Amicus Curiae Brief — Rapanos v. United States

JOHN A. RAPANOS, et ul.,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

JUNE CARABELL, et ul.,

Petitioners,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES ('‘OURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF ENVIRONMENTAL LAW INSTITUTE

AS AMICUS CURIAE SUPPORTING RESPONDENTS

LESLIE CAROTHERS SETH P. WAXMAN

JAY E. AUSTIN Counsel of Record

D. BRUCE MYERS JR. LOUIS R. COHEN

LISA GOLDMAN JAMES R. WRATHALL

ENVIRONMENTAL LAW CAREY BOLLINGER

INSTITUTE RACHEL Z. STUTZ

2000 L Street, N.W. TODD HETTENBACH

Washington, DC 20036 WILMER CUTLER PICKERING

(202) 939-3800 HALE AND DORR LLP

2445 M Street, N.W.

Washington, DC 20037

(202) 663-6000

TABLE OF AUTHORITITIE S. ———

INTEREST OF AMICUS CURIAE

TABLE OF CONTENTS

STATEMENT OF THE CASE.

SUMMARY OF ARGUMENT

II.

TECTED BY THE CLEAN WATER ACT INCLUDE

ADJACENT WETLANDS WITH FUNCTIONAL

CONNECTIONS TO TRADITIONAL NAVIGABLE

WATERS.

A. Scope And Purposes Of The Clean Water

Act

B. The Adjacent Wetlands In These Cases

Are “Waters Of The United States” Under

Riverside Bayview And SWANCC

C. The Court Should Defer To The Corps’ In-

terpretation.......

D. Petitioners’ Proposed Interpretation Has

No Support In The Statute And Could

Nullify Congress’s Comprehensive Design.

CONGRESS HAS AUTHORITY TO PROTECT

WETLANDS ADJACENT TO TRIBUTARIES OF

TRADITIONAL NAVIGABLE WATERS

14

A. Jurisdiction Over Wetlands Adjacent To

Tributaries Of Traditional Navigable Wa-

ters Protects Channels Of Commerce

15

1. Adjacent Wetlands Provide Flood

Control Functions Necessary To

Navigability

—15

ii

TABLE OF CONTENTS—Continued

Page

2. Adjacent Wetlands Protect Tradi-

tional Navigable Waters From Pollu-

tion And Injurious Uses 17

B. Pollution And Destruction Of Wetlands

Adjacent To Tributaries Of Traditional

Navigable Waters Have Substantial Ef-

fects On Interstate Commerce 20

1. The Clean Water Act Regulates Eco-

nomic Activity Like The Activities

Here 20

2. Pollution And Destruction Of Adja-

cent Wetlands Have Substantial Ef-

fects On Interstate Commerce 21

3. Protection Of Adjacent Wetlands Is

Necessary To The Clean Water Act’s

Regulatory Scheme

III. JURISDICTION TO PROTECT ADJACENT WET-

LANDS IS NECESSARY TO THE FEDERAL-

STATE FRAMEWORK CREATED BY CONGRESS

AND CONSISTENT WITH PRINCIPLES OF FED-

ERALISM

A. Congress Provided For State Regulation

B. Wetlands Protection Does Not Impair

Traditional State Functions ....

C. Federal Authority Is Necessary To Ad-

dress This National Problem

CONCLUSION

N

S 8 8 RS

TABLE OF AUTHORITIES

CASES

Page(s)

California Coastal Commission v. Granite Rock

Co., 480 U.S. 572 (1987). 28

Caminetti v. United States, 242 U.S. 470 (1917) 17

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

Council, Inc., 467 U.S. 837 (1984) 11

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building & Construction Trades Council, 485

U.S. 568 (1988) 14

FERC v. Mississippi, 456 U.S. 742 (1982) .. 20

Gilman v. City of Philadelphia, 70 US. (3 Wall.)

713 (1866) —

Gonzales v. Raich, 125 S. Ct. 2195 — —ůů—ů passim

Harris v. United States, 536 U. S. 545 (2002)...... 14

Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241 (1964) N 20

Hodel v. Indiana, 452 U.S. 324 (1981) . 25

Hodel v. Virginia Surface Mining & Reclamation

Ass n, 452 U.S. 264 (1981)... : 17, 20, 21, 28, 30

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

(1987) 7, 26

Kernan v. American Dredging Co., 355 US. 426

(1958). „

Middlesex County Sewerage ‘Authority v. National

Sea Clammers Ass n, 453 U.S. 1 (1981) 7

Milwaukee v. Illinois, 451 U.S. 304 (1981). 7

Minnesota v. Mille Lacs Band of Chippewa Indi-

ans, 526 U.S. 172 (1999). 28

Natural Resources Defense Council v. Callaway,

392 F. Supp. 685 (D. D. C. 1975) 8

New York v. United Sates, 505 U.S. 144 (1992).. 27

Oklahoma ex rel. Phillips v. Guy F. Atkinson, Co.,

313 U.S. 508 (1941).. 4, 15, 16

Perez v. United States, 302 U.S. 146 (1971) — 19, 25

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

531 U.S. 159 (2001). passim

United States v. Appalachian Power Co., 311.US.

377 (1940) 15

United States v. Ashland Oil & Transportation Co.,

504 F.2d 1317 (6th Cir. 1974) 16, 17

United States v. Bass, 404 U.S. 336 (1971). .. .. 14

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

2003). wee 1T

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

804 (7th Cir. 2005) 18, 29

United States v. Mead Corp., 533 U.S. 218 (2001)... 11

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

174 U.S. 690 (1899) —.15

United States v. Riverside Bayview Homes, Inc.,

474 US. 121 (1985) passim

Wickard v. Filburn, 317 U.S. 111 (1942) 19

STATUTES AND REGULATIONS

16 U.S.C. 88 1531-1544 1 7

33 U.S.C. § 1251 = 3, 7, 26, 27

33 U.S.C. § 1341.... — —

33 U.S.C. § 1342. 10, 13

33 U.S.C. § 1362 2,8

42 U.S.C. 58 300f to 3003-26 7

42 U.S.C. 58 7401-7671 7

33 C. F. R. § 209.120. — 10

33 C. F. R. § 328. 3a) (7). 4

pais 20

7

40 C. F. R. pts. 403-610..

40 Fed. Reg. 31825

LEGISLATIVE MATERIALS

S. Rep. No. 92-414 (1972), reprinted in 1972

U.S.C.C.A.N. 3668 8, 28

N

TABLE OF AUTHORITIES—Continued

Page(s)

EPA’s Clean Air Budget and the Corps of Engi-

neers Wetlands Budget: Hearing Before the

Subcommittee on Clean Air, Wetlands, Private

Property, and Nuclear Safety of the Senate

Committee on Environment and Public

Works, 106th Cong. (2000) (testimony of Mi-

chael Davis, Deputy Assistant Secretary of the

Army for Civil Works) l

Inconsistent Regulation of Wetlands and Other

Waters: Hearing Before the Subcommittee on

Water Resources and Environment of the

House Committee on Transportation and In-

frastructure, 108th Cong. (2004) —

123 Cong. Rec. 38994 (1977) 22

ADMINISTRATIVE AND EXECUTIVE MATERIALS

43 Op. Att’y Gen. 197 (Sept. 5, 1979). ane

OTHER AUTHORITIES

Braddock, Theda, Wetlands: An Introduction to

Ecology, the Law, and Permitting (1995). 16

Dahl, Thomas E. & Allord, Gregory J., History of

Wetlands in the Conterminous United States,

United States Geological Survey Water Supply

Paper 2425, available at http://water.usgs.gov/

nwsum/WSP2425/history.html (last modified

Mar. 7, 1997). —

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

the Conterminous United States 1986 to 1997

(2000) 21

Elder, John F. & Goddard, Gerald L., Sediment and

Nutrient Trapping Efficiency of a Constructed

Wetland Near Delavan Lake, Wisconsin, 1993-

1995, available at http-//wi.water.usgs.gov/

pubs/F'S-232-96/F'S_232-96.pdf —

vi

TABLE OF AUTHORITIES—Continued

Fact Sheet: President Announces Wetlands Initia-

tive on Earth Day (2004), available at

http://www.whitehouse.gov/news/releases/2004

/04/20040422-1.html

Page(s)

10

Hirsh, Tim, Katrina Damage Blamed on Wetland

Loss, available at http://news.bbe.co.uk/2/hi/

americas/4393852.stm (last updated Nov. I,

2000)

10

Houck, Oliver A. & Rolland, Michael, Federalism in

Wetlands Regulation: A Consideration Of

Delegation Of Clean Water Act Section 404

And Related Programs To The States, 54 Md.

