Amicus Curiae Brief — Rapanos v. United States

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Nos. 04-1034, 04-1384 |

IN THE

SUPREME COURT OF THE

JOHN A. RAPANOS, ET AL.

Petitioners,

Vv

UNITED STATES OF AMERICA,

Respondents.

JUNE CARABELL, ET AL.

Petitioners,

Vv

U.S. ARMY CORPS OF ENGINEERS, ET AL.

Respondents.

On Writs Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

BRIEF OF AMICI CURIAE NATIONAL STONE, SAND

AND GRAVEL ASSOCIATION, THE AMERICAN ROAD

AND TRANSPORTATION BUILDERS, THE CITY OF

VICTORVILLE, CALIFORNIA, AND THE NATIONWIDE

PUBLIC PROJECTS COALITION

IN SUPPORT OF PETITIONERS

LAWRENCE R. LIEBESMAN *

RAFE PETERSEN

ETHAN ARENSON

STUART TURNER

HOLLAND & KNIGHT LLP

Ree 2099 Pennsylvania Ave., NW

Washington, DC 20006

(202) 955-3000

“Counsel of Record

i

i

TABLE OF CONTENTS

INTERESTS OF THE AMICI CURIAE ...........:cccccsecsseseenees

SUMMARY OF ARGUMENT ..........:s:ssssssssrsescenserssensnsees

I. THE EXPANSIVE JURISDICTIONAL

APPROACH URGED BY THE

GOVERNMENT AND ALREADY ADOPTED

IN SOME AREAS OF THE COUNTRY BY

THE ARMY CORPS OF ENGINEERS HAS

RESULTED IN INCONSISTENCY AND

CONFUSION | AND HAS DONE

SIGNIFICANT HARM TO THE PUBLIC

Pes SOP GIONS © cccnenenncccsetsconcsnnternernncnengenn

A. The Lack Of Clear And Consistent

Guidance Over The Scope Of CWA

Geographic Jurisdiction Has Created

Confusion In The Regulated

B. Adoption Of The Mere Hydrological

Connection Or The "Migratory

Molecule" Standards Urged By The

Government And Adopted By The

Sixth Circuit In Rapanos And Carabell

Would Have Severe Consequences

For The Public Works Community.............. 12

Il.

Iil.

ii

THE REQUISITE "SIGNIFICANT NEXUS"

BETWEEN A NON-NAVIGABLE WETLAND

AND A NAVIGABLE-IN-FACT WATER CAN

ONLY BE ESTABLISHED BY PROOF OF A

SIGNIFICANT HYDROLOGICAL

CONNECTION AND EVIDENCE THAT

POLLUTANTS DISCHARGED INTO THE

WETLAND WOULD BE HARMFUL TO THE

CHEMICAL, PHYSICAL, OR BIOLOGICAL

INTEGRITY OF THE NAVIGABLE WATER......

A. The Extension Of CWA Jurisdiction

To Waters That Have Only An

Intermittent, Indirect, Tenuous Or

Remote Hydrological Connection To

Navigable Waters Exceeds The

Corps's Authority Under The CWA.............

