Amicus Curiae Brief — Rapanos v. United States

No. 04-1034 and No. 04-1384

—_————— a

IN THE

Supreme Court of the United States

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

Petitioners,

v.

UNITED STATES,

Respondent.

JUNE CARABELL, et al.,

Petitioners,

Vv

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

. Respondents.

ON WRIT OF CERTIORAR, TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF THE INTERNATIONAL COUNCIL OF SHOPPING

CENTERS, NATIONAL MULTI HOUSING COUNCIL,

NATIONAL ASSOCIATION OF INDUSTRIAL AND OFFICE

PROPERTIES, REAL ESTATE ROUNDTABLE,

ASSOCIATED GENERAL CONTRACTORS OF AMERICA,

AMERICAN RESORT DEVELOPMENT ASSOCIATION, AND

NATIONAL ASSOCIATION OF REAL ESTATE

INVESTMENT TRUSTS AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

GUS BAUMAN

(Counsel of Record)

FRED R. WAGNER

W. PARKER MOORE

BEVERIDGE & DIAMOND, P.C.

1350 I St, NW, Suite 700

Washington, DC 20005

Counsel for Amici Curiae

(202) 789-6000

December 2, 2005

TABLE OF CONTENTS

INTERESTS OF THE AMICI CURIAE.....00.0.....cccceeees l

SUMMARY OF ARGUMENT ..................ccsssccssscssssessseees 4

SD chiiccieniintinsiccaemtisatnintphiscibcsankcntespniulaetioieineginaiin 6

I. BY INTERPRETING ITS REGULATIONS

TO CIRCUMVENT SWANCC AND REACH

NON-JURISDICTIONAL FEATURES, THE

CORPS CONTINUES TO IMPOSE

UNAUTHORIZED AND ARBITRARY

LIMITATIONS ON UPLAND

aE ENIIITTT siscissiccsccetinssiipisiiiihatindiapaitasiontiiidesicaisil 6

A. The Supreme Court Has Determined That

Federal Clean Water Act Jurisdiction Does

Not Extend to Remote Hydrologic

IED cnidnciasihécinatbienclinbiepiabsnccsebiieniensibibinboenies 7

B. The Corps Ignores the Limitations Placed

on Its Authority by Continuing to Regulate

Remote, Non-Jurisdictional Features .............. 9

C. The Corps’ Post-SWANCC Administration

of the Section 404 Program Is Replete

with Examples of Unlawful Assertions of

PT HEI IED ° csccnsitinccessemieeniniicniitaianioiins 12

D. The Corps’ Refusal to Respect the Bounds

of Federal Jurisdiction Has a Substantial

and Inequitable Impact on Development ....... 15

ii

II. EXTENDING FEDERAL JURISDICTION

TO REMOTE, INTRASTATE, NON-

ADJACENT FEATURES IS

INCONGRUENT WITH ACHIEVING THE

CLEAN WATER ACT’S GOALS. ............::0:0000 19

A. Congress Designed the Clean Water Act to

Regulate Discharges That Impact the

Integrity of Navigable Waters ..................04. 19

B. Because Remote, Intrastate, Non-Adjacent

Wetlands Lack the Capacity to Influence

Navigable Waters, They Are Not Subject

to Federal Jurisdiction ...........cccccccsrsscsesssssseee 21

1. The Features at Issue Are Intrastate,

Non-Adjacent Wetlands and Trenches

Far Removed from Any Navigable

TTI ade cecciisnindesappaniicdeiamniiiinbiiaastidbseebiisiviacinines 23

2. Remote, Non-Adjacent Features Lack

the Capacity to Mitigate Flooding and

Erosion in Navigable Waters .................... 24

3. Remote, Non-Adjacent Features Lack

the Capacity to Influence Water

Quality of Navigable Waters ................... 26

Ill. STATE REGULATION OF THESE REMOTE

FEATURES IS NECESSARY DUE TO

COMMERCE CLAUSE LIMITATIONS AND

PRAGMATIC BECAUSE THE STATES

ALREADY PROVIDE THIS REGULATION ...27

SIRE TEIITY <vintcnssismnnecesinennuppsasiandaeniepeissdonidninieiemianti 30

Page

TABLE OF AUTHORITIES

Cases:

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ............. 29

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 531 U.S. 159

TENTED snccssicdandiscnndieynpiandbdgnipatuibetinbemmednidiapasohanni passim

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

III ‘sscaitaeseidlsclaotibnaalioaieidelnibadinesbedeieiaininidieaiaedetewetiiniiats 10

United States v. Bd. of Trs. of Fla. Keys Cmty.

Coll., 531 F. Supp. 267 (S.D. Fla. 1981) ............... 17

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

United States v. Riverside Bayview Homes, Inc.,

GE PEG CE IED Sctcduhocrncitinrictevctiensumsensticepicsinds passim

United States v. Weisman, 489 F. Supp. 1331 (M.D.

QRS Ste Aa PR nn renein Renee 17

Statutes:

Clean Water Act, 33 U.S.C. § 1251, ef seq ............cccceee 6

ee ie 0 IIe setntcertcsiinteennis passim

ae es Oe SPE cpccnccsenncstintnntncciondiente 18

Be Ss Oh IIIT csciccsttictecianivinioniiencntia 6

iV

Legislative Materials: Page

Hearing on Inconsistent Regulation of Wetlands

and Other Waters: Before the Subcomm. on

Water Res. and Env't, House Comm. on Transp.

and Infrastructure, 108th Cong. 4-5, 11 (2004)

(statement of John Paul Woodley, Jr., Assistant

Sec’y of the Army for Civil Works, & Benjamin

H. Grumbles, Acting Assistant Adm’r for

PING: TEEPE uvstenncereneipseshincisisihinisicitamessibaieaneiatiiiieisladiidceaatiala’ 10

7 Regulations:

SSPE, 6 FT CI ccenscrsiseininiccincaiipiisaicniaan 8

FO Cas BS GOOD tuvcvininisctenevinisanigniecilisiaiin 8, 21

Advanced Notice of Proposed Rulemaking on the

Clean Water Act Regulatory Definition of

"Waters of the United States," 69 Fed. Reg.

oof Fh ES er passim

Civil Monetary Penalty Inflation Adjustment Rule,

69 Fed. Reg. 7121, 7125 (Feb. 13, 2004)... 18

Final Rule for Regulatory Programs of the Corps of

Engineers, 51 Fed. Reg. 41206, 41217 (1986) ............. 8

Corps Administrative Appeals:

Baccarat Fremont Developers, San Francisco Dist.

File No. 23205S (Oct. 25, 2001) (admin.

RIED, caccicniceneninstseatnitinintsisieneiaiigiitimateieiaati ae 13

Frank Attanasio, Philadelphia Dist. File No.

199900072-46 (Mar. 5, 2004) (admin. appeal) .......... 14

v

Corps Administrative Appeals, continued: Page

Irvine Nature Center, Baltimore Dist. File No. 02-

63179-4 (Mar. 5, 2004) (admin. appeal) .................... 14

Lands of David Fusco, New York Dist. File No.

2000-01007-YN (Dec. 5, 2003) (admin. appeal) ....... 14

MolyCorp Inc. Property, Los Angeles Dist. File No.

20000 1678-AJS (Aug. 16, 2001) (admin.

