# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A31

## Record

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

## Text

al 19

Nos. 04-1 and 04-1 ee Bast
3n The
Supreme Court of the Anited States

>
JOHN A. RAPANOS, et al.,
Petitioners,

Vv.

UNITED STATES OF AMERICA,
Respondent.

°

JUNE CARABELL, et ai.,
a Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,
Respondents.

+
On Writs Of Certiorari To The United States
Court Of Appeals For The Sixth Circuit
>
BRIEF OF FORMER EPA ADMINISTRATORS
CAROL M. BROWNER, WILLIAM K. REILLY,

DOUGLAS M. COSTLE, and RUSSELL E. TRAIN AS
AMICI CURIAE IN SUPPORT OF RESPONDENTS

¢

WILLIAM W. BUZBEE DEBORAH A. SIVAS
Gambrell Hall LAWRENCE C. MARSHALL
1301 Clifton Road Counsel of Record

Atlanta, Georgia 30322 HOLLy D. GORDON

Telephone: (404) 727-6507 StTaNFoRD LAw SCHOOL

Facsimile: (404) 727-6820 ENVIRONMENTAL Law CLINIC
Crown Quadrangle
559 Nathan Abbott Way
Stanford, California 94305
Telephone: (650) 724-1900
Facsimile: (650) 723-4426

Counsel for Amici Curiae

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

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE 0..0..0..0000.cc0c000c00000000 1

SUMMARY OF ARGUMENT ....00...0......0:.cecescseseseseeseees 2

i 4
I. A BROAD INTERPRETATION OF THE

Il.

TERM “WATERS OF THE UNITED STATES”
IS PIVOTAL TO THE NATION’S WATER
POLLUTION CONTROL EFFORTS ................

A. The Clean Water Act of 1972 Constituted a
Radical Departure from Prior Federal Wa-
ter Quality Laws and Enacted a Compre-
hensive Water Pollution Control Regime ...

B. Petitioners’ Interpretation Would Eviscer-
ate the Section 402 NPDES Permit Pro-
gram, which Lies at the Heart of the Clean

C. Other Clean Water Act Provisions Are
Similarly Dependent on a Broad Interpre-
tation of Navigable Waters.........................

THE FEDERAL GOVERNMENT'S CONSIS-
TENT INTERPRETATION OF CLEAN WATER
ACT JURISDICTION HAS RESULTED IN A
ROBUST FEDERAL-STATE PARTNERSHIP
FOR PROTECTING WATER QUALITY.............

A. EPA and the Corps Have Consistently As-
serted Jurisdiction Over Tributaries and
their Adjacent Wetlands for Three Decades...

B. If Adopted, Petitioners’ Arguments Threaten
to Disrupt the Clean Water Act’s Coopera-
tive Federalism Scheme and Unduly Bur-
ES eo

14

16

17

TABLE OF CONTENTS -— Continued
Page

Ill. PETITIONERS’ REAL ESTATE DEVELOP-
MENiS AND THE ACTS PROTECTIONS
BOTH IMPLICATE COMMERCIAL ACTIVI-
TIES, OVERCOMING CLAIMED COM-
MERCE POWER CONCERNG............-.cc0cccesce0 23

IV. AS THE COURT RECOGNIZED IN RIVER-
SIDE BAYVIEW, DEFERENCE TO THE
AGENCIES’ REGULATORY INTERPRETA-
TIONS AND ECOLOGICAL JUDGMENTS IS

IID cntnincccccncniencininetasdisiiiteininiteitusiuipiiiigsonhainsen 30

iil

TABLE OF AUTHORITIES
Page
FEDERAL CASES
Arkansas v. Oklahoma, 503 U.S. 91 (1992).............0000.0005 21
Avoyelles Sportsmen’s League, Inc. v. Marsh, 715
gh Ee Bt ee: 20
Caminetti v. United States, 242 U.S. 470 (1917).............. 25
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1985)............2...ccesceceeesseeees 28
City of Milwaukee v. Illinois and Michigan, 451
ARERR SEE eA eat see ee ee a Oe 5
Environmental Protection Agency v. California, 426
I lichen ical lea itaael lenin 5
Fawcus Machine Co. v. United States, 282 U.S. 375
SCRE be A ODE EE Ree PD 21
Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000).................. 26
Gonzalez v. Raich, 125 S. Ct. 2195 (2005) ............ 25, 26, 27
Headwaters, Inc. v. Talent Irrigation District, 243
II Te ee ONCE 12
Hodel v. Virginia Surface Mining & Reclamation
Association, 452 U.S. 264 (1981) .0..0.... cece ccceeeeeeceeeeeee 28
International Paper Co. v. Ouellette, 479 U.S. 481
Se ahiettehdennniiiesiaiid laieindiieetnbiathitilsacieisinialeilibniddedidthiajuhaianianaets 16
Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir.
Sus ssiontenichincltendeneinalieaiieeaetnehtc iki deheeiinihtpcihiniectinentisastags 20
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1
a tinh eeeiaescaciiih ihe paint igcta lactase laine eieatantasi 27

Natural Resources Defense Council, Inc. v. Calloway,
392 F. Supp. 685 (D.D.C. 1975).................cccccesecceseseeseees 18

iv

TABLE OF AUTHORITIES — Continued

Page
In re Needham, 354 F.3d 340 (5th Cir. 2003)..............0..... 20
Oklahoma ex rel. Phillips v. Guy F. Atkinson Co.,
fe I TE 24
Quivira Mining Co. v. U.S. Environmental Protec-
tion Agency, 765 F.2d 126 (10th Cir. 1985) ................... 13
Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Engineers, 531 U.S. 159 (2001)......passim
State of Georgia v. City of East Ridge, 949 F. Supp.
eG, Te cicicanscaieietncsininaintiitaianimnamnaidiats 13
The Daniel Ball, 77 U.S. 557 (1871) 00... .ecececcecccececeeeeeeeeees 24
Train v. City of New York, 420 U.S. 35 (1975) .............00e. 5
Treacy v. Newdunn Associates, LLP, 344 F.3d 407
CE GIR Be ccnecintnnsinsrntntescrnttsinmeciabiniginenmansieiesaaaal 20
United States v. Appalachian Electric Power Co.,
BR SE, BUS CR iscesrcunsscnnenitsisamtniiiniaamiadiiaiaaa 24
United States v. Ashland Oil, 504 F.2d 1317 (6th
GR FIGS acnitsssctcnctinsnsstsitititapentanniiaiameinaiaaiamen 13
United States v. Byrd, 609 F.2d 1204 (7th Cir. 1979)....... 20
United States v. Deaton, 332 F.3d 698 (4th Cir.
SETIED nniersnnnsenveteienininnditatitaansieasiinttinicsiaeea anal 20, 26
United States v. Earth Sciences, Inc., 599 F.2d 368
Ys 3, Sone ne 13
United States v. Eidson, 108 F.3d 1336 (11th Cir.),
cert. denied, 552 U.S. 899 (1997)............c2.-e0eeeeenenennennnens 12

United States v. Gerke Excavating, Inc., 412 F.3d
804 (7th Cir. 2005), petition for cert. filed, 74
USLW 3309 (U.S. Nov. 11, 2005) (No. 05-623).. 20, 24, 26

v

TABLE OF AUTHORITIES — Continued

Page
United States v. Jones, 267 F. Supp. 2d 1349 (M.D.
Ee ee 13
United States v. Lopez, 514 U.S. 549 (1995)............... 23, 25
United Stgtes v. Morrison, 529 U.S. 598 (2000).......... 25, 26
United States v. Riverside Bayview Homes, Inc., 474
EE ne passim
United States v. St. Bernard Parish, 589 F. Supp.
EG EE AN 13
United States v. TGR Corp., 171 F.3d 762 (2d Cir.
EEE ei ae ee 12
United States v. Texas Pipe Line Co., 611 F.2d 345
ENS SR ee 13
FEDERAL STATUTES
Federal Water Pollution Control Act of 1972, 33
EL SEN 1
Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et
a 6
ES ee 5, 21, 26
EE LE ee 5
EE a I A a 5
Le 8
ES ee 5
TERS Es a 6
EES ar ee 2,6

Se Op SN rertntnneseenensscsnaneninstinennitingnemnenmentqeanemnts 8

vi

TABLE OF AUTHORITIES -— Continued

Page
4 8 eae 14
8 Ee ee es 14
a le ae ED ncrsnccttaneieesinisiniaittaapeceinicatiiitatatasannaeniiaiasitiets 8
ts SN ci nisrricsinetitnintitiiiiliasin aiialliisitiaisiesatitnianici 15
ee I ciisirrcsicdesinsetacietedemnalnpaiitiataaeia cima 15
EN eT <n a 15
8 ES Se ae oe 2
SEE ee 8
ERE rR ee SS ee 8
Kk EE eee 21
a Te 21
EC ee 8
I TTT nniniscnsssninereeitemcganieiahinbiindiiiinnsiisitesliaials 15
ee cniinccnitinntunisnimennguiintiiumaindenniiteanstes 3, 6
es ee icctntuhinanensectinneenninmnnstapacmel 6
Le 21
RS rae ie ree Eee 15

FEDERAL REGULATIONS

i hictiitcseecneiicarintiiiitataniinihiiacaiaaiipraiiiniaaiiaiaai 20
ey ee tttenieinctinnitindncitnmmeiaen 20
38 Fed. Reg. 10,834 (May 2, 1973)...............ccccccccesecesseeees 18
38 Fed. Reg. 13,527 (May 22, 1973) ..............c.cecccsereseseenees 17

39 Fed. Reg. 12,115 (April 3, 1974) .......cccccccessscessssessveeenen 18

vii

TABLE OF AUTHORITIES -— Continued

Page
40 Fed. Reg. 19,766 (May 6, 1975) ...........2.0.c.ccccecceeeeeeseeee 18
40 Fed. Reg. 19,794 (May 6, 1975) ...............ccccccccceseceeeeenee 19
40 Fed. Reg. 31,320 (July 25, 1975) ...............ccccccecceeeeeeenee 18
40 Fed. Reg. 41,294 (Sept. 7, 1975)............... pentemudieniiiaia 19
42 Fed. Reg. 37,122 (July 19, 1977) ...............:ccccccceseeeeeees 19
44 Fed. Reg. 32,854 (June 7, 1979) ................cccccccceeeeeeeeees 20
51 Fed. Reg. 41,206 (November 13, 1986) ......................-. 20
68 Fed. Reg. 1991 (Jam. 15, 2003) o.oo... ccc ceeceeeeeeeeeeees 9
LEGISLATIVE HISTORY
Ee 6
FB een 18
Section 404 of the Federal Water Pollution Control
Act Amendment of 1972: Hearings Before the Sen.
Public Works Comm., 94th Cong., 40-41 (July 27,
1976) (Testimony of EPA Administrator Russell
Se iheeiteilatcialhaclhches ciecadiiinciiinticatsiiptesiaiinininaiiteieiae litem 17
S. Conf. Rep. No. 92-1236 (1972) ............:cccccecsceeeeeeeenees 6,18
SS ee 16
OTHER AUTHORITY
43 U.S. Op. Atty. Gen. 197, 1979 WL 16529 (Sept. 5,
SS ER eee een NEE A

Bruce J. Peterson et al., Control of Nitrogen Export
from Watersheds by Headwater Streams, 292
le, Se Peentcncrnennitsnnnaprcecimmniiinstall =. 9

TABLE OF AUTHORITIES - Continued

Donna M. Downing, Cathy Winer, and Lance D.
Wood, Navigating Through Clean Water Act Ju-
risdiction: A Legal Review, 23 Wetlands 475

Gregory J. Hobbs, Jr. and Bennett W. Raley, Water
Rights Protection in Water Quality Law, 60 U.

