Amicus Curiae Brief — Rapanos v. United States

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‘> v Se Be

In the

Supreme Court of the Rnited States

JOHN A. RAPANOS et ex, et ail.,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

JUNE CARABELL, et al.,

Petitioners,

Vv. -

0 UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

- United States Court of

for the Sixth Circuit

BRIEF FOR THE NATIONAL FEDERATION OF

INDEPENDENT BUSINESS LEGAL FOUNDATION

AS AMICUS CURIAE {N SUPPORT OF PETITIONERS

KAREN R. HARNED _ ROBERT R. GASAWAY

ELIZABETH GAUDIO Counsel of Record

NFIB LEGAL FOUNDATION ASHLEY C. PARRISH

1201 F Street, NW ERIN E. MORROW

Washington, D~ 20004 KIRKLAND & ELLIS LLP

(202) 554-9000 655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

Attorneys for the Amicus Curiae

December 2, 2005

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether the United States Army Corps of Engineers’

regulations »nromulgated pursuant to the Clean Water Act

lawfully and constitutionally vest the Army Corps with

broad, land-use decisionmaking authority over essentially

any and every wetland in the United States.

TABLE OF CONTENTS

FE |__| eNO

TES Ge RFT IIIE 6 Circe nc csnccccesscesesensoccscccsvcossosecevences it

INTEREST OF AMICUS CURIAE .........ccccccccscsessssesseeteneees

INTRODUCTION AND SUMMARY OF

GETS cemmmncesnsnssmternnsscmmunntneememnenssenciorree

REFDISRTOIITS ccsiersnensscscassssrssemmnicnemsnnsentninieemmemeniaanenes

I. THE SIXTH CIRCUIT’S EXPANSIVE READING

OF THE CLEAN WATER ACT RENDERS THE

PETE CR eG Ce i rrcccrncccrescsnnnsssscsnccennnnnescens

A. The Corps’ Regulations Seek To Impose

Nationwide Land-Use Requirements On A Vast

Array Of Privately Owned Wetlands. ......................

B. Under Our System Of Government, Land-Use

Planning Is The “Quintessential” Function Of

STERN So AAA RENTON OR

C. The Corps’ Regulations Violate Constitutional

EEN PUTIN, sinicinesecisitestnscennsnaniaieidiiinsiaeretsaasiicdios

Il. THE SIXTH CIRCUIT’S EXPANSIVE READING

OF THE CLEAN WATER ACT CANNOT BE

ERED CECE BOP OTe cacsesccceseretsceenscsmeorepesconnones

A. The Clean Water Act Does Not Prohibit The

Employment Of Fill Materials For Purposes Of

Improving Privately Owned Parcels Of Land. .........

B. Riverside Bayview Cannot Be Read To Give The

Federal Government Authority To Make Land-

Use Determinations For Wetlands Not “Actually

Abutting” Navigable Waters. ...............:ccscccesesereeees

lil. THE CORPS EXCEEDED ITS AUTHORITY IN

ASSERTING LAND-USE JURISDICTION OVER

THE CARABELL AND RAPANOS WETLANDB.........

GaN sissiilicisictutnnsesinsctiniioaniiliintiinthinisdslanaiaiinaaltinainabaliionse

TABLE OF AUTHORITIES

Page(s)

Cases

Agostini v. Felton,

Be SU ctlinisteneonsnnscocneninionienineneane 21

Arkansas v. Oklahoma Envtl. Prot. Agency,

le re biincicrisintiinincinpiiionaasnticasenincdetenes 19

Atascadero State Hosp. v. Scanlon,

ee I crcincictensccistntmnsenaminnniicncepacntionins 14

Brown v. Board of Education,

es I ctaietentnntniendencincueninesnsnmssenniie 2

Carabell v. U.S. Army Corps of Engr'’s,

“391 F.3d 704 (6th Cir. 2004).......... i siamidiinmandiet 23

Chevron, U.S.A., Inc. v. NRDC, Inc.,

a ne IE cnccencanisendtesntennciicdeiditionnpnininanes 15

City of Milwaukee v. Illinois & Michigan,

eI ncicinceicncteintsirintitsianenipineninitiadeoen 19

Coleman v. Thompson,

I, PTT strain insisintdiasichieabidnnideninalibalies 26

Dolan v. City of Tigard,

a TTI cincciechidedccitesincssieiciobeasiintaili 7,15

Duncan v. Walker,

I Ga ITI ccsersnaeintinnasianinpcianatiioniecs 25

Edward J. DeBartolo Corp. v. Florida Gulf

Coast Bldg. & Constr. Trades Council,

ets eID cncesicinctcsicnsniniitientctinpunduntacnetinnn 15

FERC v. Mississippi,

FE TD rcrcintecieninsennesimcisinitiaciie 7, 15

Garcia v. San Antonio Metropolitan Transit Authority,

GP RA Fa re wrccnncstossccicniintsishiteanipammaates 21

Gonzales v. Raich,

See he a OO CO hctscctescntsctennscinsnninenie 11,13

Gregory v. Ashcroft,

Fe ee Ge Ce cctestinisstaienisintinnnsennans 10, 14

Hess v. Port Auth. Trans-Hudson Corp.,

FE ek BIO cicceccsnsdiceeneatitininnnemaaliites 7,15

Idaho v. Coeur d'Alene Tribe of Idaho,

BF Eee 18

Illinois Central R. Co. v. Illinois,

aoe 18

International Paper Co. v. Ouellette,

GIP he Ge Ge OTR carcctuntcinssivstisnasnaneniiani 19, 20

Jones v. United States,

FF Wk Dt GED crcnnccsccseniezsictonseniipaiciidioias 13 :

Lake Country Estates, Inc. v. Tahoe Reg 'l

Planning Agency,

SE ae Be Oe ctcntcmntnsicstentnicnalemieanibs 6, 15

Lucas v. South Carolina Coastal Council,

De Ss Pe ED citnvcsnnsicenacnnseintvniateditemilinian 16

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............e eee eee 1]

National Mining Ass'n v. U.S. Army Corps of Eng'rs,

145 F.3d 1399 (D.C. Cir. 1998)... ececreseeneees 16

New State Ice Co. v. Liebmann,

es Be Ce iiticccacnsnenaisiiipibibiibataiiaeimiahe 8

NRDC, Inc. v. Callaway,

392 F. Supp. 685 (D.D.C. 1975) .0.....0 eee 8

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

531 U.S. 159 (2001)

eatidisemniene 2, 3, 12, 15, 18, 20, 21, 23, 24, 25

U.S. Term Limits, Inc. v. Thornton,

A a 26

United States v. Lopez, .