SITET iat aldhcesiaiacaaninhibiipalnes digsisddnpensiictaaasiaduiitdeasinmpenrmsneneeie 13

Sunrise Office Park, Los Angeles Dist. File No.

2001-00379-RJD (Sept. 7, 2001) (admin.

iT eiieitiieaclindea tinsthaddsdiepmntnasbeiigendenaennentneqrocnceteenees 13

The Biggers Property, Sacramento Dist. File No.

200275257 (Dec. 19, 2003) (admin. appeal) ............. 14

Valley Vista Property, Los Angeles Dist. File No.

2002-001321-SMD (Jan. 31, 2003) (admin.

EE A aa 15

Great Lakes & Ohio River Division - Table of

Appeals, http://www.Ird.usace.army.mil/

TE 12

Mississippi Valley Division - Table of Appeals,

http://www.mvd.usace.army.mil/Nwsinfo/MVD

TET TCS 12

North Atlantic Division - Table of Appeals,

http://www.nad.usace.army.mil/appeals.htm. ............ 12

Northwestern Division - Table of Appeals,

http://www.nwd.usace.army.mil/et/reg/appeals.

Ia easiest nadieeabdbinbatecianinepsaasennpntasbensenaningatescensesnenesene 12

vi

Corps Administrative Appeals, continued: Page

Pacific Ocean Division - Table of Appeals,

http://www.pod.usace.army.mil/Regulatory/Reg

Ec ceteunsitneettiianeitetetinnindanteatinemmanibines 12

South Atlantic Division - Table of Appeals,

http://www.sad.usace.army.mil/regulatory/

EE TIIIIDS weccanitiioncinptcirctsseniiiniptialenlanenasiiibaminiasindid 12

South Pacific Division - Table of Appeals,

http://www.spd.usace.army.mil/cwpm/public/

ops/regulatory/adminAppeals/index.htm. .................. 12

Southwestern Division - Table of Appeals,

http://www.swd.usace.army.mil/../regulatoryapp

II 6 sentcticncnastccstccnconseniinicatininintlintdaessitataisiisia 12

Other Authorities:

D. Sunding & D. Zilberman, The Economics of

Environmental Regulation by Licensing, 42 Nat.

| ERE 15, 16

Dennis W. Magee, A Primer on Wetland Ecology,

in Wetlands Law and Policy 40 (2005) ................ 25,27

H. Michael Keller, Waters of the United States

(How Many Drops Does it Take), in Water

~ Quality & Wetlands Paper No. 3 (2002) ..........cc00« 6,7

Jeanne M. Christie, State Wetland Programs

(2005), http://www.aswm.org/swp/

rT Drisiinitnicerisdancsstensadincbisientisiiiiiaitngtandiasl 29

vii

Other Authorities, continued: Page

Mark S. Dennison & James F. Berry, Wetlands:

Guide to Science, Law, and Technology 61-65

FTE scciituncipnhcnintiinsshstainiinmmniitntininiotineiilaaaaiitntae passim

Memorandum from Gary S. Guzy, General

Counsel, EPA, & Robert M. Andersen, Chief

Counsel, U.S. Army Corps of Engineers,

Supreme Court Ruling Concerning CWA

Jurisdiction over Isolated Waters

SEs SUPINE sheihiinsiiintedeiinibihideldnieeasiinisinniprianiisiuanianadel 1]

Paul D. Cylinder, et al., Wetlands, Streams, and

Other Waters 101-13 (2004) .0.....cccccccececcsesseeeenes 24, 29

Robert J. Pierce, Ph.D., PWS, CWD, Wetland

Science Applications, Inc., Technical Principles

Related To Establishing the Limits of

Jurisdiction for Section 404 of the Clean Water

Act (2003),

http://www.wetlandtraining.com/BobRept.pdf. ...26, 27

Theda Braddock, Wetlands: An Introduction to

Ecology, the Law, and Permitting \2

GEESE checatustenearsniantpestnibinemiininiguinatiameainndemneereiai passim

U.S. General Accounting Office, Waters and

Wetlands: Corps of Engineers Needs to Better

Support Its Decisions for Not Asserting

Jurisdiction, GAQ-05-870 (Sept. 2005) ................0+. 16

U.S. General Accounting Office, Waters and

Wetlands: Corps of Engineers Needs to

Evaluate Its District Office Practices in

Determining Jurisdiction, GAOQ-04-297

SEPUEEE: SITET .schisissinstenieastiacinentiintstieiiasianaspidiandiipebinsiinnndianatinipale 16

viii

Other Authorities, continued: Page

William J. Mitsch & James G. Gosselink, Wetlands

0 4 4 SS 21,25

INTERESTS OF THE AMICI CURIAE

Pursuant to Supreme Court Rule 37.3, the

International Council of Shopping Centers, National Multi

Housing Council, National Association of Industrial and

Office Properties, Real Estate Roundtable, Associated

General Contractors of America, American Resort

Development Association, and National Association of

Real Estate Investment Trusts, as amici curiae,

respectfully submit this brief in support of Petitioners John

A. Rapanos, ef ux., et al. and June Carabell, et al.'

Amici curiae are associations representing a wide

variety of entities and individuals that own, develop,

purchase, sell and improve land in the 50 states and the

District of Columbia. Members of amici hold and control

land as owners and managers of commercial, industrial,

institutional and multi-family property; facilitate the

purchase and sale of land as real estate brokers and agents;

and work the land as developers, contractors, equipment

operators and laborers. Amici have a substantial interest in

the establishment of proper and predictable boundaries to

the U.S. Army Corps of Engineers’ wetlands jurisdiction

under the Clean Water Act.

The International Council of Shopping Centers

(“ICSC”) is the premier global trade and professional

association of the retail real estate industry. ICSC’s more

than 50,000 members include shopping center owners,

developers, managers, marketing specialists, investors,

' The amici have received the parties’ written consent to

submit this bref. Letters of consent have been filed with the Clerk of

this Court. Pursuant to Rule 37.6-of this Court, no counsel for any

party in this case authored this bref in whole or in part, and no person

or entity other than amici and their counsel has made a monetary

contnbution to its preparation and submission.

2

retailers and brokers. Shopping centers are America’s

marketplace, representing economic growth,

environmental responsibility and community strength.

The National Multi Housing Council (“NMHC”)

represents the largest and most prominent apartment firms

in the United States. NMHC members are engaged in all

aspects of the apartment industry, including ownership,

development, management and financing. © NMHC

advocates on behalf of rental housing, conducts apartment-

related research and piv.notes the desirability of apartment

living.

The National Association of Industrial and Office

Properties (“NAIOP”) is the nation’s leading trade

association for developers, owners, investors and asset

managers in industrial, office and mixed-use commercial

real estate. Founded in 1967, NAIOP is comprised of

more than 13,000 members in 50 North American chapters

and provides networking opportunities, educational

programs, research on trends and innovations, and

legislative representation.

The Real Estate Roundtable (“Roundtable”) brings

together leaders of the nation’s top public and privately-

held real estate ownership, development, lending and

management firms with the leaders of national real estate

trade associations to address key national policy issues

relating to real estate and the economy, including

environmental and land use issues. Collectively,

Roundtable members hold portfolios containing over five

billion square feet of developed property valued at more

than $450 billion. Participating trade associations

represent more than one million people involved in

virtually every aspect of the real estate business.