SE. Be GT IE Ce cerccnsencvnsvenvssnmeniansinnensecsenes

Judy L. Meyer et al., Where Rivers Are Born: The
Scientific Imperative for Defending Small Streams
and Wetlands http://www.americanrivers.org/site/
DocServer/WhereRiversAreBorn1.pdf?docID=182

Gee orcresnsescsczessrcunssscsnseansensetesnsncesasssteneaensmeeannaeeans

Lance Wood, Don’t Be Misled: CWA Jurisdiction
Extends to All Non-Navigable Waters and to
Their Adjacent Wetlands, 34 Env. L. Rev. 10187

Go ener esinvecsnssessncernssasenesnesatanpeapinsscenunttinepememanesssee

Maria V. Maurrase, Oklahoma v. EPA: Does the
Clean Water Act Provide an Effective Remedy to
Semntiia: Sebo ar ty Hie G08 ten bed
for Federal Common Law?, 45 U. Miami L. Rev.

Be GD cetera cennesnenssnssepnceetasssemsnanutittidinememenmeneaen

1

INTERESTS OF AMICI CURIAE'

Amici curiae’ are a bipartisan group of former Envi-
ronmental Protection Agency (“EPA”) Administrators,
spanning nearly twenty years of service, with an interest in
the continued application of the Federal Water Pollution
Control Act of 1972, 33 U.S.C. § 1251 et seg. (hereinafter
“Clean Water Act”) to all waters of the United States,
including tributaries and adjacent wetlands like those
involved here. These cases are about much more than two
isolated disputes over the U.S. Army Corps of Engineers’
(“Corps”) wetlands jurisdiction. Petitioners’ arguments to
exclude non-navigable waters and their adjacent wetlanus
from federal regulation strike at the very heart of the
nation’s water pollution control programs. As the agency
primarily charged with implementing the Clean Water Act,
EPA has worked closely with the states over the last three
decades to make steady progress toward reducing water-
borne contamination and restoring the commercial, recrea-
tional, and ecological health of our aquatic systems. Amici
have an abiding interest in ensuring that this successful
federal] state partnership and the long-settled administra-
tive practices on which it is built are not weakened by an
unnecessarily narrow interpretation of the statute.

+

' All parties have consented to the filing of this brief in letters that
are on file with the Clerk. Pursuant to Rule 37.6, counsel for amici
state that no counsel for a party authored this brief in whole or in part
and no person or entity, other than amici or their counsel, made a
monetary contribution to the preparation or submission of this brief.

* Amici are Former EPA Administrator Carol M. Browner (Jan.
1993 to Jan. 2001), Former EPA Administrator William K. Reilly (Feb.
1989 to Jan. 1993), Former EPA Administrator Douglas M. Costle (Mar.
1977 to Jan. 1981), and Former EPA Administrator Russell E. Train
(Sept. 1973 to Jan. 1977).

— 2

SUMMARY OF ARGUMENT

The key phrase at issue here — “waters of the United
States” - undergirds every water pollution control pro-
gram established in the Clean Water Act, not just the
wetlands permit program. Most significant among these
water quality efforts are the law’s basic prohibition
against discharging pollutants into waters without a
permit, 33 U.S.C. §1311(a), the National Pollutant Dis-
charge Elimination System (“NPDES”) permit program
established by section 402 of the Act, 33 U.S.C. § 1342, and
the statute’s linked water quality-based requirements. In
broadly defining “navigable waters” as “waters of the
United States,” Congress recognized both the reality of
hydrologic cycles and the need to address pollution at its
source. Given the quintessentially economic activities
regulated by the statute, and by the Corps in these par-
ticular cases, Congress unquestionably acted within its
Commerce Clause powers in articulating a statutory

“ definition broad enough to effectuate the statute’s various
pollution contro] programs.

In the three decades since the Clean Water Act’s
passage, regulatory agencies and the courts have given
effect to Congress’ intent by consistently interpreting the
term “navigable waters” to cover all interconnected wa-
ters, including non-navigable tributaries and their adja-
cent wetlands. The system of cooperative federalism that
Congress envisioned in crafting the Clean Water Act has
since developed into a robust federal-state partnership
that relies heavily on this interpretation of the statute’s
jurisdiction. The radical reinterpretation that Petitioners
press here would upend long-settled expectations, ham-
string enforcement efforts, and impair the ecological,

3

recreational, and commercial value of the nation’s lakes,
rivers, and coastal estuaries.

Petitioners base their arguments primarily on an
expansive misreading of a few clauses in Solid Waste
Agency of Northern Cook County (“SWANCC”) v. U.S.
Army Corps of Engineers, 531 U.S. 159 (2001), while
failing to heed the more directly applicable holdings and
language of United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121 (1985). The touchstone for the Court’s
analysis in both cases was the scope of the term “navigable
waters,” expressly defined by the Clean Water Act as
“waters of the United States, including the territorial
seas.” 33 U.S.C. § 1362(7). In Riverside Bayview, the Court
recognized that the Clean Water Act confers broad regula-
tory jurisdiction on the Corps and EPA over “wetlands
adjacent to but net regularly flooded by rivers, streams,
and other hydrographic features more conventionally
identifiable as ‘waters.’” 474 U.S. at 131. The Court’s
decision in SWANCC confirmed the ongoing validity of
Riverside Bayview, concluding only that Clean Water Act
jurisdiction does not extend as far as non-navigable
“isolated ponds, some only seasonal, wholly located within
two Illinois counties” solely because they serve as habitat
for migratory birds. 531i U.S. at 171-72.

The Corps’ actions in both Rapanos and Carabell fall
squarely within the contours of Riverside Bayview. Peti-
tioners’ arguments amount to nothing more than a request
by two commercial real estate developers that the Court
second-guess the ecological judgments of the expert
administrative agencies concerning water flows, the
significance of wetlands and their connection to tributar-
ies, and the role of these components of the aquatic system
in protecting water quality. Riverside Bayview soundly

4

rejected Petitioners’ proffered approach, deferring to the
agencies’ general regulatory judgments and site-specific
ecological assessments. There is no reason for the Court to
revisit this settled issue.

S

ARGUMENT

I. A BROAD INTERPRETATION OF THE TERM
“WATERS OF THE UNITED STATES” IS PIV-
OTAL TO THE NATION’S WATER POLLUTION
CONTROL EFFORTS.

Although focused on jurisdictional wetlands, these
cases have vastly broader and more troubling implications.
Petitioners essentially ask the Court to rewrite and
restrict the definition of “waters of the United States,” a
phrase that governs not only the jurisdictional scope of
section 404 “dredge and fill” permits like the ones at issue
here, but also every other pollution protection program
established by the Act. A decision by the Court to cast
aside more than three decades of settled administrative
and judicial interpretations of the phrase “waters of the
United States” would strike a crippling blow at the under-
pinnings of the Clean Water Act.

A. The Clean Water Act of 1972 Constituted a
Radical Departure from Prior Federal Wa-
ter Quality Laws and Enacted a Compre-
hensive Pollution Control Regime.

Adopted in the wake of burning rivers and toxic fish,
the Clean Water Act discarded the ineffective approaches
of the past and set a bold new course for cleanup of the
nation’s polluted waterways. The overarching objective of

5

the Clean Water Act is no less than “to restore and main-
tain the chemical, physical, and biological integrity of the
Nation’s waters.” 33 U.S.C. §1251(a). To achieve this
objective, Congress declared the ambitious goals of attain-
ing “water quality which provides for the protection and
propagation of fish, shellfish, and wildlife and provides for
recreation in and on the water” by 1983 and eliminating
altogether the discharge of pollutants into navigable
waters by 1985. 33 U.S.C. § 1251(a)(1)-(2). In addition to
its aspirations of achieving “fishable” and “swimmable”
waters, the statute also announced a new national policy
of prohibiting “the discharge of toxic pollutants in toxic
amounts.” 33 U.S.C. § 1251(a\(3). Thus, as this Court has
recognized, the contemporary Clean Water Act is a com-
prehensive pollution control law aimed at controlling
commercial activities that previously evaded regulation
under federal, state and local laws. City of Milwaukee v.
Illinois and Michigan, 451 U.S. 304, 310, 317-18 (1981)
(finding that the 1972 amendments constituted “a ‘total
restructuring’ and ‘complete rewriting’ of the existing
water pollution legislation”). See also Environmental
Protection Agency v. California, 426 U.S. 200, 202 (1976)
(discussing the ineffectiveness of pre-1972 state and
federal water pollution control efforts); Train v. City of
New York, 420 U.S. 35, 37 (1975) (stating that 1972
amendments “provide a comprehensive program for
controlling and abating water pollution”).’

* The statute also directs the EPA Administrator, in cooperation
with the states and others, to “prepare or develop comprehensive
programs for preventing, reducing, or eliminating the pollution of the
navigable waters and ground waters and improving the sanitary
condition of surface and underground water.” 33 U.S.C. § 1252(a). These
comprehensive programs must “conserve such waters for the protection

(Continued on following page)

6

To achieve these ends, Congress built the Clean Water
Act’s key provisions around the then-novel concept that,
except as specifically allowed, “the discharge of any pollut-
ant by any person shall be unlawful.” 33 U.S.C. § 1311(a).
The pivotal term “discharge of pollutant” is statutorily
defined as “any addition of any pollutant to navigable
waters.” 33 U.S.C. § 1362(12A). The term “navigable
waters” is, in turn, defined by statute as “waters of the
United States, including the territorial seas.” 33 U.S.C.
§ 1362(7). Thus, the scope of EPA’s and the Corps’ jurisdic-
tion to regulate the discharge of any pollutant under the
Clean Water Act is coextensive with the reach of the
phrase “waters of the United States.”

As this Court hws recognized, “Congress evidently
intended [in 1972] to re. udiate limits that had been placed
on federal regulation by earlier water pollution control
statutes and to exercise its powers under the Commerce
Clause to regulate at least some waters that would not be
deemed ‘navigable’ under the classical understanding of
that term.” Riverside Bayview, 474 U.S. at 133 (citing S.
Conf. Rep. No. 92-1236, at 144 (1972) and 118 Cong. Rec.

—_33756-57 (1972) (statement of Rep. Dingell)). These earlier
statutes — particularly the Rivers and Harbors Act of 1899,
33 U.S.C. § 401 et seg., and the Federal Water Pollution
Control Act of 1948, as amended — were focused on waters
that are or have been used, or may be susceptible for use,

and propagation of fish and aquatic life and wildlife, recreational
purposes, and the withdrawal of such waters for public water supply,
agricultural, industrial, and other purposes.” Jd. Additionally, the
statute funds basinwide water quality planning, to be done on a
watershed basis taking into consideration “rivers and their tributaries,
streams, coastal waters, sounds, estuaries, bays, lakes, and portions
thereof as well as the lands drained thereby.” Jd. § 1252(c).

7

to transport interstate commerce and were generally
considered inadequate to regulate industrial pollutants.‘
Growing public concern over water quality and the inabil-
ity of existing laws to effectively control pollutants at their
source led directly to enactment of the new Clean Water
Act in 1972, with its focus on the all-encompassing section
402 discharge permit program. See Gregory J. Hobbs, Jr.
and Bennett W. Raley, Water Rights Protection in Water
Quality Law, 60 U. Colo. L. Rev. 841, 849 (1989).

B. Petitioners’ Interpretation Would Eviscer-
ate the Section 402 NPDES Permit Pro-
gram, which Lies at the Heart of the Clean
Water Act.

The NPDES program under section 402 is the corner-
stone of the Clean Water Act’s pollution control efforts,
entirely replacing the Corps’ nascent permit program

* In the 1960’s, the Corps began regulating industrial pollutants
under section 13 of the Rivers and Harbors Act, 33 U.S.C. § 407, which
prohibits the discharge of refuse (but not sewage) into navigable water
and “any tributary of any navigable water from which the same shall
float or be washed into such water.” See United States v. Standard Oil
Co., 384 U.S. 224, 230 (1966) (release of aviation fue] into river).
However, the agency’s attempt to develop a formal discharge permit
program extending to both navigable waters and their tributaries was
dealt a blow in Kalur v. Resor, 335 F. Supp. 1, 9 (D.D.C. 1971) (finding
permit regulations adopted in 1971 to be ultra vires). See also generally
Donna M. Downing, Cathy Winer, and Lance D. Wood, Navigating
Through Clean Water Act Jurisdiction: A Legal Review, 23 Wetlands
475, 476-78 (Sept. 2003) (describing history of Rivers and Harbors Act
and judicial] interpretations of traditional navigability test); Maria V.
Maurrase, Oklahoma v. EPA: Does the Clean Water Act Provide an
Effective Remedy to Downstream States or Is There Still Room Left for
Federal Common Law?, 45 U. Miami L. Rev. 1137, 1146-49 (1991)
(describing inadequacies of pre-1972 Federal Water Pollution Control
Act).

