees 19
United States v. Deaton, 332 F.3d 698 (4th Cir.

EE ee 18
United States v. Gerke, 412 F.3d 804 (7th Cir. 2005)........ 20
United States v. Lopez, 514 U.S. 549 (1995)..................... 18
United States v. Rapanos, 376 F.3d 629 (6th Cir.

SS LE Le 3, 21, 24
United States v. Riverside Bayview Homes, Inc., 474

TT 5, 8, 22, 23, 24
STATUTES
| ee 8
EE an 8

ES, 8,9

vi

TABLE OF AUTHORITIES -— Continued

Page

UI ita erinncnininctesitentiiplinipaciadiniaiieiaaainilaatdalnais 16
IIT icnsnisetntintieicnnieninnniadinuanninitdentinaiinadanitiiaties 9
EE a UIE cnnsinsenicienivennatndnsinnedthinasetathitetnammiiindabeiiobads 16
TT cinrteccnsctinsniainnensenieusasittacttatastsinttadimeabiciiindinns 16
Re GED cieneeenesttpminnstretaedinntnenteteemesinnmeunsiiin 16
ene ne EEN 16
er icin cusstrudestptnentinnaciincipaeeapeshiatininepnaaiial 29
8 ee 2, 5, 8,14
Federal Water Pollution Control Act, Pub. L. No.

80-845, 62 Stat. 1155 (1948)... eececececeeceeeseeeneneeenes 6
Federal Water Pollution Control Act, Pub. L. No.

ee Oe I Be Ge Occ cccccnnnstectecennnterscteterecetinnaess 5
REGULATIONS
en maptrectateniagsesnents 2, 3,17
LEGISLATIVE AND REGULATORY DOCUMENTS
a i 13, 14
118 Cong. Rec. 37,058 (Oct. 18, 1972) ............ccccccececeeeereees 10
Ce ceictticsiiicccsiitiatintenacercinatiiitininiaatiniin 14
123 Cong. Rec. 26,711-26,722 (Aug. 4, 1977)..... 25, 26, 27, 28
123 Cong. Rec. 38,976 (Dec. 15, 1977) .............-.cccccseeceeees 29
LR. 11,896, 92nd Cong. (1971)..........cccccecesseseeseseseeseeeeeeens 10
H.R. Rep. No. 92-911 (1972) ..........-ccececeecocseseenseeseees 9, 11, 14

S. 2770, 92nd Cong. 502(h) (1971) ............ccccccececeecereneeeees 10

vii

TABLE OF AUTHORITIES — Continued

Page
S. Rep. No. 92-414, 92nd Cong. 77 (1971)............ 8,9, 11,14
S. Rep. No. 92-1236, 92nd Cong. 144 (1971)...................+. 12
S. Rep. No. 95-370, 95th Cong., Ist Sess. (1977).............. 25
42 Fed. Reg. 37,121 (July 19, 1977) ................ccccccceeeeeeeeees 20
OTHER AUTHORITIES
Ann Vileisis, Discovering the Unknown Landscape:
A History of America’s Wetlands (1997) deatiinsittninaialintidinittaie 7
U.S. EPA, Functions and Values of Wetlands, http://
www.epa.gov/owow/wetlands/pdf/fun_val.pdf........... 4, 20
John and Mildred Teal, Life and Death of the Sait
SEITE csnictnteientntantannntatendtiansmienninanmtediaesdiiemtiuapainnes 7

Kim Diana Connolly, Stephen M. Johnson and
Douglas R. Williams, Wetlands Law and Policy:
Understanding Section 404 2-7 (2006) .................ccccceeeees 8

Lance D. Wood, Don’t Be Misled: CWA Jurisdiction
Extends to All Non-Navigable Tributaries of the
Traditional Navigable Waters and to Their
Adjacent Wetlands (A Response to the Virginia
Albrecht/Stephen Nickelsburg ELR Article, the
Fifth Circuit’s Decision In re Needham, and to the
Supreme Court's Dicta in SWANCC), 34 Envtl. L.

ee 15
National Research Council, Wetlands, Characteristics
ie eet 22

cos

TABLE OF AUTHORITIES — Continued

R.W. Tiner, H.C. Bergquist, G.P. DeAlessio and M.J.
Starr, Geographically Isolated Wetlands: A
Preliminary Assessment of Their Characteristics
and Status in Selected Areas of the United States

Robert W. Adler, Jessica C. Landman and Diane M.
Cameron, The Clean Water Act 20 Years Later

Robert W. Adler, The Two Lost Books in the Water
Quality Trilogy: The Elusive Objectives of
Physical and Biological Integrity, 33 Envtl. L. 29

ED cccereacesecescsessesersesasenussentansneqscemnarsnatenssnnasssessseenes

Sam Kalen, Commerce to Conservation: The Call for
a National Water Policy and the Evolution of
Federal Jurisdiction Over Wetlands, 69 N. D. L.

en

Samuel P Shaw & C. Gordon Fredine, Wetlands of
the United States: Their Extent and Their Value
to Waterfowl and Other Wildlife, Fish and

Wildlife Service Circular 39 (1956) ..............ccccccecseee

1

INTEREST OF AMICI CURIAE’

Amici are current and former members of the United
States Congress, both Republicans and Democrats, all but
one of whom were members of the 92nd Congress, which
in 1972 initially adopted the pivotal definitions of the
Clean Water Act at issue in this case. In addition, the
amici include former Senators who were members of the
95th Congress and who voted in 1977 to reaffirm the broad
scope of waters protected by the Clean Water Act. All of
the amici supported the Clean Water Act and many played
critical roles in the development and enactment of the
1972 legislation and the 1977 amendments.

Amici include the following: The Honorable John D.
Dingell of Michigan, the “Dean of the House,” was elected
as a Democrat to the U.S. House of Representatives by
special election to the Eighty-fourth Congress and has
served from December 13, 1955 to the present; the Honor-
able John Conyers, Jr. of Michigan was elected as a
Democrat to the U.S. House of Representatives to the
Eighty-ninth Congress and has served from January 3,
1965 to the present; the Honorable Robert F. Drinan was
elected as a Democrat from Massachusetts to the U.S.
‘House of Representatives to the Ninety-second Congress
and served from January 3, 1971 to January 3, 1981; the
Honorable Gary W. Hart was elected as a Democrat from
Colorado to the U.S. Senate in 1974 and served from
January 3, 1975 to January 3, 1987; the Honorable Ken-
neth W. Hechler of West Virginia was elected as a Democ-
rat to the U.S. House of Representatives to the Eighty-
sixth Congress and served from January 3, 1959 to Janu-
ary 3, 1977; the Honorable Charles McCurdy Mathias, Jr.

