# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A35

## Record

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

## Text

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 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A35. Public record. Not legal advice.