8

under the Rivers and Harbor Act. See 33 U.S.C.
§ 1342(a)(5).° It constitutes a comprehensive permit
system for “the discharge of any pollutant” into waters of
the United States, requiring that all such discharges
comply with technology-based effluent limitations estab-
lished by EPA for various industrial categories of “point
sources.” Id. § 1342(a)(1). NPDES permittees also must
comply with backstop water-quality based effluent limita-
tions, if and as necessary to protect public health, indus-
trial and recreational uses, and ecological functions. Id.
§ 1312(a). The section 402 program broadly applies both to
conventional pollutants, such as those commonly associ-
ated with sewage treatment activities and industrial
operations, and to those dangerous chemical pollutants
deemed “toxic” by the EPA Administrator. Jd. § 1317(a)(1).

Petitioners’ reading of the phrase “waters of the
United States” to exclude non-navigable tributary waters
and their adjacent wetlands based on geographic prox-
imity (or, as the Carabell Petitioners apparently contend,
failure to prove a robust hydrologic connection to directly
adjacent waters) threatens to unravel the protections of
the NPDES permit program. A watershed is a vast braided

* The Clean Water Act dramatically changed the prior legal
landscape by conferring on the newly-created EPA the responsibility for
implementing the section 402 permit program and all other facets of
the statute, save for the section 404 permit program. See 33 U.S.C.
§ 1251(d). Consistent with the Corps’ historic role over dredge and fill
activities in navigable waters, the Act conferred section 404 permitting
authority on the Corps, but gave EPA ultimate veto authority over such
permits. Id. § 1344(a)-(c). See 43 U.S. Op. Atty. Gen. 197, 201-02, 1979
WL 16529 (Sept. 5, 1979) (noting that the term “navigable waters” is
the linchpin for all Clean Water Act programs and concluding that EPA,
not the Corps, has the ultimate authority for a uniform definition of the
term).

9

network of streams, wetlands, and pools, intertwining to
form the great rivers, lakes, and estuaries downstream.
Upstream tributarv streams — which form at least 75
percent of the nation’s stream miles — act as a complex
living filter system and are biologically and hydrologically
critical to gathering and gradually releasing the water
that fills larger rivers and lakes, in the process removing
pollutants and sediments. Judy L. Meyer et al., Where
Rivers are Born: The Scientific Imperative for Defending
Small Streams and Wetlands 6-7, 10-15 (2003).° Down-
stream water quality depends on the protection of up-
stream areas and suffers if they are degraded. See, e.g.,
Bruce J. Peterson et al., Control of Nitrogen Export from
Watersheds by Headwater Streams, 292 Science 86, 89
(April 6, 2001) (“Restoration and preservation of small
stream ecosystems should be a central focus of management
strategies [to] .. . improve the quality of water delivered to
downstream lakes, estuaries, and oceans” because nitro-
gen processing is much more rapid and effective in head-
water tributaries”); EPA Region 3 Comments on Advanced
Notice of Proposed Rulemaking on the Clean Water Act
Regulatory Definition of “Waters of the United States”
(“ANPRM”) at 7 (pathogens from upstream sewage treat-
ment facilities located on smaller order tributaries, such as
many of the facilities in the Mid-Atlantic region, can
survive long distances and end up in downstream drinking
water); EPA Region 6 ANPRM Comments, Enclosure at 1.’

* This publication is available at http://www.americanrivers.org/
site/DocServer/WhereRiversAreBorn 1.pdf?docID=182.

” On January 15, 2003, EPA and the Corps jointly published this
advanced notice seeking public comment and soliciting technical
information on potential regulatory changes or clarification in light of
the Court’s decision in SWANCC. 68 Fed. Reg. 1991 (Jan. 15, 2003). The

(Continued on following page)

10

Tens of thousands of NPDES permits have been
issued across the nation, primarily by state agencies in the
45 states that have been delegated such permitting au-
thority by EPA. Many of these permits regulate discharges
into non-navigable tributaries, including discharges from
both industrial processes and municipal sewage treatment
facilities. See, e.g., EPA Region 6 ANPRM Comments,
Enclosure at Table 2. If the Court were to hold that dis-
tant, intermittent or artificial tributaries to navigable
waters are excluded from the definition of “waters of the
United States,” many — if not most — of the nation’s waters
would lose the important protections of the NPDES
program, virtually overnight. See, eg., EPA Region 1
ANPRM Comments, Attachment at 12 (explaining that
publicly owned treatment works in New England could
freely discharge poorly treated sewage if the NPDES
program does not cover tributaries); EPA Region 9 ANPRM
Comments at 12-13 (noting that major discharge sources
in the region, such as mines and sewage treatment plants,
would lose NPDES protection). For instance, Missouri has
over 84,000 miles of intermittent/ephemeral streams and
82 percent of the state’s NPDES permittees discharge to
these streams; limiting the reach of the Clean Water Act to

agencies received roughly 130,000 comments from the states, regional
EPA offices, various stakeholders, and the general public overwhelm-
ingly opposed to any regulatory change that would restrict the scope of
the current definition. In this brief, amici cite to several of the federal
and state agency comment letters, which are available at http://
www.earthjustice.org/backgrounder/display.html?preview=yes&ID=143
(EPA regional office comments) and http://www.earthjustice.org/back
grounder/display.html?ID=68 (individual state comments), respectively,
and are referenced herein as “ANPRM Comments.” Ultimately, EPA
decided not to move forward with any regulatory changes. See http://
www.epa.gov/owow/wetlands/guidance/SWANCC/.

11

traditionally navigable waters could affect more than 76
percent of the state’s headwaters or intermittent streams.
Missouri ANPRM Comments at 2. Likewise, approxi-
mately 75 percent of the stream miles in Texas are inter-
mittent and roughly 48 percent of the NPDES-permitted
wastewater discharges flow into such intermittent streams.
Texas ANPRM Comments at 2.

Indeed, while there are no definitive estimates of the
nationwide impacts from the loss of Clean Water Act
coverage for tributary systems and their adjacent wet-
lands, the numbers are likely quite high. In the New
England region alone, EPA estimates that approximately
35,000 miles of non-navigable tributaries (and approxi-
mately 2,140,000 acres of their adjacent wetlands and
other waters) would lose protection. EPA Region 1 ANPRM
Comments at 3. On the other side of the continent, the
State of Arizona has estimated that 95 percent of its
surface waters are intermittent or ephemeral, all of which
would fall outside the narrow definition that Petitioners
advance, Arizona ANPRM Comments at 1, and the State of
Montana estimates that limiting the definition of naviga-
hle waters to perennial or traditionally navigable rivers
would eliminate Clean Water Act coverage for 71 percent
of the state’s stream miles. Montana ANPRM Comments
at 4-5. In the nation’s heartland, the same concerns hold
true; for example, the State of Nebraska estimates that it
would lose regulatory oversight of 76 percent of its water-
ways under even an “extremely conservative estimate” of
the reach of a definition change. Nebraska ANPRM Com-
ments at 2. Thus, virtually every region of the country
would be significantly impacted by a narrowing of Clean
Water Act jurisdiction, and many of the potentially unpro-
tected waters serve as sources of drinking water. See, e.g.,

12

EPA Region 3 ANPRM Comments at 6 and Table 1 (dem-
onstrating that between 148 and 526 surface drinking
water intakes, serving populations ranging from 535,000
to 3 million people, are in headwaters streams and thus
potentially affected by restrictions on Clean Water Act
jurisdiction).

Elimination of Clean Water Act jurisdiction over non-
navigable tributaries and their adjacent wetlands also
would have a significant adverse effect on EPA's enforce-
ment program, calling into question pending wetlands and
NPDES enforcement cases. See EPA Region 1 ANPRM
Comments at 14; EPA Region 9 ANPRM Comments at 12-
13 (describing several such vulnerable enforcement ac-
tions). For instance, in United States v. Eidson, 108 F.3d
1336 (11th Cir.), cert. denied, 552 U.S. 899 (1997), a used
oil company intentionally pumped industrial wastewater
sludge containing priority pollutants into a storm sewer
that drained into a storm drainage ditch which eventually
emptied into Tampa Bay. The Eleventh Circuit upheld
EPA's long-established definition of “waters of the United
States” to conclude that non-navigable tributaries to
navigable waterways are covered by the Clean Water Act.
Id. at 1342 (noting that “[plollutants are equally harmful
to this country’s water quality whether they travel along
man-made or natural routes”). Similar examples, spanning
three decades of remarkable judicial consistency across the
country, abound.’ Petitioners’ proposed reading of the term

* See, e.g., Headwaters, Inc. v. Talent Irrigation District, 243 F.3d
526, 533-34 (9th Cir. 2001) (discharge of pesticide into irrigation cana)
without NPDES permit); United States v. TGR Corp., 171 F.3d 762, 764-
65 (2d Cir. 1999) (criminal conviction for the knowing discharge,
without a permit, of asbestos waste slurry into a drain that flowed into

(Continued on following page)

13

“navigable waters” would imperil such enforcement
actions and the nation’s waters.

There simply is no question that “[njatural and
altered streams can serve as water pollution conduits,
whether continuous or intermittent in their flow” and that
“[mjan-made structures [such as ditches) ... have the
same practical effect of direct connectivity in being pollu-
tion conduits.” EPA Region 5 ANPRM Comments at 3. See
also EPA Region 9 ANPRM Comments at 8-9 (explaining
that nearly 20,000 miles of constructed drains and canals
in California’s Central Valley lie upstream of drinking
water supplies for much of the state’s population). The loss
of section 402 protections for such non-navigable tributar-
ies would set the country’s water quality efforts back “to
pre-1960’s levels.” EPA Region 7 ANPRM Comments at 5.

a channelized brook that flowed into a tributary to the Long Island
Sound), Quivira Mining Co. v. U.S. Environmental Protection Agency,
765 F.2d 126 (10th Cir. 1985) (uranium mining company discharge of
pollutants into short-distance gullies or “arroyos”), United States v.
Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979) (unpermitted
discharge of oil); United States v. Earth Sciences, Inc., 599 F.2d 368, 375
(10th Cir. 1979) (illegal discharge of toxic codium cyanide-sodium
hydroxide solution from gold mine leaching operation into a non-
navigable creek); United States v. Ashland Ou, 504 F.2d 1317, 1325 (6th
Cir. 1974) (conviction for the discharge of oil without a permit into an
unnamed, non-navigable tributary where its waters flowed through
three other waterways before reaching a navigable river), United States
v. Jones, 267 F. Supp. 2d 1349 (M.D. Ga. 2003) (discharge to storm
drain that flowed into tributary of navigable stream), State of Georgia v.
City of East Ridge, 949 F. Supp. 1571 (N.D. Ga. 1996) (sewage discharge
into storm drain that flowed to unnamed tributary of navigable-in-fact
river); United States v. St. Bernard Parish, 589 F. Supp. 617 (D.C. La.
1984) (discharge to canal pumped to open water pools adjacent to
wetland that was adjacent to navigable river).

14

C. Other Clean Water Act Provisions Are Simi-

larly Dependent on a Broad Interpretation
of Navigable Waters.

Sections 402 and 404 are not the only Clean Water Act
programs whose effectiveness turns on the phrase “waters
of the United States.” For example, section 304 of the
Clean Water Act mandates that, for navigable waters,
states adopt and EPA approve water quality standards
that “protect the public health or welfare [and] enhance
the quality of water . . . taking into consideration their use
and value for public water supplies, propagation of fish
industrial, and other purposes, and also taking into
consideration their use and value for navigation.” 33
U.S.C. § 1313(cX2MA). Additionally, states must develop
“total maximum daily loads” (“TMDLs”) for any waters
that do not meet these standards and must implement
these TMDLs through “waste allocations” incorporated
into NPDES permits and their non-point source planning
efforts. Id. § 1313(d).