* Under Rule 37.6 of this Court, the parties have consented to the
filing of this brief by the Members and former Members of Congress.
This brief was not written in whole or in part by counsel for a party,
and no one other than amici and counsel made a monetary contribution
to its preparation and submission.

2

of Maryland was elected as a Republican to the U.S. House
of Representatives to the Eighty-seventh Congress and
served from January 3, 1961 to January 3, 1969, and was
elected to the U.S. Senate in 1968 where he served from
January 3, 1969 to January 3, 1987; the Honorable Paul
N. (Pete) McCloskey, Jr. was elected to the U.S. House of
Representatives as a Republican from California by
special election to the Ninetieth Congress and served from
December 12, 1967 to January 3, 1983; the Honorable
Charles B. Rangel of New York was elected as a Democrat
to the U.S. House of Representatives to the Ninety-second
Congress and has served from January 3, 1971 to the
present; and the “lonorable Senator Richard Schultz
Schweiker of Pennsylvania was elected as a Republican to
the U.S. House of Representatives to the Eighty-seventh
Congress and served from January 3, 1961 to January 3,
1969, and was elected to the U.S. Senate in 1968 where he
served from January 3, 1969 to January 3, 1981.”

STATEMENT OF FACTS

Both of these cases involve wetlands that either the
U.S. Environmental Protection Agency (EPA) or the U.S.
Army Corps of Engineers (Corps) concluded — and the
lower courts directly reviewing these cases affirmed - are
“(wetlands adjacent to,” 33 C.F.R. § 328.3(a\(7), “tributar-
ies,” id. § 328.3(a)(5), to “waters which are currently used,
or were used in the past, or may be susceptible to use in
interstate or foreign commerce,” id. § 328.3(a)(1). Accord-
ingly, consistent with Congress’ intent, these wetlands are
considered “waters of the United States” and thus fall
within EPA’s and the Corps’ authority under the Clean
Water At. See 33 U.S.C. § 1362(7) (aefining “navigable
waters” as “waters of the United States, including the
territorial seas”).

* For more complete biographies of these distinguished current and
former Members of Congress, go to http://bioguide congress gov.

3

With respect to the three different sites at issue in
Rapanos, the wetlands were all] found to be “adjacent” to
tributaries to traditionally navigable waters. The Corps
also specifically determined, and the lower courts affirmed
as findings of fact, that all three sites have a “hydrological
connection to navigable waters.” United States v. Rapanos,
376 F.3d 629, 635 (6th Cir. 2004). The first site, known as
“the Salzburg wetlands,” “ha(s) a surface water connection
to tributaries of the Kawkawlin River which, in turn, flow
into the Saginaw River and ultimately into Lake Huron.”
Id. The second wetlands site, “the Hines Road site[,] ha[s]
a surface connection to the Rose Drain which, in turn, has
a surface connection to the Tittabawassee River.” Jd. at
642-43. Finally, the third site, “the wetlands at the Pine
River ... have a surface water connection to the Pine
River, which flows into Lake Huron.” Jd. at 643.

Similarly, the wetlands at issue in Carabell are
located next to an unnamed ditch that is connected at one
end to the Sutherland-Oemig Drain, which empties into
Auvase Creek, which then empties into Lake St. Clair,
which connects to Lake Huron and Lake Erie. Carabell v.
United States Army Corps of Engineers, 391 F.3d 704, 708
(6th Cir. 2004). The other end of the ditch flows into other
ditches that also outlet into Auvase Creek ar‘ eventually
into the Great Lakes drainage system. Jd. at 705-06.
Although berms, which were created when wetland mate-
rial was excavated to create the unnamed ditch, separate
the wetlands from the ditch, the wetlands fall under the
regulatory definition of “adjacent wetlands” because that
term includes “wetlands separated from other waters of
the United States by man-made dikes or barriers, natural
river berms, beach dunes, and the like.” 33 C.F.R. § 328.3(c).
Despite the clear application of the regulation to their
wetlands, the Carabell petitioners claim the Corps has no
authority to regulate their wetlands because there is no
hydrological connection between the wetlands and the
ditch as a result of the berms. The Corps maintains that
there is an occasional surface water connection when
water overtops the berms. See BIO at 5, 9. Moreover, the

4

Corps concluded that the Carabell wetlands provide a
valuable water storage function, and that filling the
wetlands would likely result in “an increased risk of
erosion and degradation of water quality” in the tradition-
ally navigable waters of the Great Lakes. 391 F.3d at 706.
There is, in other words, a connection between the wet-
lands and the traditionally navigable waterway because
the wetlands slow the flow of the surface water by first
retaining it and then allowing it to slowly percolate as
ground water. This, in turn, reduces scouring and erosion,
which would increase pollution in traditionally navigable
waters connected to these wetlands. See generally U.S.
EPA, Functions and Values of Wetlands 1 (2001), http://
www.epa.gov/owow/wetlands/pdf/fun_val.pdf (“Wetlands
function like natural tubs or sponges, storing water and
slowly releasing it. This process slows the water’s momen-
tum and erosive potential, reduces flood heights, and
allows for ground water recharge, which contributes to
base flow to surface water systems during dry periods.”).

SUMMARY OF ARGUMENT

Because wetlands adjacent to traditionally navigable
waters, or adjacent to tributaries to those waters, have
significant impacts on traditionally navigable waters,
Congress intended for them to be subject to regulation
under the Clean Water Act. When Congress adopted the
Federal Water Pollution Control Act amendments in 1972,
it redefined the term “navigable waters” to mean “waters
of the United States” for the primary purpose of improving
water quality in the Nation. This definition of waters
applies broadly to the Act’s water pollution control pro-
grams, including those aimed at eliminating pollution
from industrial waste and raw sewage, preventing oil
spills, and regulating the discharge of dredge and fill
material.

Thus the EPA’s and the Corps’ inclusion of tributaries
and “adjacent wetlands” in their regulatory definitions of
“waters of the United States” and exercise of authority

5

over those waters is consistent with both the statute and
Congress’ intent. Moreover, the connection between tradi-
tionally navigable waters and these waters leaves no
doubt that these cases fail to “raise the sort of grave and
doubtful constitutional questions,” Rust v. Sullivan, 500
U.S. 173, 191 (1991), that might require the Court to
second-guess the Corps’ almost thirty-year-old regulation.
Indeed, this Court upheld the regulation of such waters
over twenty years ago in United States v. Riverside Bay-
view Homes, Inc., 474 U.S. 121 (1985), a case that is quite
similar to these. Because Congress intended for the Clean
Water Act to reach the wetlands at issue here and there is
no significant constitutional question raised by EPA and
the Corps exercising authority over them, the Court
should affirm the judgment of the Court of Appeals for the
Sixth Circuit in both cases.