B. Evidence Of Significant Impact To

The Water Quality Of A Navigable

Water Is Necessary To Demonstrate

That A Non-Navigable Water Is

“Inseparably Bound Up" With A

DRIED WOOD cscccncssserccssenccsserseusverssensenese

THE SIXTH CIRCUIT'S BROAD

INTERPRETATION OF "“NAVIGABLE

WATERS" VIOLATES THE FUNDAMENTAL

PRINCIPLE OF FEDERALISM THAT

ABSENT A "CLEAR STATEMENT" FROM

CONGRESS, A REVIEWING COURT

SHOULD NOT SANCTION USURPATION OF

STATE AND LOCAL CONTROL OF LAND

AND WATER RESOURCEG...........:ccscesseeeeeseeeeenens

iii

Nothing In The CWA Evinces A Clear

Statement That Congress Intended To

Encroach Upon Local Regulation of

Activities That Do Not Add Pollutants

to Navigable Wateis...............cscsrsssssserseeees

The Sixth Circuit Would Upset The

Delicate Balance Between The CWA

And Comprehensive State And Local

Programs For Controlling Water

I cep rcscocreintmmncienasenanantctniimnpeignnns

iv

TABLE OF AUTHORITIES

CASES

00 CR TE iaciniaititiiitiitiiiiiat eS 23

FD&P Enters., Inc. v. U.S. Army Corps of Eng'rs,

239 F. Supp. 2d 509 (D.N.J. 2003) .....ccscssesssessessesseceneenees 22

Fed. Energy Regulatory Comm'n v. Miss.,

SBS, Fa i ercciesitisitlinsaiiteniiniisinnmitideaienes 27

Gregory y. Ashcroft,

Be ee CEI iis ieesinsscisteissistlinesinatniabaneauaael 25, 26

In re Needham,

506538 SOD COG CR BI cctncrreccccerrtnenintsiin 17

Rice v. Harken Exploration Co.,

250 F.3d 264 (Sth Cir. 2001)....cccccsesssessessessesvesee 21, 22, 23

Solid Waste Agency v. U.S. Army Corps of Eng'rs,

SS EE, Fi iernairctiacintcaneciiniadtiianhs passim

Treacy v. Newdunn Associates,

ee lS see 19

US. v. Bass,

RET ETE AO eC

US. v. Deaton,

I ltl

U.S. v. Lopez,

EE EE a 2

U.S. v. Newdunn Assocs.,

195 F. Supp. 2d 751 (E.D. Va. 2002)........--cvccseeeseesseeesvees

US. v. RGM Corp.,

222 F. Supp. 2d 780 (E.D. Va. 2002)..cccccvvvvvccvsoveeseeeseeees

U.S. v. Rapanos,

190 F. Supp. 2d 1011 (E.D. Mich. 2002)..........cc.cccceseeeeee

EES 15, 16,

US. v. Rueth Dev. Co.,

189 F. Supp. 2d 874 (N.D. Ind. 2001) ...ccscccccsscscssscesseesee

U.S. y. Rueth Dev. Co.,

ee

Water Keeper Alliance v. US EPA,

TAT a

vi

LEGISLATIVE MATERIALS

Federal Wetland Protection Policy, 1993: Hearings

on S. 1304 Before the Subcomm on Clean Water,

Fisheries and Wildlife of the Senate Comm. on

Environment and Public Works, 103d Cong.,

Testimony provided to Committee of Transportation

and Infrastructure: Before Subcomm. on Highways,

Transit, and Pipelines, 109th Cong. (2005)

(statement of Johnny B. Bradberry, Secretary of

Louisiana Department of Transportation and

Development) http://www.house.gov/transportation/

highway/10-27-05/bradberry. pdf .......ccccssvoesssueesessneeeeeee 13

REGULATIONS

I rn a 20

i ae 16

51 Fed. Reg. 41206 (Nov. 13, 1986) ...ccsscocssssssssssssssesnseee 19

65 Fed. Reg. 12818 (Mar. 9, 2000) ...cssscsssnvesessesesnnsee 20

Federal Wetland Regulation, 29 Envtr. L. (1999) .........0.0- 28

STATUTES

33 U.S.C. § 1251(8) (2000) .scccccccesersessesnseseeeeneeeeevene 16, 22

33 U.S.C. § 12S1QD) (RODD)... nccreccecceccserecrccrecsscesccecscrecsocees 26

IG I ai citnsiicicsnintiieiachiiteesil 26

33 U.S.C. § 13448) (2000)...ccccscccsceececesseeessnsesseseesereeeeeen 16

I i i ciasccsambinasiinan 16

I I i aiisitniviteeisiciitciciai 16

Clean Water Act § 404(f) (1989) ...cccccccccsecesssssssssssseseseeesseee 7

Cal. Water Code § 13050 (1992) ...ccccccccssecsssscssssseesseseseeeee 28

Md. Code Ann., Envir. § 5-102 (1996) ...cccccccessssseevsseseeeee 28

OTHER AUTHORITIES

43 Op. Att'y Gem. 15 (1979)...ccccsecssssssceesesessnssesseseessesesesense 7

David L. Sunding & David Zilberman,

ee yy ieee

Wetlands Permitting Process, Nat. Resources J. (2002). .12

Margaret N. Strand,

Wetlands Deskbook, (2d €d. 1997) .......cccccccscsccersersereeeneeee 7

State or Tribal Assumption of the Section 404 Permit

Program (May 25, 1999) http://www.epa.gov/

owow/wetlands/facts/fact23 Ihtmml.................cccccccceeeeeeeeeeee 29

The National Stone, Sand and Gravel Association,

the American Road and Transportation Builders Association,

the City of Victorville, California, and the Nationwide Public

Projects Coalition, as amici curiae, respectfully submit this

brief in support of Petitioners John A. Rapanos, et al. and

June Carabell, et al.'

INTERESTS OF THE AMICI CURIAE

and associations, and local governments that provide

essential services to the public including flood control and

water supply management, construction of vital public

infrastructure projects and the production of aggregates that

are utilized in construction projects across the county.