Because many NPDES permit holders discharge into
tributary streams, a statutory reinterpretation that leaves
these streams unregulated will increase the pollutant load
in downstream waters, leading to TMDL violations. See,
e.g., California ANPRM Comments at 9; Arizona ANPRM
Comments at 3; Delaware ANPRM Comments at 14;
Rhode Island ANPRM Comments at 1-2. For example, in
the Christina River Basin that spans Pennsylvania,
Maryland, and Delaware, TMDL modeling and analysis
demonstrate that nutrients, dissolved oxygen, and dioxin
all move into the river from upstream tributaries and
must be controlled at their source to effectuate the clean-
up envisioned by section 304. EPA Region 3 ANPRM

15

Comments at 14-15. See also EPA Region 1 ANPRM
Comments at 13 (discussing effects on TMDL efforts to
restore Long Island Sound).

Many other Clean Water Act programs would be
similarly impacted by Petitioners’ cramped interpretation
of “navigable waters.” For instance, section 401, 33 U.S.C.
§ 1341(a), requires states to certify that applications for
federal permits and licences involving discharges into
“navigable waters” will comply with the standards of the
Clean Water Act. Because states often do not have the
legal authority or the resources to step in and directly
regulate the destruction of wetlands,’ many have histori-
cally relied on section 401 as the primary mechanism for
protecting wetlands and riparian areas. See, e.g., Arizona
ANPRM Comments at 3; California ANPRM Comments at
3; Hawaii ANPRM Comments at 3; Indiana ANPRM
Comments at 8; lowa ANPRM Comments at 2; Kentucky
ANPRM Comments at 1; Maine ANPRM Comments at 1;
Nebraska ANPRM Comments at 4; South Carolina
ANPRM Comments at 1; Texas ANPRM Comments at 4;
Wyoming ANPRM Comments at 5-6. The oil and hazard-
ous substance discharge liability provisions of the Clean
Water Act and the Oil Pollution Act also turn on the
definition of “navigable water,” 33 U.S.C. §§ 1321(b),
2702(a), as do provisions regulating sewage treatment
facility discharges, 33 U.S.C. § 1345(a), and non-point
source planning provisions. 33 U.S.C. § 1319(a). Each of

* Nebraska, cor instance, protects only 2 percent of its wetlands
through state programs, Nebraska ANPRM Comments at 4, and South
Carolina has no regulatory program in place for 99 percent of its
wetlands. South Carolina ANPRM Comments at 1. California, Wyo-
ming, Montana, Arizona, and Texas have no state law in place. Respec-
tive State ANPRM Comments at 3, 6, 5, 2, and 4.

16

these programs is threatened if Petitioners’ interpretation
is adopted.

“Protection of aquatic ecosystems, Congress recog-
nized, demanded broad federal authority to control pollu-
tion, for ‘[wjater moves in hydrologic cycles and it is
essential that discharge of pollutants be controlled at the
source,” Riverside Bayview, 474 U.S. at 132-33, and the
legislative history ‘the Clean Water Act plainly evinces
Congress’ intent to control pollution in both navigable
waters “and their tributaries.” S. Rep. No. 92-414, at 77
(1972). Because tributary systems and their adjacent
wetlands are “inseparably bound up with ‘waters’ of the
United States,” they fal] within the statute's jurisdiction
as already construed by this Court in Riverside Bayview,
474 U.S. at 134. See also International Paper Co. v.
Ouellette, 479 U.S. 481, 486 (1987) (Clean Water Act
“applies to virtually all surface water in the country’).
SWANCC did not overrule Riverside Bayview nor did it
otherwise alter this fundamental proposition.

Il. THE FEDERAL GOVERNMENT'S CONSIS-
TENT INTERPRETATION OF CLEAN WATER
ACT JURISDICTION HAS RESULTED IN A
ROBUST FEDERAL-STATE PARTNERSHIP
FOR PROTECTING WATER QUALITY.
Petitioners contend that the government’s application

of the Clean Water Act to the facts of these cases “gives the

Corps extraordinary power to regulate matters that have

traditionally been exclusively reserved for regulation by

the States” and “will extend federal authority over an
enormous expanse of land.” Petitioners’ Brief in Carabell
at 14. Such heated rhetoric incorrectly suggests that the

Corps has engaged in an alarming departure from long-

established regulatory practices. In truth, however, EPA

17

and the Corps have for decades interpreted the Clean
Water Act’s jurisdiction to reach tributary systems and
their adjacent wetlands, such as the ones at issue here.
The Court's decision in SWANCC does not dictate a differ-
ent course now. Petitioners’ call to ignore decades of
settled judicial interpretation would effect a major shift in
regulatory policy and largely leave the states adrift to
regulate tributary systems and their adjacent wetlands at
their own expense and on an ad hoc basis — precisely the
failed regime that Congress overrode with passage of the
Clean Water Act in 1972.

A. EPA and the Corps Have Consistently As-
serted Jurisdiction Over Tributaries and
their Adjacent Wetlands for Three Decades.

Soon after enactment of the Clean Water Act, EPA
broadly defined “navigable waters” to include all navigable
waters of the United States and all tributaries of such
waters, as well as interstate waters and a variety of
intrastate waters connected to interstate commerce. 38
Fed. Reg. 13,527, 13,529 (May 22, 1973). As then-EPA
Administrator Russell Train later explained, “aquatic
systems are .. . interrelated and interdependent. We cannot
expect to preserve the remaining qualities of our water
resources without providing appropriate protection for the
entire resource.” Section 404 of the Federal Water Pollution
Control Act Amendment of 1972: Hearings Before the Sen.
Public Works Comm., 94th Cong., 41 (July 27, 1976) (Testi-
mony of EPA Administrator Russell Train), at App. 15."

* Although EPA's original definition did not expressly identify
“wetlands” as “navigable waters,” the agency contemporaneously issued

unique and major importance to citizens of this Nation” which require
(Continued on following page)

18

After a short-lived, narrower Corps interpretation of
“navigable waters” was criticized by EPA" and rejected by
the courts,” today’s more comprehensive definition was
developed and refined. See Lance D. Wood, Don’t Be
Misled: CWA Jurisdiction Extends to All Non-Navigable
Waters and to Their Adjacent Wetlands, 34 Env. L. Rev.
10187, 10211 (2004) (explaining Corps’ 1974 actions).
Consistent with EPA’s regulations and the statute’s
legislative history, the Corps revised its earlier definition
to give the term its “broadest possible constitutional
interpretation.” 40 Fed. Reg. 19,766 (May 6, 1975) (citing
S. Kep. No. 92-1236, at 144 (1972)).” That definition,
finalized in interim form a few months later, included
“[ajll tributaries of navigable waters of the United States
up to their headwaters and landward to their ordinary high
water mark,” as well as wetlands that are “contiguous or
adjacent to other navigable waters.” 40 Fed. Reg. 31,320,
31,324-25 (July 25, 1975). Where necessary to protect

“extraordinary protection.” 38 Fed. Reg. 10,834 (May 2, 1973). Accord-
ingly, EPA announced its policy to “preserve the wetland ecosystems
and to protect them from destruction through waste water or nonpoint
source discharges regarding protection of wetlands” and to “minimize
alterations in the quantity or quality of the natural flow of water that
nourishes wetlands and to protect wetlands from adverse dredging or
filling practices.” Jd.

“ See Letter from EPA Administrator Russell E. Train to Corps Lt.
Gen. W.C. Gribble, Jr. (Jan. 15, 1974), at App. 24-27.

" Natural Resources Defense Council, Inc. v. Calloway, 392
F. Supp. 685 (D.D.C. 1975) (invalidating regulations promulgated at 39
Fed. Reg. 12115, 12119 (April 3, 1974)).

* The House Report contained similar language, noting that “{t)he
committee fully intends the term “navigable waters” to be given the
broadest possible constitutional interoretation.” H.R. Rep. No. 92-911,
at 131 (1972).

19

water quality, the Corps District Engineer would deter-
mine jurisdiction over intermittent rivers, streams, tribu-
taries, and non-adjacent perched wetlands. Jd. EPA
simultaneously proposed complementary guidance for
evaluating dredge and fill permit applications for dis-
charge to wetlands. 40 Fed. Reg. 19,794 (May &, 1975).
EPA explained that the program would protect “wetlands
which are especially valuable for propagation and support
of fish and wildlife, as well as other beneficial uses ...
[from] capricious development [that is) having a major
impact on the aquatic life and wildlife of the United States,
and other water uses.” Jd. These guidelines, which mirrored
the Corps’ regulations, were issued in interim final form a
few months later. 40 Fed. Reg. 41,294 (Sept. 7, 1975).

Since adoption of these early implementing regula-
tions, the agencies’ interpretation of “navigable waters”
’ has remained remarkably stable. In 1977, the Corps
amended the definition of “navigable waters” in order to
“make the policies and procedures more understandable to
a person desiring to perform work in the waters of the
United States.” 42 Fed. Reg. 37,122 (July 19, 1977). The
1977 amendment did not expand the Corps’ jurisdiction,
but merely aimed to resolve confusion as to which waters
were subject to jurisdiction, including wetlands adjacent to
navigable waters or their tributaries, as well as other
waters “the degradation or destruction of which could
affect interstate commerce.” 42 Fed. Reg. at 37,144."

“ The 1977 clarification provided the first definition of “adjacent,”
defined as “bordering, contiguous, or neighboring. Wetlands 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.’”
42 Fed. Reg. at 37,144.

20

In 1979, the EPA issued the definition of “waters of
the United States” that, with only minor modifications,
remains in effect today. 44 Fed. Reg. 32,854, 32,901 (June
7, 1979); 33 C.F.R. § 328.3(a). In 1986, the Corps adopted
the EPA definition. See 51 Fed. Reg. 41,206, 41,217 (Nov.
13, 1986); 40 C.F.R. § 230.3(s). These definitions largely
parallel the original 1975 and 1977 definitions.

In sum, the Corps and EPA have consistently inter-
preted the jurisdictional reach of the Clean Water Act’s
integrated and comprehensive pollution control programs,
and the courts have largely followed suit. See, e.g., United
States v. Gerke Excavating, Inc., 412 F.3d 804 (7th Cir.
2005), petition for cert. filed, 74 USLW 3309 (U.S. Nov. 11,
2005) (No. 05-623) (wetlands drained by a ditch that ran
into non-navigabie creek that ran into non-navigable river,
which in turn ran into navigable river are “waters of the
United States”); In re Needham, 354 F.3d 340 (5th Cir.
2003) (drainage canal adjacent to navigable-in-fact water
constitutes “navigable water”); Treacy v. Newdunn Associ-
ates, LLP, 344 F.3d 407 (4th Cir. 2003) (wetland that
drains intermittently into manmade waterway that
empties 2.4 miles later into navigable-in-fact water subject
to CWA jurisdiction); United States v. Deaton, 332 F.3d 698
(4th Cir. 2003) (wetlands adjacent to roadside ditch that
eventually empties into navigable-in-fact waters subject to
Clean Water jurisdiction); Avoyelles Sportsmen’s League,
Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983) (wetlands
subject to Clean Water Act jurisdiction); United States v.
Byrd, 609 F.2d 1204 (7th Cir. 1979) (wetlands adjacent to
lake are “navigable waters”); Leslie Salt Co. v. Froehlke,
578 F.2d 742 (9th Cir. 1978) (Clean Water Act jurisdiction
extends at least to waters which are no longer subject to
tidal inundation because of dikes). Such contemporaneous
and long-standing administrative construction carries

21

special weight. Fawcus Machine Co. v. United States, 282
U.S. 375, 378 (1931).

B. If Adopted, Petitioners’ Arguments Threaten
to Disrupt the Clean Water Act’s Coopera-
tive Federalism Scheme and Unduly Burden
the States.