3

The Associated General Contractors of America

(“AGC”) is the oldest and largest national trade

association in the construction industry. A non-profit

corporation founded in 1918 at the express request of

President Woodrow Wilson, AGC now represents more

than 32,000 firms in more than 98 chapters throughout the

United States. AGC members include more than 7,000 of

the nation’s leading general contractors, 11,000 specialty

contractors and 13,000 material suppliers and service

providers to the construction industry. AGC members

construct commercial buildings, shopping centers,

factories, warehouses, highways, bridges, tunnels, airports,

waterworks facilities and multi-family housing units; and

they prepare sites and install the utilities necessary for

housing development.

The American Resort Development Association

(“ARDA”) is the trade association representing the

vacation ownership and resort development industries.

Established in 1969 as the American Land Development

Association, ARDA today has close to 1,000 members,

ranging from privately held companies to major

corporations in the United States and overseas. ARDA’s

diverse membership includes companies with interests in

vacation ownership resorts, community development,

fractional ownership, camp resorts, land development,

second homes and resort communities.

The National Association of Real Estate Investment

Trusts® (“NAREIT”) is the representative voice for

United States real estate investment trusts (“REITs”) and

publicly traded real estate companies worldwide.

Members are REITs and other businesses that own,

operate and finance income-producing real estate as well

as those firms and individuals who advise, study and

service these businesses.

4

SUMMARY OF ARGUMENT

Following enactment of the Clean Water Act

(“CWA”), the U.S. Army Corps of Engineers (“Corps”)

dutifully applied its jurisdiction under Section 404 of the

Statute by regulating direct pollutant discharges into

navigable waterways. Over time, without any additional

congressional grant of authority and despite this Court’s

rulings in Riverside Bayview and SWANCC, the Corps has

extended its jurisdiction further and further inland to

encompass an expanding range of non-navigable “waters”

and remote hydrologic features. This jurisdictional

metamorphosis continued into 2001, when the Corps’

interp:vtation of its delegated authority extended to

virtually any water-bearing topographic feature. This

Court was compelled to intervene. The Court explained

that federal jurisdiction under the CWA is not limitless

and that the Corps could not regulate non-navigable

features lacking a significant nexus or inseparable tie to

navigable waters.

Nonetheless, just five years later, the Corps has

disregarded this Court’s instructions and continues to

assert jurisdiction over countless non-jurisdictional

features, most often remote, intrastate, non-adjacent

wetlands, manmade ditches, and other ephemeral seeps.

This illegitimate expansion of federal jurisdiction is

wreaking havoc on legitimate land development. The

Corps has refused to issue regulations shedding light on its

perception of the scope of proper federal jurisdiction. As

a result, assertions of this jurisdiction vary widely among

the 38 individual Corps district offices. Faced with this

regulatory uncertainty, private and public property owners

are left with little choice but to submit to the Corps’

5

extravagant claims of jurisdiction and endure the costly

and protracted Section 404 permitting program.

In light of this Court’s decisions over the scope of

federal jurisdiction, the Corps’ persistent regulation of

remote wetlands and ephemeral trenches is wrong. These

intrastate features are far removed from any jurisdictional

waters, and they lack a significant nexus to navigable

waterways. The very nature of these remote features

renders them ecologically incapable of influencing distant

navigable waters as the CWA intends and this Court

requires. There is simply no basis in science and law for

extending federal jurisdiction to these features.

Recognizing the constitutional constraints on_ its

authority under the Commerce Clause, Congress expressly

designed the CWA to preserve the States’ longstanding

authority over intrastate uses of land and water resources.

Despite the Corps’ ongoing encroachment into the state

regulatory domain, the States can, and do, fully regulate ~

the remote features at issue here. Such comprehensive

state regulation renders the Corps’ unauthorized assertions

of federal jurisdiction unnecessary and duplicative. The

Corps has trespassed into an area intended to remain

within the province of the States, confounding otherwise

effective state regulation and undermining legitimate

upland development.

6

ARGUMENT

I. BY INTERPRETING ITS REGULATIONS TO

CIRCUMVENT SWANCC AND REACH NON-

JURISDICTIONAL FEATURES, THE CORPS

CONTINUES TO IMPOSE UNAUTHORIZED

AND ARBITRARY LIMITATIONS ON

UPLAND DEVELOPMENT.

Congress enacted the Clean Water Act to address the

impacts of pollutants on the navigable waters of the

United States. 33 U.S.C. § 1251, et seg. The Act was

designed to restore and maintain these waters by

eliminating pollutant discharges into them. /d. § 1251.

Since its enactment nearly 35 years ago, this ambitious

statute has made significant strides toward achieving its

goals. This progress has resulted from regulating the

pollutant sources that discharge into navigable waters.

But in the course of this progress, the regulated

community has experienced escalating difficulty with the

CWA’s other regulatory mechanism, the Section 404

program for discharges of dredged or fill material.

: In Section 404 of the CWA, Congress assigned to the

U.S. Army Corps of Engineers the responsibility of

regulating these discharges of dredged or fill material,

which may degrade the water quality of navigable

waterways and interfere with the conduct of interstate

commerce. /d. § 1344. Originally, the Corps embraced

its delegated authority by faithfully administering the

Section 404 permitting program to control pollutant

sources discharging directly into navigable waters. H.

Michael Keller, Waters of the United States (How Many

Drops Does it Take), in Water Quality & Wetlands Paper

No. 3, 3-11 (Rocky Mt. Min. L. Fdn. 2002). Over time,

though, the Corps expanded its interpretation of the scope

of federal jurisdiction under Section 404. /d. In addition

7

to regulating discharges directly into navigable waters, the

Corps initiated a new policy of asserting jurisdiction over

discharges into wetlands adjacent to these navigable

waters. /d. This expansion led to considerable

controversy among the Corps, the States, and

governmental as well as private landowners. Continued

disputes over federal regulation presented this Court with

its first opportunity to review the scope of the Corps’

jurisdiction to regulate discharges of pollutants into

navigable waters.

A. The Supreme Court Has Determined That Federal

Clean Water Act Jurisdiction Does Not Extend to

Remote Hydrologic Features.

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

474 U.S. 121 (1985), this Court acquiesced to the Corps’

assertion of jurisdiction over adjacent wetlands.’ The

Court determined that expanding federal jurisdiction to

reach wetlands adjacent to navigable waters is not

“unreasonable” so long as the “adjacent wetlands [] are

inseparably bound up with the ‘waters’ of the United

States.” Jd. at 134, 135. The Court relied on the Corps’

conclusion that adjacent wetlands “tend to drain into”

abutting navigable waters and that they therefore may

influence the water quality of those adjacent waters. /d. at

134. Thus, the Court concluded that the Corps’

? The property at issue in Riverside Bayview contained a

wetland “characterized by saturated soil conditions and wetland

vegetation [that] extended . . . to Black Creek, a navigable waterway.”

Riverside Bayview, 474 U.S. at 131. Based on these hydrologic

characteristics and the location of the disputed area, the Court found

that the wetland was “adjacent to a navigable waterway” and

therefore “is part of the ‘waters of the United States’ as defined by”

Corps regulations. /d.

8

interpretation that “waters of the United States” extended

to those adjacent wetlands was a “permissible”

construction of the statute. /d. at 135.