L. Rev. 1242 (1995)

Hulsey, Brett & Tichenor, Geoff, A Call for Flood

Security Through Wetland Protection, Na-

tional Wetlands Newsletter 3-4 (May-June

2000)

Kusler, Jon A., et al., State Wetland Regulation:

Status of Programs and Emerging Trends 1

(Ass’n of State Wetland Managers 1994) et al.,

State Wetland Regulation: Status of Programs

and Emerging Trends 1 (Ass’n of State Wet-

land Managers 1994).

Meyer, Judith L., et al., Where Rivers Are Born:

The Scientific Imperative for Defending Small

Streams and Wetlands (2003), available at

http ] W W -. americanrivers. org/site / DocServer /

WhereRivers Are Bornl. pdf.

Mitsch, William J. & Gosselink, James G., Wetlands

(2d ed. 2000)

16

16

Morgan, Cynthia & Owens, Nicole, Benefits of Wa-

ter Quality Policies: The Chesapeake Bay, 39

Ecological Economics 271 (2001)

National Academy of Science, Clean Coastal Wa-

ters: Understanding and Reducing the Effects

of Nutrient Pollution (2000)

vii

TABLE OF AUTHORITIES—Continued

Page(s)

National Centers for Coastal Ocean Science, Hy-

poxia in the Gulf of Mexico, at http//oceanser

vice.noaa.gov/products/pubs_hypox.htm! (last

visited Jan. 5, 2006) 23

National Marine Fisheries Service, Fisheries of the

United States: 2004 (2005) 23

Notes of Debates in the Federal Convention of 1787

(W.W. Norton & Co. ed., 1966) 29

Office of Technology Assessment, Wetlands: Their

Use and Regulation (1984) 23, 24, 25

Scodari, Paul F., Wetlands Protection: The Role of

Economics (1990) 16, 23, 24

Thibodeau, F.R. & Ostro, B.D., An Economic

Analysis of Wetlands Protection, J. Environ.

Management (1981) 22

US. Fish & Wildlife Service, 2001 National Survey

of Fishing, Hunting & Wildlife Associated

Recreation (2002) 25

United States Army Corps of Engineers, Annual

Flood Damage Report to Congress for Fiscal

Year 2008, this. 4 & 5, available at

http://www.usace.army.mil/inet/functions/cw/ce

cwe/flood2003/ 22

United States Army Corps of Engineers, Depart-

ment of the Army Permit Evaluation, File No.

99-250-002-1 22

United States Department of Agriculture, Eco-

nomic Research Service, “Dead Zone” in the

Gulf: Addressing Agriculture’s Contribution,

Amber Waves (Nov. 2003) 23

United States Environmental Protection

Functions and Values of Wetlands, EPA 843-

F-01-002c (Sept. 2001), available at http-/

www.epa.gov/owow/wetlands/pdf/fun_val.pdf.............. 15

viii

TABLE OF AUTHORITIES—Continued

United States Environmental Protection Agency,

Threats to Wetlands, Office of Wetlands, Ocean

& Watersheds, EPA 483-F-01-002d (Sept.

2001), available at http://www.epa.gov/owow/

Page(s)

wetlands/pdf/threats. pdf

Wood, Lance D., Don’t Be Misled: Clean Water Act

Jurisdiction Extends to Ali Non-Navigable

Tributaries of the Traditional Navigable Wa-

ters and to Their Adjacent Wetlands, 34 ELR

10187 (Feb. 2004) 1

12, 13

INTEREST OF AMICUS CURIAE

The Environmental Law Institute (ELI) is an inde-

pendent, nonpartisan education and policy research center

dedicated to environmental protection through improved

environmental law and governance.' Over 3,000 environ-

mental professionals from law firms, government, industry,

public interest organizations, and academia support ELI

through its Associates Program.

Founded in 1969, at the dawn of the modern era of envi-

ronmental law, ELI has long been a leader in the areas of

water quality and wetlands protection. ELI has undertaken

extensive research (often at the request of the U.S. Envi-

ronmental Protection Agency or the U.S. Army Corps of

Engineers) to promote innovative and cost-effective legal

and policy approaches. In particular, ELI has exhaustively

studied and reported on aspects of the collaborative federal-

state framework that governs wetlands conservation. Since

1979, ELI has published the National Wetlands Newsletter,

now the preeminent journal on wetlands policy. ELI has

actively participated in the implementation of the Clean Wa-

ter Act since its enactment in 1972.

ELI has concluded from its long-standing involvement

in wetlands law and policy that the current comprehensive

federal program is absolutely essential to the health of our

Nation’s waters. Because of the profound threat these cases

pose to the framework established by Congress to protect

water resources nationwide, ELI for the first time in its 36-

year history is participating in judicial proceedings as an

amicus curiae.

STATEMENT OF THE CASE

In these consolidated cases, the U.S. Court of Appeals

for the Sixth Circuit upheld federal Clean Water Act juris-

diction over (a) wetlands sharing a surface water connection

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

party and no person or entity, other than amicus and its counsel, made

any monetary contribution to its preparation or submission. Letters from

the parties consenting to the filing of this brief are on file with the Clerk.

with tributaries of navigable-in-fact waterways’ (Rapanos)

and (b) wetlands separated from such tributaries only by a

man-made berm (Carabeli). Both cases involve “adjacent

wetlands” under regulations promulgated by the U.S. Army

Corps of Engineers (Corps) pursuant to Section 404 of the

Clean Water Act (Act). Section 404 does not prohibit all fill-

ing of wetlands; rather, it requires that a permit be obtained

prior to any filling, setting forth reasonable protection and

mitigation measures. Permits are liberally granted by the

Corps, and most smaller projects are permitted by rule

rather than by individual applications.

The Sixth Circuit held in these cases that the Corps

reasonably interpreted “waters of the United States” to en-

compass wetlands adjacent to tributaries of navigable-in-fact

waters, including the wetlands that petitioners here pro-

posed to fill. These decisions were based on the plain lan-

guage, express purpose, and legislative history of the Clean

Water Act as construed in the unanimous decision of this

Court in United States v. Riverside Bayview Home , Inc.,

474 U.S. 121 (1985) (Riverside Bayview). There, as in the

cases below, “the Corps’ ecological judgment about the rela-

tionship between waters and their adjacent wetlands” re-

flected a nexus sufficient to confer statutory jurisdiction to

protect the adjacent wetlands. Id. at 134.

The Sixth Circuit’s decisions also were in full accord

with this Court’s opinion in Solid Waste Agency of Northern

Cook County v. United States Army Corps of Engineers,

531 U.S. 159 (2001) (SWANCC), which held that the Clean

Water Act did not extend to abandoned gravel pits where

the sole basis for jurisdiction was their use by migratory

birds. Id. at 171-172. Unlike the isolated ponds addressed in

SWANCC, the types of adjacent wetlands addressed in

? Amicus uses the terms “navigable-in-fact” and “traditional navige-

ble waters” to connote waters that are actually navigable or are

ble to being so made. The term “navigable waters,” as used in the Clean

Water Act, is defined to mean “waters of the United States” and is a more

ive term of art that includes waters that are not navigable-in-

fact. See 33 U.S.C. § 1362(7).

these cases have physical, biological, and chemical connec-

tions with navigable-in-fact waters that bring them within

the “waters of the United States” covered by the Act. Be-

cause the statutory question is conclusively resolved under

this Court’s prior decision in Riverside Bayview, the pri-

mary issue of law presented in these cases is whether juris-

diction to protect adjacent wetlands is within the power

granted to the federal government under the Commerce

Clause of the U.S. Constitution.

SUMMARY OF ARGUMENT

I. Congress intended to include within “waters of the

United States” those wetlands that have functional connec-

tions sufficient to affect the “chemical, physical, and biologi-

cal integrity” of our Nation’s waters. See 33 U.S.C.

§ 1251(a). As the Court held in Riverside Bayview, the

Corps’ regulations broadly interpreting “waters of the

United States” to encompass adjacent wetlands were rea-

sonable and were ratified by Congress in the 1977 Clean Wa-

ter Act Amendments. 474 U.S. at 132-133, 137. The Court

again should defer to the judgment of the Corps, which rea-

sonably has determined that the categories of adjacent wet-

lands at issue here are within the scope of jurisdiction in-

tended by Congress under the Act. Petitioners’ arguments

that Congress intended to limit jurisdiction only to wetlands

abutting or directly flowing into traditional navigable waters

conflict with Congress’s express legislative purpose and

with the Corps’ administrative construction of the Act that

Congress acquiesced to in 1977. Id. at 137.

SWANCC does not support a contrary conclusion.

Unlike the isolated ponds in SWANCC, the Corps’ jurisdic-

tion over adjacent wetlands that have functional connections

with traditional navigable waters is necessary to protect and

maintain the chemical, physical, and biological integrity of

the waters of the United States, as Congress mandated un-

der the Act.

II. Congress has Commerce Clause authority to pro-

tect wetlands adjacent to navigable-in-fact waters and their

tributaries. The power to protect navigability is a funda-

+

mental attribute of federal authority under the Commerce

Clause, and adjacent wetlands provide critical flood-control

functions that are vital to ensure continued navigability of

our Nation’s waters. See, e. g., Oklahoma ex rel. Phillips v.