The Clean Water Act, as originally drafted and subse-
quently implemented, does not impinge on any traditional
area of state regulation, but rather, constitutes a classic
example of cooperative federalism. The statute manifests
Congress’ embrace of a “partnership between the States
and the Federal Government, animated by a shared
objective: ‘to restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.’” Arkansas
v. Oklahoma, 503 U.S. 91, 101 (1992) (quoting 33 U.S.C.
§ 1251(a)). By its explicit terms, the statute preserves and
allocates substantial roles to state governments, but also
provides for federal regulation of polluting activity. See 33
U.S.C. § 1342(b) (giving states the presumptive right to
take over administration of the Act’s discharge permit
program); 33 U.S.C. § 1342(g) (similarly giving states the
presumptive right to take over the federal “dredge and fill”
program); 33 U.S.C. § 1370 (setting forth savings clause
preserving state authority to protect waters more strin-
gently than federally required). In many states, including
the one at issue here, the federal-state partnership envi-
sioned by Congress has become a working reality over the
last thirty years, with federal and state water protection
laws integrated into one “seamless” and streamlined
regulatory process, reducing permit application costs
and time. See, e.g., Michigan ANPRM Comments at 14;

22

Delaware ANPRM Comments at 15; Vermont ANPRM
Comments at 2.

Given these long-established regulatory relationships,
many states oppose the shrinking of federal protection
over the nation’s waters. As Nebraska explained to EPA,
“staggering economic difficulties for the states mean the
additional burden would strain state resources and dra-
matically reduce our ability to protect the waters of the
State.” Nebraska ANPRM Comments at 1. See also Ari-
zona ANPRM Comments at 3 (“Given the ongoing budget
concerns of our state and many others, creation of such
programs and partnerships is unlikely in the near fu-
ture”); Montana ANPRM Comments at 5 (“A Federal basis
of support for implementation of water quality protection
efforts in Montana is critical in light of the state’s limited
regulatory resources.”). Other states have expressed
similar views. See, e.g., California ANPRM Comments at 9;
Maine ANPRM Comments at 1; North Carolina ANPRM
Comments at 6; Wyoming ANPRM Comments at 5. To
overturn thirty years of settled expectations here would, in
effect, impose an enormous unfunded mandate on the
states.

Even in the absence of budgetary woes, other practical
constraints prevent states from filling EPA’s and the
Corps’ regulatory shoes. In some states, regulatory agen-
cies are actually forbidden from imposing any regulations
stricter or more extensive than federal regulations. See,
e.g., Texas ANPRM Comments at 4. Elsewhere, the with-
drawal of federal jurisdiction likely means that “a patch-
work quilt of uneven regulations will threaten overall
water quality.” Indiana ANPRM Comments at 1-2. More-
over, the states themselves recognize that without the
“level playing field” created by the Clean Water Act, many

23

states will feel economic pressure to engage in a race to
the bottom, loosening water regulations to compete with
other states. Delaware ANPRM Comments at 14; Tennes-
see ANPRM Comments at 2-3. But even individual states
with adequate resources, legal authority and the political
will to fill the void cannot regulate beyond their own
boundaries, a serious limitation in the integrated water-
sheds of North America where virtually every state is
affected by upstream polluting activities in another
jurisdiction. There is thus no compelling reason for the
Court to rewrite the statutory federal-state balance struck
by Congress.

Il. PETITIONERS’ REAL ESTATE DEVELOPMENTS
AND THE ACT’S PROTECTIONS BOTH IMPLI-
CATE COMMERCIAL ACTIVITIES, OVERCOM-
ING CLAIMED COMMERCE POWER CON.
CERNS.

These cases do not implicate legitimate constitutional
concerns. The pervasively commercial real estate devel-
opment activities at issue in Rapanos and Carabell, the
Clean Water Act’s protections of commercial activities
dependent on America’s waters, and the Corps’ underlying
regulatory judgments about Petitioners’ impacts on water
quality easily satisfy any constitutional test linked to the
Commerce Clause. Petitioners’ plans are reachable under
both the “channels of interstate commerce” and the “sub-
stantially affect” interstate commerce rationales. They
also involve “Necessary and Proper” assertions of federal
power to protect legitimate federal interests.

First, unlike the isolated, unconnected waters at issue
in SWANCC, the waters in these cases are protectable as
part of the “channels of interstate commerce.” See United

24

States v. Lopez, 514 U.S. 549, 558-59 (1995). Petitioners’
actions involve the filling of wetlands that are proximate
or directly connected to tributary ditches which act as
conduits to traditional navigable-in-fact waters. The
degradation of small stream tributaries can collectively
harm agricultural, municipal, and riparian uses of such
waters, as well as innumerable businesses dependent on
interstate travelers who seek pristine fishing streams,
small boat recreation, and swimming opportunities in
waters often miles from traditional “navigable-in-fact”
waters. See, e.g., EPA Region 10 ANPRM Comments at 4-
5. As Judge Posner observed in the factually similar Gerke
case, “the sum of many small interferences with commerce
can be large, and so to protect commerce Congress must be
able to regulate an entire class of acts if the class affects
commerce, even if no individual act has a perceptible
effect.” Gerke, 412 F.3d at 806 (citations omitted).

Under the “channels” rationale, this Court has long
recognized federal power to “insure the convenient and
safe navigation of all the navigable waters of the United
States,” including efforts to “removie] ... obstructions to
their use.” The Daniel Ball, 77 U.S. 557, 564 (1871). See
also United States v. Appalachian Electric Power Co., 311
U.S. 377, 405 (1940) (“To make its control effective the
Congress may keep ‘the navigable waters of the United
States’ open and free and provide by sanctions against any
interference with the country’s water assets.”). This power
reaches to activities in non-navigable waters necessary to
protect navigable-in-fact waters. See Oklahoma ex rel.
Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 525 (1941)
(recognizing federal power under the Commerce Clause to
reach watersheds due to their link to “flood control on
navigable streams and their tributaries”). Once “channels

of interstate commerce” are implicated, congressional
power can be asserted to “keep the channels of interstate
commerce free from immoral and injurious uses,” even
where a defendant’s conduct is itself not commercial.
Caminetti v. United States, 242 U.S. 470, 491 (1917).

Second, under the third category of Commerce Clause
power analysis, the federal government also has “the
power to regulate those activities having a substantial
relation to interstate commerce, i.e., those activities that
substantially affect interstate commerce.” Lopez, 514 U.S.
at 558-59. As the Court recently explained, Congress can
even regulate “purely intrastate activity that is not itself
‘commercial,’ in that it is not produced for sale, if it con-
cludes that failure to regulate that class of activity would
undercut the regulation of the interstate market in that
commodity.” Gonzalez v. Raich, 125 S.Ct. 2195, 2206
(2005). In assessing federal power under a category three
Commerce Clause analysis, the Court looks to the particu-
lar activities being regulated as well as the commerce-
related activities protected by the statute. See, e.g., Raich,
125 S. Ct. at 2209 (distinguishing Lopez, which involved a
“brief, single-subject statute making it a crime for an
individual to possess a gun in a school zone”); United
States v. Morrison, 529 U.S. 598, 610 (2000) (explaining
that “the noneconomic, criminal nature of the conduct at
issue” in Lopez was “central” to the Court's decision there).
In the recent Raich case, for example, the Court focused on
how Congress’ comprehensive regulation of the illegal drug
market implicated commerce in numerous ways, contrast-
ing the statute in Morrison, whose focus on gender-
motivated crimes of violence “did not regulate economic
activity.” Raich, 125 S. Ct. at 2210-11.

The Clean Water Act’s explicit text calls for Commerce
Clause analysis of the activities causing harm, here
polluting conduct, as well as commercial and economic
activities dependent on the “chemical, physical and bio-
logical integrity” of America’s waters. 33 U.S.C. § 1251(a).
The factual setting of Rapanos and Carabeill, where
commercial real estate developers sought to fill wetlands
for profit, undoubtedly involves the sorts of economic and
commercial activity so completely lacking in Lopez and
Morrison. Moreover, as the Court recognized in Riverside
Bayview, adjacent wetlands and tributaries such as those
at stake here fulfill numerous commercially and economi-
cally significant “hydrological” functions, thereby overcom-
ing any commerce power objections. See also Gerke, 412
F.3d at 806-08 (rejecting similar constitutional attack and
stating the “power of Congress to regulate pollution is not
limited to polluted navigable waters”); Deaton, 332 F.3d at
704-08 (finding fill of wetlands flowing into ditch threat-
ened “aggregate effects” with other similar actions and
was reachable because action implicated “channels of
interstate commerce”); Gibbs v. Babbitt, 214 F.3d 483 (4th
Cir. 2000) (analyzing the harmful activities regulated, the
activities contingent on regulatory protection, and the
need to reach intrastate activities as an essential part of a
larger regulation of economic activity).

Regulation of the class of pollution discharges at issue
here lies within the government’s Commerce Clause power
because it is part and parcel of a “comprehensive” regula-
tory scheme intended to control polluting harms and
_ protect the manifold uses of America’s waters. Raich, 125
S. Ct. at 2206 (“the de minimis character of individual
instances arising under [the] statute is of no significance”).
As it did in Raich, the Court should decline entreaties to

27

“excise individual applications of a concededly valid
statutory scheme.” Jd. at 2209. These cases are unlike
Lopez and Morrison, where the parties asserted that a
particular statute or provision fell outside Congress’
commerce power in its entirety. Jd.

Finally, the federal government also can protect
downstream commercial and economic uses of waters
pursuant to the Necessary and Proper Clause, which
allows “Congress ‘to take all measures necessary or appro-
priate to’ the effective regulation of the interstate market,
‘although intrastate transactions ... may thereby be
controlled.’” Raich, 125 S. Ct. at 2218 (Scalia, J., concur-
ring). Congress has the power to “facilitate interstate
commerce by eliminating potential obstructions, and to
restrict it by eliminating potential stimulants,” even
where the activity is “noneconomic.” Raich, 125 S. Ct. at
2216, 2217 (Scalia, J., concurring) (citing NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 36-37 (1937)).

Petitioners’ constitutional arguments thus rest in
their entirety on taking a few clauses in SWANCC out of
context, while virtually ignoring Raich, and ciaiming, in
effect, that SWANCC rewrote well-established Commerce
Clause precedents. The SWANCC Court alluded to poten-
but declined to analyze the “object or activity that, in the
aggregate, substantially affects interstate commerce,”
apparently questioning the timeliness of government
arguments. Jd. at 173. In light of constitutional concerns,
the SWANCC Court merely read the statute as not encom-
passing regulation under the “Migratory Bird Rule.” /d.
at 173-74. The cases now before the Court, in contrast, do
not involve isolated ponds, and do not now rely on the

estate development, with fill into “adjacent wetlands” and
tributaries that are significantly different in their loca-
tions and commercial functions from the isolated
SWANCC waters. Much as this Court in Hodel v. Virginia
Surface Mining & Reclamation Ass’n, 452 U.S. 264, 275-83
(1981), rejected a Commerce Clause attack on a federal
mining law because that law involved underlying commer-
cial activity causing harms, market competition that could
spur destructive activity, and many beneficial uses of
resources potentially threatened by mining harms, the
Court should similarly reject Petitioners’ misguided
constitutional arguments here.

IV. AS THE COURT RECOGNIZED IN RIVERSIDE
BAYVIEW, DEFERENCE TO THE AGENCIES’
REGULATORY INTERPRETATIONS AND ECO.-
LOGICAL JUDGMENTS IS WARRANTED.
Petitioners’ claims boil down to an attack on the

statutory interpretations and regulatory judgments of the

Corps and EPA. Those agency judgments consist of both

longstanding regulatory interpretations and site-specific

assessments about Petitioners’ particular lands, waters,
and planned activities. It is for the implementing agencies,
not the courts, to define the “precise bounds of regulable
waters” by exercising their “ecological judgment about the
relationship between waters and their adjacent wetlands.”
Riverside Bayview, 474 U.S. at 134. The exercise of that
ecological judgment is precisely what occurred in these
cases. As it did in Riverside Bayview, the Court should
defer to the agencies’ scientific judgments and “technical
expertise” about “biological functions” and the “aquatic
environment” under the principles set forth in Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
US. 837, 842-45 (1984). Id. at 131, 134.