Ee 11, 12,13

United States v. Morrison,

CG 11,12

United States v. Riverside Bayview Homes, Inc.,

SIO UB. 130 COGBSD nccccececececcceessesesesese 20, 22, 23

Utah Div. of State Lands v. United States,

i ca cceenrnememmenemememnenmmmemn 18

Village of Euclid v. Ambler Realty Co.,

CE 7,15

Warth v. Seldin,

i OT cectecerpeprreeempnesnesensnemnemnenecne 7,15

Weinberger v. Romero-Barcelo,

| Tne oe 17

Younger v. Harris,

Sn Cran il

Youngstown Sheet & Tube Co. v. Sawyer,

nr ereeienseremennncntmnennemnenen 7

Statutes and Regulations

a 19

RS ee 19

Ee 19

SE I 19

le 0 ccnnntanecmseennnnnimmnnmemnmnneie i9

oe ee 5

33 C.F.R. § 328.3(a){7) ............ sennansremianinliteeaieneiieseeeae 5

oe ee 5

Poe 8) 8 5

ree 19 25

Be se Oe Fe cennrnnsemcnisteremmeenmntemen 7, 45

A 16

es te GE enenctenenl 3

te Oe crtetncenemnnineenn 6

ee ei cennnenceeinniat 6

oe ee 6

te 6

Advance Notice of Proposed Rulemaking on

the Clean Water Act Regulatory Definition of

“Waters of the United States,”

68 Fed. Reg. 1991 (Jan. 15, 2003)...................... 2

Clean Water Act Regulatory Programs,

58 Fed. Reg. 45,008 (Aug. 25, 1993) ............... 13

Final Notice of Modification of Nationwide

Permit 29 For Single Family Homes,

64 Fed. Reg. 47 (Aug. 30, 1999)... 12

Mass. Gen. Laws ch. 130, § 27A,

1963 Mass. Acts 426, repealed by

1972 Mass. Acts 784, § 2,

superceded by Mass. Gen. Laws ch. 131,

CE SEE EE, ER 8

vil

Other Authorities

Adler, Jonathan H..,

Judicial Federalism and the Future of Federal

Environmental Regulation,

90 IOWA L. REV. 377 (2005) .............-ccccceeeeeceeees 8

Adler, Jonathan H.,

Letting Fifty Flowers Bloom:

Transforming The States Into

Laboratories Of Environmental Policy

Adler, Jonathan H..,

The Fable of Federal Environmenta:

Regulation: Reconsidering The Federal Role

In Environmental Protection,

55 CASE W. Res. L. REV. 93 (2004) .......... 10

Adler, Jonathan H.,

Wetlands, Waterfowl and The Menace of

Mr. Wilson: Commerce Clause Jurisprudence and

the Limits of Federal Wetland Regulation,

a ER. Gn B Ge ccrerenaenttomeeniomm 7,8

Albrecht, Virginia S. & Bernard N. Goode,

Wetland Regulation in the Real World (1994) . 13

Dawson, Alexandra D.,

Massachusetts’ Experience in Regulating

Wetlands in Wetland Protection.

Strengthening the Role of the States

(Ass'n of State Wetland Managers, 1985) ......... &

Gerhardt, Michael J.,

The Curious Flight of the Migratory Bird Rule,

31 ENVTL. L. Rep. 11079 (2001)...................... 10

vill

Jaffe, Caleb A.,

Tragedy of the Wetlands Commons:

What the Virginia Nontidal Wetlands Resources

Act Says About The Future Of

Environmental Regulation,

20 Va. ENVTL L.J. 329 (2001) .......02...2- eee 10

Kusler, Jon A., et al,

State Wetland Regulation. Status of

Programs and Emerging Trends

(Ass'n of State Wetland Managers, 1994)......... )

Regulatory Warning: Hearings Before the Subcomm.

on Commercial and Administrative Law

of the House Comm. on the Judiciary,

104th Cong. (1996)

(statement of Robert McMackin) ....................... 9

Release No. PA-00-05, U.S. Army Corps of Engineers

Announces Replacement Nationwide Permits,

cepa/releases/nationwidepermits. htm................. 9

Revesz, Richard L.,

Federalism and Environmental Regulation:

A Public Choice Analysis,

115 HARV. L. REV. EE 9

Be is eee caineclsictarssenneciseinieniccctaisiniihiasinainiesitininsinptiniabiitiai 1

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

reprinted in 1972, U.S.C.C_A.N. 3668 ............. 17

Stone, Geoffrey R., et al.,

CONSTITUTIONAL LAW (1986)..0000000 00. 21

THE COMPACT OXFORD ENGLISH

FCPS See aee 15

INTEREST OF AMICUS CURIAE'

The National Federation of Independent Business Legal

Foundation (“NFIB Legal Foundation”), a nonprofit, public

interest law firm established to protect the rights of

America’s small-business owners, is the legal arm of the

National Federation of Independent Business (“NFIB”).

NFIB is the nation’s oldest and largest organization dedicated

to representing the interests of small-business owners

throughout all 50 States. The 600,000 NFIB members own a

wide variety of small businesses, including restaurants,

family farms, neighborhood retailers, service companies, and

technology manufacturers. NFIB represents small employers

who make up an important segment of the business

community. Members typically have about five employees

and report gross sales of $350,000; the average member nets

$40,000 to $50,000 annually. These small businesses face

challenges and opportunities that distinguish them from

publicly traded corporations.

NFIB members have an important interest in these cases

because small businesses continue to bear a disproportionate

share of the federal regulatory burden associated with

environmental regulations. A September 2005 study

commissioned by the Small Business Administration reveals

that environmental and tax compliance regulations are the

main cost drivers in determining the severity of the

disproportionate impact on small firms. Compliance with

environmental regulations alone costs small firms 364

percent more than large firms.

' Both petitioners and respondents have consented to the filing of this

brief in letters that are on file mn the Clerk's office. Pursuant to S. Ct R.

37.6, amicus curiae state that no counse! for a party authored any part of

this brief, and no person or entity other than amicus curiae, their

members, or thew counsel made a monetary contribution to the

preparation or submission of this bref

INTRODUCTION AND

SUMMARY OF ARGUMENT

The five years following Brown v. Board of Education,

349 U.S. 294 (1955), are often termed years of “massive

resistance” to that decision’s holding. In similar fashion, the

five years following this Court’s 2001 decision in Solid

Waste Agency of Northern Cook County v. United States

Army Corps of Engineers, 531 US. 159 (2001)

(“SWANCC”), might be termed years of “passive

resistance”’—both to SWANCC’s holding itself and to any

serious attempt to reconcile state with federal authority as

regards wetlands protection and water-quality preservation.

The Army Corps of Engineers (“Army Corps” or “Corps’’)

initially considered making a good-faith attempt to reconcile

its wetlands regulations with SWANCC’s statutory and

constitutional teachings. See Advance Notice of Proposed

Rulemaking on the Clean Water Act Regulatory Definition of

“Waters of the United States,” 68 Fed. Reg. 1991 (Jan. 15,

2003). But in the end the Corps retreated from that objective;

hunkered down with a modest redeployment of what was left

of its pre-SWANCC legal position; and failed to make

meaningful changes to its regulatory program. With the

notable exception of the Fifth Circuit, the lower federal

courts have acquiesced, consistently upholding applications

of Army Corps regulations that SWANCC rendered unlawful.

These consolidated cases present a_ tailor-made

opportunity for the Court to vindicate the authoritative status

of SWANCC in particular and the binding nature of this

Court’s decisions more gencrally. In two separate but

equally misguided rulings below, the Sixth Circuit failed to

_ acknowledge that the fundamental assumptions underlying

the Corps’ regulations—not merely the regulatory provision

aimed at migratory birds were undermined by SWANCC.