Guy F. Atkinson, Co., 313 U.S. 508, 525 (1941). Commerce

Clause authority over adjacent wetlands also is necessary to

protect traditional navigable waters against pollution and

similar injuries. Jurisdiction over wetlands that have a sur-

face water connection through tributaries to navigable-in-

fact waters (as the wetlands in Rapanos do) is plainly impor-

tant to this end. Even where the hydrological connection

may be altered by a man-made berm (as in Carabell), adja-

cent wetlands absorb water and sequester pollutants that

would otherwise flow into tributaries and traditional navi-

gable waters. Federal jurisdiction does not depend on a

showing in each case that alteration or destruction of a par-

ticular wetland poses a threat to particular navigable-in-fact

waters. Congress has the power to adopt, and to delegate to

the Corps the power to adopt, rational rules giving the

Corps the jurisdiction generally necessary to protect navi-

gable waters. The Corps then may constitutionally assert

such jurisdiction without a showing of a specific threat in

each particular case.

Congress has constitutional power to regulate destruc-

tion and pollution of adjacent wetlands for the additional

reason that these are economic activities that have substan-

tial effects on interstate commerce. See, e. g., Gonzales v.

Raich, 125 S. Ct. 2195 (2005). The Clean Water Act regu-

lates economic activities, and the activities regulated in

these cases—filling of wetlands for commercial develop-

ment—are inherently economic. The Rapanos petitioners

planned to construct a shopping center and build roads on

the wetlands; the Carabell petitioners planned to construct a

large, multi-family condominium development. It is mani-

festly rational to conclude that the pollution and destruction

of wetlands resulting from these types of economic activities

have substantial effects on interstate commerce. The issue

is not whether these effects can be shown in each instance in

which jurisdiction is asserted, but whether the class of ac-

5

tivities, rationally defined, has a substantial effect in the ag-

gregate. Moreover, the Corps’ “adjacent wetlands” regula-

tion is a critical component of the Clean Water Act’s com-

prehensive regulatory scheme that, if narrowed, would nul-

lify Congress’s purpose. See Raich, 125 S. Ct. at 2209.

III. Federal jurisdiction over adjacent wetlands is nec-

essary to the federal-state framework that Congress has en-

acted and it is wholly consistent with principles of federal-

ism. To address the national problem of protecting water

resources, Congress determined that minimum federal stan-

dards and oversight are necessary. Congress provided for

the States to play a primary role in implementing the federal

wetlands program if they so choose. But Congress did not,

as petitioners argue, divide jurisdiction between the federal

and state governments based on the proximity of wetlands

to navigable-in-fact water. Nor is there a basis for petition-

ers’ arguments that wetlands protection is a form of land use

regulation intruding on States’ traditional powers. Histori-

cally, most States have not regulated wetlands, and in any

case this Court has long upheld the primary role of the fed-

eral government in preserving environmental resources.

Comprehensive federal jurisdiction here is wholly consistent

with principles of federalism as articulated by our Nation’s

founders, who recognized that the federal government must

be and is empowered to address problems that can only be

solved at the national level.

ARGUMENT

Wetlands are critical to the health of traditional naviga-

ble waters and are of great value to the people who depend

upon these waters for their livelihoods. Wetlands filter and

purify water, absorb floodwaters, serve as storm buffers,

provide habitat for economically valuable fish and riparian

wildlife, and recharge groundwater supplies.

If the Clean Water Act is to remain effective, the juris-

dictional definition of “waters of the United States” must be

understood, as Congress intended, to include not only tradi-

tional navigable waters and their tributaries, but also the

wetlands that protect and enhance them—whether those

6

wetlands directly abut such waters or otherwise have func-

tional connections with them. Whereas wetlands were once

viewed as “bogs” and “swamps” suitable only for draining or

filling, improved scientific understanding of their ecological

and economic value has informed Congress’s determination

that they must be protected under the Act. From the mid-

1950s to the mid-1970s, an estimated 550,000 acres of wet-

lands were lost per year in the continental United States.

The decade following passage of the Act saw this rate cut in

half, and as of 2001, the rate of loss stood at only 60,000

acres per year.

Petitioners’ arguments against federal jurisdiction in

these cases would, if adopted by the Court, defeat Con-

gress’s intent in passing the Clean Water Act. Petitioners

ask the Court to draw an arbitrary line for federal juriscic-

tion that would include only wetlands physically abutting or

directly flowing into traditional navigable waters. Such a

line would be ineffective and has no basis in the statute. It

would exclude the vast majority of critically important wet-

lands from coverage under the Act—making them immedi-

ately vulnerable to destruction or pollution. Wetlands

across the country could again be lost at an accelerated rate,

leaving navigable waterways more polluted, rendering popu-

lations more susceptible to flooding, reducing the sustain-

ability of economically valuable fisheries and wildlife, and

potentially jeopardizing drinking water supplies.

Moreover, the jurisdictional provisions at issue in these

cases are the foundation for all of the Clean Water Act pro-

grams, including the regulation of “point source” discharges

of industrial pollution. If, as petitioners seek, this Court an-

> Thomas E. Dahl & Gregory J. Allord, History of Wetlands in the

Conterminous United States, United States Geological Survey Water

Supply Paper 2425, available at http//water.usgs.gov/nwsum/WSP2425/

history html (last modified Mar. 7, 1997).

United States Environmental Protection Agency, Threats to Wet-

lands, Office of Wetlands, Ocean & Watersheds, EPA 483-F-01-002d

(Sept. 2001), available at http//www.epa.gov/owow/wetlands/pdf/threats

pdf.

7

nounces new limitations on the scope of the Act, essentially

re-dividing jurisdiction between federal and state govern-

ments, it would become impossible to achieve the compre-

hensive restoration of our Nation’s waters that Congress

intended. And a holding by this Court that Congress is

powerless under the Constitution to protect the wetlands in

these cases would call into question the validity of other dec-

ades-old environmental laws, also enacted under Congress’ 8

Commerce Clause authority, that protect clean air, —.

water, endangered species, and other natural resources.

There is, however, no valid basis for any such holding, as we

now explain.

L “WATERS OF THE UNITED STATES” PROTECTED By THE

CLEAN WATER ACT INCLUDE ADJACENT WETLANDS WITH

FUNCTIONAL CONNECTIONS TO TRADITIONAL NAVIGABLE

WATERS

A. Scope And Purposes Of The Clean Water Act

Congress passed the Clean Water Act in 1972 to “re-

store and maintain the chemical, physical, and biological in-

tegrity of the Nation’s waters.” 33 U.S.C. § 12510). Prior

to 1970, responsibility for regulation of water pollution had

largely been left to state and local authorities. See Middle-

sex County Sewerage Auth. v. National Sea Clammers

Ass n, 453 U.S. 1, 11 (1981). By 1972, however, water pollu-

tion had become a national crisis; the state-led system

proved to be “ineffective,” id., and “inadequate in every vital

espect,” S. Rep. No. 92-414 (1972), at 7, reprinted in 1972

U.S.C.C.A.N. 3668, 3674, cited in Milwaukee v. Illinois, 451

U.S. 304, 318 (1981). In response, Congress “establish{ed] an

all-encompassing program of water pollution regulation,”

applicable to “virtually all bodies of water.” International

Paper Co. v. Ouellette, 479 U.S. 481, 492 (1987) (citing Mil-

waukee, 451 U.S. 304). Congress recognized that protection

of the integrity of aquatic ecosystems demanded broad fed-

Eg, Clean Air Act, 42 U.S.C. §§ 7401-7671q; Safe Drinking Water

Act, 42 U.S.C. 8 300f to 300j-26; Endangered Species Act, 16 U.S.C.

$§ 1531-1544.

8

eral authority to control pollution, stating: “Water moves in

hydrologic cycles and it is essential that discharge of pollut-

ants be controlled at the source.” S. Rep. No. 92-414, at 77

(1972).

To this end, Congress redefined the phrase “navigable

waters,” which had been used in prior water pollution laws,

to extend to all “waters of the United States,” 33 U.S.C.

§ 1362(7). This redefinition reflected Congress’s intent to

include within federal jurisdiction some non-navigable wa-

ters. See Riverside Bayview, 474 U.S. at 133; see also Natu-

ral Res. Def. Council v. Callaway, 392 F. Supp. 685, 686

(D.D.C. 1975) (Congress intended to extend jurisdiction over

the Nation’s waters to “the maximum extent permissible

under the Commerce Clause of the Constitution.”). As this

Court held in Riverside Bayview with respect to the same

category of “adjacent wetlands” at issue here, Congress ac-

quiesced in this expansive definition of federal jurisdiction

when it passed extensive amendments to the Clean Water

Act in 1977. 474 U.S. at 136-138.