Following Riverside Bayview, the Corps increasingly

stretched its jurisdiction to reach non-navigable “waters”

of the United States. By 1986, without any additional

grant of authority from Congress, the Corps had

repeatedly expanded its definition of “waters of the United

States” to include not only navigable waters and adjacent

wetlands but also: “all other waters such as intrastate . . .

streams (including intermittent streams), mudflats,

sandflats, [and] sloughs . . . the use, degradation or

destruction of which could affect interstate or foreign

commerce”; “all impoundments” of these waters; any

“tributaries” of these waters; and any wetland adjacent to

any of these non-navigable waters. See 33 C.F.R. § 328.3

(1986). Moreover, the Corps declared that this expansive

definition of “waters of the United States” established the

“jurisdictional limits of the authority of the [Corps] under

the Clean Water Act.” 33 C.F.R. § 328.1 (1986).

But the Corps did not limit its newly inflated

jurisdiction to only the extensive number of faint,

ephemeral rivulets trickling within each state; it also

interpreted federal jurisdiction to reach isolated intrastate

waters “[w]hich are or would be used as habitat by”

migratory birds. Final Rule for Regulatory Programs of

the Corps of Engineers, 51 Fed. Reg. 41206, 41217 (Nov.

13, 1986). When the Corps applied this “Migratory Bird

Rule” to regulate several municipalities’ activities, which

would have impacted some abandoned sand and gravel

pits that had filled with water, the municipalities

challenged the rule, and this Court took the opportunity to

curb the Corps’ administrative sprawl.

9

In Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 531 U.S. 159, 174 (2001)

(“SWANCC”), this Court ruled that construing the

definition of “waters of the United States” to encompass

isolated, intrastate waters that serve as habitat for

migratory birds “exceeds the authority granted to (the

Corps] under § 404(a) of the CWA.” The Court found that

although CWA jurisdiction may extend beyond waters that

are traditionally “navigable,” such waters are only

jurisdictional when they are “inseparably bound up with”

Or maintain a “significant nexus” to traditional navigable

waters. /d. at 167, 172. “It was the significant nexus

between the wetlands and ‘navigable waters’ that

informed our reading of the CWA in Riverside Bayview

Homes.” Id. at 167. Nonetheless, because Riverside

Bayview addressed only adjacent wetlands, its holding did

not apply to the remote, intrastate, non-adjacent features at

issue in SWANCC. Id. (quoting Riverside Bayview, 474

U.S. at 131-32, n.8). The Court then explained, that “[i]n

order to rule for the [Corps] here, we would have to hold

that the jurisdiction of the Corps extends to ponds that are

not adjacent to open water.” Jd. at 168 (emphasis in

original). The Court concluded that “the text of the statute

will not allow this” and struck down the Migratory Bird

Rule as an impermissible expansion of the Corps’

jurisdiction to reach such remote features. /d.

B. The Corps Ignores the Limitations Placed on

Its Authority by Continuing to Regulate Remote,

Non-Jurisdictional Features.

If there was any lasting import to this Court’s

insistence on a significant nexus or an inseparable tie

between navigable waters and non-navigable intrastate

features, the regulated community has not experienced it.

10

Despite the guidance over Section 404 jurisdiction

provided in Riverside Bayview and SWANCC, the Corps

has disregarded these decisions.’ Although the Corps

recognizes that SWANCC “has affected the scope of

federal jurisdiction under the CWA” and that the decision

has “important implications for the scope of waters

protected by the section 404 program, as well as

implications for other Clean Water Act programs whose

jurisdiction depends upon the meaning of ‘navigable

waters,’” the agency refuses to update its regulations to

reflect the proper jurisdiction this Court delineated in

SWANCC. Hearing on Inconsistent Regulation of

Wetlands and Other Waters: Before the Subcomm. on

Water Res. and Env't; House Comm. on Transp. and

Infrastructure, 108th Cong. 4-5, 11 (2004) (statement of

John Paul Woodley, Jr., Assistant Sec’y of the Army for

Civil Works, & Benjamin H. Grumbles, Acting Assistant

Adm’r for Water, EPA). Rather than adopting valid

administrative regulations clarifying the proper scope of

federal CWA jurisdiction under Section 404, the Corps

issued a non-binding internal guidance document calling

on its district offices to maintain the status quo. See

Advanced Notice of Proposed Rulemaking on the Clean

Water Act Regulatory Definition of “Waters of the United

> The Corps is not alone in reading the “significant nexus”

test out of SWANCC. Certain federal circuit and district courts have

joined the Corps in circumventing the import of the decision. See,

e.g., United States v. Deaton, 332 F.3d 698, 702, 707, 712 (4th Cir.

2003) (upholding assertion of federal jurisdiction over intrastate, non-

navigable roadside ditches and nearby wetlands because “[a]ny

pollutant or fill material” entering those remote, ephemeral features

could possibly travel to and affect navigable waters seven miles

away).

11

States,” 69 Fed. Reg. 1991 app. A, at 1996-98, n.1 (Jan.

15, 2003) (“Joint Memorandum”).

The Corps’ non-binding guidance strips the substance

from SWANCC. While cautioning the districts to avoid

relying solely on the Migratory Bird Rule when expanding

jurisdiction to isolated intrastate waters, the guidance

openly advocates for the continued assertion of

jurisdiction over the same suite of hydrologic features that

were alleged to fall under the Corps’ jurisdiction prior to

SWANCC. Id. As support for preserving federal

jurisdiction over virtually every remote, intrastate, non-

adjacent hydrologic feature in the nation, the Corps falls

back on Riverside Bayview and pretends SWANCC never

happened. /d. at 1997, 1998. Although a unanimous

Court in Riverside Bayview emphasized that its analysis

applied only to wetlands adjacent to navigable waters — a

fact which even the Corps has conceded — the Corps

responded to SWANCC by hastily issuing its guidance

emasculating the Court’s latest assessment of the CWA

and reconstruing the import of Riverside Bayview. This

guidance claims that “the reasoning in Riverside .. .

supports jurisdiction over wetlands adjacent to non-

navigable waters that are tributaries to navigable waters”

and authorizes the assertion of federal jurisdiction over

“all interstate waters, and all tributaries to navigable or

interstate waters, upstream to the highest reaches of the

tributary systems, and over all wetlands adjacent to any

and all of those waters.” /d. at 1997; Memorandum from

Gary S. Guzy, General Counsel, EPA, & Robert M.

Andersen, Chief Counsel, U.S. Army Corps of Engineers,

Supreme Court Ruling Concerning CWA Jurisdiction over

Isolated Waters 5, n.7, 6 (Jan. 19, 2001) (emphasis added).

In other words, federal jurisdiction remains virtually

limitless, encompassing the most remote manmade ditch,

12

the most ephemeral swale, the most obscure depression.

The Corps has not adapted its practices to square with this

Court’s jurisprudence, but rather, it has adapted this

Court’s jurisprudence to square with its practices.

C. The Corps’ Post-SWANCC Administration of the

Section 404 Program Is Replete with Examples of

Unlawful Assertions of Federal Jurisdiction.