More specifically, the Sixth Circuit overlooked or ignored

that SWANCC forecloses giving deference to the Corps’

administrative interpretations and that the motive force

driving SWANCC’s result was this Court’s constitutionally

essential solicitude for preserving the States’ prerogatives

over land-use decisionmaking.

SWANCC drew a _ landmark jurisprudential line

reconciling federal interests in the navigability and quality of

“waters of the United States” with the States’ concededly

exclusive authority to make land-use decisions for wetlands,

dry land, and other property outside the federal ambit.

Noting the important federalism aspects of such a

reconciliation, SWANCC’s reading of the Clean Water Act,

while not comprehensive, established at a minimum that the

Corps lacked land-use authority over “ponds that are not

adjacent to open water.” SWANCC, 531 US. at 168

(emphasis in original). The regrettable “passive resistance”

to SWANCC has undoubtedly been caused in part by

governmental chaffing at the bridle of law. But that

resistance has also been partly caused by genuine confusion

over what suffices to confer Clean Water Act jurisdiction.

This submission, in addition to underscoring the practical

importance of these cases to small businesses, secks to dispel

this confusion by defining and distinguishing the two types

of constitutional and statutory authority the Army Corps

exercises—a distinction that thus far has largely eluded the

lower courts.

Courts have typically wandered astray by failing to

appreciate that the Clean Water Act provision at issue here,

section 404(a), governs “the discharge of dredged or fill

material into the navigable waters at specified disposal sites.”

33 U.S.C. §1344(a); (emphasis added). As SWANCC

indicated, “discharges of dredged or fill material” can

logically come in only two relevant varieties —(i) discharges

directly involving highways of water-borne commerce, such

as the Mississippi River System or St. Lawrence Seaway;

and (ii) discharges involving, not great aquatic highways, but

other “waters of the United States” used in interstate

commerce. See 33 U.S.C. § 1362(7). This distinction,

critical for both constitutional and statutory analysis, is one

between, on the one hand, the asserted federal authority to

engage in land-use decisionmaking for parcels bordering

major commercial waterways and, on the other hand, the

very different authority to enforce water-quality preservation

or water-pollution prevention rules.

As explained in detail below, the Sixth Circuit confused

these separate headings of federal authority and, as a result,

lapsed into error. Most importantly, the Sixth Circuit

mistakenly approved the Corps’ assertion of authority to

apply land-use decisionmaking regulations to the Rapanos

and Carabell parcels—lands not “actually abutting”

commercial waterways. By subjecting non-abutting wetlands

to federal land-use regulations that can lawfully apply, if at

all, only to parcels bordering the Nation’s great commercial

waterways, the Sixth Circuit departed from SWANCC,

misapplied the Act, and permitted the Corps to exceed its

authority under the Constitution.

ARGUMENT

I. THE SIXTH CIRCUIT’S EXPANSIVE READING

OF THE CLEAN WATER ACT RENDERS THE

ACT UNCONSTITUTIONAL.

These cases do not challenge the power of the Army

Corps to regulate land use along the borders of major federal

waterways. Nor do they challenge the power of federal

agencies to regulate activities causing pollution of the

Nation’s water resources. What they most assuredly do

challenge is the Corps’ bid to arrogate authority over

land-use decisionmaking for any and every wetland in the

Nation. Even putting to one side the Clean Water Act, the

Constitution forbids any such exercise of federal authority.

A. The Corps’ Regulations Seek To Impose

Nationwide Land-Use Requirements On A Vast

Array Of Privately Owned Wetlands. ~

The Corps’ regulations define the “waters of the United

States” subject to the Corps’ wetlands permitting

requirements in the most expansive way conceivable.

Specifically, the regulatory definition encompasses

“intrastate lakes, rivers, streams (including intermittent

streams), mudflats, sandflats, wetlands, sloughs, prairie

potholes, wet meadows, playa lakes, or natural ponds, the

use, degradation or destruction of which could affect

interstate or foreign commerce.” 33 C.F.R. § 328.3(a)(3). Of

the many items on this lengthy listing, “wetlands” is the only

one carrying a separate regulatory definition. The Corps’

regulations provide: “[t}he term wetlands means those areas

that are inundated or saturated by surface or ground water at

a frequency or duration to support, and under normal

circumstances do support, a prevalence of vegetation

typically adapted for life in saturated soil conditions.” /d. §

328.3(b). The Corps further extends this already liberal

definition to cover “[w]etlands adjacent to waters (other than

waters that are themselves wetlands).” /d. § 328.3(a)(7).

And section 328.3(c) of the Corps’ regulations goes further

still: defining “adjacent” as “bordering, contiguous, or

neighboring,” and then adding a proviso stipulating that even

“{w]etlands separated from other waters of the United States

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

dunes and the like are ‘adjacent wetlands.’” /d. § 328.3(c)

(emphasis added).

Having asserted jurisdiction over any plot wet enough “to

support a prevalence of vegetation typically adapted for life

in saturated soil conditions,” the Corps and the United States

Environmental Protection Agency (“EPA”) proceed to make

permitting decisions tum essentially on land-use

considerations, such as whether aesthetic and ecological

considerations warrant keeping these damp plots in a

perpetual condition of dampness. See, eg, 40 C.F.R.

§ 230.10 (prohibiting the discharge of pollutants that have

significantly adverse effects on, among other things,

“aesthetic” values). EPA regulations thus require that the

Corps consider “the characteristics of the substrate at the

proposed disposal site,” as well as the “possible loss of

environmental characteristics and values,” including whether

the discharge might affect “the complex physical, chemical,

and biological characteristics of the substrate” or affect

“bottom-dwelling organisms.” Jd. § 230.20(b). The

regulations provide in particular that discharges may not

adversely affect wildlife, see id. § 230.10(c)(1), including

“loss or change of breeding and nesting areas, escape cover,

travel corridors, and preferred food sources for resident and

transient wildlife species associated with the aquatic

ecosystem.” /d. § 230.32(b).

In practice, the Corps has interpreted and applied its

regulations broadly to exercise control over whether to allow

or prohibit the dredging or filling of any and every wetland in

the Nation. The Corps has consistently employed its

nationwide regulations to prevent private landowners from

making any improvements to wetland parcels, and has used

its permitting authority to prevent and control development.

In sum, the Corps’ regulations applied in this case seek to

achieve land-use goals, weigh land-use values, and drive

land-use decisionmaking.

B. Under Our System Of Government, Land-Use

Planning Is The “Quintessential” Function Of The

States.