ARGUMENT

I. Congress Plainly Intended to Include All Tribu-
taries and Adjacent Wetlands in the Term “Wa-
ters of the United States” and Thereby Subject
Them to Regulation Under the Clean Water Act

The Clean Water Act’ (CWA) defines “navigable
waters” as “waters of the United States, including the
territorial seas.” 33 U.S.C. § 1362(7). The question before
this Court is whether the “adjacent wetlands” at issue in
these cases are properly considered “waters of the United
States” and thus subject to regulation under the Clean
Water Act.

* The Federal Water Pollution Control Act is commonly referred to
as the Clean Water Act following the 1977 amendments to the FWPCA.
Pub. L. No. 95-217, 91 Stat. 1566 (1977) (“SEC. 518. This Act may be
cited as the ‘Federal Water Pollution Control Act’ commonly referred to
as the Clean Water Act.”).

6

In Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43 (1984), this Court held
that when interpreting a statute that an agency is charged
with administering, “[i]f the intent of Congress is clear,
that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed
intent of Congress.” Where one can discern Congress’
intent by “employing traditional tools of statutory con-
_ struction,” id. at 843 n.9, that intent must be given effect.
In this case, the intent of Congress is clear: all tributaries
and adjacent wetlands like those at issue in these cases
fall under the CWA.

A. Congress Intended to. Include Tributaries
and Adjacent Wetlands in the Term “Waters
of the United States.”

In passing the CWA, Congress intended to embrace
the broadest possible definition of “navigable waters”
when it defined that term as “waters of the United States.”
In particular, Congress intended that term to embrace
both tributaries as well as wetlands that are adjacent to
traditionally navigable waterways and wetlands that are
adjacent to any tributaries connected to those waterways.

i. Congress Intended Comprehensive Pro-
tections Through the 1972 Act

The 1972 adoption of the Federal Water Pollution
Control Act (FWPCA) reflected Congressional commitment
co comprehensively control water pollution, including
protection of tributaries and wetlands. Congress intended
in 1972 to replace the original FWPCA, passed in 1948.
Federal Water Pollution Control Act, Pub. L. No. 80-845,
62 Stat. 1155 (1948). That original act was limited to
providing technical assistance to states, partially financ-
ing municipal sewage treatment works, and providing
authority to bring public nuisance lawsuits to abate
interstate water pollution when all other means failed.

7

S. Rep. No. 92-414, at 95 (1971). The 1948 Act left states
on their own to establish treatment requirements for
pollu.ion sources and to enforce them. Despite this law, by
the 1960s the deterioration of the nation’s waters was
alarmingly evident, and waters in many cities across the
country were reduced to sewage receptacles for industrial
and municipal waste. See Robert W. Adler, Jessica C.
Landman and Diane M. Cameron, The Clean Water Act 20
Years Later 5-7 (1993).

During the decades leading up to the 1972 Act, the
importance of wetlands to overall aquatic ecosystem
functioning was steadily becoming apparent in the scien-
tific community. The 1956 Fish and Wildlife Service's
publication of Samuel P. Shaw and C. Gordon Fredine’s
Wetlands of the United States* provided a new vocabulary
— using the generic term “wetlands” in place of terms such
as “swamp” or “bog” — that “conveyed positive symbolic
value born from trustworthy scientific expertise.” Ann
Vileisis, Discovering the Unknown Landscape: A History of
America’s Wetlands 209 (1997). Known as Circular 39, the
1956 report articulated a taxonomy of wetland types and
clearly explained the value of wetlands as habitat for fish
and wildlife. The authors urgently concluded that “[nlever
before in the Nation’s history has it been so necessary to
plan for the setting aside of land and water areas to serve
the future needs of fish and wildlife.” Shaw & Fredine,
supra, at 9. As was true for other water quality matters,
leaving wetlands and tributary protection in the control of
individual states was not working. Public outcry de-
manded a strong response. See, e.g., John and Mildred
Teal, Life and Death of the Salt Marsh 262 (1969) (“This
resource is much more extensive — the ribbon of green
marshes along the eastern coast of North America, which

* Samuel P. Shaw & C. Gordon Fredine, Wetlands of the United
States: Their Extent and Their Value to Waterfowl and Other Wildlife,
Fish and Wildlife Service Circular 39 (1956), available at http//www.
npwrc. usgs.gov/resource/1998/uswetlan/uswetlan. htm.

8

must be preserved almost in its entirety if its preservation
is to have any real meaning.”); Kim Diana Connolly,
Stephen M. Johnson and Douglas R. Williams, Wetlands
Law and Policy: Understanding Section 404 2-7 (2006).

ii. The Act’s Goals and Purposes and Other
Provisions Indicate Congressional In-
tent to Assert Broad Federal Authority
Over Concerns Other Than Navigation

In passing the 1972 FWPCA, Congress articulated one
of the broadest ecosystem restoration and protection
aspirations in all of environmental law: “to restore and
maintain the chemical, physical, and biological integrity of
the Nation’s waters.” 33 U.S.C. § 1251. Courts routinely
refer to this objective as the “guiding star” of the statute,
see American Petroleum Institute v. EPA, 540 F.2d 1023,
1028 (10th Cir. 1976); Kennecott Copper Corp. v. EPA, 612
F.2d 1232, 1236 (10th Cir. 1979), or otherwise invoke the
language as the main starting point for any analysis, see,
e.g., PUD No. 1 of Jefferson County v. Washington Dept. of
Ecology, 511 U.S. 700, 703 (1994); Arkansas v. Oklahoma,
503 U.S. 91, 101, 105-06 (1992); United States v. Riverside
Bayview Homes, 474 U.S. at 132.

Congress’ 1972 objective was far removed from the
limited goal of protecting navigation as in earlier laws like
the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq.
(2000), which prohibited the discharge of refuse into
navigable waters “whereby navigation shall or may be
impeded or obstructed.” 33 U.S.C. § 407. In addition, it
broadened the law’s focus far beyond pollution in inter-
state waters as in the earlier iterations of the FWPCA.

* This statutory objective is reinforced in the statutory definition of
“pollution” as the “man-made or man-induced alteration of the chemi-
cal, physical, biological, and radiological integrity of water.” 33 U.S.C.
§ 1362(19).

9

Both the House and Senate reports evinced their intent to
restore aquatic ecosystems as closely as possible to their
natural state, which clearly extends beyond the earlier
traditional intent to provide only for navigation.°

“To achieve this objective,” 33 U.S.C. § 1251(a), Con-
gress listed seven goals, each of which indicates concern
for values other than navigability. Jd. § 1251(a)(1)-(6). The
goals of the law, including “protection and propagation of
fish, shellfish, and wildlife,” “recreation in and on the
water,” elimination of “the discharge of toxic pollutants in
toxic amounts,” and “programs for the control of nonpoint
source pollution,” are broad. Jd. § 1251(a).