Petitioners advance two slightly different, but equally
unpersuasive, rationales for overriding the Court’s prior
conclusion in Riverside Bayview. In Rapanos, Petitioners
argue that some greater hydrologic connection than the
one determined by the Corps to exist in this instance is
necessary to establish Clean Water Act jurisdiction. They
posit that a closer geographic proximity between tributar-
ies and downstream navigable-in-fact waters is required,
but they offer neither an appropriate test for determining
acceptable proximity nor any legislative, regulatory or
judicial support for their position. In reality, the hydrologic
connection that the Court discussed at length in Riverside
Bayview was not spatial or geographic, but functional. See
Riverside Bayview, 474 U.S. at 132-35. If the courts begin
usurping the proper role of the agencies in determining
these functional] hydrologic connections at particular sites,
they will likely find themselves in the line-drawing busi-
ness for many years to come.

The Carabell Petitioners pursue a different tack,
asking the Court to second-guess the ecological judgment
of the Corps with respect to the ability of their man-made
berm to isolate an admittedly adjacent wetland and
thereby cut off Clean Water Act jurisdiction. This Court
firmly rejected such a case-by-case approach in Riverside
Bayview, upholding agency jurisdiction over the class of
adjacent wetlands because the Corps “has concluded” that
such wetlands “may function as integral parts of the
aquatic environment.” Riverside Bayview, 474 U.S. at 135
(emphasis added). The Court was untroubled that some
adjacent wetlands might not be “significantly intertwined
with the ecosystem of adjacent waterways.” Id. at 135,

30

fn.9." It was enough that such waters “tend to drain” into
waters, “may serve to filter and purify water draining into
adjacent bodies of water,” or “may serve” important bio-
logical functions. Jd. at 134-35 (emphasis added). The
Court’s holding in that case and the basic principles of
stare decisis dictate the same result here.

s

CONCLUSION
The decisions of the Sixth Circuit Court of Appeals in
these consolidated cases whould be affirmed in their entirety.
Dated: January 13, 2006
Respectfully submitted,

DEBORAH A. SIVAS

LAWRENCE C. MARSHALL*

HOLLy D. GORDON

STANFORD Law SCHOOL
ENVIRONMENTAL LAW CLINIC

Crown Quadrangle

559 Nathan Abbott Way

Stanford, California 94305

(650) 724-1900

WILLIAM W. BuUZBEE

Gambrell Hall

1301 Clifton Road

Atlanta, Georgia 30322
(404) 727-6507

*Counsel of Recoru

“ If in any particular case the filling of an adjacent wetland will

App. 1

SECTION 404 OF THE FEDERAL WATER POLLU-
TION CONTROL ACT AMENDMENTS OF 1972

HEARINGS
BEFORE THE
COMMITTEE ON PUBLIC WORKS
UNITED STATES SENATE
NINETY-FOURTH CONGRESS
SECOND SESSION

JULY 27 AND 28, 1976

SERIAL NO. 94-H49

Printed for the use of the Committee on Public Works
[LOGO]

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1976

COMMITTEE ON PUBLIC WORKS
JENNINGS RANDOLPH, West Virginia, Chairman
EDMUND S. MUSKIE, JAMES L. BUCKLEY,

Maine New York
JOSEPH M. MONTOYA, HOWARD H. BAKER, JR.,
New Mexico Tennessee

MIKE GRAVEL, Alaska ROBERT T. STAFFORD,
LLOYD BENTSEN, Texas Vermont
QUENTIN N. BURDICK, JAMESA. McCLURE, Idaho
North Dakota PETE V. DOMENICI,
JOHN C. CULVER, lowa New Mexico
ROBERT MORGAN,
North Carolina
GARY HART, Colorado

App. 2

M. BARRY MEYER, Chief Counsel and Chief Clerk
BAILEY GUARD, Minority Staff Director
LEON G. BILLINGS AND RICHARD D. GRUNDY,
Senior Professional Staff Members
JOHN W. YAGO, JR., Assistant Chief Clerk;
PHILIP T. CUMMINGS, Assistant Chief Counsel
HAROLD H. BRAYMAN, Senior Professional
Staff Member (Minority)

Professional and research staff: KARL R. BRAITHWAITE,
JAMES W. CASE (Assistant Counsel), PAUL CHIMES,
TRENTON CROW, KATHERINE Y. CUDLIPP, PAUL F. EBEL-
TOFT, JR., GEORGE F. FENTON, JR., RANDOLPH G.
FLOOD, KATHALEEN R. E. FORCUM, JOHN D. FRESH-
MAN, ANN GARRABRANT, RICHARD T. GREER, RICHARD
M. HArrIis (Assistant Counsel), WESLEY F. HAYDEN,
RICHARD E. HEROD (Assistant Counsel, Minority), VE-
RONICA A. HOLLAND, RONALD L. Katz, Jupy F. PAr-
ENTE, JOHN B. PURINTON, JR., JAMES D. RANGE, W.
LEE RAWLS, CHARLENE A. STURBITTS, E. STEVENS
SWAIN, JR., SALLY W. WALKER, and HAVEN WHITESIDE

CONTENTS
OPENING STATEMENTS
Page
Hart, Hon. Gary, U.S. Senator from the State of
I ascites iinciesiniahihanesiniiniealditatidaaiaatanasnhdiiataataiiliataid 3
Muskie, Hon., Edmund S., U.S. Senator from the
TESTIS eae ON Te PUN = RO MIWOr TTI 2

Randolph, Hon. Jennings, U.S. Senator from the
RSG Wee WED cece cccstnctensensatssesensasmenenastipanetanniniiets 1

App. 3

LIST OF WITNESSES
JULY 27, 1976 (p. 1)
Dole, Hon. Bob U.S. Senator from the State of

EE a ane ee ee TT Tee 33
Reed, Nathaniel P, Assistant Secretary of the

Interior for Fish and Wildlife and Parks ...................... 68
Taft, Peter R., Assistant Attorney General, Land

and Natural Resources Division. ....................ccccesseseeeees 90

Train, Russell, Administrator, Environmental
Protection Agency; Nathaniel Reed, Assistant
Secretary of the Interior for Fish and Wildlife
and Parks; Victor Veysey, Assistant Secretary of
Army for Civil Works; and Peter Taft, Assistant
Attorney General for Land and Natural Re-

(REE Ce eee One ne aoe ne TO 38
Veysey, Victor, Assistant Secretary of the Army for

ITT TINT scat iiinies cnactcatieeasenlaasapecidiiinbinaninadeiaadainitindiiiaen 44

III cninscinicnncenensneneninencigdeedenmenimmntnntianiasia 53

SECTION 404 OF THE FEDERAL WATER POLLU-
TION CONTROL ACT AMENDMENTS OF 1972

TUESDAY, JULY 27, 1976

U.S. SENATE,
COMMITTEE ON PUBLIC WORKS,
Washington, D.C.

The committee met at 7:12 p.m., pursuant to call, in
room 4200, Dirksen Senate Office Building, Hon. Jennings
Randolph (chairman of the committee) presiding.

Present: Senators Randolph, Muskie, Burdick, Hart,
Baker, and Domenici.

App. 4

OPENING STATEMENT OF
HON. JENNINGS RANDOLPH, U.S. SENATOR
FROM THE STATE OF WEST VIRGINIA

Senator RANDOLPH. Good evening, ladies and gentle-
men.

The Committee on Public Works this evening and also
tomorrow evening will conduct two hearings on a difficult
subject as we review the environmental problems with
which the Congress is faced.

We hope to further our understanding of the problem
or problems and to receive recommendations for an effec-
tive resolving of these issues.

The situation has arisen, as members of the commit-
tee know, from the Water Pollution Control Act Amend-
ments of 1972, section 404 of that legislation requires the
Army Corps of Engineers to issue permits for the disposal
of dredge and fill material in our navigable waters.

When we wrote the act, we were concerned primarily
or even solely with controlling the way in which these
materials were disposed. Dredge and fill materials often
are highly contaminated, and thus a situation should be
addressed in the terms of water pollution control.

All the members of the committee have expressed an
interest in this subject, and we are appreciative that many
of thein arranged their schedules to be here tonight.

We did not understand earlier that a judicial decision
would subsequently broaden the impact, as I have referred
to it, of section 404. As a result of the action in the courts,
the Corps of Engineers has set down regulations covering
an extensive range of activities. These are proposed to be

App. 5

implemented in three phases. The first phase has already
gone into effect. The regulations covering phase two were
to have been implemented on July 1, but were ordered
postponed by the President pending action in the Con-

gress.

These hearings have been planned by the committee
to review the implication of the Corps of Engineers’ regula-
tions. Legislation has been adopted by the House of
Representatives, and there are proposals pending in the
Senate.

The witnesses counseling with us during these two
evenings represent a broad spectrum of affected parties. I
am sure all members of the committee welcome the oppor-
tunity to hear the witnesses and discuss with them in
dialog the problems that we know are necessary to be
discussed. The exchange, I am sure, between members of
the committee and those who testify will be helpful, as
well as the formal statements.

Senator Robert Dole of Kansas is at the witness table.
We are prepared to hear his testimony at this time.

Are there comments from members of the committee?
Senator Muskie?

OPENING STATEMENT OF
HON. EDMUND S. MUSKIE, U.S. SENATOR
FROM THE STATE OF MAINE

Senator MUSKIE. I have a brief statement which I
hope will be helpful. I had hoped that the Senate could
defer until next year consideration of the substantive
issues associated with the 1972 Clean Water Act.

App. 6

Unfortunately, much of the debate, much of the
regulations, and much of the suggested legislative re-
sponses stem from what I regard as a misinterpretation of
congressional intent.

Section 404 is designed to require the corps, because
of their existing authority to maintain navigation, to
regulate the dumping of polluted dredge spoil at specified
disposal sites, the EPA having veto power over the selec-
tion of the sites. That was the intent precisely and specifi-
cally stated.

Section 404 was an exception to the otherwise com-
prehensive regulatory program embodied in section 402.
But implementation of section 404 has not led to the end
of open water dredge spoil discharge, which was the
specific objective of section 404.

No specified disposal sites have been established.
Instead, the section 404 regulations have led to confusion,
irritation, and divisiveness that have undermined the
confidence in the basic Federal role in water pollution
control.

They have created a perception of needless interfer-
ence in the affairs of farmers, foresters, miners, and
ranchers whose activities were by no means comprehended
as coming under the section of 404 when it was written.

At this point, the most appropriate course of action for
this committee may be to strike section 404, eliminate this
exception, and return to the basic regulatory structure
anticipated by the act.

If we adopted this course, dredge, spoil, and fill would
be considered pollutants. Where they are discharged, they
would be regulated by the Environmental Protection

App. 7

Agency or the States. Where they are nonpoint sources,
they would be regulated by the States pursuant to section
208. This was the original position of the Senate in 1972.

Given all the problems that section 404 has created,
perhaps it should be in its saddest position now. I am not
wedded to this position, My mind is open, whatever my
emphasis may indicate to the contrary.

I hope the statements of our witnesses will help
clarify these issues and provide us with a course of action
which will preserve our ability to regu!ate the disposition
of polluted dredge spoil without creating another unneces-
sary duplicated Federal regulatory program.

Senator RANDOLPH. Thank you Senator Muskie, for
your continuing leadership on the committee. We are
grateful as members of our committee and the Senate as
well.

Senator Eker, do you have any comments?

Senator BAKER. Mr. Chairman, I have no prepared
statement at this time. Possibly I will have suggestions to
make as we proceed. But I prefer to hear the testimony of
the witness.

Senator RANDOLPH. Thank you, Senator Baker.
Senator Hart?

OPENING REMARKS OF HON. GARY HART,
U.S. SENATOR FROM THE STATE OF COLORADO

Senator HART. Mr. Chairman, I have no prepared
statement. As with other members of the Senate, I have
my own proposal which I will be discussing with this

App. 8

committee and perhaps the full Senate on section 404 to
deal with problems that Senator Muskie has so articu-
lately identified.

It is a classic of a case that all of us in the Congress
are faced with time and time again: the congressional
intent and administrative implementation, between which
there seems to be a gap.