Congress’s intention to protect all U.S. waters—

including wetlands—is properly reflected in the Corps’ “ad-

jacent wetlands” regulations. The Corps defines “waters of

the United States” to include not only traditional navigable

waters and their tributaries, see e. g., 33 C. F. R. § 328.3(a)(1)-

(4),(5), but also “(w]etlands adjacent to” any such waters, id.

§ 328.3(a)(7). The regulations clarify that federal jurisdiction

is not defeated by the presence of obstructions that “sepa-

rate” wetlands from otherwise adjacent waters: “The term

adjacent means bordering, contiguous, or neighboring. Wet-

lands separated from other waters of the United States by

man-made dikes or barriers, natural river berms, beach

dunes and the like are ‘adjacent wetlands.” Id. § 328.3(c).

Petitioners do not seriously dispute that all the wetlands in

these cases fall within the Corps’ regulatory definition and

thus require a Section 404 permit as long as the regulations

themselves are valid.

The Corps does not, as petitioners contend, seek to

regulate all aspects of the hydrological cycle. Petitioners

and their amici attempt to portray the Corps as an over-

9

zealous agency run amok, but the facts demonstrate other-

wise. Not only is the Corps’ jurisdiction constrained by the

regulatory definition of “waters of the United States,” the

Corps also exercises discretion through the Section 404

permitting process. Although the Corps received an aver-

age of 74,500 Section 404 permit requests each year from

1996 to 1999, a mere three-tenths of one percent (0.3%) were

denied.“ Thus, claims that the Corps overreaches under Sec-

tion 404 are belied both by the regulatory limitations and,

empirically, by the high percentage of permits the Corps

grants.

B. The Adjacent Wetlands In These Cases Are “Waters

Of The United States” Under Riverside Bayview

And SWANCC

As this Court held in Riverside Bayview, the Corps

acted pursuant to clear statutory authority in promulgating

its “adjacent wetlands” regulations. 474 U.S. at 135. River-

side Bayview is controlling with respect to the statutory in-

terpretation issues in these cases. Petitioners have not of-

fered any basis in the statute to exclude their adjacent wet-

lands from federal protection. Like the adjacent wetlands in

Riverside Bayview, the wetlands in these cases are function-

ally connected to navigable-in-fact waters or their tributar-

ies and thus fall within the clear reach of the Clean Water

Act.

See EPA's Clean Air Budget and the Corps of Engineers Wetlands

Budget: Hearing Before the Subcomm. on Clean Air, Wetlands, Private

Property, and Nuclear Safety of the Senate Comm. on Environment and

Public Works, 106th Cong., at 2 (2000) (testimony of Michael Davis, Dep-

uty Assistant Secretary of the Army for Civil Works).

’ Petitioners’ amici claim these cases are really about “ditches,” not

wetlands and tributaries, and “point sources” rather than “waters of the

United States,” arguing that under the Corps’ 1975 interim regulations

wetlands connected to traditional navigable waters by conveyances such

as ditches were not intended to be subject to federal protection. See Br. of

Amici Curiae Foundation for Environmental and Economic Progress et al.

in Support of Petitioners 21-22. However, the Corps’ 1976 interim regula-

tions did not use these terms in the obtuse manner urged by amici. To

the contrary, those regulations provided that even wetlands not directly

10

This functional relationship corresponds with the pur-

pose of the Act. Wetlands maintain the physical integrity of

downstream waters by providing important flood control

and storm buffer functions. For example, the substantial

impacts of Hurricane Katrina on the navigable waters of

Louisiana and Mississippi in August 2005 were due in part to

the extensive loss of wetlands that has occurred on the Gulf

Coast. Adjacent wetlands also maintain the chemical integ-

rity of downstream waters by filtering and removing exces-

sive nutrients and other pollutants that today threaten the

existence of major interstate ecosystems such as the Great

Lakes and the Chesapeake Bay. Finally, wetlands, including

adjacent wetlands, play a critical role in ensuring the bio-

logical integrity of downstream waters by supporting the

growth of plants and animals that form the basis of the

aquatic food chain and providing habitat for fish that spawn

in wetlands and move to open waters later in life.’

adjacent or contiguous to traditional navigable waters or their tributaries

could come within the Corps’ jurisdiction where necessary for the protec-

tion of water quality. 40 Fed. Reg. 31325 (codifying 33 C.F.R.

§ 209.120(d)(2\i)). Read as a whole, the Corps’ regulations offer no sup-

port for amici’s narrow construction. There is no reason that a water may

not be both a “point source” and a “water of the United States” under the

Act. Moreover, Congress’s intent to address all sources of pollution that

impair navigable waters was reaffirmed in the Water Quality Act of 1987,

which further amended the Clean Water Act and established a compre-

hensive program for regulating discharges of storm water run-off. See 33

U.S. C. § 1842(p).

* See Tim Hirsh, Katrina Damage Blamed on Wetland Loss, avail-

able at http://news.bbc.co.uk/2/hi/americas/4398852.stm (last updated Nov.

1, 2000).

Indeed, given the critical importance of wetlands to downstream

waters, every Administration since 1989 has adopted an express policy of

“no net loss” of wetlands—a policy recently expanded to include an “over-

all increase” of wetlands on a national basis. See, e. g., Fa.t Sheet: Presi-

dent Announces Wetlands Initiative on Earth Day (2004), available at

http://www.whitehouse.gov/news/releases/2004/04/20040422-1.html. This

policy is implemented primarily through the § 404 permitting program.

Comprehensive federal jurisdiction over wetlands as waters of the United

States is absolutely essential to meet this national goal.

11

a The broad scope of Clean Water Act jurisdiction over

adjacent wetlands affirmed by the Court in Riverside Bay-

view was not affected by this Court’s holding in SWANCC.

There, the Court expressly recognized that waters are sub-

ject to federal jurisdiction where they have a “significant

nexus” with traditional navigable waters, and that in 1977

Congress acquiesced in the Corps’ broad authority over fill-

ing of adjacent wetlands as necessary to protect traditional

navigable waters. 531 U.S. at 170-171 (citing Riverside

Bayview, 474 U.S. at 136). SWANCC rejected the Corps’

assertion of jurisdiction over an abandoned, water-filled min-

ing site located wholly within Illinois where the only basis

for jurisdiction was its use by migratory birds—because

there was no connection with traditional navigable waters or

their tributaries. Unlike the isolated ponds in SWANCC,

the type of wetlands here have important functional connec-

tions to, and resulting impacts on, traditional navigable wa-

ters.

C. The Court Should Defer To The Corps’ Interpreta-

tion

The Court established in Riverside Bayview that Con-

gress intended, at a minimum, that jurisdiction under the

Act cover wetlands abutting traditional navigable waters.

474 US. at 137. To the extent that any ambiguity remains

about whether the Act reaches wetlands adjacent to tribu-

taries of traditional navigable waters, this Court should de-

fer to the Corps’ interpretation of the Act, just as it did in

Riverside Bayview. “An agency's construction of a statute it

is charged with enforcing is entitled to deference if it is rea-

sonable and not in conflict with the expressed intent of Con-

gress.” Id. at 131; see Chevron U.S. A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842 (1984); see also United

States v. Mead Corp., 533 U.S. 218, 229 (2001) (it is “appar-

ent from the agency’s generally conferred authority and

other statutory circumstances that Congress would expect

the agency to be able to speak with the force of law when it

addresses ambiguity in the statute or fills a space in the en-

acted law”).

12

The Corps’ conclusion that wetlands adjacent to tribu-

taries of navigable-in-fact waters and wetlands separated

from such tributaries only by a man-made berm are jurisdic-

tional is well supported and reasonable. As this Court noted

in Riverside Bayview:

[Wetlands that are not flooded by adjacent waters

may still tend to drain into those waters. In such

circumstances, the Corps has concluded that wet-

lands may serve to filter and purify water draining

into adjacent bodies of water, see 33 C.F.R.

§ 320.4(b)(2)(vii) (1985), and to slow the flow of sur-

face runoff into lakes, rivers, and streams and thus

prevent flooding and erosion, see § 320.4(b)(2)(iv)

and (v). In addition, adjacent wetlands may “serve

significant natural biological functions, including

food chain production, general habitat, and nesting,

spawning, rearing and resting sites for aquatic .. .

species.” § 320.4(b)(2)(i).

474 U.S. at 134-135. Here, as in Riverside Bayview, it was

reasonable for the Corps to conclude that the adjacent wet-

lands fall within the Act.

" The Court in SWANCC noted that the Corps’ original regulations

published in 1974 defined “navigable waters” narrowly, consistent with

prior federal statutes. 531 U.S. at 168. However, there is evidence that

the Corps may have intentionally construed Congress's intent in the Clean

Water Act too narrowly. See Lance D. Wood, Don't Be Misled: Clean

Water Act Jurisdiction Extends to All Non-Navigable Tributaries of the

Traditional Navigable Waters and to Their Adjacent Wetlands, 34 ELR

10187, 10211-10212 (Feb. 2004) (attaching letter from counsel who repre-

sented the Corps in 1974, stating that at that time the Corps’ decision

probabilit

as contrary to the intent of Congress, as in fact occurred in Callaway).