Perhaps most notably, Congress required the states or
EPA to adopt water quality standards for all waters
covered by the Act “taking into consideration their use and
value for public water supplies, propagation of fish and
wildlife, recreational purposes, and agricultural, indus-
trial, and other purposes, and also taking into considera-
tion their use and value for navigation.” Id. § 1313(c)
(emphasis added). The fact that navigation was but one of
many values for which the waters of the United States
were provided statutory protection belies a narrow focus
on only traditionally navigable waters.

Members of Congress repeatedly emphasized the
sweeping purposes of the 1972 amendments. For example,
in the debates leading to Congress’ override of President
Nixon’s veto of the legislation, which the President viewed
as unconscionably expensive, Representative John D.
Dingell of Michigan said: “The protection of our natural
resources, particularly our waterways which serve our
health and wildlife needs and the recreational needs of

* S. Rep. No. 92-414, at 12 (1972), reprinted in 1972 U.S.C.C.AN.
at 3742; H.R. Rep. No. 92-911, at 76-77 (1972), both quoted infra; see
also Robert W. Adler, The Two Lost Books in the Water Quality Trilogy:
The Elusive Objectives of Physical and Biological Integrity, 33 ENVTL. L.
29, 44-46 (2003).

10

urban and rural areas cannot in any sense whatsoever be
described as unconscionable.” 118 Cong. Rec. 37,058 (Oct.
18, 1972) (emphasis added). In short, Congress sought to
protect water quality for a wide range of natural resource
values, and not merely to preserve navigability of large
waterways.

iii. The Legislative History of the Term
“Navigable Waters” Indicates Congres-
sional Intent to Broadly Cover Waters
of the United States, Not Just Tradi-
tionally Navigable Waters

Both the House and Senate versions of the bills to
amend the FWPCA were written to expand federal author-
ity to control and ultimately eliminate discharges of all
types of water pollution across the country. H.R. 11,896,
92nd Cong. (1971); S. 2770 92nd Cong. (1971). They both
sought to restructure the nation’s federal authority to
control water pollution while drawing upon much of the
structure and language of earlier statutes. Thus, in their
original bills, both bodies borrowed the term “navigable
waters” from existing laws, and originally included a
definition that itself used the term “navigable.” However,
in the reports discussing their respective versions of the
legislation, members of both chambers expressed concern
about potentially narrow interpretations of what waters
they intended the Act to cover.

" In the Senate, the definition read “the term navigable waters
means the navigable waters of the United States, portions thereof, and
the tributaries thereof, including the territorial seas and the Great
Lakes. S. 2770, 92nd Cong. 502(h) (1971). The House bill’s definition
read “|t)he term ‘navigable waters’ means the navigable waters of the
United States, including the territorial seas.” H.R. 11,896, 92nd Cong.
502(8) (1971).

ll

The House Public Works Committee stated:

The Committee is reluctant to define the
term ‘navigable waters.’ This is based on the fear
that any interpretation would be read narrowly.
This is not the Committee’s intent. The Commit-
tee fully intends the term ‘navigable waters’ be
given the broadest possible constitutional inter-

H.R. Rep. No. 92-911, at 76-77 (1972). The Senate Com-
mittee on Public Works likewise stated:
The control] strategy of the Act extends to
navigable waters. The definition of this term
means the navigable waters of the United

moves in hydrologic cycles and it is essential that
discharges of pollutants be controlled at the
source. Therefore, reference to the control re-
quirements must be made to the navigable wa-
ters, portions thereof, and their tributaries.

S. Rep No. 92-414, at 77 (1971).

Although the House report focused on the need for a
broad constitutional interpretation of the Act’s scope while
the Senate report spoke to the scientific reality of waters
being interconnected, both bodies signaled their desire not
to constrain the reach of the Act to those waters previously
protected solely on the grounds of traditional navigability.
In other words, Congress adopted a new view as to the
nature of pollution and how to control it at a federal level.

When the House and Senate met in Conference
Committee to finalize the 1972 Act, they took an addi-
tional step to ensure that the definition of “navigable

12

As discussed in the report of the Conference Committee,
definition was accepted into the
final bill, but the word “navigable” was deleted from the
definition. Thus, the new definition read as follows: “The
term ‘navigable waters’ means waters of the United
States, including the territorial seas.” S. Rep. No. 92-1236,
at 144 (1971). The Conference rep: .dopted the precise
terminology of the earlier House Pu’ ‘.c Works Committee

4
Ht
4

be made for administrative purposes.” Jd.

means all “the waters of the United States” in a
geographical sense. It does not mean i

waters of the United States” in the technical
sense as we sometimes see in some laws. The
new and broader definition is in line with more
expanded that limited view of navigability - de-
rived from the Daniel Ball case (77 U.S. 557, 563)
— to include waterways which would be “ suscep-
tible of being used *** with reasonable im-

See er ei cceeain, tates Gee
cetera |citing cases]. .

ihe aun Gefiaiiien deasty eenguee di ee
ter bodies, including main streams and their

poy nige pace ms he eee tee
are the old, narrow definitions of navigability, as

118 Cong. Rec. 33,756-57 (Oct. 4, 1972).

Particular attention should be paid to Representative
Dingell’s pivotal opening sentence of the passage, which
set the context for the rest of the explanation. He said that
“the conference bill defines the term ‘navigable waters’
broadly for water quality purposes.” Id. (emphasis added).
This opening sentence indicates that .ue new definition
should be interpreted “broadly,” but more important is the
related reasoning. Representative Dingell signaled that
the purpose of the bill’s expanded jurisdictional definition
was to protect water quality as an independent value, and
not merely “navigation” or “navigability” as one of the
many possible impacts of water pollution on interstate
commerce.

The manner in which both the Senate and House
possibility that Congress intended to focus narrowly on
navigable waters, as opposed to all “waters of the United
States” that might affect the ecosystem integrity objective
of the law. The 1972 Senate Report, for example, confirms
the intent to restore entire aquatic ecosystems to as close
as possible to their natural state:

Maintenance of such integrity requires that any

changes in the environment resulting in a physi-

cal, chemical or biological change in a pristine
water body be of a temporary nature, such that

by natural processes, within a few hours, days or

weeks, the aquatic ecosystem will return to a

state functionally identical] to the original. .

and which will provide for a stable biosphere that

is essential to the well-being of human society. 7
S. Rep. No. 92-414, at 76 (1972) (emphasis added); see also
H.R. Rep. No. 92-911, at 76-77 (1972) (discussing the goal
of the legislation as preserving natural ecosystem struc-
ture and function).

ae a? ee oe See

wee no Bae Baro
csclitadis calles Gites cad tk aaa
the aquatic ecosystem as a whole was protected. In ex-
plaining the related definition of “discharge of a pollut-
ant,” 33 U.S.C. § 1362(12), for example, Representative

source.” S. Rep. No. 92-414 (Oct. 28, 1971), at 77. Thus,

the legislative history repeatedly clarifies that the Act
covers not only traditionally navigablé waterways, but
smaller streams, al] tributaries, and wetlands that form
components of and are essential to the “chemical, physical,
and biological integrity” of the larger aquatic ecosystem.
E.g., 118 Cong. Rec. 33,756-57 (Oct. 4, 1972) (Representa-

15

of “navigable waters, portions thereof, and their tributar-
ies”).