On a daily basis, Amici are forced to navigate the

confusing and ever-changing maze of regulations and policy

statements issued by the Army Corps of Engineers in order

to determine the answer to what should be a simple question:

does a given wetland fall under federal jurisdiction pursuant

to the Clean Water Act ("CWA")? Under the current

framework, determining the answer to this simple inquiry is

exceedingly difficult and, even more troubling for Amici,

often varies depending on in which part of the Country the

wetland is located or which particular agency staff member

is consulted. Amici firmly believe that the time has come for

this Court to provide clear criteria for CWA jurisdiction that

' All parties have consented to the filing of this brief. The

Amici have filed letters of consent with the Clerk. Pursuant

to this Coart's Rule 37.6, Amici state that no counsel for any

party in this case authored this brief in whole or in part, and

no person or entity other than the Amici and their counsel

have made a monetary contribution to the preparation and

submission of this brief.

2

recognizes the proper limits of federal jurisdiction over non-

navigable waters, and eliminates the inconsistency and lack

of clarity that has been the hallmark of this area of the law

for far too long.

The Amici consist of the following:

The National Stone, Sand and Gravel Association

("NSSGA") is a trade association that represents more than

895 members and approximately 120,000 working men and

women in the aggregates and related industries. During

2004 alone, a total of more than 2.86 billion metric tons of

aggregate materials (crushed stone, sand, and gravel), valued

at more than $16 billion, were produced and sold in the

United States. NSSGA's members are responsible for over

90 percent of the annual production of crushed stone and

over 70 percent of the annual production of sand and gravel

in the United States. Due to how aggregates are formed,

sand and gravel are often located near or under streams and

other wetlands. Consequently, NNSSGA's members

frequently excavate materials from these areas. The vast

majority of these materials are utilized in public

infrastructure projects. NSSGA's members alsc regularly

undertake land reclamation activities that include wetland

restoration, creation and enhancement, as well as flood

storage enhancement.

The American Road and Transportation Builders

Association ("ARTBA"), is made up of more than 5,000

member organizations in the transportation construction

industry, including construction contractors, professional

engineering firms, federal, state and local transportation

administrators, heavy equipment manufacturers, and

materials suppliers. These member companies employ more

than 2.5 million people in the transportation construction

industry in the United States. ARTBA's members are

responsible for construction of vital public infrastructure

3

projects such as highways, bridges, airports, railroads, and

mass transit facilities.

The City of Victorville, California has a population

of approximately 78,000 and is locatea approximately 97

miles Northeast of Los Angeles and 35 miles Northeast of

San Bernardino at the edge of the Mojave Desert. The

Southern California Logistics Airport ("SCLA"), formerly

the George Air Force Base, :s located in the City and has

become the primary focus of the City's development plans.

The City is located within the Mojave River Watershed in

the high desert region of Southern California. The Mojave

River, the primary source of surface water for the basin, is

normally dry, except for a small stretch of perennial flow and

periods of flow after intense storms. The Mojave River

actually flows underground for much of its 120 miles. The

City is very concerned that, if the Court upholds the Sixth

Circuit's decisions below, normally dry desert washes found

in the Mojave River basin that are wet only after intense

storms would be considered "Waters of the United States."

Such expanded jurisdiction could have a severe impact on

the expansion of the SCLA and other development projects,

including manufacturing and industrial production, as well as

public infrastructure projects that are vital to the City's

economic growth and integral to the City's long-term growth

plans.

The Nationwide Public Projects Coalition

("NPPC") is a not-for-profit association that is made up of

regional and local government agencies that are involved in

water supply, flood control, irrigation, wastewater and

stormwater management, street and highway construction

and maintenance, aggregate mining, and environmental

quality amenities. These agencies represent over 12 million

constituents, extending from Connecticut to California and

from Alaska to Georgia. NPPC works on behalf of members

of the public to ensure that vital public infrastructure services

4

are provided in a safe, timely and environmentally-beneficial

fashion. Consisting of public agencies and firms that

provide vital infrastructure and services, NPPC’s members

must ensure that a responsible balance is achieved between

environmental, health, and safety goals and the protection of

human lives and property. NPPC's members are typified by

the following agencies:

The West Valley Water District of Rialto,

California (“WV WD") is an independent special district that

serves water customers living in southwestern San

Bernardino County and northern Riverside County. WVWD

on local surface water resources, five groundwater

basins and the California State Water Project to meet the

needs of more than 50,000 persons.

The Metropolitan Denver Water Authority of

Littleton, Colorado ("MDWA") is a political subdivision

and public corporation of the State of Colorado. MDWA is

made up of twenty cities and special districts that provide

municipal water and/or wastewater services for the

Metropolitan Denver area and serve more than 1.5 million

persons. MDWA's member agencies serve some of the

fastest-growing counties in the nation.

The Semitropic Water Storage District of Wasco,

California ("SWSD") supplies agricultural water for more

than 140,000 irrigated acres of growing crops such as alfalfa,

cotton, nuts, vegetables, grains and grapes. SWSD operates

one of the largest groundwater storage projects in the world,

and help meet the drought-year needs of more than 20

million California residents.