Post-SWANCC administrative appeals decisions from

Corps district offices across the country illustrate the

extent of the Corps’ continued unauthorized regulation of

remote, non-adjacent wetlands and distant ephemeral

trenches. These appeals demonstrate that the Corps’

regulation is not only excessive and irrational; it also

regularly disrupts legitimate upland development and

critical public infrastructure projects.‘

Examples of such unlawful assertions of Corps

jurisdiction abound. Shortly after SWANCC was decided,

* The eight Corps division offices that oversee individual

district offices within a particular region provide these administrative

appeals decisions for public review on the divisions’ websites. See

Great Lakes & Ohio River Division - Table of Appeals,

http://www .ird.usace.army.mil/regulatory/appealprocess/; Mississippi

Valley Division - Table of Appeals, http://www.mvd.usace.army.

mil/Nwsinfo/MVD_Appeals/appeal.htm; North Atlantic Division -

Table of Appeals, http://www.nad.usace.army.mil/appeals.htm;

Northwestern Division - Table of Appeals, http://www.nwd.usace.

army.mil/et/reg/appeals.asp; Pacific Ocean Division - Table of

Appeals, http://www.pod.usace.army.mil/Regulatory/Regulatory.

htm; South Atlantic Division - Table of Appeals,

http://www.sad.usace.army.mil/regulatory/regulatory.htm; South

Pacific Division - Table of Appeals, http://www.spd.usace.army.

mil/cwpm/public/ops/regulatory/adminA ppeals/index htm;

Southwestern Division - Table of Appeals, http://www.swd.usace.

army.mil/../regulatoryappeals/index.htm.

13

the Corps’ Los Angeles District extended federal

jurisdiction to a “desert wash” simply because the property

at issue was “at a higher elevation” than surrounding

areas, and the District assumed that water from the wash

“must flow down gradient and therefore must reach” an

ephemeral drainage over 1,000 feet away, even though the

District conceded that no morphological connection

existed between the two features. MolyCorp Inc.

Property, Los Angeles Dist. File No. 200001678-AJS at 7-

9 (Aug. 16, 2001) (admin. appeal).

The San Francisco District attempted to assert

jurisdiction over wetlands separated from drainage

channels by 250 feet of manmade uplands because the

wetlands were within “reasonable proximity” of the

channels to establish adjacency. Baccarat Fremont

Developers, San Francisco Dist. File No. 23205S at 5

(Oct. 25, 2001) (admin. appeal). The District reasoned

that site topography indicated that the wetlands could

drain into the channels during storm events if the uplands

had not been there to prevent such drainage. /d. -

The Sacramento District contended that federal

jurisdiction reached a smal! wetland area in Colorado that

during large storm events periodically flowed offsite

through a vegetated drainage until it reached a golf course

* The same District claimed jurisdiction over another desert

wash, which occasionally emptied into a manmade water retention

basin, which was “drained by a 60 foot long, 6 inch diameter

underground culvert,” which connected to a channel that meandered

through residential areas and became “indistinct at several locations

... where [it] follows or crosses paved surfaces.” The District alleged

that “[t}hese road crossings act as conduits of the water and maintain

the tributary connection.” Sunrise Office Park, Los Angeles Dist.

File No. 2001-00379-RJD at 3 (Sept. 7, 2001) (admin. appeal).

14

fairway, crossed the grass fairway as undefined sheet flow,

entered a 6 inch pipe, traveled underground for several

hundred feet, then drained into a manmade roadside ditch,

which meandered for over one mile before reaching a

river. The Biggers Property, Sacramento Dist. File No.

200275257 at 3-4 (Dec. 19, 2003) (admin. appeal).°

Based on its review of a 1949 U.S. Geological Survey

map, the New York District claimed jurisdiction over

wetlands even though it admitted during a site visit that

there was no identifiable hydrologic counection between

those wetlands and unrelated onsite tributaries. Lands of

David Fusco, New York Dist. File No. 2000-01007-YN at

2-4 (Dec. 5, 2003) (admin. appeal). The District

nonetheless alleged that jurisdiction was proper because,

according to the map, the wetlands “‘appear to be part of a

wetland complex that was associated with an unnamed

tributary to [a named tributary]’ that was ‘located in the

proximity of these wetlands.’*” /d. at 3 (emphasis in the

original). ’

* Similarly, the Baltimore District attempted to essert

jurisdiction over an “ephemeral channel” that drained offsite until it

reached an upland agricultural area and disappeared; the ephemeral

channel was “separated from [any] jurisdictional areas by at least 600

feet of non-jurisdictional areas.” Irvine Nature Center, Baltimore

Dist. File No. 02-63179-4 at 1-2 (Mar. 5, 2004) (admin. appeal); see

also Frank Attanasio, Philadelphia Dist. File No. 199900072-46 at 9

(Mar. 5, 2004) (admin. appeal) (asserting jurisdiction over wetland

based on alleged historic hydrologic connection that no longer existed

but explaining that “[g]iven the heavy usage of the site by children for

recreational purposes, it is entirely reasonable the ditch may have

been disturbed beyond recognition”).

” Likewise, the Los Angeles District attempted to assert

jurisdiction over a desert wash that, prior to 1952, may have had a

hydrologic connection to another wash. Although the District

conceded that any connection “disappeared some time after 1952,”

(Continued ...)

15

D. The Corps’ Refusal to Respect the Bounds of

Federal Jurisdiction Has a Substantial and

Inequitable Impact on Development.

As the above examples demonstrate, the Corps

continues to exercise its jurisdiction over remote, non-

navigable wetlands and distant, ephemeral trenches,

usually with inexplicable and inconsistent results. The

unpredictability currently tainting the Corps’ jurisdictional

determinations has substantial and inequitable impacts on

property development and _ critical infrastructure

improvements, which are already subject to the full

panoply of state and local regulation.

Negotiating the Section 404 permitting program

involves a major logistical undertaking for property

owners. It requires immense expenditures of both time

and capital resources. As one study recently explained, it

takes applicants an average of 788 days to obtain an

individual Section 404 permit. D. Sunding & D.

Zilberman, The Economics of Environmental Regulation

by Licensing, 42 Nat. Resources J. 59, 74-76 (2002). This

protracted process carries an average price tag of over

$271,000, not including the opportunity costs and delay-

related costs accrued during the two years required to

complete the process. /d. Nor does this average cost

account for the increased financial burdens accompanying

~ the growing regulatory uncertainty that now typifies the

(Continued ...)

and the administrative record contained no evidence that any

connection ever existed, the District deemed the wash jurisdictional

based on the alleged “historical tributary connection.” Valley Vista

Property, Los Angeles Dist. File No. 2002-001321-SMD at 2-4 (Jan.

31, 2003) (admin. appeal).

16

Corps’ jurisdictional determinations. See id. at 82. Such

uncertainty requires owners to “carry capital and bear

labor and other operating expenses for longer periods of

time.” /d. Consequently, they incur increased borrowing

costs due to the need for additional capital and higher

interest rates. Jd.

Moreover, in the absence of suitable agency guidance

defining the proper scope of the Corps’ jurisdiction over

non-navigable, non-adjacent wetlands and manmade

trenches, the 38 Corps districts implementing Section 404

permitting have been forced to interpret the pre-SWANCC

regulations to determine v‘hether CWA jurisdiction

extends to these remote features. See U.S. General

Accounting Office, Waters and Wetlands: Corps of

Engineers Needs to Evaluate Its District Office Practices

in Determining Jurisdiction, GAOQ-04-297, 3-4, 17-25

(Feb. 2004). As a result, while the districts generally

continue to employ the same processes and data sources as

they did prior to SWANCC to make jurisdictional

determinations (“JDs”), their interpretations of the scope

of federal jurisdiction over non-navigable, non-adjacent

wetlands and related ephemeral drainages vary widely,

resulting in a nationwide patchwork of contradictory, often

overreaching Corps practices and assertions of federal

jurisdiction. See id. at 17-25 (discussing the districts’

varying JD practices based on hydrologic connections,

proximity to navigable waters, upland barriers, tributaries,

and ditches); see also U.S. General Accounting Office,

Waters and Wetlands: Corps of Engineers Needs ‘o Better

Support Its Decisions for Not Asserting Jurisdiction,

GAO-05-870, 14-15 (Sept. 2005) (finding similar

procedures among districts for conducting JDs, but noting

the differing policies used for determining jurisdiction).