In order to accomplish the above-described jurisdic-
tional expansion, Congress deliberately deleted the term
“navigable” from its statutory definition of “navigable
waters” in the text of the Act. As one scholar has noted,
“after 1972, federal courts and legal commentators began
to call ‘the navigable waters of the United States’ the
‘traditional navigable waters of the United States’ to
clearly distinguish that term from the much more exten-
sive geographic jurisdiction of the FWPCA of 1972.” Lance
D. Wood, Don’t Be Misled: CWA Jurisdiction Extends to All
Non-Navigable Tributaries of the Traditional Navigable
Waters and to Their Adjacent Wetlands (A Response to the
Virginia Albrecht/Stephen Nickelsburg ELR Article, the
Fifth Circuit’s Decision In re Needham, and to the Supreme
Court's Dicta in SWANCC), 34 ENVTL. L. Retr. 10,187
(2004); see, e.g., Hanson v. United States, 710 F. Supp.
1105, 1108 (E.D. Tex. 1989); Bayou Des Familles Develop-
ment Corp. v. U.S. Corps of Engineers, 541 F. Supp. 1025,
1036 (E.D. La. 1982); American Dredging Co. v. Dutchy-
shyn, 480 F. Supp. 957, 960 (E.D. Pa. 1979); NRDC uv.
Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975).

B. To Meet the Law’s Broad Pollution Pre-
vention and Water Quality Goals, Con-
gress Adopted One Definition of “Waters
of the United States” To Govern All of the
Act’s Programs

Petitioners’ suggestion that wetlands such as theirs

fall outside of the term “navigable waters” is not only
contrary to the letter and history of the CWA, it would
frustrate Congress’ goals in enacting this comprehensive
law by excluding from CWA jurisdiction vast amounts of
ecologically valuable wetlands adjacent to the innumerable
tributaries not considered traditionally navigable waters.
This omission would adversely affect water quality, flood
control, and habitat for the traditionally navigable water

16

bodies lying downstream. It would also improperly narrow
other CWA provisions designed to address the full range of
water pollution problems identified by Congress, as these
other provisions of the law all rely on the same definition
waters in CWA § 502(7). These include CWA § 301, the
broad prohibition on discharging into waters without a
permit, the CWA § 402 permit program, which covers all
polluting discharges other than dredged or fill material,
and CWA provisions relating to water quality standards
(including CWA § 401), oil pollution prevention and
cleanup (CWA § 311), and toxic effluent standards and
prohibitions (such as CWA § 307). These regulatory pro-
grams administered by EPA all use what is essentially the
same definition of “waters of the United States” that the
Corps has relied on to implement the § 404 dredge and fill
permit program. Opinion of Attorney General Benjamin
Civiletti, 43 Op. Att’y Gen. 15."

Tying EPA’s and Corps’ hands so the agencies cannot
effectively protect water quality or eliminate discharges at
their source is not what Congress intended in 1972 when
it enacted its comprehensive, interstate solution for
@ perceived national crisis concerning water pollution.
Indeed, petitioners’ narrow interpretation is directly contrary
to Congress’ express intent that the term “navigable waters”

* “The term ‘navigable waters’... is a linchpin of the Act... ,
critica] not only to the coverage of 404, but also to the coverage of the
other pollution control mechanisms established under the Act... . Its
definition is not specific to 404, but is included among the Act’s general
provisions. It is, therefore, logical to conclude that Congress intended
that there be only a single judgment as to whether — and to what extent
— any particular water body comes within the jurisdictional reach of the
federal government's pollution control authority. We find no support
either in the statute or its legislative history for a conclusion that a
water body would have one set of boundaries for purposes of dredged or
fill permits under 404 and a different set for purposes of the other
pollution control measures in the Act.” 43 Op. Att'y Gen. No. 15, at 5
(Sept. 5, 1979).

17

be given the “broadest possible constitutional interpreta-
tion ”

C. The Court Should Not Disregard the
Agencies’ Definition.

Despite the clear intent of Congress to include adja-
cent wetlands within the definition of “waters of the
United States,” Petitioners assert that EPA’s and Corps’
interpretation raises constitutional concerns and therefore
the Court should interpret the statute without reference to
the agency’s regulation. See Solid Waste Agency of North-
ern Cook County v. United States Army Corps of Engineers
(SWANCC), 531 U.S. 159, 172-73 (2001) (“Where an
administrative interpretation of a statute invokes the
outer limits of Congress’ power, we expect a clear indica-
tion that Congress intended that result. This requirement
stems from our prudential desire not to needlessly reach
constitutional issues and our assumption that Congress
does not casually authorize administrative agencies to
interpret a statute to push the limit of congressional
authority.” (citation omitted)).

The agency regulations at issue in this case, however,
which are faithful to Congress’ intent to protect all navi-
gable waters and all of their tributaries, do not even
remotely invoke the outer edge of Congress’ power. The
agencies argued, and the reviewing courts in these cases
agreed, that the waters at issue here are all “adjacent” to
traditionally navigable waters or tributaries thereto.
Therefore, they are governed by 33 C.F.R. § 328.3(a)(7),
which applies to “[wjetlands adjacent to” waters such as
tributaries, id. § 328.3(a)(5), to “waters which are cur-
rently used, or were used in the past, or may be suscepti-
ble to use in interstate or foreign commerce,” id.
§ 328.3(aX1).

Notably, this case does not rely on the regulation at
issue in SWANCC, 33 C.F.R. § 328.3(aX3), which governs
“[ajll other waters ... the use, degradation or destruction

18

of which could affect interstate or foreign commerce ... ,”
i.e., waters which are not navigable themselves, tributary
to navigable waters, or wetlands adjacent to such waters.
While amici do not agree with the treatment of this
regulation in SWANCC, that regulation is not before the
Court under the facts of these cases, and its scope and
constitutionality is not at issue here.