13

D. Petitioners’ Proposed Interpretation Has No Sup-

port In The Statute And Could Nullify Congress's

Comprehensive Design

The Rapanos petitioners and some amici argue that ju-

risdiction under Section 404 of the Act reaches no further

than wetlands directly abutting traditional navigable wa-

ters. See, e. g., Rapanos Br. 11. Petitioners point to nothing

in the statute or its legislative history to support this argu-

ment. Indeed, one former Corps official has estimated that if

the definition of “waters of the United States” were inter-

preted to embrace only traditional navigable waters and

their abutting wetlands, the result would be to exclude from

Clean Water Act coverage—and thus federal protection—

more than 99% of the waters now understood to be covered

by the Act. See Wood, supra n.10, at 10192-10193. Conse-

quently, such a construction makes no sense, as it would

fundamentally defeat the Act’s core purpose of ensuring that

federal jurisdiction is sufficient to successfully combat water

pollution.

Moreover, the effect of this massive curtailment of fed-

eral jurisdiction would not be limited to the filling of wet-

lands. The restrictive definition advanced by petitioners

also would gut the “point source” pollution-discharge prohi-

bition under Section 402 of the Act and other important pro-

grams relating to water quality because the statutory terms

material to this case are similarly critical throughout the

Act. See 33 U.S.C. § 1342; see also 43 Op. Att’y Gen. 197, at

200-201 (Sept. 5, 1979) (“The term ‘navigable waters’ . is a

linchpin of the Act.... Its definition is not specific to § 404,

but is included among the Act’s general provisions.”). I hus,

petitioners’ proposed interpretation would immunize from

federal regulation disposal of oil, chemicals, and other pollut-

ants into the vast majority of our Nation’s wetlands and wa-

terways.

The Carabell petitioners advance an alternative inter-

pretation conveniently suited to the particular facts of their

case. They suggest that Congress intended to limit jurisdic-

tion under the Act to wetlands that flow continuously into

14

waters that are navigable-in-fact. See Carabell Br. 19. But

the Act simply does not include any such restrictions.

Petitioners’ statutory arguments cannot be understood

as a serious effort to discern the intent of Congress. Rather,

they are a transparent attempt to have this Court reverse

three decades of settled legislative policy. The Court should

take this opportunity to make clear that the holding of Riv-

erside Bayview controls when it comes to the Corps’ juris-

diction over wetlands functionally connected to navigable-in-

fact waters. The changes to the scope of the Clean Water

Act advocated by petitioners must be sought from Congress,

not the courts.

Finally, this Court should reject petitioners’ argument

that the Court must construe the scope of federal jurisdic-

tion narrowly under the canon of constitutional avoidance.

See Carabell Br. 31; Rapanos Br. 22. This doctrine arises

“only when there are serious concerns about the statute’s

constitutionality.” Harris v. United States, 536 U.S. 545, 555

(2002). As demonstrated in Part II below, the Corps’ inter-

pretation of the Clean Water Act to cover “adjacent wet-

lands” does not even come close to “invok[ing] the outer lim-

its of Congress’ power.” Cf. SWANCC, 531 U.S. at 172 (cit-

ing Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg.

E Constr. Trades Council, 485 U.S. 568, 575 (1988)). Nor, as

discussed in Part III below, does this interpretation “alter{]

the federal-state framework by permitting federal en-

croachment upon a traditional state power.” Id. (citing

United States v. Bass, 404 U.S. 336, 349 (1971)).

II. Concress Has AuTHORITY To PROTECT WETLANDS ADJA-

CENT TO TRIBUTARIES OF TRADITIONAL NAVIGABLE WATERS

This Court has identified three general categories of

regulation in which Congress may engage pursuant to its

plenary power over interstate commerce: (1) regulation of

the “channels of interstate commerce”; (2) regulation of “the

instrumentalities of interstate commerce, and persons or

things in interstate commerce”; and (3) regulation of “activi-

ties that substantially affect interstate commerce.” Gonza-

les v. Raich, 125 S. Ct. 2195, 2205 (2005). Federal jurisdic-

15

tion over the “adjacent wetlands” in these cases fits com-

fortably within both the first and third categories.

A Jurisdiction Over Wetlands Adjacent To Tributaries

Of Traditional Navigable Waters Protects Channels

It is well settled that “(t]he power to regulate commerce

comprehends the control for that purpose, and to the extent

necessary, of all the navigable waters of the United States.”

Gilman v. City of Phila., 70 U.S. (3 Wall.) 713, 724-725 (1866)

(citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)). Con-

gress has the power to “take all needed measures to pre-

serve the navigability of the navigable water course of the

country.” United States v. Rio Grande Dam & Irrigation

Co., 174 U.S. 690, 703 (1899) (emphasis added). This power

is not limited to the navigable portion of a waterway, but

applies to any substantial threat to the navigable capacity

“wherever done or however done.” Id. at 708. JChontrol

over the non-navigable parts of a river may be essential or

desirable in the interests of the navigable portions... .”

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 US.

508, 525 (1941). “Flood protection” along with “watershed

development” are “parts of commerce control,” and thus

“the power of flood control extends to the tributaries of

navigable streams.” Id. (quoting United States v. Appala-

chian Power Co., 311 U.S. 377, 426 (1940)).

Congress’s authority to regulate filling of wetlands is

supported by its “channels” power because wetlands play an

important role in flood control that affects navigability

downstream. A single acre of wetlands can store more than

one million gallons of water.'' That absorptive ability allows

wetlands adjacent to tributaries of traditional navigable wa-

ters to intercept storm run-off and slowly release or evapo-

United States Environmental Protection Agency, Functions and

Values of Wetlands, EPA 843-F-01-002c (Sept. 2001), available at

http//www.epa gov/owow/wetlands/pdf/fun_val.pdf.

16

rate water after peak flow has subsided, thereby regulating

water levels and reducing downstream flood damage.”

Freshwater wetlands, including forested wetlands, located

along the upper parts of river systems are thought to play a

particularly important role in flood prevention."

Because non-navigable tributaries may comprise more

than three-quarters of the total waterway length in a river

network, the functional contribution of wetlands adjacent

to these tributaries is critically important to flood control.

Moreover, since floodwaters can travel over or under berms

and minor obstructions, wetlands directly adjacent to tribu-

taries serve as effective storm-water buffers even when

those wetlands do not have surface water connections with

the water bodies that they are protecting.

Further, this Court has held that the extent to which a

particular wetland will alleviate flood conditions does not

bear on the constitutional analysis. Atkinson, 313 U.S. at

527. [The decision as to what watersheds should be con-

trolled (and what methods should be employed) in order to

protect the various arteries of interstate commerce from the

disasters of floods” is left to Congress, not the courts. Id. at

528.

2 See William J. Mitsch & James G. Gosselink, Wetlands 584 (2d ed.

2000) (“Because it is usually the peak flows that produce flood damage, the

effect of the wetland area is to reduce the danger of flooding.”).

'? Paul F. Scodari, Wetlands Protection: The Role of Economics 21

(1990); Theda Braddock, Wetlands: An Introduction to Ecology, the Law,

and Permitting (1996) (“[T]he presence of vegetation and forests in par-

See Judith L. Meyer et al., Where Rivers Are Born: The Sctentific

Imperative for Defending Small Streams and Wetlands 6-7 (2003), avail

able at http://www .americanrivers.org/site/DocServer/WhereRiversAre-

Born1.pdf.

17

2. Adjacent Wetlands Protect Traditional Naviga-

ble Waters From Pollution And Injurious Uses

Jurisdiction over adjacent wetlands also is necessary to

protect our Nation’s waters from pollution. In United States

v. Ashland Oil & Transportation Co., 504 F.2d 1317 (6th Cir.

1974), the Sixth Circuit noted that water pollution is. a

direct threat to navigation.“ Id. at 1325 (citing Kernan v.

American Dredging Co., 355 U.S. 426, 427 (1958)). Applying

Atkinson, the court in Ash/and Oil held that as the power

of flood control extends to the tributaries of navigable

streams . . the power of pollution control extends to the

tributaries of navigable streams likewise.” Id. at 1327 (in-

ternal quotation marks omitted).

This Court has cited with approval the holding in Ash-

land Oil. Addressing the constitutionality of the Surface

Mining Act, which established national standards addressing

environmental degradation caused by mining operations, the

Court in Hodel v. Virginia Surface Mining & Reclamation

Ass n “agree(d] with the lower federal courts that have uni-

formly found the power conferred by the Commerce Clause

broad enough to permit congressional regulation of activities

causing air or water pollution, or other environmental haz-

ards that may have effects in more than one State.” 452 U.S.

