# Amicus Curiae Brief — Rapanos v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A42

## Record

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

## Text

‘> v Se Be

In the
Supreme Court of the Rnited States

JOHN A. RAPANOS et ex, et ail.,

Petitioners,
v.
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

i
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

~

6

10

14

14

20

23

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

iV

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

Vv

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

2

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

3

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,

4

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

6

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

8

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,

9

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

10

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

13

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

14

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.

1S

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

16

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

17

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

18

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,

19

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

20

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

21

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.

22

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

23

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

24

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

25

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

26

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.

27

CONCLUSION

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

Respectfully submitted,

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, DC 20004 KIRKLAND & ELLIS LLP

(202) 554-9000 655 Fifteenth Street, NW
Washington, DC 20005
(202) 879-5000

Attorneys for Amicus Curiae

December 2, 2005

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A42. Public record. Not legal advice.