In stark contrast to the Corps’ federal program of

nationwide land-use regulation, this Court has often

remarked that “[t}he regulation of land use is traditionally a

function performed by local governments.” Lake Country

Estates, Inc. v. Tahoe Reg 'l Planning Agency, 440 U.S. 391,

402 (1979); see also Hess v. Port Auth. Trans-Hudson Corp.,

513 U.S. 30, 44 (1994) (same); Dolan v. City of Tigard, 512

U.S. 374, 384 (1994) (recognizing “the authority of state and

local governments to engage in land use planning”); Village

of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). Indeed,

the Court has gone so far as to declare that “regulation of

land use is perhaps the quintessential state activity.” FERC

v. Mississippi, 456 U.S. 742, 767 n.30 (1982) (emphasis

added). The Court accordingly has deemed land-use controls

through zoning as “peculiarly within the province of state

and local legislative authorities.” Warth v. Seldin, 422 U.S.

490, 508 n.18 (1975). In a passage now commonplace in the

Court’s decisions, Justice Jackson emphasized that the

Constitution’s allocations of “differentiated governmental

power” need not undermine the integration of these

“dispersed powers into a _ workable government.”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635

(1952) (concurring opinion). And so experience teaches with

respect to the Constitution’s reservation of land-use

decisionmaking authority as a province of state and local

governments.

States historically have taken leading roles in translating

environmental science into effective conservation programs.

Most relevant here, States have enacted extensive wetlands

protection regimes, ranging from traditional permitting

systems to incentive programs, “critical area” designations,

and buffer zone requirements. This regulatory diversity

reflects not only individual state preferences, but also “the

[biological] diversity of freshwater wetland types across the

nation.” Jonathan H. Adler, Wetlands, Waterfowl and The

Menace of Mr. Wilson: Commerce Clause Jurisprudence and

the Limits of Federal Wetland Regulation, 29 ENVTL. L. 1,

49-50 (1999) (internal citation omitted) (noting that “many

state supplemental programs deliberately exceed stringent

federal wetlands regulations”). State efforts in the wetlands

protection arena are further supplemented by wetlands

protection measures enacted by thousands of local

governments. See id. at 48-52 (summarizing the history of

state wetland regulation); see also Jonathan H. Adler,

Judicial Federalism and the Future of Federal

Environmental Regulation, 90 IOWA L. REV. 377 (2005).

State and local wetlands programs thus exemplify Justice

Brandeis’s observation that “{iJt is one of the happy incidents

of the federal system that a single courageous state may, if its

citizens choose, serve as a laboratory; and try novel social

and economic experiments without risk to the rest of the

country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311

(1932) (Brandeis, J., dissenting).

Nearly a decade before the Clean Water Act,

Massachusetts embarked on the first statewide wetlands

protection experiment. In 1963, Massachusetts enacted a

pioneering program requiring state-issued permits as a

precondition to filling or dredging of coastal wetlands. See

Mass. Gen. Laws ch. 130, §27A, 1963 Mass. Acts 426,

repealed by 1972 Mass. Acts 784, § 2, superceded by Mass.

Gen. Laws ch. 131, § 40 (1991). lassachusetts extended

these protections to inland wetlands two years later—a full

decade before the Corps began regulating wetlands. See

NRDC, Inc. v. Callaway, 392 F. Supp. 685, 686 (D.D.C.

1975) (directing that wetlands be regulated under section

404). Although the Massachusetts law was the first state-

level statute, it was far from the first local government

initiative to protect wetlands. Rather, the Massachusetts law

itself was “based on a number of local zoning permit

requirements already to be found in coastal states.”

Alexandra D. Dawson, Massachusetts’ Experience in

Regulating Wetlands in Wetland Protection: Strengthening

the Role of the States 255 (Ass’n of State Wetland Managers,

1985).

Nor did Massachusetts act alone. Other States, including

Connecticut, Georgia, and Washington, all took active

wetlands protection measures in the 1960s. In fact, by the

time federal wetlands regulations were promulgated in 1975,

every coastal State but one had adopted coastal wetlands

protections, and eleven States had passed statutes to protect

freshwater wetlands as well. See Jon A. Kusler et al., State

Wetland Regulation: Status of Programs and Emerging

Trends \ (Ass’n of State Wetland Managers, 1994); see also

Richard L. Revesz, Federalism and _ Environmental

Regulation: A Public Choice Analysis, 115 HARV. L. REV.

553, 578-79 (2001) (discussing substantial environmental

progress achieved by the States prior to 1970).

These fruitful, longstanding wetlands protections are now

threatened by the Clean Water Act’s growing displacement

of state and local land-use law. As of 2000, the Corps was

approving approximately 85,000 permits each year for the

use or modification of designated wetlands. See Release No.

PA-00-05, U.S. Army Corps of Engineers Announces

Replacement Nationwide Permits, available at

http://www.hq.usace.army.mil/cepa/releases/nationwideperm

its.htm. (visited on December |, 2005). Notwithstanding

these thousands of approvals, the Corps regularly brings

enforcement actions against landowners, large and small, for

actions such as building vacation homes. See Regulatory

Warning: Hearings Before the Subcomm. on Commercial

and Administrative Law of the House Comm. on the

Judiciary, 104th Cong. (1996) (statement of Robert

McMackin) (describing the Corps’ determination that

construction of a vacation home on a third of an acre lot

violated federal wetlands regulations).

After SWANCC’s announcement of limits on federal

regulatory authority, the States stood poised, not to abandon

their wetlands to out-of-control development, but to

repatriate wetlands protections back to the levels of

government closest to the citizenry. At least 19 states

responded to SWANCC “by either enacting or recommending

the enactment of laws” designed to protect wetlands that

might no longer be subject to federal jurisidiction. Michael J.

Gerhardt, 7he Curious Flight of the Migratory Bird Rule, 31

ENVTL. L. REP. 11079, 11085 (2001); see also Caleb A.

Jaffe, Tragedy of the Wetlands Commons: What the Virginia

Nontidal Wetlands Resources Act Says About The Future Of

Environmental Regulation, 20 VA. ENVTL L.J. 329 (2001).

That is, as this’ Court “restricted federal regulatory

jurisdiction over wetlands,” the States began to take up the

slack by expanding their own “wetland protection.” Jonathan

H. Adler, Letting Fifty Flowers Bloom: Transforming The

States Into Laboratories Of Environmental Policy, available

at http://www.federalismproject.org/masterpages/environmen

t /flowers.pdf (visited on December |, 2005). To be sure, the

Corps’ passive resistance to SWANCC—and the resulting

ambiguity as to the ultimate contours of federal wetlands

protections—may have “discourage[d] states from filling the

gaps.” Jonathan H. Adler, The Fable of Federal

Environmental Regulation: Reconsidering The Federal Role

In Environmental Protection, 55 CASE W. RES. L. REV. 93,

112 (2004). But this hesitancy is unsurprising given the

uncertainties as to “how much of a gap” ultimately would be

left to fill. /d. Precisely because “state governments are not

likely to squander scarce resources duplicating federal

regulations,” the Corps’ passive resistance and the resulting

“lack of clear boundaries on federal regulation” have likely

resulted in “lower levels of environmental protection.” /d. at

112-13.

C. The Corps’ Regulations Violate Constitutional

Federalism Principles.

In light of States’ wetlands-preservation authority,

experience, and track record of success, the de facto

displacement of state and local land-use decisions

represented by the Corps’ nationwide, 85,000-permit-strong,

land-use program constitutes an unwise, as well as

unconstitutional, departure from our structure of government.