264, 282 (1981) (citing e. g., Ashland Oil).

Based on this authority, all courts of appeal that have

considered the matter have held that the Clean Water Act’s

prohibition of the discharge of pollutants and fill material

into navigable-in-fact waters, their tributaries, and adjacent

wetlands is authorized under Congress’s “channels” power

even if there is no effect on navigability. In United States v.

Deaton, 332 F.3d 698 (4th Cir. 2003), which involved facts

similar to those in Rapanos, a unanimous Fourth Circuit

panel concluded that “Congress’s authority over the chan-

nels of commerce is . . . broad enough to allow it to legislate,

as it did in the Clean Water Act, to prevent the use of navi-

gable waters for injurious purposes.” Id. at 707 (quoting

Caminetti v. United States, 242 U.S. 470, 491 (1917)).

In United States v. Gerke Excavating, Inc., a unanimous

Seventh Circuit panel agreed. Judge Posner observed that

18

“Congress may forbid the pollution of navigable waters even

if the pollution has no effect on navigability.” 412 F.3d 804,

807 (7th Cir. 2005). He continued, “it doesn’t matter

whether the objection to allowing the Gerkes of this world to

dry out wetlands is that the effect may be to reduce water

levels in navigable waterways to the point at which naviga-

tion would be affected or that the effect may be to increase

the level of pollution in such waters by reducing the supply

of unpolluted wetlands water.” Id.

Because any pollutant or fill material discharged into a

tributary of a navigable-in-fact waterway “has the potential

to move downstream and degrade the quality of the naviga-

ble waters themselves,” Deaton, 332 F.3d at 707, Congress’s

authority is broad enough to allow it to legislate—as it did in

the Clean Water Act—to protect against pollution of navi-

gable-in-fact waters by regulating functionally connected

wetlands. Regardless of whether pollution takes place in

navigable-in-fact waters, or flows directly there from

neighboring wetlands (Riverside Bayview), or flows there

through tributaries of navigable-in-fact waters (Rapanos),

water is water, and there is no constitutional distinction

based on the nature or location of the discharge. Nor does

the presence of a berm that arguabiy interrupts the down-

stream flow of water from adjacent weciands (Covrubell) af.

fect Congress’s power to protect traditional navigable wa-

ters by preserving the connected wetlands’ essential role in

ensuring flood control, maintaining proper nutrient levels,

filtering sediments and pollutants, and providing habitat.

Even where there is little or no downstream flow, adjacent

At a recent congressional hearing before the Subcommittee on

Water Resources and Environment, Rep. Gilchrest described a dye ex-

periment conducted by the Corps on the property at issue in Deaton: The

Corps dropped a little dye in the drainage ditch adjacent to the property

and learned that when it became soluble, it traveled all the way to the

Wicomico River—a tidal basin of the Chesapeake Bay. Inconsistent

Regulation of Wetlands and Other Waters: Hearing Before the Subcomm.

on Water Resources and Environment of the House Comm. on Transpor-

tation and Infrastructure, 108th Cong., at 4 (2004).

19

wetlands still perform essential downstream functions that

are threatened if the wetlands are lost to condominiums and

shopping malls.

The Clean Water Act’s “adjacent wetlands” jurisdic-

tional framework survives constitutional scrutiny even if it

may reach some instances where there is no demonstrated

threat to the integrity of traditional navigable waters. Con-

gress may, for example, prohibit the discharge of deleterious

substances into wetlands adjacent to tributaries of naviga-

ble-in-fact waters without subjecting its regime to judicial

review of the likelihood that each wetland has a significant

effect on navigable waters. This is so for two reasons. First,

small instances add up: “Congress . . may decide that the

aggregate effect of all the individual instances of discharge

... justifies regulating each of them.” Deaton, 332 F.3d at

707 (citing Wickard v. Filburn, 317 U.S. 111 (1942)). Second,

Congress may draw rational lines to prevent harm, without

requiring that every case be tested to see whether there is

an instance of the harm threatened: “Where the class of ac-

tivities is regulated and that class is within the reach of fed-

eral power, the courts have no power ‘to excise, as trivial,

individual instances’ of the class,” Perez v. United States, 402

U.S. 146, 154 (1971) (citations omitted). Thus, federal juris-

diction is not dependent on showing a particular threat in a

particular case to particular navigable waters. Congress has

the power to implement rational jurisdictional rules neces-

sary to protect navigable waters, and the Corps may then

constitutionally assert such jurisdiction without a showing of

a specific threat in each individual cas c.

This Court in Riverside Bayview recognized as much

when it noted that not every wetland that falls within the

Corps’ jurisdiction necessarily is an asset to navigable wa-

ters. If a given wetland is “in fact lacking in importance to

the aquatic environment—or where its importance is out-

weighed by other values—the Corps may always allow de-

velopment of the wetland for other uses simply by issuing a

permit.” 474 U.S. at 135 n.9. Though the scope of the threat

to navigable-in-fact waters may be relevant to the Corps’

permit decision, it does not bear on the determination of fed-

20

eral wetlands jurisdiction or on the constitutionality of Con-

gress’s regulatory regime to protect and preserve navigable

channels of commerce.

B. Pollution And Destruction Of Wetlands Adjacent To

Tributaries Of Traditional Navigable Waters Have

Substantial Effects On Interstate Commerce

Federal jurisdiction over adjacent wetlands also falls

within Congress’s ability to regulate “purely local activities

that are part of an economic ‘class of activities’ that have a

substantial effect on interstate commerce.” See Raich, 125

S. Ct. at 2205. Federal power over local activities may be

necessary and proper to Congress’s regulation of interstate

commerce. Id. at 2216 (Scalia, J., concurring).

“Judicial review in this area is influenced above all by

the fact that the Commerce Clause is a grant of plenary au-

thority to Congress. This power is ‘complete in itself, may

be exercised to its utmost extent, and acknowledges no limi-

tations other than are prescribed in the constitution.” Ho-

del, 452 U.S. at 276 (quoting Gibbons, 22 U.S. (9 Wheat.) at

196) (citations omitted). The key inquiry is whether there is

a rational basis for Congress’s determination that the class

of activities substantially affects interstate commerce and

whether the means that Congress employed are reasonably

tailored to the objectives of the statute. Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241, 258 (1964). The

Court will uphold a reasonably well-tailored regulation of

economic activity under the Commerce Clause unless it “is

clear that there is no rational basis” for a determination that

the regulated activity substantially affects interstate com-

merce. FERC v. Mississippi, 456 U.S. 742, 753-754 (1982).

1. The Clean Water Act Regulates Economic Ac-

tivity Like The Activities Here

The activities regulated under the Clean Water Act are

obviously and overwhelmingly economic in nature. Dis-

charges of pollutants into surface waters occur primarily as

a result of industrial and commercial operations, including

manufacturing, construction, resource extraction, land de-

velopment, agriculture, and waste disposal. See, e.g., 40

21

C.F.R. pts. 403-610 (listing CWA effluent guidelines for 73

categories of industrial activities, which fill over 1500 pages

of the Code of Federal Regulations). Similarly, dredging

and filling of wetlands regulated under Section 404 are

costly activities that are undertaken by commercial interests

for monetary gain. See Thomas E. Dahl, Status and Trends

of Wetlands in the Conterminous United States 1986 to 1997,

at 12 (2000).

The facts here demonstrate the inherently economic na-

ture of the activities regulated under the Act. Through their

development corporation, the Carabell petitioners sought to

drain a wetland in order to build their proposed 112-unit

multi-building condominium complex. The Rapanos peti-

tioners and their various corporations had to level the

ground and dump sand into numerous wetlands in order to

build their roads and shopping center. The wetlands at issue

in both cases were owned by corporate entities seeking

profit for their shareholders, not by individuals with non-

economic intentions. The proposed destruction of wetlands

in these cases represented substantial and integral steps in

petitioners’ construction projects and, as such, constituted

economic activities for Commerce Clause purposes.

2. Pollution And Destruction Of Adjacent Wet-

lands Have Substantial Effects On Interstate

Coramerce

In Hodel, the Court upheld Congress’s Commerce

Clause authority to regulate local surface mining activities

because of the cumulative effects on interstate commerce of

“destreying or diminishing the utility of land for commercial,

industrial, residential, recreational, agricultural, and for-

estry purposes, by causing erosion and landslides, by con-

tributing to floods, by polluting the water, by destroying fish

and wildlife habitats, by impairing natural beauty, by dam-

aging the property of citizens, by creating hazards danger-

ous to life and property by degrading the quality of life in

local communities, and by counteracting governmental pro-

grams and efforts to conserve soil, water, and other natural

resources.” 452 U.S. at 277. As was true of the intrastate

surface mining activities in Hodel, the discharge of pollut-

ants or other fill material into wetlands adjacent to tributar-

ies of traditional navigable waters impairs or eliminates a

number of valuable ecological functions, leading to the same

environmental harms and associated burdens on interstate

commerce. These wetland functions include:

(a) Flood Control. The flood-control function of wet-

lands has significant impacts on the economy.“ In a 1978

study, the Corps estimated that wetlands provided 75% of

the natural water storage in the Charles River watershed

and that loss of the flood-control function of these wetlands

would lead to $18 million in flood damage per year. The

loss of flood-control services can have tremendous economic

consequences. Floods killed 835 people and caused approxi-

mately $41.5 billion worth of damage between 1994 and

2003. The 1993 Midwest flood, which was exacerbated by

the loss of wetlands in the Mississippi River watershed,

killed 70 people and destroyed approximately $18 billion in

homes, businesses, and crops."