The people of the country are upset. We are upset.
Somehow the Congress and the executive branch must get
together on the laws that are passed and implemented to
free the people of this country from what they definitely
consider to be burdensome regulations.

I think all of us have the same intent. We are here to
try to solve that problem.

Senator RANDOLPH. Thank you, Senator.

Senator Domenici?

Senator DOMENICI. I have no comments, Mr. Chair-
man. Thank you.

Senator RANDOLPH. For the record, Governor Marvin
Mandel of the State of Maryland had indicated to the
committee that he would appear this evening and would
address himself to the subject matter, not as a Governor of
that State but for the National Governors’ Conference.

The change of time and other commitments made it
impossible for Governor Mandel to be with us tonight. He
has submitted testimony which will be a part of our
record. Did the Governor provide copies so that they might
be available to those who will be covering the hearing or
interested parties? Do you have knowledge of that?

App. 9

Mr. MEYER." Yes, sir.

[The statement of the National Governor’s Conference
follows]

* . *

Russell Train, Nathaniel Reed, Victor Veysey, and Peter
Taft - are men of stature. They are men who have certain
authority and leadership which we all recognize, | am sure
that their testimony will bring forth colloquy which will
help to bring out the points of view they present.
Would you gentlemen please come forward as a panel?

Thank you, gentlemen.
Off the record.
[Discussion off the record.]

Senator RANDOLPH. The members of the panel, as I
have indicated, are men of stature and leadership. Mr.
Train, would you proceed to give us your thinking as the
Administrator of the Environmental Protection Agency?

STATEMENTS OF RUSSELL TRAIN, ADMINISTRA-
TOR, ENVIRONMENTAL PROTECTION AGENCY;
NATHANIEL REED, ASSISTANT SECRETARY OF
THE INTERIOR FOR FISH AND WILDLIFE AND
PARKS; VICTOR VEYSEY, ASSISTANT SECRE-
TARY OF ARMY FOR CIVIL WORKS ; AND PETER
TAFT, ASSISTANT ATTORNEY GENERAL FOR
LAND AND NATURAL RESOURCES

" Mr Barry Meyer, Chief Counsel, Senate Public Works Committee.

App. 10

of the committee. I keve what at least seems to me in
comparison to some of the other statements a relatively
short statement. Since I come first, I propose to read the
Mandel is not appearing, perhaps I can use, part of his
time, although we may not say the same hing.

I am here today to discuss with you our continuing
efforts to achieve the goals of the Federal Water Pollution
Control Act in the context of one specific program - the
regulation of discharges of dredged or fill material under
section 404.

Needless to say, I am just delighted that this commit-
tee has called this hearing. I think that this has been long
overdue. The issues are complex. They need resolution. I
think the fact that the committee is willing to gather at
this late hour to take up this issue is just extraordinarily
commendable. The amount of interest which is evident in
the size of the audience here I think speaks to the impor-
tance of the issue in the public mind.

With the passage of the 1972 amendments to the
FWPCA, our fundamental objective became the restora-
tion and maintenance of the chemical, physical, and
biological integrity of the Nation’s waters.

Full implementation of the 404 decisionmaking
process is imperative if we are to achieve that goal. Section
404 represents an essential tool for moderating the degra-
dation, and sometimes the irrevocable destruction, of
aquatic areas that naturally control the quality of water,
including those vital areas of shallow water known as
wetlands.

App. 11

I might add that if we did not have those wetlands,
the course of abating pollution in this country by industry
and municipalities would be enormously increased because
of the additional costs that would be required by the
technology to take the place of what nature has provided

We welcome the opportunity to participate in dispel-
ling the widespread misinformation that continues to
impede constructive debate on this program.

I will direct my brief remarks to three concerns: First,
the origin of the program and the much talked about
concept of “broad jurisdiction over water”; second, a few of
the ecological realities that compel Feder] jurisdiction
over water; and finally, I will highlight the encouraging
first year of implementing a program that is designed to
overregulation.

The Federal Water Pollution Control Act places the
responsibility upon EPA to administer a permit program
for industria] and municipal discharges. The act reserves
to the Corps of Engineers a separate permit program
under section 404 for discharges of dredged or fill material
into the Nation’s waters.

The statutory language authorizing the 404 program
requires the cooperation of the corps and EPA to insure
that discharges of dregded |sic] material and fill material
will not have unacceptable adverse effects on municipal
water supplies, shellfish beds, fisheries, wildlife, and

recreation.

A fundamental element of the Water Act is broad
jurisdiction over water for pollution control purposes.
Several Federal courts have endorsed the wisdom, and
constitutionality, of this committee’s observation that:

App. 12

Water moves in hydrologic cycles and it is
essential that discharge of pollutants be con-
trolled at the source. Therefore, reference to the
control requirements must be made to the navi-

gable waters, portions thereof, and their tribu-
taries.

In affirming the constitutionality of the statute's
jurisdiction over all the Nation’s waters in the Ashland Oil
opinion, the Court of Appeals for the Sixth Circuit ob-
served:

We believe that the language of the Federal
Water Pollution Control Act and its legislative
history show that the United States Congress
was convinced that uncontrolled pollution of the
Nation’s waterways is a threat to the health and
welfare of the country, as well as a threat to its
interstate commerce.

Obviously water pollution is a health threat
to the water supply of the Nation. It endangers
our agriculture by rendering water unfit for irri-
gation. It can end the public use and enjoyment
of our magnificent rivers and lakes for fishing,
for boating, and for swimming. These health and
welfare concerns are, of course, proper subjects
for Congressional attention because of their
many impacts upon interstate commerce gener-
ally. (United Slates v. Ashland Oil, 7 ERC 1114,
1120 (6th Cir., 1974).)

The court recognized that comprehensive jurisdiction
is necessary not only to protect the natural environment
but also to avoid creating unfair competition. Unless
Federal jurisdiction is uniformly implemented for all
waters, dischargers located on nonnavigable tributaries
upstream from the larger rivers and estuaries would not

App. 13

be required to comply with the same procedural and
substantive standards imposed upon their downstream
competitors.

Thus, artificially limiting the jurisdiction can create a
charges.

Let me add at this point, Mr. Chairman, that the
administration supports the approach of maintaining
broad jurisdiction under this program, as set forth under

the so-called Cleveland-Harsha amendment offered in the
other House, with appropriate amendments.

I believe Mr. Veysey will be prepared to go into more
detail on this. But let me just mention in passing that
such amendments should provide for delegation to the
States under carefully drawn criteria. They should provide
for authorization to the Corps of Engineers to exclude
insignificant activities. They should insure that permits
will only be denied on the basis of adverse impacts on fish
and wildlife or other water quality concerns. They should
exempt inuse agricultural or silvicultural activities, as
would be carefully defined in detail in legislative language.

Mr. Chairman, continued applicability of the 404
program to our Nation’s waters is essential if we are to
moderate the two most significant types of harm caused by
dredged or fill material.

First, just as water uses are degraded by industrial
and municipal wastes, adverse effects also occur from
dredged and fill materials that contain a wide range of

An initial screening of sediments from over 700 harbor
and waterway locations showed that sediments in over

App. 14

half of the locations contained a significant pollutant load.
Pollutants identified in the sampling included lead,
arsenic, cyanide, PCB’s, mercury, and cadmium.
Contaminated materials threaten water supplies,
fisheries and other beneficial water uses unless carefully
managed. The corps and EPA are currently using the 404

decisionmaking process to assess the risk of dredging
James River sediments that are contaminated with

Kepone.

It is important to understand that toxic substances
threaten the aquatic environment when discharged into
smal] streams or into major waterways. Similarly, pollut-
ants are available to degrade water and attendant biota
when discharged in marshes and swamps, both below and
above the mean and ordinary high water marks.

Second, unlike most industrial and municipal pollu-
tion, dredged and fill material can physically destroy
essential parts of the aquatic system, including swamps,
marshes, submerged grass flats and shellfish beds. These
critical] aquatic areas are essential to many water uses, not
the least of which is a viable commercial and sports
fishery.

Wetlands serve as spawning and nursery areas while
providing natural control of organic and inorganic nutrient
transfers that dictate quantity and quality of life in the
water. The declining availability of swamps, marshes, and
free-flowing streams to assimilate pollution from point and
nonpoint sources will greatly increase the dollar and
energy costs of maintaining desirable water uses.

For example, discharge of fill material into certain

swamps in New York and New Jersey can affect the

App. 15

quantity and quality of water seeping into the aquifers
from which many communities draw their water supply,
thereby naturally causing increased treatment costs.

We testified in the July 1975 hearings before the
House Subcommittee on Water Resources that the Army
Corps of Engineers and EPA had agreed to cooperate in
establishing a joint program.

Shortly thereafter, interim final regulations were
promulgated by the corps on July 25, 1975. These regula-
tions were followed by the publication of interim final
guidelines by EPA on September 5, 1975.

Together the regulations and guidelines establish a
manageable program that focuses the decisionmaking
process on significant threats to aquatic areas while
avoiding unnecessary regulation of minor activities.

The first year of implementation of the 404 program
ended just last Sunday. In view of the attention that has
been given to this program in recent months and the
misunderstandings that have been voiced by various
interest groups, I want to discuss briefly the key features
of the program that are preventing overregulation.

First, comprehensive jurisdiction is, we believe,
essential for the protection of the aquatic environment.
The once seemingly separable types of aquatic systems
are, we now know, interrealted [sic] and interdependent.
We cannot expect to preserve the remaining qualities of
our water resources without providing appropriate protec-

Moreover, this broad geographical jurisdiction should
reduce the confusion and expense inherent in earlier
jurisdictional approaches that established artificial and

App. 16

often arbitrary boundaries that included only part of some
bodies of water.

For example, the old jurisdictional mean high water
line excluded one-half to one-third of most coastal
marshes, thus possibly allowing destruction of an essential
element of the aquatic system, depending on the degree of
control exercised by the States.

Today this problem has been eliminated. The location
of a coastal marsh by using the aquatic vegetation line
accurately identifies must marsh areas. One Florida
developer informed us that with the new approach, the
location of coastal marshes is less time consuming and less
expensive. No longer is it necessary to expend thousands
of dollars for tide experts and surveyors to establish the
exact mean high water mark as required by the old Corps

program.

Second, let me emphasize that while the geographical
jurisdiction of the program is broad, hundreds of activities
have been identified which do not require permits. The
term “fill material” has been defined so as clearly to
exclude normal farming, silvictulure [sic] and ranching
activities such as plowing, cultivating, seeding, and
harvesting. Maintenance of existing fill has also been
excluded.

We hope this hearing will help us reassure the public
that many activities simply do not require permits.

Third, the 404 program will use general permits to the
maximum extent possible to authorize categories of
discharge that cause only minima! harm to water quality.

Thus, the need for dischargers to apply for individual
permits is eliminated except in those instances involving
environmentally significant activities. Several districts

App. 17

have already issued general permits to authorize erosion
control bulkhead and fill and for fills associated with
highways and log roads.

Several of our regions have reported a sharp decrease
in the number of public notices for permits for insignifi-
cant activities under both the 404 program and the 1899
Rivers and Harbors Act.

Fourth, phased implementation of the broad jurisdic-
tion over water has provided a measure of moderation and
flexibility we all see as necessary to a reasonable program.
A commendable management effort by the Corps of Engi-
neers has already resulted in improved coordination with
EPA, other Federal and State agencies, and the public.

I would like to emphasize, I think the Corps has done
an outstanding job in moving this program forward and
developing reasonable and manageable regulations. You
certainly can explore that more fully with them. But I
want this committee to know that EPA is strongly suppor-
tive of the Corps’ effort in this regard and believe that they
really have done an outstanding job.

Finally, considerable effort has been made in develop-
ing a 404 program that would directly involve the States
in the decisionmaking process. Several States with exist-
ing permit programs to regulate the same types of activi-
ties that are regulated under section 404 are taking
advantage of the opportunity to participate in the joint
processing Federal-State permit applications.

Iowa, Michigan, and Maryland are notable examples.
I believe this opportunity to establish joint programs will
encourage needed improvement in many States that have
not yet adequately addressed environmental problems

App. 18

caused by discharging dredged or fill material into the
water environment.