This Court recognized in Gregory v. Ashcroft that the

“federalist structure of joint sovereigns preserves to the

people numerous advantages.” 501 U.S. 452, 458 (1991).

Accordingly, the federal government, “anxious though it may

be to vindicate and protect federal rights and federal

interests,” Younger v. Harris, 401 U.S. 37, 44 (1971), needs

ever to recall that it exists as a government of defined and

enumerated powers. See Marbury v. Madison, 5 U.S (1

Cranch) 137, 176 (1803) (Marshall, C.J.); The Federalist No.

45 (James Madison).

This Court recognized in United States v. Lopez, 514 U.S.

549 (1995), and in United States v. Morrison, 529 U.S. 598

(2000), and, most recently, in Gonzales v. Raich, 125 S. Ct.

2195 (2005), that the scope of congressional power under the

Commerce Clause, while broad, is necessarily limited by the

fact that the federal government is one of enumerated

powers. The Commerce Clause authorizes Congress to

regulate only (i) the “channels of interstate commerce;”

(ii) the “instrumentalities of interstate commerce or persons

and things in interstate commerce,” and (iii) “those activities

having a substantial relation to interstate commerce.” Lopez,

514 U.S. at 558-59. As applied to the Carabell and Rapanos

parcels, however, the Corps’ regulations simply cannot be

squared with these minimum constitutional requirements. To

be sure, wetlands bordering commercial waterways might

conceivably be deemed subject to federal jurisdiction as part

and parcel of those waterways—that is, as part and parcel of

“instrumentalities of interstate commerce.” /d. at 558

(stating that “instrumentalities” category includes statutory

provisions applicable to “aircraft” and “vehicles used in

interstate commerce”) (citations omitted). But neither the

Carabell parcel nor the Rapanos parcel borders a commercial

waterway. As applied here, the Corps’ regulations may be

upheld, if at all, only as regulations of “activities that

substantially affect interstate commerce.”

Lopez and Morrison establish that regulatory programs

are constitutional on “affecting commerce” grounds only

where the regulatory regime focuses on economic endeavors,

Lopez, 514 U.S. at 560; includes an “express jurisdictional

element” limiting its reach to commercial activities. id; or

contains detailed legislative or statutory findings describing

effects on commerce that otherwise might not be “visible to

the naked eye.” /d. at 562. As further described below,

however, the regulation of commercial enterprise—voluntary

exchanges of goods or services for value—is not the focus of

the Corps’ regulatory program; instead, the program

functions as a sort of national zoning board governing land

uses for virtually every damp plot of ground. Moreover,

neither the Clean Water Act nor the Corps’ regulations

contain an express jurisdictional element limiting the Act's

reach to proposed “discharges” having “a substantial effect

on interstate commerce.” /d. at 560. Finally, neither the Act

nor its legislative history contains “express congressional

findings regarding” the commercial effects of transferring

land-use decisionmaking by state and local governments to

the Army Corps in Washington. Cf Morrison, 529 U.S. at

612. As this Court noted in SWANCC, the Act’s legislative

history gives no indication that Congress intended to exercise

authority over wetlands not bordering commercial

waterways, much less that Congress descried otherwise

hidden economic benefits to a centralized, nationwide,

85,000-permit-strong, land-use program. See SWANCC, 531

US. at 168 n.3.

The Corps’ statutory interpretation is additionally infirm

because it sweeps broadly into areas of traditional state

authority. See Morrison, 529 U.S. at 613. Instead of

recognizing “any limitation on federal power” in the area of

local land-use regulation, Lopez, 514 U.S. at 564, the Corps

purports to regulate even the most basic acts by landowners,

including “the construction or expansion of a single-family

home and attendant features (such as a garage, driveway,

storage shed, and/or septic field) for an individual permittee.”

Final Notice of Modification of Nationwide Permit 29 For

Single Family Homes, 64 Fed. Reg. 47,175, 47,178 (Aug. 30,

1999) (providing final notice of modification of permits

involving single family housing). In fact, the Corps asserts

jurisdiction over even trivial activities: “[wJalking, bicycling

or driving a vehicle” through a wetland all might fall within

the Corps’ jurisdiction because all of these activities could

result in “discharge of dredged material.” Clean Water Act

Regulatory Programs, 58 Fed. Reg. 45,008; 45,020 (Aug. 25,

1993). Under existing regulations, the Corps has even

required permits for residential construction impacting

closet-sized (26 square feet) and recreation-room-sized (400

square feet) parcels of wetlands. See Virginia S. Albrecht &

Bernard N. Goode, Wetland Regulation in the Real World ix

(1994).

If this Court were “to adopt the Government’s expansive

interpretation,” then “hardly a [parcel of] land would fall

outside the federal statute’s domain.” Jones v. United States,

529 U.S. 848, 857 (2000). The Court accordingly should

decline the Corps’ invitation—accepted by the Sixth

Circuit—to “pile inference upon inference in a manner that

would bid fair to convert congressional authority under the

Commerce Clause to a general police power of the sort

retained by the States.” Lopez, 514 U.S. at 567. “Congress

may regulate non-economic interstate activities on/y where

the failure to do so ‘could ... undercut’ its regulation of

interstate commerce.” Gonzales, 125 S. Ct. at 2218 (J.

Scalia, concurring) (citing Lopez, 514 U.S. at 561) (emphasis

added). Here, however, the Corps’ program of land-use

regulation has nothing to do with “commerce” or any sort of

“economic enterprise,” however broadly one might define

those terms. Lopez, 514 U.S. at 561. Nor is the Corps’

regulatory regime an essential part of “a larger regulation of

economic activity, in which the regulatory scheme could be

undercut unless the intrastate activity were regulated.”

Gonzales, 125 S. Ct. at 2210 (quoting Lopez, 514 US. at

561).

In sum, the Army Corps’ permitting program needlessly

injects federal regulatory authority into all manner of

traditional, local activity without regard to the commercial

nature or economic effects of those activities. State and local

land-use agencies that have carefully reviewed the likely

impacts of proposed landowner improvements to wetlands

have become distressingly accustomed to seeing their

considered decisions vetoed by federal agencies that admit no

need to tie those vetos to commercial objectives. The Corps’

interpretation of the Clean Water Act unwisely and

unconstitutionally shutters the very state laboratories that

have produced significant pioneering achievements in

wetlands protection.

Il. THE SIXTH CIRCUIT’S EXPANSIVE READING

OF THE CLEAN WATER ACT CANNOT BE

SQUARED WITH SWANCC.

This Court’s holding in SWANCC is the beginning and

end of this case: the text of the Clean Water Act does not

remotely invite the Corps to invade traditional state

prerogatives over land-use decisionmaking. Instead of

recognizing the significant constitutional federalism concerns

presented in, and clear statutory text governing, this case,

however, the Sixth Circuit gave unlawful deference to the

Corps’ administrative interpretation and wrongly upheld the

Corps’ challenged regulations.

A. The Clean Water Act Does Not Prohibit The

Employment Of Fill Materials For Purposes Of

Improving Privately Owned Parcels Of Land.