(b) Pollutant and Nutrient Removal. Wetlands re-

move re!lutants—including toxic chemicals, sediments, and

harmful levels of nutrients like nitrogen and phosphorus—

from waters of the United States. See United States Dep’t

According to the Corps’ evaluation of the Carabell proposal:

“Wetlands located on the parce! likely provide floodwater storage due to

the fact that the site contains clay soils and the parcel appears to be a de-

pressional area.” United States Army Corps of Engineers, Department of

the Army Permit Evaluation, File No. 99-250-002-1, at 6-7 (C.A.J.A. 107-

108).

"’ Francis R. Thibodeau & Bart D. Ostro, An Economic Analysis of

Wetlands Protection, J. Envtl. Mgmt. 19, 22 (1981); see also 123 Cong.

Rec. 38994 (1977) (Statement of Rep. Lehman) (noting that wetlands pro-

vide $140 billion worth of flood control and water purification services).

United States Army Corps of Engineers, Annual Flood Damage

Report to Congress for Fiscal Year 2003, tables 4 & 5 (June 2003), avail-

able at http//www.usace.army.mil/inet/functions/cw/cecwe/flood2003/.

Brett Hulsey & Geoff Tichenor, A Call for Flood Security

Through Wetland Protection, National Wetlands Newsletter 3-4 (May-

June 2000).

23

of Agric., Econ. Res. Serv., “Dead Zone” in the Gulf: Ad-

dressing Agriculture s Contribution, Amber Waves 8 (Nov.

2003) (USDA, Amber Waves). Pollutant removal generally

occurs in two stages: filtration and withdrawal. Office of

Technology Assessment, Wetlands: Their Use and Regula-

tion 48 (1984) (OTA). Filtration occurs as pollutants precipi-

tate out of the slow-moving waters in the wetlands. With-

drawal occurs either when those pollutants are bound up in

the wetlands’ biomass (i. e., plant matter) and substrate or

when complex biochemical processes in the wetlands convert

the chemical compounds into ecologically inert forms. See

Scodari, supra n.13, at 14. While all wetlands serve as nutri-

ent and sediment traps to some degree, those with fine, an-

oxic sediments, such as the forested wetlands in these cases,

are particularly well suited to storing and removing nutri-

ents. Jd. In the absence of wetlands, increased levels of ag-

ricultural run-off and other pollutant-saturated wastewater

make their way directly into tributaries and then into other

economically valuable waters of the United States.

The effects of nutrient pollution can be devastating. A

number of significant commercial fishing grounds, including

the Gulf of Mexico and the Chesapeake Bay, currently suffer

from a condition of depleted oxygen content known as “hy-

poxia” due to elevated levels of nitrogen, phosphorus, and

other nutrients in the rivers that flow into these water bod-

ies. The hypoxic zone in the Gulf of Mexico doubled in size,

to 18,000 square kilometers, after the 1993 Midwest Floods.”

Hypoxia reduces biological productivity and leads to fish

kills, creating expansive areas of water known as “dead

zones” that are essentially devoid of life. See USDA, Amber

Waves 8. The loss of productivity in the Chesapeake Bay,

Gulf of Mexico and other key fishing grounds that are cur-

rently suffering from nutrient pollution would have signifi-

cant impacts on the national economy. According to the De-

National Centers for Coastal Ocean Science, Hypozia in the Gulf

of Mexico, at http://oceanservice.noaa.gov/products/pubs_hypox.html (last

visited Jan. 11, 2006).

24

partment of Commerce, Americans spent over $61.9 billion

on seafood products in 2004. National Marine Fisheries Ser-

vice, Fisheries of the United States: 2004 (2005); see also Na-

tional Academy of Sciences, Clean Coastal Waters: Under-

standing and Reducing the Effects of Nutrient Pollution 111

(2000) (reporting the results of a study that found that re-

storing 100,000 acres of wetlands in the Mississippi River

basin would provide an economic benefit of between $11.8

and $40 billion based on increases in water quality).”

Finally, wetlands adjacent to tributaries play a key role

in filtering out sediments that would otherwise harm tradi-

tional navigable waters. These wetlands may remove up to

80% of suspende sediments from the water that flows

through them.” Sedimentation is a major threat to commer-

cially-important fish species such as salmon, which spawn in

freshwater streams and need clean water to ensure that

their eggs receive enough oxygen to survive.

(c) Fisheries and Other Wildlife Habitat Support. Ad-

jacent wetlands also serve habitat needs of economically sig-

nificant wildlife species. Wetlands are more effective pro-

ducers and exporters of useful nutrients than terrestrial sys-

tems. Scodari, supra n.13, at 15. Forested wetlands such as

those at issue here can produce 7-14 metric tons of biomass

per hectare each year. OTA, supra p. 23, at 59. As this ma-

terial decomposes, it supports the growth of the inverte-

brate populations that form the basis of the aquatic food

chain. Jd. at 58. Thus, elimination of this source of natural

material, either through development of the wetland or the

2! These commercial impacts extend beyond fisheries. One study re-

cently estimated that the boating, recreational fishing, and swimming

benefits resulting from the decrease in nutrient loading as a consequence

of Clean Water Act regulation were between $357.9 million and $1.8 bil-

lion. Cynthia Morgan & Nicole Owens, Benefits of Water Quality Policies:

The Chesapeake Bay, 39 Ecological Econ. 271, 274 (2001).

2 John F. Elder & Gerald L. Goddard, Sediment and Nutrient

Trapping Efficiency of a Constructed Wetland Near Delavan Lake, Wis-

coin, 19983-1995, available at http//wi.water.usgs.gov/pubs/FS-232-

96/ S. 282. 96. pdf.

severing of the surface water connection between the wet-

land and surrounding waters, deprives the wildlife popula-

tion of an important food source. Moreover, numerous spe-

cies of commercial and sport fish, including pike and large-

mouth bass, rely on temporarily flooded freshwater wet-

lands for spawning grounds. Id. at 56. In addition to the

$61.9 billion in commercial seafood consumption noted above,

Americans spent $35.6 billion on recreational fishing in 2001.

U.S. Fish & Wildlife Service, 2001 National Survey of Fish-

ing, Hunting & Wildlife-Associated Recreation 4 (2002).

More generally, approximately 82 million U.S. residents par-

ticipated in wildlife-related activities in 2001, with expendi-

tures related to such activities totaling $108 billion. Id.

While the loss of functions associated with any parucu-

lar wetland alone might not significantly affect commerce, it

is sufficient that Congress had a rational basis for concluding

that the aggregate commercial impacts stemming from im-

pairment of these wetland functions, including flood control,

pollutant filtration, and habitat support, would have such an

impact. See Raich, 125 S. Ct. at 2207-2209; Wickard, 317

U.S. at 127-128; see also Perez, 402 U.S. at 154. Given the

key role that wetlands play in ensuring the health and integ-

rity of the waters of the United States and the importance of

these waters to the national economy, Congress plainly

could have rationally concluded that the loss of wetlands

currently subject to federal jurisdiction would have a sub-

stantial effect indeed on interstate commerce.

3. Protection Of Adjacent Wetlands Is Necessary

To The Clean Water Act's Regulatory Scheme

Federal authority under the Commerce Clause to regu-

late intrastate activity also is appropriate where it is an es-

sential part of a larger regulatory scheme. Raich, 125 S. Ct.

at 2207. A comprehensive regulatory program such as the

Clean Water Act can be upheld without a specific showing

that every facet of the program is independently and di-

rectly related to a valid congressional goal if the scheme as a

whole is valid and the challenged provision is an integral

part of that scheme. See Hodel v. Indiana, 452 U.S. 314, 329

n.17 (1981). This Court recently upheld a federal ban on in-

trastate possession of marijuana to avoid creating a “gaping

hole” in the comprehensive federal drug control scheme.

Raich, 125 U.S. at 2209. Because pollutants can harm the

integrity of a water network regardless of whether they en-

ter that network through a large interstate river or a small

intrastate tributary, this Court should uphold the Corps’

regulation of wetlands adjacent to tributaries of traditional

navigable waters to avoid creating a similar hole in Con-

gress’s comprehensive scheme to combat water pollution.