To conclude my remarks, let me emphasize that the
protection of water quality must encompass the protection
of the interior wetlands and smaller streams.

In this regard, I should remind you that through the
International Convention on the Prevention of Marine
Pollution by the Dumping of Wastes and Other Matter and
our own Ocean Dumping Act of 1972, the United States
has established both international and domestic programs
to protect the oceans from uncontrolled discharges of
sludges and dredged material.

The criteria for permitting the ocean dumping of
dredged or fill material are, by design, consistent and very
similar to those issued under section 404(b). Without an
appropriate and effective program under section 404, only
ocean dumping of dredged material will be closely regu-
lated while many of our more productive and more limited
inland water resources will be unprotected from both
chemical and physical degradation.

The Department of the Interior has estimated that
almost half of the wetlands which originally contributed to
aquatic resources of our Nation have already been lost
through draining, dredging, or filling.

Even with numerous programs aimed at their preser-
vation, in excess of 25,000 acres of prime wetlands are lost
each year. Our most productive aquatic systems have
already been drastically reduced from their original 127
million acres to less than 80 million acres.

As you know, wetlands are a priceless, multiuse
resource. They perform the following services:

App. 19

One: High yield food source for aquatic animals;

Two: Spawning and nursery areas for commercial
and sports fish;

Three: Natural treatment of waterborne and air-
borne pollutants;

Four: Recharge of ground water for water supply;
Five: Natural protection from floods and storms; and

Six: Essential nesting and wintering areas for wa-
terfowl.

We should be mindful of the fact that when these
areas are polluted out of existence, we will have lost the
very valuable free service of nature; and if toxic-laden
dredged or fill material is discharged into wetlands, we
risk poisoning the very foundation of our aquatic system.

I must caution against expedient short-term consid-
erations relating to the section 404 program, however
compelling they may seem, in view of the long-term
consequences associated with any such actions. What we
do now affects not only the next decade but our next
generation, and those that follow.

I mentioned at the beginning, Mr. Chairman, that
there has been a lot of misinformation about this program.
We believe the program has been managed in a way to
avoid the kind of problems that you rightly are concerned
about and that many members of the public are concerned
about.

I am also concerned that misinformation and misguided
advice has been put forward not on behalf of those frequently
referred to, such as small farmers who we believe are totally
excluded from the scope of these regulations, but by those

App. 20

who wish to dredge and fill and develop wetlands to make
a fast buck, if you will, at the expense of a long-term public
interest.

I make that statement with full concern for the
complexity of the problem. But I think that the wetland
resource of this Nation is so vitally important to all of us
that I would urge and beg this committee and the Con-
gress to legislate in this area with the utmost care.

Again I commend the committee for conducting this
hearing.

Senator RANDOLPH. Thank you very much, Adminis-
trator Train. If agreeable to the members of the commit-
tee, I would suggest that we have our four panelists give
their presentation and then we go to the questioning.

Senator MUSKIE. Could I ask one question? I agree
with that, Mr. Chairman. Could : ask one question simply
to fill in on the history of the thing so it is clear?

Senator RANDOLPH. Yes.

Senator MUSKIE. The regulations which you have
described, Mr. Train, are those issued a year ago this
summer. What created the initial storm in section 404 was
the policies that the Corps of Engineers announced in a
press release issued after the court opinion; is that not so?

Mr. TRAIN. I believe that is correct. Mr. Veysey
should answer that.

Senator MUSKIE. In other words, what created the
initial storm of public opinion was a policy announced
before you moved in, or somebody moved in, to redefine
the policy in a more careful way you have described. .

App. 21

If the Corps had not, in other words, moved as it had
with what I thought was distortion of legislative intent
and created all of the reaction, you would not have had to
move in as sort of the wet nurse to try to bring the storm
under control.

That is the context in which your regulations were
issued, as I recall. You may not, use the rhetoric that I just
used, but isn’t it a fact —

Mr. TRAIN. I think I will ask Mr. Veysey to respond to
the question.

Senator MUSKIE. Isn’t it a fact that the public rela-
tions problem which has brought all these people into this
room at a late hour in the night, stirred up an issue by a
release issued by the Corps of Engineers following the
court opinion, before the careful definition of the regula-
tions which you have described?

I wrote you a letter myself in that interim.

Mr. TRAIN. I remember practically the day that was
issued. I was before another Senate committee on another
matter. I was immediately confronted. In fact, I hadn't
read the release at that time. And there was no question

that the release contributed to a climate of public concern
over the issue.

Senator MUSKIE. It didn’t contribute; it created.

Mr. TRAIN. But I would say that the Corps of Engi-
neers was by no means the only instrument for increasing
public concern over the program.

Senator MUSKIE. I understand the Secretary of
Agriculture participated.

App. 22

Mr. TRAIN. Yes.

Senator MUSKIE. The Secretary of Agriculture, I
think, cooperated very well with the Corps of Engineers. I
just wanted to make that point because after your descrip-
tion, it sounded as though the problem had started with
the regulations, where it actually started before.

If it had started with the regulations, conceivably
there might not be a problem.

But the impression created by the release of the Army
Engineers is still creating ripple effects in every State that is
affected by the problem, and I suspect many of the refine-
ments of your regulations have not yet caught up with those
ripple effects to help abate the storm. That is my only point.

Mr. TRAIN. I must say I suspect that those who feel
that their interests are threatened by 404 would have
created a public storm over this issue, irrespective of any
possible contribution from that press release.

Senator MUSKIE. We will make our independent
judgments about that.

Mr. TRAIN. I wouldn’t want to poirt a finger to the
Congress on that. In any event, that is water over the dam.

Senator MUSKIE. Was the dam built with a permit?
Mr. TRAIN. I think with that I shall yield.

STATEMENT OF VICTOR VEYSEY, ASSISTANT
SECRETARY OF THE ARMY FOR CIVIL WORKS

Mr. VEYSEY. Mr. Chairman, if I might, I would like to
respond in part to Senator Muskie’s question, which I
think is an appropriate one.

App. 23

Since there is no part of that included in my testi-
mony, I welcome the opportunity to insert it at this point.
It is true, it is a sad fact, that sometime in the early hours
on a long weekend when folks in the Corps of Fngineers
had been struggling with this problem, perhaps too long, a
very misguided and very unfortunate press release was
issued which said, if read very carefully, that under this
law, many things might happen. That was before the
regulations were written.

In a sense, it was true that a lot of things might
happen, although there was no intent on the part of the
Army Corps of Engineers or EPA to let any of those things
happen. But the damage was done, as you point out so
correctly. That stirred or perhaps struck a sympathetic
note — I don’t know which — but anyway, the release was
issued from the Public Information Office of the Corps of
Engineers. I guess we will never be permitted to forget
that.

Senator MUSKIE. Neither will we.

Mr. VEYSEY. I regret very much that it did happen.
After that time we took a rather firm grip on the situation.

I will say that with magnificent cooperation from Russ
Train and all of his people at EPA, and the Interior and
the Justice Depart-

App. 24

[LOGO] UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
WASHINGTON, D.C. 20460

JUN 19 1974
THE ADMINISTRATOR

Dear General Gribble:

As you are undoubtedly aware, on March 13, 1974, the
U.S. District Court for the Middle District of Florida
issued a Memorandum Opinion in United States v. Hol-
land. In that case, the United States sought to enjoin
disposal without a permit of dredged material] in wetlands
which were above the mean high water line but were
periodically inundated by tidal waters. The court held,
inter alia, that wetlands above the mean high water line
are subject to Federal jurisdiction under Section 404 of the
Federal Water Pollution Control Act, as amended (the
“FWPCA”) and that discharges of dredged material into
such areas “constituted discharges entering ‘waters of the
United States’.”

The result reached in U.S. v. Holland is a jurisdic-
tional milestone under the FWPCA. Wetlands above, and
below, the mean high water line are of vital importance to
our environment. The Corps has taken an admirably firm
position to protect wetlands below the mean high water
line. Recently issued Corps regulations stated that: “As
environmentally vital areas, [wetlands] constitute a
productive and valuable public resource, the unnecessary
alteration or destruction of which should be discouraged
as contrary to the public interest.” 33 CFR Section
209.120(g\3). Our concern is that similar protections be
provided for wetlands above the mean high water line.

App. 25

We believe that the Holland decision provides a
necessary step for the preservation of our limited wetland
resources. Moreover, we are firmly convinced that the
court properly interpreted the jurisdiction granted under
the FWPCA and Congressional power to take such a grant.

Notwithstanding the decision in U.S. v. Holland and
the recognized importance of wetlands to the environment,
we have been informed that the Corps has declined to
acquiesces in the Holland decision and has advised Corps
installations not to accept applications for permits under
FWPCA Section 404 for dredge and fill disposal in these
areas. The Department of Justice has taken the position
that it will not bring enforcement action against persons
disposing of dredged or fill material to wetland areas
without Section 404 permits so long as the Corps refuses
to issue such permits. As a consequence, wetland areas
above the mean high water line are presently unprotected
from the irreparable damage caused by the disposal of
dredged and fill materials.

So that this important and irreplaceable part of the
environment will not go unregulated, I strongly urge the
Corps of Engineers to reconsider its position and to com-
mence processing Section 404 permits for wetlands above
the mean high water line immediately. I would appreciate
the opportunity to discuss this matter with you at your
earliest convenience.

A separate but related matter also requires attention.
On April 3, 1974, the Corps of Engineers promulgated
final regulations with respect to Corps permits for various
activities in navigable or ocean waters. 39 Federal Regis-
ter 12115. Among other things, these regulations set forth
certain procedures for the issuance of permits for the

App. 26

disposal of dredged or fill material under Section 404 of
the FWPCA.

Of particular concern to the Environmental Protection
Agency is the definition of “navigable waters” set forth in
these regulations, 33 CFR Section 209.120(d\1). In pro-
posed regulations published on May 10, 1973 (38 Federal
Register 12217), the Corps proposed to define the term
“navigable waters” to mean “waters of .he United States,
including the territorial sea,” in accordance with the
definition of “navigable waters” in the FWPCA. The final
regulations promulgated on April 3, 1974, deleted the |
previous definition of “navigable waters” and substitutes
therefor the following:

“The term ‘navigable waters of the United States’
and ‘navigable waters,’ as used herein mean
those waters of the United States which are sub-
ject to the ebb and flow of the tide, and/or are
presently or have been in the past, or may be in ©
the future susceptible for use for purposes of in-
terstate or foreign commerce (See 33 CFR
209.260 for a more complete definition of these
terms).”

The preamble to the final regulation discusses the
Corps’ reasons for changing the definition and makes it
clear that the term “navigable waters of the United
States” as used in the Rivers and Harbors Act of 1899 and
the term “navigable waters” as defined in the FWPCA are
to be “created synonymously.” The preamble and the
reference to the Corps’ definitional regulation at 33 CFR
209.260 make it clear that the Corps intends to delineate
FWPCA Section 404 jurisdiction on the basis of court
decisions and Corps interpretations of “navigability.” Our
interpretation of “navigable waters” within the meaning of

App. 27

the FWPCA does not conform to the Corps’ recently issued
regulation. We firmly believe that the Conferences Com-
mittee deleted “navigable” from the FWPCA definition of
“navigable waters” in order to free pollution contro] from
jurisdictional restrictions based on “navigability.” Indeed,
as the Conference Report states with respect to the modi-
fied definition of “navigable waters”: “The conferees fully
intend that the term ‘navigable waters’ be given the
broadest possible constitutional interpretation unencum-
bered by agency determinations which have been made or
may be made for administrative purposes.” S. Rep. 92-
1236, 92d Cong., 2d Sess. at 144. Perhaps a meeting of the
appropriate personnel of the Corps and of EPA should be
scheduled to resolve these discrepancies.

Sincerely yours,

/s/ John Quarles
Russell E. Train
Administrator

Lt. General W. C. Gribble, Jr.
Chief, Corps of Engineers
DAIN-ZA

Forrestal Building
Washington, D. C. 20314

Prepared by:
ASSW:JMcwardincd:5/4/74:50760:Rm.509

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A31. Public record. Not legal advice.