Instead, because there is a direct connection between
adjacent wetlands and traditionally navigable waters
evident in both situations, these cases fall within the first
category of Congress’ authority under the Commerce
Clause to “reguleie the use of the channels of interstate
commerce.” United States v. Lopez, 514 U.S. 549, 558
(1995). This power generally “allows Congress to make
laws that protect the flow of commerce.” United States v.
Deaton, 332 F.3d 698, 706 (citing Heart of Atlanta Motel,
Inc. v. United States, 379 U.S. 241, 257 (1964) (upholding”
congressional power to bar racial discrimination in hotels
because this discrimination had a “disruptive effect ... on
commercial intercourse”) and United States v. Darby, 312
U.S. 100, 114-15 (1941) (upholding congressional power to
forbid interstate commerce in goods made by child labor
because traffic in such goods encourages “competition ...
injurious to the commerce”)).

This Court has repeatedly confirmed Congress’ power
over waters such as those at issue here without limit to
waters that are themselves navigable:

[I]t cannot properly be said that the constitu-

tional power of the United States over its waters

is limited to control for navigation. ... In truth

the authority of the United States is the regula-

tion of commerce on its waters. Navigability. .. .

is but part of this whole. Flood protection, water-

shed development, recovery of the costs of im-

provements through utilization of power are

likewise parts of commerce control... . [The] au-
thority is as broad as the needs of commerce.

19

United States v. Appalachian Electric Power Co., 311 U.S.
377, 426-27 (1940); see also Kaiser Aetna v. United States,
444 U.S. 164, 173 (1979) (“Reference to the navigability of
a waterway adds little if anything to the breadth of Con-
gress’ regulatory power over interstate commerce.”)
(Rehnquist, J.).

As discussed above, Congress intended that the CWA
protect water resources broadly. At a minimum, however,
by reducing the input of pollutants into waterways, the
Act prevents major blockages or other hazards in or
impairments to these waters, such as keeping the Cuya-
hoga River from catching fire, as it did in 1969, due to “a
slick of industrial waste.” SWANCC, 531 U.S. at 174
(2001) (Stevens, J., dissenting); see also Kernan v. Ameri-
can Dredging Co., 355 U.S. 426, 427 (1958) (detailing the
death of a seaman due to the ignition of petroleum pollut-
ants floating on the surface of the Schuylkill River in
Philadelphia).

Congress’ power to ensure that traditionally navigable
waters are free of such hazards cannot mean that it may
only restrict discharges of pollutants directly into those
waters. Discharges into the tributaries and wetlands
adjacent to those tributaries can be just as detrimental. As
the Sixth Circuit explained:

It would, of course, make a mockery of [Con-

gress] powers if its authority to control pollution

was limited to the bed of the navigable stream it-

self. The tributaries which join to form the river

could then be used as open sewers as far as fed-

eral regulation was concerned. The navigable
part of the river could become a mere conduit for
upstream waste.

United States v. Ashland Oil & Transp. Co., 504 F.2d 1317,
1326 (6th Cir. 1974); see also Oklahoma ex rel. Phillips v.
Atkinson Co., 313 U.S. 508, 523 (1941) (“It is clear that
Congress may exercise its control over the non-navigable
stretches of a river in order to preserve or promote commerce
on the navigable portions.”). Accordingly, the regulatory

20

-

definition of tributary is broad, as Congress intended, and
includes all waterbodies that flow into navigable waters.
Cf. United States v. Gerke, 412 F.3d 804, 805-06 (7th Cir.
2005) (“A stream can be a tributary; why not a ditch? A
ditch can 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
manmade counterpart.”).

With respect to adjacent wetlands in particular, the
Corps explained in 1977 that if adjacent wetlands are
polluted or otherwise filled so that they are unable to
function, that directly impacts the water quality in the
entire aquatic system:

The regulation of activities that cause water
pollution cannot rely on ... artificial lines [such

as the mean tide line and the ordinary high wa-

ter mark] ... but must focus on all waters that

together form the entire aquatic system. Water

moves in hydrological cycles, and the pollution of

this part of the aquatic system, regardless of

whether it is above or below an ordinary high

water mark or mean high tide line, will affect the
vater quality of the other waters within the
ayjuatic system.

42 Fed. Reg. 37,121, 37,128 (July 19, 1977).

Specifically, water quality in traditionally navigable
waters is potentially affected by filling or otherwise
polluting adjacent wetlands in three possible ways: (1)
pollutants enter a wetland and thus the hydrological
system and eventually make their way to traditionally
navigable waters, polluting them; (2) a filled or polluted
wetland is no longer able to remove pollutants from the
water that runs through it as it would normally do, which
leads to increased pollution in traditionally navigable
waters; and (3) a filled wetland no longer slows and retains
water and thus scouring occurs leading to increased
erosion and pollution in the traditionally navigable wa-
terways. See U.S. EPA, Functions and Values of Wetlands

21

1 (2001), at http://Awww.epa.gov/owow/wetlands/pdf/fun_val.
pdf (describing the primary functions of wetlands as water
storage and water filtration); United States v. Riverside
Bayview Homes, No. 84-701, Brief for the United States at 3
(“many wetlands purify water by holding nutrients and
recycling pollutants”); id. at 39 n.29 (providing an extensive
explanation of pollutant removal potential of wetlands).

As the record makes clear, the three wetlands at issue
in the Rapanos case have a demonstrated hydrological
connection to the navigable waters and could have any of
the three impacts on those waters discussed above were
they polluted or filled. Accordingly, they clearly fall within
Congress’ authority under the Commerce Clause.

With respect to the wetlands at issue in Carabell,
even if one assumes that there is no surface water connec-
tion between the wetlands and the ditch they directly
abut, that case too raises no significant constitutional
questions. The Carabell case is, at a minimum, an exam-
ple of the third category of water quality impacts resulting
from filling or otherwise polluting wetlands. The connec-
tion identified by the Corps was that if the Carabell
wetlands were filled, there would be a significant reduc-
tion in the retention of the surface water. This in turn
would mean increased scouring and erosion and thus
eventually increased pollution in the Great Lakes system.
Congress’ power under the Commerce Clause surely allows
it to prevent significant harms of this sort to traditionally
navigable waters.

In sum, the regulations at issue do not raise a “close”
constitutional question because they cover only wetlands
that are connected to traditionally navigable waters. This
Court should therefore follow its usual practice under
Chevron and conclude that, as Congress intended, the
statute unambiguously embraces adjacent wetlands
within the definition of “waters of the United States.”

In the alternative, if the Court finds that the intent of
Congress is not clear, it should afford deference to the
Corps’ inclusion of adjacent wetlands because it is a

22

reasonabe interpretation of the statute, as it did in
Riverside Bayview Homes. See 474 U.S. at 131-34. Defer-
ence to an agency’s determination is particularly appro-
priate when the agency, such as EPA and the Corps here,
administers a complex, technical statute. See, e.g., Pauley
v. BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991). These
regulations are particularly reasonable in that they do not
define the term “waters of the United States” to include
each and every possible waterbody of the United States
but rather, consistent with the extensive legislative
history discussed above, only those waters with an impact
on traditionally navigable waters.