In cases like this one where the federal government seeks

to interfere in matters of local: concern so as to “upset the

usual constitutional balance of federal and state powers,” it is

“incumbent upon the federal courts to be certain of

Congress'{s} intent.” Gregory, 501 U.S. at 460 (quoting

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243

(1985)). When Congress intends to intrude on “the usual

constitutional balance of federal and state powers,” it should

clearly state its intention to do so. /d. at 460.

This venerable principle takes on added force when

courts are asked to construe an administrative interpretation

of the law. Courts should not “needlessly reach

constitutional issues” nor presume that Congress “casually

authorizes administrative agencies to interpret a statute to

push the limit of congressional authority.” SWANCC, 531

U.S. at 172-73. Deference that might otherwise be due under

Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), is

simply not applicable in cases where, as here, an agency

interpretation raises grave constitutional concerns. C/

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

Constr. Trades Council, 485 U.S. 568, 575 (1988). As this

Court has emphasized, “[w]here an administrative

interpretation of a statute invokes the outer limits of

Congress’ power,” there must be a “clear indication that

Congress intended that result.” SWANCC, 531 U.S. at 172

(quoting DeBartolo, 485 U.S. at 575).

As noted above, land-use development and control has

long been the province of state and local regulation. Indeed,

“regulation of land use is perhaps the quintessential state

activity.” FERC v. Mississippi, 456 U.S. at 767 n.30; see

also Lake Country Estates, 440 U.S. at 402; Hess, 513 U.S.

at 44; Dolan, 512 U.S. at 384; Village of Euclid, 272 U.S. at

365; Warth, 422 U.S. at 508 n.18. Accordingly, unless this

Court determines that Congress expressly authorized the

Corps’ intrusive, nationwide program of land-use controls, it

is bound to invalidate the Corps’ challenged regulations.

The statutory provision invoked by the Corps in these

cases, Clean Water Act section 404(a), authorizes the Corps

to “issue permits ... for the discharge of dredged or fill

material into the navigable waters at specified disposal sites.”

33 U.S.C. § 1344(a) (emphasis added). “Dredged” material

refers to material that has been collected or brought up from

the bottom of a river, see THE COMPACT OXFORD ENGLISH

DICTIONARY 476 (1989), ordinarily for purposes of clearing

channels for navigation. Dredged material is therefore

typically comprised of waste or refuse taken from lands lying

beneath water. The reference to “dredged” waste materials,

combined with the statute’s reference to “disposal sites”

strongly suggests that Congress was concerned about waste

materials being discarded in the Nation’s navigable

waterways. Cf National Mining Ass'n v. U.S. Army Corps of

Eng'rs, 145 F.3d 1399 (D.C. Cir. 1998) (emphasizing that

the Act does not apply to the removal of material from the

waters of the United States). This in tum suggests that the

Clean Water Act, consistent with its overall pollution control

objectives, was not intended to establish a regime of land-use

controls. Rather the statute was primarily intended to

modulate the “discharge” at “disposal sites” of “dredged”

materials and similar wastes—that is, to prevent the lands

submerged beneath navigable waters from becoming severely

polluted dumping grounds.

Section 404(a)’s objective of controlling “disposals” of

waste—as opposed to regulating improvements to private

property in the manner of a zoning board——is further

confirmed by the Act’s section 404(c). That close neighbor

to section 404(a) states that the EPA Administrator “is

authorized to prohibit the specification” of “any defined

area” as “a disposal site,” id. § 1344(c)(2), so long as there

appear to be good and sufficient ecological reasons for doing

so. Under a plain reading of the statute, this provision is

unexceptional: it means simply that the EPA may declare

particularly sensitive lands off limits to waste-disposal

activity. But under the Corps’ interpretation, the provision is

truly extraordinary: it grants EPA the authonty to identify

parcels that will be deemed entirely off limits to

development. Under the Corps’ view, EPA may refuse to

specify any undeveloped wetland as “a disposal site” and

thus effectively expropriate its entire economic value. Cf

Lucas v. South Carolina Coastal Council, 505 U.S. 1003

(1992) (local land-use regulation that prohibits all

development and deprives parcel of all economic value

constitutes compensable Fifth Amendment Taking).

Moreover, under the Corps’ view, EPA can invoke this

sweeping authority based on nothing more than “an

unacceptable adverse effect” on things such as “wildlife” or

“recreational areas.” The Corps’ section 404(c) reading

crowns EPA’s Administrator as the wuber-arbiter of

nationwide development and land-use decisionmaking.

The extreme implausibility of the Corps’ statutory

interpretation is further confirmed by its implications for

even environmentally conscientious landowners. Consider,

for example, a hypothetical landowner who cordons off a

privately owned wetland; drains its water; and then fills the

newly dry land with rock, sand, dirt, and gravel to prepare the

ground for construction. Assuming that the drained waters

were cleaned and filtered before being discharged off the

property—thus preventing the discharge of any dredge or fill

materials into any United States waters—there can be no

claim that this hypothetical landowner has “discharged”

anything but clean water itself into any “waters of the United

States.” There accordingly can be no claim that the

landowner requires a section 404 permit under any

reasonable reading of the Act. Nonetheless, the Corps’

regulations would require ths landowner to seek, and in

many cases would require the Corps to deny, the issuance of

such a permit.

It bears emphasis in this regard that Congress modeled

the Clean Water Act's permitting requirements on the Rivers

and Harbors Act of 1899 (also known as the “Refuse Act’’).

See Weinberger v. Romero-Barcelo, 456 U.S. 305, 319

(1982) (noting that Congress “drew extensively ... upon the

existing enforcement provisions of the Refuse Act of 1899”).

Specifically, Congress sought to improve the pre-existing

statutory scheme by filling the “significant gaps” that had

rendered that Act “seriously inadequate.” S. Rep. No. 92-

414 (1971), reprinted in 1972, U.S.C.C.A.N. 3668, 3736; see

also id. at 3672. Significantly, the Rivers and Harbors Act

did not grant federal authority to control standing waters on

private property, but was instead limited “to water bodies that

were deemed ‘navigable’ and therefore suitable for moving

goods to or from markets.” SWANCC, 531 U.S. at 182.

Relatedly, the Court should also bear in mind that “lands

underlying” the Nation’s navigable commercial waterways

“have historically been considered ‘sovereign lands.’” Idaho

v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 283 (1997)

(citation omitted); see also Utah Div. of State Lands v.

United States, 482 U.S. 193, 195-98 (1987). Indeed, because

navigable waters “uniquely implicate sovereign intcrests,”

Idaho v. Coeur d'Alene, 521 U.S. at 284, and because

“submerged lands are held for public purpose,” id, the

government has very limited authority to convey to private

parties lands submerged beneath navigable waters. See, e.g.,

Utah Division, 482 U.S. at 197-98; Idaho v. Coeur d'Alene,

521 U.S. at 285 (discussing //linois Central R. Co. v. Illinois,

146 U.S. 387 (1892) (holding that the Illinois Legislature

lacked authority to transfer title to submerged lands beneath

navigable waters). This distinction between inherently

sovereign holdings of lands submerged under navigable

waters and private lands not under water helps explain the

Act's focus on “disposals” into “navigable” waters. In

particular, so long as section 404(a) is limited to “disposals”

onto submerged, sovereign lands lying underneath navigable

waters, there is no constitutional concern with displacing

state land-use regulation of private property. That is, so long

as the Corps’ permits are required only for such disposals, its

progrem, by definition, will steer clear of any displacement

of state regulatory authority over land-use decisionmaking.