III. JURISDICTION TO PROTECT ADJACENT WETLANDS IS NECES-

SARY TO THE FEDERAL-STATE FRAMEWORK CREATED BY

CONGRESS AND CONSISTENT WITH PRINCIPLES OF FEDERAL-

ISM

Petitioners and their amici argue that affirming federal

jurisdiction in these cases would violate principles of federal-

ism and undermine the role of the States in protecting water

resources. They advance various proposed “tests” for juris-

diction, supposedly in defense of the prerogatives of the

States, by which they are effectively asking this Court to

divide jurisdiction over wetlands protection between the

federal government and the States. But the division of ju-

risdiction proposed by petitioners’ amici would directly con-

flict with Congress’s stated intention to create a comprehen-

sive federal program of water protection. See International

Paper Co. v. Ouellette, 479 U.S. 481, 486 (1987).

A. Congress Provided For State Regulation

In the context of this comprehensive federal program,

Congress chose “to recognize, preserve, and protect the

primary responsibilities and rights of States to prevent, re-

duce, and eliminate pollution, to plan the development and

use (including restoration, preservation, and enhancement)

of land and water resources, and to consult with the Admin-

istrator in the exercise of his authority under this chapter.”

SWANCC, 531 USS. at 166-167 (quoting 33 U.S.C. § 12510).

All States, including those that lack independent wetlands

laws, have authority under Section 401 of the Act to partici-

pate in the federal wetlands permitting process to ensure

27

that permit decisions are consistent with each State’s water

quality standards. 33 U.S.C. § 1341.

In addition, Section 404(g) of the Act authorizes a State

to apply to the EPA for permission “to administer its own

individual and general permit program for the discharge of

dredged or fill material” into certain navigable waters. By

incorporating Section 404(g) into the Act, Congress “opted

... for a scheme that encouraged States to supplant federal

control with their own regulatory programs.” 513 US. at

192 (Stevens, J., dissenting).” But to attain the national goal

of restoring the integrity of navigable waters, Congress de-

termined that where States assumed the lead, States would

implement and enforce standards no less stringent than the

federal rules. This cooperative federal-state framework

mandated by Congress necessarily depends on federal juris-

diction over all waters of the United States. Absent such

jurisdiction, the statutory provision permitting States to as-

sume primacy would be rendered meaningless with respect

to vast tracts of critically important wetlands, and Con-

gress’s goal of consistent national protection would be de-

feated.

Thus, petitioners’ reliance on the Act’s preamble (33

U.S.C. § 1251(b)), to argue that the States are “primary,” is

wholly misplaced. The Act was not intended to limit the

overarching comprehensive nature of the federal program,

but rather to ensure that States could play a primary role

within that program if they so elected. See S. Rep. No. 92-

414 (explaining that Ja] significant aspect of the entire bill is

the emphasis placed on development of a cooperative state-

federal approach toward environmental enhancement” while

noting that the federal government retains ultimate control

for setting certain water pollution control standards); New

> This integrated system of environmental regulations has state and

federal components. See, g., 33 U.S.C. § 1251(g) (“Federal agencies shall

co-operate with State and local agencies to develop comprehensive solu-

tions to prevent, reduce and eliminate pollution in concert with programs

for managing water resources.”).

York v. United States, 505 U.S. 144, 167 (1992) (describing

legal framework of “cooperative federalism”).

B. Wetlands Protection Does Not impair Traditional

State Functions

Petitioners repeatedly describe federal wetlands pro-

tection as “land use regulation” and argue that it usurps tra-

ditional state powers in this area. E.., Rapanos Br. 29;

Carabell Br. 45. But that label has no basis in fact. De-

struction of wetlands and the related threats to downstream

waters have never been principal subjects of land use law.

See California Coastal Comm'n v. Granite Rock Co., 480

U.S. 572, 587 (1987); see also Minnesota v. Mille Lacs Band

of Chippewa Indians, 526 U.S. 172, 204 (1999) (observing

that traditional State authority to regulate natural resources

must be shared when the federal government exercises one

of its enumerated powers). Indeed, prior to 1970, most

states did not regulate wetlands impacts, see Jon A. Kusler

et al., State Wetland Regulation: Status of Programs and

Emerging Trends 1 (Ass’n of State Wetland Managers 1994),

and the losses, as noted above, were massive.

Moreover, incidental impacts on local authority do not

defeat federal jurisdiction. “This Court has upheld as consti-

tutional any number of federal statutes enacted under the

commerce power that preempt particular exercises of state

police power.” Hodel, 452 U.S. at 292 (citations omitted) (re-

interfered with traditional state land use powers). To argue

that federal wetlands protections should be invalidated be-

cause they intrude on States’ traditional regulation of land

use is similar to arguing that federal civil rights legislation

should be invalidated because States traditionally regulated

employment and business operations. The fact that a federal

program, addressing quintessentially national problems,

may indirectly affect traditional state functions is not a

proper reason to disable the federal government from act-

ing.

C. Federal Authority Is Necessary To Address This Na-

tional Problem

A core objective of the Framers in 1787 was to empower

the federal government to address problems national in

scope that the individual States were incapable of solving

themselves. The sixth Virginia Resolution, approved by the

Constitutional Convention on July 17, 1787, highlighted this

principle that “the national legislature ought to possess the

legislative rights vested in Congress by the confederation;

and moreover, to legislate in all cases for the general inter-

ests of the union, and also in those to which the States are

separately incompetent, or in which the harmony of the

United States may be interrupted by the exercise of indi-

vidual Legislation.” Notes of Debates in the Federal Con-

vention of 1787, 380 (W.W. Norton & Co. ed., 1966). This

fundamental principle—that the federal government must

be able to legislate to solve national problems, particularly

where the States are unable to do so themselves—is just as

important to the principles of federalism as the reservation

to States of their traditional police powers.

Clean water and healthy wetlands benefit the entire

Nation, and only a federal program with uniform standards

can maintain these wetlands and protect adjacent waters.

See generally Oliver A. Houck & Michael Rolland, Federal-

ism in Wetlands Regulation: A Consideration of Delegation

of Clean Water Act Section 404 and Related Programs to the

States, 54 Md. L. Rev. 1242, 1252-1253 (1995). The inherent

economic incentives favoring development in a purely state-

by-state framework further highlight the importance of re-

taining federal jurisdiction over adjacent wetlands. The

benefits from development flow to individual States, while

many of the costs of wetlands loss are widely dispersed. See

SWANCC, 531 U.S. at 195 (Stevens, J., dissenting); see also

Gerke, 412 F.3d at 807 (rejecting federalism argument as

“two-edged” for “[tJhe more extensive the wetlands, the

greater their potential importance as a source of water to

keep the navigable waterways full and clean”). Thus, the

local costs and benefits of development should be weighed

against national costs and benefits; in the absence of this

kind of national calculus, the interests of downstream States

are unlikely to be adequately considered.

Congress has traditionally enjoyed the Commerce

Clause power to prevent the “destructive interstate compe-

tition” that arises where different States offer uneven levels

of environmental protection. See Hodel, 452 U.S. at 282 (up-

holding congressional finding that nationwide surface mining

and reclamation standards are essential to ensure that inter-

state competition does not undermine the ability of individ-

ual States to maintain adequate standards within their bor-

ders). In the context of wetlands regulation, if [develop-

ment] pressures are to be tempered in favor of wetlands

preservation, there are geod reasons for this regulation to be

federal, reasons that drove enactment of the Clean Water

Act and section 404 in the first place... [Uneven regula-

tion among the states tended to penalize those that safe-

guarded the national interest and to favor a ‘race to the bot-

tom’ towards maximum development.” Houck & Rolland,

supra p. 29, at 1310.

Finally, the federal-state partnership that resulted in

the implementation of the Clean Water Act has been highly

effective in achieving the objectives set by Congress. Over

more than three decades, the law has delivered dramatic re-

ductions in pollution and stronger protection of wetlands re-

sources of great value to the American people. Congress’s

achievement in fashioning this framework, and the perform-

ance of both the federal and state governments in making

the Act work, have been a signal success. The vital federal

role in the preservation of water resources intended by

Congress in the Clean Water Act should be upheld. by the

Court.

CONCLUSION

For the foregoing reasons, the judgments of the court of

appeals should be affirmed.

LESLIE CAROTHERS

JAY E. AUSTIN

D. BRUCE MYERS JR.

LISA GOLDMAN

ENVIRONMENTAL LAW

INSTITUTE

2000 L Street, N.W.

Washington, DC 20036

(202) 939-3800

JANUARY 2006

Respectfully submitted,

SETH P. WAXMAN

Counsel of Record

Louis R. COHEN

JAMES R. WRATHALL

CAREY BOLLINGER

RACHEL Z. STUTZ

TODD HETTENBACH

WILMER CUTLER PICKERING

HALE AND DORR LLP

2445 M Street, N.W.

Washington, DC 20037

(202) 663-6000