17

Given the absurdity of trying to apply the Corps’

opaque post-SWANCC guidance, it is hardly surprising

that such wide-ranging inconsistency has developed

among the district offices. However, the effects of the

Corps’ confusion and of the resulting inconsistent

practices extend far beyond the district offices.* It is the

property Owner and project manager that bear the burden

of the Corps’ illegitimate practices because it is impossible

to predict with any reasonableness whether and to what

degree a particular district will extend jurisdiction over

any remote, ephemeral features that could be impacted by

onsite activity.’ The Corps’ informal guidance further

exacerbates the confusion by instructing each district

office to conform JDs to subsequent federal court

® The muddled application of CWA jurisdiction among the

district offices has produced a similarly muddled application of CWA

jurisdiction among the federal district courts and circuit courts. See

Joint Memorandum, supra at 1996-98 (summarizing the many

inconsistencies among the lower federal courts). Apparently taking

their cue from the Corps’ distorted rendition of this Court’s direction

in Riverside Bayview and SWANCC, many — but not all — of the

federal courts have disregarded the jurisdictional boundaries

articulated in those decisions. See Petitioners’ Carabell ef a/. Pet. for

Cert. at 8-13 (surveying various federal court opinions addressing the

Corps’ jurisdiction).

* Courts have found that, in addition to landowners,

contractors and consultants are also liable for discharging pollutants

without a permit. See United States v. Bd. of Trs. of Fla. Keys Comm.

Coill., 531 F. Supp. 267, 274 (S.D. Fla. 1981) (finding both the

landowner and the contractor liable, where the contractor was

responsible for discharge but the owner was responsible for obtaining

CWA permits); see also United States v. Weisman, 489 F. Supp.

1331, 1333-34 (M.D. Fla. 1980) (holding liable a consultant who

designed a road project, applied for a Section 404 permit, and

communicated with the Corps about the project but did not order

discharge activity and was not present when the discharge occurred).

18

decisions concerning the scope of jurisdiction within the

respective district. Joint Memorandum, supra at 1998.

This policy, when applied to the districts’ already

divergent interpretations of their jurisdiction over non-

navigable, non-adjacent features, has created a self-

sustaining cycle of JDs made by a district, leading to

federal court review of the asserted jurisdiction, leading to

revised interpretations of CWA jurisdiction within the

district. See id at 1996-98 (detailing the many

inconsistent judicial interpretations of federal jurisdiction

over remote features).

Without the benefit of consistent and proper JDs for

true interstate, adjacent features, citizens must incur the

additional costs of the Section 404 program, regardless of

whether there are actually jurisdictional features located

on a development site or not. In light of the grueling

consequences amici firms and other citizens face if they

unsuccessfully attempt to divine a district office’s

rendition of federal jurisdiction, they are left with little

choice but to submit to the Section 404 process and incur

the delays and high costs (not to mention the uncertainty)

that accompany it.'°

'° The Clean Water Act carries strict civil liability provisions,

under which violations are punishable with daily fines topping

$32,500 each. 33 U.S.C. § 1319(d); Civil Monetary Penalty Inflation

Adjustment Rule, 69 Fed. Reg. 7121, 7125 (Feb. 13, 2004). The

statute also imposes severe criminal penalties for violations, including

prison terms of one to six years and fines of up to $100,000 per day.

33 U.S.C. § 1319%(c).

ee

Il. EXTENDING FEDERAL JURISDICTION TO

REMOTE, INTRASTATE, NON-ADJACENT

FEATURES iS INCONGRUENT WITH

ACHIEVING THE CLEAN WATER ACT’S

GOALS.

Despite the Corps’ continued assertion of federal

jurisdiction over remote, intrastate, non-adjacent wetlands

and drainages following SWANCC, these features do not

fall within the ambit of federal authority. Manmade

ephemeral trenches are neither wetlands nor waters. And

while the wetland features may satisfy the regulatory

criteria for “wetlands” as defined by the Corps, they lack

the capacity to influence the integrity of navigable waters,

even when connected to an ephemeral drainage. As a

result, these features do not factor into the legislative

design of the CWA and are not subject to federal

regulation. )

A. Congress Designed the Clean Water Act to

Regulate Discharges That Impact the Integrity of

Navigable Waters.

Congress designed the CWA “to restore and maintain

the chemical, physical, and biological integrity of the

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

objective, the legislature set a national goal of eliminating

“the discharge of pollutants into the navigable waters.” Jd.

§ 1251(a)(1). Significantly, Congress also expressed the

concomitant goal “to recognize, preserve, and protect the

primary responsibilities and rights of States to prevent,

reduce, and eliminate pollution, [and] to plan the

development and use . . . of land and water resources.” /d.

§ 1251(b). These two goals, together with the Section 404

permitting program for the “discharge of dredged or fill

material into the navigable waters,” provide the

framework on which this Court relies to evaluate the

20

proper scope of federal jurisdiction over non-navigable

hydrologic features. See, e.g., Riverside Bayview, 474

U.S. at 132-33 (evaluating the Corps’ authority over

adjacent wetlands “in light of the language, policies, and

legislative history of the Act”).

Applying this framework, this Court recognizes that

the federal government’s Section 404 authority

encompasses truly “navigable waters,” and that this

authority derives from Congress’ “traditional jurisdiction

over waters that were or had been navigable in fact or

which could reasonably be so made.” See SWANCC, 531

U.S. at 172. The Court also found that this analytical

framework justifies extending the Corps’ authority to

certain wetlands adjacent to navigable waters if these

features “play a key role in protecting and enhancing

water quality” and are therefore “inseparably bound up”

with the navigable waterways that the CWA aims to

protect. Riverside Bayview, 474 U.S. at 133-35.

Conversely, the Corps was prohibited from stretching its

reach to regulate intrastate, non-navigable, non-adjacent

features inhabited by migratory birds because these

features lack a “significant nexus” to, or are not

“inseparably bound up with,” navigable waters. See

SWANCC, 531 U.S. at 167-68.

As observed in Riverside Bayview and SWANCC,

adjacency may engender a significant nexus between non-

navigable features and navigable waters because it may

allow the features to have an external, offsite influence by

functioning “as integral parts of the aquatic environment.”

Id.; Riverside Bayview, 474 U.S. at 134, 135. Among the

external effects the Court highlighted as integral to the

aquatic environment were the capacity “to filter and purify

water” discharging into navigable waters and the capacity

“to slow the flow of surface runoff. . . and thus prevent

2)

flooding and erosion.” Riverside Bayview, 474 U.S. at

134. By performing these ecological functions, certain

adjacent wetlands may contribute to achieving the

legislative goal of preserving and maintaining the integrity

of navigabie waters.