Finally, the overal! pattern of federal and state land-use

and pollution controls also bears mentioning. It may be

significant, for instance, that the principal federal vehicles for

providing land-use controls protecting aquatic ecosystems are

not regulatory statutes like the Clean Water Act, but statutes

authorizing the designation of areas as national parks, forests,

wilderness areas, and the like. The Secretary of the Interior

is charged with developing a National Wetlands Priority

Conservation Plan, which prioritizes types of wetlands for

federal acquisition purposes. /d. § 3921(b). The Emergency

Wetlands Resources Act of 1986 provides revenue-raising

mechanisms for funding wetlands acquisition efforts, see 16

U.S.C. §§ 3901 ef seg., and the Water Bank Act provides

certain alternative and non-traditional means by which the

government may acquire protective interests in wetlands.

See 16 U.S.C. §§ 1301-1311. Similarly, the North American

Wetlands Conservation Act provides for the acquisition,

management, enhancement, and restoration of wetlands for

the purpose of protecting the habitats of migratory birds and

other wildlife. See 16 U.S.C. §§ 4401-4413. The federal

government accordingly manages extensive holdings of

critical wetlands under aegis of the National Wildlife Refuge

System and National Park Service. See National Wildlife

Refuge System, 16 U.S.C. §§ 668dd-668ee; see also 16

U.S.C. § 1.

In contrast to the congressional practice of largely

respecting state land-use regulation (while supplementing

state efforts with federal land acquisitions), Congress has

largely seized control over water-quality regulation and

pollution control. Congress passed the Clean Water Act for

the stated purpose of pollution control—that is, restoring and

maintaining “the chemical, physical, and biological integrity

of the Nation’s waters.” 33 U.S.C. §1251(a). The Act

conccdedly constitutes “an all-encompassing program of

water pollution regulation.” City of Milwaukee v. Illinois &

Michigan, 451 U.S. 304, 318 (1981) (emphasis added); see

also Arkansas v. Oklahoma Envil. Prot. Agency, 503 U.S. 91,

111 (1992); dnternational Paper Co. v. Ouellette, 479 U.S.

481, 485 (1987). The Clean Water Act thus establishes a

“comprehensive program for controlling and abating water

pollution,” City of Milwaukee, 451 U.S. at 319 (emphasis

added), indicating that Congress intended “to dominate the

field of pollution regulation.” Int'l Paper, 479 U.S. at 492

(emphasis added).

In sum, the larger array of congressional enactments

exhibits a pattern of accomplishing land-use goals without

federal regulatory controls on private property, together with

an undoubted willingness to regulate where bona fide

pollution controls are needed. Consistent with SWANCC’s

recognition that the Corps’ authority should be interpreted to

avoid unintended federal encroachments into local land-use

determinations, see SWANCC, 531 U.S. at 173, Congress

seems to have understood the critical distinction between, on

one hand, the regulation of land use and, on the other hand,

the prevention and reduction of water pollution. The Corps’

regulations are unlawful (as well as unconstitutional)

precisely because they ignore the tsunami of statutory

evidence showing that Congress never intended the Clean

Water Act to form an exception to this overall pattern.

B. Riverside Bayview Cannot Be Read To Give The

Federal Government Authority To Make Land-

Use Determinations For Wetlands Not “Actually

Abutting” Navigable Waters.

The interpretive evidence detailed above escaped notice

below largely because the Sixth Circuit became entranced

with this Court’s decision in United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121 (1985). In this vein, the

Sixth Circuit erred most egregiously by invoking Riverside

Bayview to support giving deference to the Corps’

regulations. But although Riverside Bayview did indeed

grant the greatest conceivable deference to the Corps’

administrative interpretations (and thus failed to provide any

real analysis of statutory structure and text), that was because

Riverside Bayview litigants framed only a weak takings

constitutional challenge, not the serous federalism-based

challenge they might have put forward. To be sure, in

framing their mid-1980s case, the Riverside Bayview litigants

were likely misled by contemporaneous views suggesting

that, after Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528 (1985), this Court would demur in

perpetuity from recognizing meaningful Article I limits on

congressional power. See, e.g., Geoffrey R. Stone, et al.,

CONSTITUTIONAL LAW 181 (1986) (devoting a chapter to

“The Purported Demise of Judicially Enforced Federalism

Limits On Congressional Power”). But those views have

now been definitively rejected by the Court’s decisions in

Gregory, Lopez, Morrison, and SWANCC itself—all of

which make clear that Congress’ Commerce Clause power,

while broad, is not unlimited. Cf Agostini v. Felton, 521

U.S. 203 (1997) (overruling Aguilar v. Felton because of

subsequent legal developments). The important point is that

the Sixth Circuit below inexplicably failed to account for the

fact that Riverside Bayview was _litigated—however

understandabl y—in a most unusual posture that undercuts the

continuing vitality of almost all of its reasoning.

To be sure, SWANCC did at least assume for purposes of

argument the continuing vitality of Riverside Bayview’s

narrow holding. SWANCC thus assumed that “the Corps had

[section] 404(a) jurisdiction over wetlands that actually

abutted on a navigable waterway.” SWANCC, 531 U.S. at

167. Riverside Bayview, as interpreted by SWANCC,

accordingly requires as a basis for federal Clean Water Act

jurisdiction a “significant nexus” between regulated land and

United States waters such that the water on the regulated -

parcel be “inseparably bound up with ‘waters’ of the United

States.” /d. at 167 (internal citation omitted). This gloss on

Riverside Bayview is best read in light of Riverside

Bayview’s own observation that:

the Corps must necessanly choose some point at

which water ends and land begins. Our common

expericnee tells us that this is often no easy task:

the transition from water to solid ground is not

necessarily or cven typically an abrupt one.

Rather, between open waters and dry land may lie

shallows, marshes, mudflats, swamps, bogs—in

short, a huge array of areas that are not wholly

aquatic but nevertheless fall far short of being dry

land.

474 US at 132.

After SWANCC, Riverside Bayview stands at the very

most for the view that the Constitution and Clean Water Act

empower Army Corps officials to make land-use decisions

for federal “enclaves” loosely defined—including not only

federal territories, the District of Columbia, national forests,

wilderness areas, and parks, but also, critically, wetlands

within the necessarily less-than-determinate bounds of

waterways deemed within some traditional view of

“navigability.” These lands include, at a minimum, wetlands

bordering major commercial waterways like the wetlands

bordering Lake St. Clair at issue in Riverside Bayview itself.