Moreover, the inclusion of adjacent wetlands that are
separated by barriers from traditionally navigable waters
or tributaries to those waters is reasonable in that those
wetlands are likely to have at least a groundwater connec-
tion to the adjacent waterbody. See National Research
Council, Wetlands, Characteristics and Boundaries 156
(1995) (“Even water quality functions might not be sepa-
rate for isolated and other wetlands because of the grouna
water connections between isolated wetlands and surface
waters.”); R.W. Tiner, H.C. Bergquist, G.P. DeAlessio and
M.J. Starr, Geographically Isolated Wetlands: A Prelimi-
nary Assessment of Their Characteristics and Status in
Selected Areas of the United States § 2 (2002), at http://
wetlands.fws.gov/Pubs_Reports/isolated/report. htm (even
geographically-isolated wetlands can be “connected hy-
drologically via groundwater connections to other wet-
lands and to rivers and streams.”). In addition, including
adjacent wetlands separated by human-made barriers
prevents individuals and entities who have constructed or
who are tempted to construct barriers or the like between
their wetlands and a traditionally navigable water (or a
tributary thereto) from evading the Act’s requirements. Cf.
Motor Vehicle Manufacturer’s Ass’n v. State Farm Mutual
Automobile Ins. Co., 463 U.S. 29, 42 (1983) (“[A] reviewing
court may not set aside an agency rule that is rational, based
on consideration of the relevant factors and within the

23

scope of the authority delegated to the agency by the
statute.”).

IL Under the Facts of Both Cases, Affirmance is
Warranted Under United States v. Riverside
Bayview Homes.

A. Both Cases Are on All Fours With River-
side Bayview.

In Riverside Bayview, this Court upheld the authority
of EPA and the Corps to exercise regulatory jurisdiction
under the federal CWA over wetlands, like those at issue
here, that are “adjacent to” navigable bodies of water, but
that are “not regularly flooded by rivers, streams, and
other hydrographic features more conventionally identifi-
able as ‘waters.’” 474 U.S. at 131. The Court also held as a
matter of regulatory interpretation that adjacent wetlands
do not have to be flooded by surface waters to be included
in the regulatory definition of wetlands. Id. at 129-31. _
Although these areas were not connected to traditionally
navigable waters via surface hydrology, the District Court
found that the soils supported wetland “vegetation that
requires saturated soils for growth and reproduction,” that
the soils were saturated due to ground water, and that
“the wetland was adjacent to a body of navigable water,
since the area characterized by saturated soil conditions
and wetland vegetation extended beyond the boundary of
[the] property to Black Creek, a navigable waterway.” Id.
at 130-31. Notably, the District Court did not expressly
find a hydrological connection between the waters of either
Black Creek or Lake St. Clair and the ground water
responsible for soil saturation on the property in question.

The Court in Riverside Bayview declined to address,
as unnecessary to its decision in the case, whether the Act
covers “isolated” as well as adjacent wetlands. Jd. at 131
n.8. That distinction set the stage for the decision in
SWANCC, which answered the question in the negative as

24

regards intrastate, isolated ponds connected only by
migratory bird use. In SWANCC, however, this Court did
not disturb the fundamental holding in Riverside Bayview
that any waters that are adjacent to navigable waters
remain subject to CWA jurisdiction. See SWANCC, 531
U.S. at 167 (reiterating holding of Riverside Bayview as
“the Corps had § 404(a) jurisdiction over wetlands that
actually abutted on a navigable waterway”).

The wetlands at issue in both Rapanos and Carabell
are not like the “isolated” ponds in SWANCC but rather
are almost identical to the wetlands at issue in Riverside
Bayview. They all directly abut a tributary that feeds into
navigable waters and as such, have direct and tremendous
impacts on those waters. Because this Court upheld the
regulations in circumstances very similar to these, there is
no reason to change course.

B. The History of the 1977 Amendments Re-
lied on in Riverside Bayview Further Sup-
ports Affirmance.

When drawing a parallel to Riverside Bayview in
these cases, it is important that the Court acknowledge, as
it did in Riverside Bayview, Congress’ actions and state-
ments indicating that it clearly intended the phrase
“navigable waters” to include wetlands, without regard to
artificial geographic limitations, when passing the 1977
amendments. See Riverside Bayview, 474 U.S. at 137
(“Although we are chary of attributing significance to
Congress’ failure to act a refusal by Congress to overrule
an agency’s construction of legislation is at least some
evidence of the reasonableness of that construction,
particularly where the administrative construction has
been brought to Congress’ attention through legislation
specifically designed to supplant it.”); cf. Minnehaha Creek
Watershed Dist. v. Hoffman, 597 F.2d 617, 626 (8th Cir.
1979) (relying on 1977 legislative history to determine
regulatory scope of Section 404 as originally passed).

25

In 1977, the regulatory battle over the jurisdiction of
the Act’ was reflected by two competing approaches to
amending the 404 program considered by Congress. As it
had in 1972, the broader approach won out.

The first approach was that taken in the bill reported
out of the Senate Environment and Public Works Commit-
tee, which sought to address various concerns regarding
the implementation of the 404 program, especially work-
load issues. Most importantly the Committee made clear
that “[t]he committee amendment is designed to reaffirm
this intent and dispel the widespread fears that the
program is regulating activities that were not intended to
be regulated.” S. Rep. No. 95-370, 95th Cong., Ist Sess.
(1977), at 74-75.

In response, during the Senate’s floor debate on the
1977 amendments, Senator Lloyd Bentsen of Texas offered
an amendment to the Environment and Public Works
Committee’s bill that would have amended the Act to limit
the scope of § 404 to only traditionally navigable waters
and their adjacent wetlands. The Congressional Record
contains a long debate held before the full Senate voted on
the Bentsen plan to narrow the scope of the CWA protec-
tions for wetlands and other waters from discharges of
dredge and fill material. It is clear from the debate that all
agreed that the scope of the Act since 1972 had reached all
waters of the United States, and that bill as proposed
would not reduce that scope of protection.

As Senator Bentsen himself stated: “The committee
has failed to recommend any reduction in the scope of the
§ 404 permit program. ... The program would still cover all
waters of the United States, including small streams, ponds,

isolated a and intermittently flowing gullies.”
123 Cong. Rec. 26,711 (Aug. 4, 1977). In supporting this

* See generally Sam Kalen, Commerce to Conservation: The Call for
a National Water Policy and the Evolution of Federal Jurisdiction Over
Wetlands, 69 N. D. L. REV. 873, 886-905 (1993).

amendment, Senator John Tower of Texas referred to
NRDC v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975) -
in which NRDC argued and the district court agreed that
the Corps’ cramped reading of “navigable waters” was a
failure to implement the full statutory mandate of the
CWA — when he stated: “A court decision, coupled with an
administrative decision, is causing us to be faced with a
regulatory scheme which covers not just the rivers of the
Nation but all surface waters and wetlands of the United
States.” 123 Cong. Rec. 26,721-22 (Aug. 4, 1977).