B. Because Remote, Intrastate, Non-Adjacent

Wetlands Lack the Capacity to Influence

Navigable Waters, They Are Not Subject to

Federal Jurisdiction. |

Not every wetland is an adjacent wetland. In fact, a

great number of wetlands are not. Based solely on the

ecological functions highlighted in Riverside Bayview,

adjacent wetlands may exhibit a significant nexus with

navigable waters, which could confer federal jurisdiction

over the features. Yet, adjacent wetlands are but one of

many distinct classes of hydrologic features that fall under

the rubric of “wetlands.”'' This legal term simply

signifies that a feature exhibits the three morphological

attributes that separate wetlands from uplands—

hydrology, hydric soils, and hydrophytic vegetation. 33

C.F.R. § 328.3(b); William J. Mitsch & James G.

Gosselink, Wetlands 584-87 (3d ed. 2000). Consequently,

the only absolute among the various classes of wetlands is

that they all exhibit these three criteria. But these criteria

merely describe what a wetland is, not what a wetland

does.

'' The Corps defines wetlands as “those areas that are

inundated or saturated by surface or ground water at a frequency and

duration sufficient to support, and that under normal circumstances do

support, a prevalence of vegetation typically adapted for life in

saturated soil conditions.” 33 C.F.R. § 328.3(b).

22

Wetland physiology, the functional aspect of

wetlands, is determined by a combination of external

factors. Theda Braddock, Wetlands: An Introduction to

Ecology, the Law, and Permitting 12 (1995). The

scientific community has “increasingly recognized that the

factors controlling the existence of a wetland as well as its

functions and values are largely determined by landscape

characteristics and the wetland’s position in the

landscape.” /d. at 24; see also Mark S. Dennison & James

F. Berry, Wetlands: Guide to Science, Law, and

Technology 61-65 (1993) (explaining that wetland

function depends on a variety of factors, including wetland

type, location, and hydrology). These external factors

interact in various manners, creating different classes of

wetlands with unique functional capacities. See generally

Dennison & Berry, supra, at 74-145 (describing different

characteristics and functions of fourteen separate wetland

classes). Because wetland function correlates directly to

the effects of each wetland on the outside environment,

and each wetland class represents a unique functional

scheme, it is understandable that the different classes of

wetlands influence the outside environment in different

ways. See Braddock, supra, at 12.

As this Court recognized in Riverside Bayview and

SWANCC, it is this external influence, specifically the

influence on navigable waters, that confers federal

jurisdiction over non-navigable hydrologic features.

Riverside Bayview, 474 U.S. at 134-35; SWANCC, 531

U.S. at 167-68. Due to their external influence, some of

these features may contribute to achieving Congress’ goal

of restoring and maintaining the chemical, physical, and

biological integrity of navigable waters. Riverside

Bayview, 474 U.S. at 134-35. But features lacking the

functional capacity to influence the integrity of navigable

23

waters are incapable of furthering Congress’ goal. See

SWANCC, 531 U.S. at 167-68.

1. The Features at Issue Are Intrastate, Non-Adjacent

Wetlands and Trenches Far Removed from Any

Navigable Water.

The intrastate, remote wetlands and ephemeral

trenches at issue here are not adjacent to navigable waters.

Nor are they even close to any navigable waters. These

features do not perform the functions that the Corps so

often relies on to justify its expansion of federal

jurisdiction over other non-navigable features. Unlike

wetlands adjacent to navigable waters, these wetlands are

normally groundwater and direct precipitation-dependent.

See Dennison & Berry, supra at 87-123 (distinguishing

hydrologic sources for classes of adjacent wetlands from

hydrologic sources for classes of non-adjacent wetlands).

Their hydrology is primarily a product of proximity to the

underlying water table and regional climate, rather than as

a receiving body for up-gradient surface water discharges,

floodwater spillover, or backwater flooding. /d.

The most that may be said of these remote, intrastate

wetlands and ephemeral trenches is that they possibly bear

a tangential affiliation to some distant navigable waters.

However, this affiliation arises only if any water happens

to seep out of these wetlands, which generally lack fixed

outlets, traverse a labyrinth of manmade trenches or other

ephemeral and intermittent drainages, which are normally

dry, and eventually find its way to a navigable water.

Neither Congress nor any landowner would have

conceived that such property is somehow federalized.

While admittedly, if there is in fact a faint

“connection” between the distant wetlands and an offsite

24

manmade trench or other ephemeral seep, as Respondents

claim, the features could provide some minor, localized

ecological function. See Paul D. Cylinder, et al,

Wetlands, Streams, and Other Waters 10 (2004)

(explaining that ecological function of down gradient

drainages “is highly dependent” on external inputs). But

such function, even in the aggregate, hardly occurs with

the frequency, duration, or scale i:equired to maintain a

“significant nexus” or inseparable tie with distant

navigable waters. See Riverside Bayview, 474 U.S. at

133-35; SWANCC, 531 U.S. at 167-68. Put simply, any

functions of these solitary, intrastate features over which

the Corps claims to maintain jurisdiction are far too

remote, localized, and infrequent to fall within the federal

government’s authority.

2. Remote, Non-Adjacent Features Lack the Capacity to

Mitigate Flooding and Erosion in Navigable Waters.

An examination of the scientific evidence indicates

that, consistent with this Court’s observation in Riverside

Bayview, certain adjacent wetlands may help to reduce the

impacts of flooding and erosion in abutting navigable

waters by receiving floodwater overflow from these

waters and intercepting and retaining surface water

discharges before they enter navigable waters. Braddock,

supra, at 13; Dennison & Berry, supra at 63. In this way,

adjacent wetlands can mitigate the damage a flood causes.

This function is largely a product of their position in the

landscape on floodplains and in bottomlands, which

allows those wetlands to “store and attenuate flood waters

when streams or rivers overflow their banks.” See

Braddock, supra at 13. By storing floodwater overflow

and surface water discharges, these wetlands may also

dissipate the energy of floods and decrease the impacts of

25

downstream bank erosion in the flooding navigable

waterway. Dennison & Berry, supra at 63-65. But

Carabell and Rapanos bear no relationship to such

circumstances.

From an ecological perspective, the remote wetlands

and ephemeral trenches at issue here are in no way

analogous to the wetlands adjacent to navigable waters in

Riverside Bayview. Remote, intrastate wetlands play an

extremely minor and localized role in flood mitigation, if

they play any role at all. See Braddock, supra, at 13

(attributing the function of flood attenuation to floodplain

and bottomland features). Because these non-adjacent

features are not located in a floodplain of any sort, they are

incapable of reducing flooding by receiving water that

overtops the banks of rivers and streams, the primary

mechanism of flood abatement. Dennis W. Magee, A

Primer on Wetland Ecology, in Wetlands Law and Policy

44-45, 47-48 (2005); Mitsch & Gosselink, supra, at 584-

87. Any capacity to reduce flooding in navigable waters

derives from their capacity “to intercept storm runoff and

to store storm waters, thereby changing sharp runoff peaks

to slower discharges over longer periods of time.” Mitsch

& Gosselink, supra, at 584.