The shores, and even paths, of the Nation’s great commercial

waterways—like the Mississippi River, St. Lawrence

Seaway, Great Lakes, and terntorial seas—are often

extensively molded by Army Corps levees, dikes, locks,

dams and other manmade structures. SWANCC’s gloss on

Riverside Bayview recognizes this pervasive federal imprint

and holds that, to the extent that Riverside Bayview remains

valid at all, it means the following: once the Army Corps or

other federal officials have assumed responsibility for

managing a waterway for commercial purposes (such as

navigation or flood-control), federal officials may also take

the extra step of exercising ancillary land-use authority over

the waterway’s bordering wetlands.

Under this view of federal land-use authority, the issue of

the Army Corps’ regulatory jurisdiction boils down to two

conceptually unproblematic (if empirically difficult)

questions: (i) whether a given commercial waterway has been

so pervasively subjected to federal control, or Army Corps

improvements, or commercial traffic that it may be deemed

an “instrument of interstate commerce” such that the Corps

may exercise an ancillary land-use authority along its banks;

and (ii) whether, as a spatial matter, a particular wetlands

parcel is within or beyond the “point at which water ends and

land begins.” /d. at 132. Hence, to the extent it has

continuing validity, Riverside Bayview stands for the narrow

proposition that wetlands “actually abutting” navigable

waters constitute an exception to the rule that land-use

decisionmaking is the exclusive province of local

government. As to these wetlands, and these wetlands alone,

the Army Corps’ land-use regulations might arguably be

lawfully applied.

I1.THE CORPS EXCEEDED ITS AUTHORITY IN

ASSERTING LAND-USE JURISDICTION OVER

THE CARABELL AND RAPANOS WETLANDS.

The land-use focus of the Corps’ regulatory program is

fatal to its bid to apply that regime to the Rapanos and

Carabell wetlands at issue here. For instance, June and

Keith Carabell’s wet parcel of land contains a “wetland” that

is not in any sense “adjacent [to] open water.” Carabell v.

U.S. Army Corps of Engr’s, 391 F.3d 704, 708 (6th Cir.

2004) (noting that a ditch running alongside the Carabell’s

land 1s connected to a drain, which empties into a creek,

which, in turn, empties into Lake St. Clair). Moreover, like

the SWANCC wetland, the Carabell wetland is

hydrologically isolated: it has no hydrological connection

with any water of the United States. A berm barrier (piled up

more than fifty years ago) prevents any flow of water,

however minor, between the Carabell’s land and neighboring

properties. /d- The Carabell wetland, like the SWANCC

wetland, is therefore inundated with “nonnavigable, isolated,

intrastate waters” that are “clear[{ly]” outside the scope of

section 404(a). SWANCC, 531 U.S. at 172. There is simply

no bordering navigable waterway or hydrological connection

to provide the necessary “significant nexus” between the

Carabell’s property and a “water of the United States.”

The Sixth Circuit nonetheless fixated on the fact that the

Carabell wetland was physically close to a man-made

drainage ditch, which flows into a drain, which flows into a

creek, which flows into Lake St. Clair, which lies between

two of the five Great Lakes. Based on this physical closeness

to property forming part of the web of hydrological

connections that drain water off the North American

continent and out to sea, the Sixth Circuit concluded that the

Carabell property was an “adjacent wetland” subject to

Army Corps land-use restrictions. But as this Court already

clarified in SWANCC, wetlands are subject to the Corps’

jurisdiction only where they have a “significant nexus to” or

are “inseparably bound up with ‘waters’ of the United

States.” /d. at 167. Taken together, SWANCC and Riverside

Bayview make clear that such a nexus or bond may be forged

in only one of two ways: through bordering a major

commercial waterway, or, alternatively, through significant

affects on the quantity or quality of water available for use in

interstate commerce. Against this backdrop, the Sixth Circuit

plainly erred. There is no claim here that the Carabell

wetland, like the Riverside Bayview wetland, “actually abuts”

a@ major commercial waterway. Likewise, there also is no

claim (much less any evidence) that the development

restrictions the Corps seeks to impose aim at a lawful goal

such as preserving the quality of United States waters lying

outside the Carabell parcel itself.

In Rapanos, the Sixth Circuit fixated, not on physical

proximity, but on an intermittent, indirect, and remote

surface water runoff connection to navigable waters. Yet

here again, there is no allegation that the Rapanos parcels

actually border a navigable commercial waterway. For

instance, the Sixth Circuit determined that one of the

Rapanos parcels has a hydrological surface-water connection

to navigable waters because the wetlands lie next to a

manmade ditch that flows into a non-navigable stream that

connects with a river that ultimately flows into the Saginaw

Bay in Lake Huron. To be sure, it is undisputed that the

Rapanos expanded drains, built roads, removed stumps,

moved dirt, dumped sand, and attempted to fill the wetlands

on their private property. But there has never been any

assertion (much less any evidence) that dredged or fill

material—as opposed to surface water—was ever discharged

by the Rapanos into navigable waters. Hence, the Rapanos

wetlands may be regulated, if at all, only pursuant to the

Clean Water Act’s grant of water-quality-preservation

authority, see 33 U.S.C. § 1251(a), not pursuant to the Corps’

land-use regulations promulgated on authority of section 404.

Given the above, it is plain that the repudiated Migratory

Bird Rule is indistinguishable from the “adjacency theory”

advanced by the Corps and accepted by the Sixth Circuit. As

SWANCC emphasized, the Corps’ authority to regulate

discharges of dredged and fill materials into “navigable

waters” does not include the authority to make land-use

decisions for virtually any and every wetland. 531 U.S. at

168. As with the Migratory Bird Rule, the jurisdictional

basis asserted here “assume[{s} that ‘the use of the word

navigable in the statute ... does not have any independent

significance.’” /d. at 172 (citation omitted). But, as

SWANCC itself noted, “it is one thing to give a word limited

effect and quite another to give it no effect whatever.” /d;

see also Duncan v. Walker, §33 U.S. 167, 174 (2001) (“[iJt is

our duty ‘to give effect, if possible, to every clause and word

of a statute’”) (citation omitted). If any spatial proximity (as

in Carabell) or hydrological connection (as in Rapanos)

suffices to provide the “significant nexus” SWANCC

requires, then “navigable” will impermissibly cease to have

independent import—much as it did under the Corps’

unlawful Migratory Bird Rule. The Sixth Circuit decisions

below, like the Seventh Circuit’s reversible error in

SWANCC, impermissibly reads “navigable” right out of the

Clean Water Act.

x ekki

This case is “about federalism,” which, along with

separation of powers, is one of the two most essential

structural elements of our Constitution. Coleman vy.

Thompson, 501 U.S. 722, 726 (1991). Having “split the atom

of sovereignty,” the Framers determined that “our citizens

would have two political capacities, one state and one

federal, each protected from incursion by the other.” U.S.

Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995)

(Kennedy, J., concurring). For these dual capacities to be

meaningful, however, they must continue to correspond to a

two-tiered system of well allocated governmental

responsibilities. That system of allocated responsibilities

traditionally and effectively assigns regulatory authority over

land usage to state and local governments. These cases

afford the Court a tailor-made opportunity to reaffirm and

respect that assignment.

CONCLUSION

For the reasons stated, the Court should grant the writs of

certiorari.

Respectfully submitted,

KAREN R. HARNED ROBERT R. GASAWAY