Opponents of Senator Bentsen’s amendment readily
acknowledged that the Environment and Public Works
Committee’s bill maintained the broad jurisdiction enacted
in 1972, and argued why Senator Bentsen’s amendment to
reduce jurisdiction of the Act should be rejected. In par-
ticular, Senator Gary Hart of Colorado spoke at length on
the shortcomings of the approach advocated by Senator
Bentsen:

The Congress can capitulate. The Congress can

abandon the national interest. The Congress can

permit activities of a dredge-and-fill nature to go
forward on those small streams, marshes, wet-
lands, and swamps which will make their way
into the bigger waterways of this country and
have a tremendous adverse effect on the people
of this country and on their welfare, on their
crops, on many of their activities. Or we can es-
tablish a program of the sort the committee has
established, which will protect all of those water
systems; which will protect all] of the elements of
those systems, which will not permit dredge and

fill activities to deposit very toxic materials into

those waterways.

123 Cong. Rec. 26,713 (Aug. 4, 1977). Likewise, Senator
John H. Chafee of Rhode Island spoke passionately about
the value of wetlands for the whole country and why
Senator Bentsen’s proposal for eliminating broad federal
protection for intrastate waters should be rejected:

27

I think it is important to bear in mind that
marshes and wetlands are not a parochial re-
sponsibility or an asset; they are not a local as-
set; they are a national asset. They are not just
confined within boundaries which happen to ex-
ist for any one of our States. The wetlands per-
form a vital part of the food chain for our
wildlife. .. . I should like to stress that these wet-
lands are not something that belong to Louisiana
or Rhode Island or Michigan or Minnesota. They
belong to all the citizens. They are much too
valuable to be abandoned to some unstable,
fragmentary kind of protection. We must bear in
mind that these wetlands are part of this larger
system. They are not independent. They do not
belong only to Minnesota, so that if Minnesota
wants to fill them in, it is too bad for the Nation.
We have to remember that it affects everything
else downstream. There is a linkage between
wetlands and streams and estuaries and rivers,
and they all must live in harmony, through wise
management.
123 Cong. Rec. 26,716-17 (Aug. 4, 1977). Finally, Senator
Howard Baker of Tennessee argued that both the Envi-
ronment and Public Works Committee and courts recog-
nized and were effectuating the common scientific
understanding of hydrological linkage between all types of
waters:
Unless Federal jurisdiction is uniformly imple-
mented for all waters, dischargers located on
nonnavigable tributaries upstream from the lar-
ger rivers and estuaries would not be required to
comply with the same procedural and substan-
tive standards imposed upon their downstream
competitors. Thus, artificially limiting the jurisdic-
tion can create a considerable competitive disad-
vantage for certain discharges. ... It is important
to understand that toxic substances threaten the
aquatic environment when discharged into small

28

streams or into major waterways. Similarly,
pollutants are available to degrade water and at-

tendant biota when discharged in marshes and
swamps, both below and above the mean and or-
dinary high water marks. . . . Continuation of the
comprehensive coverage of this program is essen-
tial for the protection for the aquatic environ-
ment. The once seemingly separable types of
aquatic systems are, we now know, interrelated
and interdependent. We cannot expect to pre-
serve the remaining qualities of our water re-
sources without providing appropriate protection
for the entire resource.

123 Cong. Rec. 26,718 (Aug. 4, 1977) (emphasis added).

Senator Bentsen’s amendment was ultimately defeated by

a vote of the full Senate.

The fact that a later Congress debated the value of
wetlands when determining the scope of its jurisdiction
with respect to an earlier enactment should be afforded
“persuasive value” because “[h]ere we have Congress at its
most authoritative, adding complex and sophisticated
amendments to an already complex and sophisticated act.
Congress is not merely expressing an opinion ... but is
acting on what it understands its own prior acts to mean.”
Bell v. New Jersey, 461 U.S. 773, 784-785 & n.12 (1983)
(quoting Mount Sinai Hosp. v. Weinberger, 517 F.2d 329,
343 (5th Cir. 1975)). Various Members’ remarks praising
the valuable biological and hydrologic contributions of
wetlands, particularly when made during debate over
geographic jurisdiction, thus cannot be squared with
artificial geographic limits suggested by Petitioners.

In addition to the clear statements of Congress de-
scribing the broad jurisdiction of the Act, Representative
Don H. Clausen of California referred in his comments to a
Library of Congress publication entitled “Case Law Under
the Federal Water Pollution Control Act Amendments of

=

1972.” 123 Cong. Rec. 38,976 (Dec. 15, 1977). This docu-
ment discusses NRDC v. Callaway and other cases reach-
ing similar conclusions on the scope of Section 404. As this
Court has recognized when considering a different section
of the CWA, Representative Clausen’s statement and the
Library of Congress litigation summary to which he
referred demonstrate Congressional awareness that it was
rejecting an effort to legislatively overrule that case law
interpreting Congressional intent reflecting a very broad
jurisdiction of the CWA. See Chemical Manufacturers
Ass’n v. NRDC, 470 U.S. 116, 128 & n.17 (1985).

Finally, Congressional support for broad geographic
jurisdiction is reflected in one of the amendments to
Section 404 that Congress did pass in 1977. The addition
of subsection (g) to Section 404 thoroughly repudiates any
limitation of the Section to traditionally navigable waters
as the Petitioners would assert. Section 404(g) provides for
state assumption of the Section 404 program under certain
conditions. However, Section 404(g)(1) expressly excludes
state assumption of jurisdiction over traditionally naviga-
ble and tidal waters, “including wetlands adjacent
thereto.” 33 U.S.C. § 1344(g)(1). Had Congress intended to
limit Section 404 to traditionally navigable waters in the
first place, this later addition of an option for state as-
sumption of regulation over all other areas would be
meaningless because there would be nothing to assume.
Section 404’s geographic scope therefore must be con-
strued to avoid rendering Section 404(g) meaningless or
superfluous.

30

CONCLUSION

The judgment of the Court of Appeals in both cases
should be affirmed.

Respectfully submitted,
Kim DIANA CONNOLLY ROBERT W. ADLER
UNIVERSITY OF SOUTH Amy J. WILDERMUTH*

CAROLINA SCHOOL OF LAW UNIVERSITY OF UTAH
Main & Greene Streets S.J. QUINNEY COLLEGE OF LAW

Coumbia, SC 29208 332 S. 1400 East, Room 101
(803) 777-6880 Salt Lake City, UT 84112
(801) 581-6833

Counsel for Amicus Curiae
*Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A27. Public record. Not legal advice.