Despite the Corps’ claim to the contrary, there is no

indication that these wetlands perform these functions in

any consequential way, particularly when their only

external outlet is through manmade trenches and other

ephemeral seeps. See id. at 126-33 (noting while some

wetlands act as “water flow regulators for downstream

rivers,” others “have surface outflows that develop only

when their water stages exceed a critical level”). As

noted, these wetlands are often groundwater-driven and

direct precipitation-dependent systems. Many of these

features never, or only rarely, contain aboveground water

26

and their only external outlet is an ephemeral, manmade

trench or drainage—hardly indicative of being inundated

by or storing significant amounts of surface water runoff

or storm water flow. Robert J. Pierce, Ph.D., PWS, CWD,

Wetland Science Applications, Inc., Technical Principles

Related To Establishing the Limits of Jurisdiction for

Section 404 of the Clean Water Act 35-40, 60-61 (2003),

http://www. wetlandtraining.com/BobRept >"f.

The location of adjacent wetlands win floodplains

and bottomlands also allows them to serve as buffers that

separate surface runoff sources from navigable waterways.

See Dennison & Berry, supra, at 65. By acting as buffers,

adjacent wetlands may decrease runoff velocity of surface

water flow before it is discharged. /d. This function

dissipates energy and reduces erosion. /d. at 63-65, 124.

But remote, non-adjacent wetlands are not located in these

areas and have an extremely limited capacity to act as

buffers or to store surface water. See id. at 90-100, 123-

25. As such, they have a limited capacity to reduce offsite

erosion and resulting downstream siltation.

3. Remote, Non-Adjacent Features Lack the Capacity to

Influence Water Quality of Navigable Waters.

Scientific studies also indicate, as this Court

recognized in Riverside Bayview, that the particular

functional scheme of adjacent wetlands may perform

ecological functions that influence water quality in

abutting navigable waters. See Riverside Bayview, 474

U.S. at 134-35. Studies have found that, under certain

conditions, wetlands adjacent to navigable waters have the

“capability to cleanse water through biogeochemical

transformation of various pollutants, ~ particularly

nutrients.” Braddock, supra, at 12. Due to their

topographic position on floodplains and bottomlands and

27

at the fringes of lakes, these wetlands serve as buffers to

neighboring navigable waters and help to reduce the

pollutant concentration of flows entering those waters.

Magee, supra at 40, 44-45, 47-48. Thus, certain wetlands

in these locations may influence adjacent navigable waters

by discharging water of a “higher quality” than the water

that originally entered the wetland. /d. at 40-41. Again,

Carabell and Rapanos bear no relationship to such

circumstances. |

The remote wetlands and ephemeral trenches at issue

here do not normally provide this function because they

are not adjacent to any navigable water. Nor do they serve

as buffers to discharging surface waters. These features

are simply too far removed to influence the water quality

of navigable waters. Pierce, supra at 35-40, £0-61. In

addition to their remote, non-adjacent location, the

filtration capacity of these wetlands is also hampered by

their lack of surface water storage capacity. Along with

increasing the ability to mitigate downstream flooding, “a

wetland’s ability to store surface water is strongly

correlated with its capacity to modify water quality by

retaining, trapping, and transforming sediment and

contaminants.” Magee, supra at 43. Since remote

groundwater-driven and precipitation-dependent wetlands

have little surface water storage capacity, the ability of

these features to influence water quality is even further

limited. See generally Pierce, supra at 35-40, 60-61.

Ill. STATE REGULATION OF THESE REMOTE

FEATURES IS NECESSARY DUE TO

COMMERCE CLAUSE LIMITATIONS AND

PRAGMATIC BECAUSE THE STATES

ALREADY PROVIDE THIS REGULATION.

Because remote, intrastate, non-navigable, non-

adjacent wetlands and ephemeral manmade trenches are

28

generally incapable of influencing the integrity of

navigable waters, the Constitution of the United States

dictates that federal regulation of these features must yield

to state regulation. Otherwise, the Corps’ reach is

virtually infinite.

It is beyond dispute that “the grant of authority to

Congress under the Commerce Clause, though broad, is

not unlimited.” SWANCC, 531 U.S. at 173. As this Court

explained, there are but three “categories of activity that

Congress may regulate under its commerce power”: |) the

channels of interstate commerce (i.e., traditional navigable

waters); 2) the instrumentalities of interstate commerce, or

persons and things in interstate commerce; and 3)

activities that “substantially affect” interstate commerce.

SWANCC, 531 U.S. at 192-93 (Stevens, J. dissenting)

(quoting United States v. Lopez, 514 U.S. 549, 558-59

(1995)). Federal regulation of remote, intrastate, non-

navigable wetlands and ephemeral trenches is analyzed

under the third category. See id. at 193 (analyzing in

dissent the Migratory Bird Rule under the substantial

effects test).

As discussed at length above, the natural and

manmade features at issue here do not influence the

integrity of navigable waters. The ecological incapacity of

these intrastate wetlands and manmade trenches to affect

the channels of interstate commerce indicates that they are

also incapable, even in the aggregate, of substantially

affecting such commerce. Consequently, these distant and

faint features cannot be subject to federal jurisdiction.

Congress recognized the constitutional constraints on

exercising federal authority over remote, intrastate, non-

navigable features. In drafting the Clean Water Act,

Congress expressly preserved the traditional authority of

29

the States to control intrastate uses of land and water

resources and maintained “the primary responsibilities and

rights of the States to prevent, reduce, and eliminate

pollution.” 33 U.S.C. §1251(b). As explained in

SWANCC, inflating the scope of federal authority to reach

property that has only limited and localized ecological

functions, if any, violates the express legislative intent of

the CWA and marks “a significant impingement of the

States’ traditional and primary power over land and water

use.” SWANCC, 531 U.S. at 174. Congress intended the

States to regulate these remote features, and the States

have honored this intention.

The States can, and do, regulate the features at issue

here. In fact, already 47 States have adopted statutory or

regulatory programs that offer protection for intrastate

wetlands and waters. See Jeanne M. Christie, State

Wetland Programs (2005), http://www.aswm.org/swp/

statemainpage9.htm; Paul D. Cylinder, ef al, supra at

101-13 (describing the water resource programs in each

state).'? These programs have been remarkably successful

at conserving remote, intrastate freshwater wetlands,

coastal wetlands, and ephemeral features not subject to the

Corps’ jurisdiction. See id. at 99-100, 116-23 (detailing

accomplishments of programs in California, Florida,

Massachusetts, Michigan, New Jersey, and Washington);

see also Palazzolo v. Rhode Island, 533 U.S. 606-(2001)

(discussing wetland protections under Rhode Island law in

a takings challenge).

'2 In the interest of brevity, the state statutory and regulatory

programs that offer protection of these intrastate features have not

been individually listed here. The cited sources describe each state’s

programs in detail.

30

Such comprehensive state regulation renders the

Corps’ illegitimate assertions of federal jurisdiction

unnecessary and duplicative. The Corps’ intrusive

practices only serve to confound effective state programs,

not to mention legitimate land development and public

infrastructure improvements already subject to rigorous

state and local environmental and land use regulation.

CONCLUSION

The amici International Council of Shopping Centers,

et al. respectfully request that this Court reverse the Sixth

Circuit’s rulings in Rapanos and Carabell upholding the

extension of federal Clean Water Act jurisdiction over

non-adjacent, non-navigable wetlands and drainages.

Respectfully submitted,

Gus Bauman

(Counsel of Record)

Fred R. Wagner

W. Parker Moore

Bevendge &

Diamond, P.C.

1350 I St, NW, Suite 700

Washington, DC 20005

(202) 789-6000

December 2, 2005