5

The Cobb County-Marietta Water Authority

("CCMWA") is a political subdivision of the State of

Georgia. CCMWA is a regional water wholesaler that

supplies water to municipalities and counties serving more

than 780,000 people in the rapidly growing Metro-Atlanta

area. Included are all of Cobb County and its municipalities,

all of Paulding County, and portions of Douglas County,

Cherokee County and Fulton County.

The Wheeler Ridge-Maricopa Water Storage

District of California ("“WRMWSD") is a_ political

subdivision of the state of California whose jurisdiction

encompasses approximately 147,000 acres of land in Kern

County, at the extreme southern end of the San Joaquin

Valley and south of Bakersfield. Most of the District's water

supply is obtained via the California Aqueduct from the State

Water Project. More than 20 different crops are grown

within the District.

SUMMARY OF ARGUMENT

1) The expansive jurisdictional approach urged by the

Government and adopted by the Sixth Circuit below runs

counter to this Court's clear guidance in Solid W.

531 U.S. 159

(2001) that the CWA requires a showing of a "significant

nexus" to navigable waters in order to assert jurisdiction.

The lack of clear guidance and the inconsistent

interpretation by various Army Corps of Engineers districts

have created substantial confusion and uncertainty for the

public works community making it difficult to deliver

materials and to construct essential public works projects,

such as flood control, in a timely fashion.

6

2) Contrary to the Sixth Circuit's ruling endorsing the

"migratory molecule" test, “significant nexus" must

constitute more that a mere tenuous hydrologic connection.

Amici submit there must be credible evidence of: (a) a direct,

discrete and defined surface hydrologic connection to a

navigable water; and (2) a demonstration that a discharge

into such a connected water has a substantial injurious

impact on the water quality of the navigable water, applying

the principles of proximate causation and forseeability set

forth by this Court in Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon, 515 U.S. 687 (1995).

3) The Sixth Circuit's broad interpretation of CWA

jurisdiction violates the fundamental principle of federalism

that, absent a "clear statement" from Congress, a reviewing

court should not sanction usurpation of State and local

control of land and water resources. Affirming the Sixth

Circuit's decisions would upset the delicate balance between

regulation under the CWA and regulation under water

pollution programs at the State and local level, which

typically are far broader than their federal counterparts.

ARGUMENT

I, THE EXPANSIVE JURISDICTIONAL

APPROACH URGED BY THE GOVERNMENT

AND ALREADY ADOPTED IN SOME AREAS

OF THE COUNTRY BY THE ARMY CORPS

OF ENGINEERS HAS’ RESULTED IN

INCONSISTENCY AND CONFUSION AND

HAS DONE SIGNIFICANT HARM TO THE

PUBLIC PROJECTS COMMUNITY.

7

A. The Lack Of Clear And Consistent Guidance

Over The Scope Of CWA Geographic

Jurisdiction Has Created Confusion In The

Regulated Community

Despite this Court's guidance in Solid Waste Agency

y. United States Army Corps of Engineers, 531 U.S. 159

(2001) ("SWANCC"), the U.S. Army Corps of Engineers

(“Corps”) has continued to assert CWA jurisdiction over wet

areas that have the most remote, if any, hydrologic

connection to navigable waters. The Corps's expansive and

often inconsistent interpretation of the CWA has been

enabled by a lack of clear guidance from the lower federal

courts, which have disagreed over the correct interpretation

of SWANCC. Complicating matters further, several regional

offices of the United States Environmental Protection

Agency’ ("EPA") and divisions of the Corps straddle two or

more Circuits that have arrived at opposing conclusions

regarding CWA jurisdiction in the wake of SWANCC. Asa

result, it is often incumbent upon individual regulators to

make sense of competing legal standards depending upon

where a particular project or parcel happens to lie.

2 A 1979 Opinion of the Attorney General determined that

EPA has the ultimate authority for determining the extent of

CWA jurisdiction. See 43 Op. Att'y Gen. 15 (1979). The

Corps and EPA, however, entered into a memorandum of

agreement in 1989 that accords the Corps primary authority

to determine the scope of geographical jurisdiction under the

CWA. See Margaret N. Strand, Wetlands Deskbook, (2d ed.

1997) (Mem. of Agreement Between the Department of the

Army and the Environmental Protection Agency Concerning

the Determination of Geographic jurisdiction of the Section

404 Program and the Application of the Exemptions Under

Section 404(f) of the Clean Water Act (Jan. 19, 1989)).

In the confusion that has followed SWANCC, Amici

have found it difficult to predict when the Corps will assert

jurisdiction over isolated and ephemerally wet areas and

thereby force Amici into the time-consuming and expensive

permitting process. The reigning confusion over the proper

jurisdictional reach of the CWA in the wake of SWANCC

has had a chilling effect on public projects by allowing the

Corps and the EPA to interfere with carefully considered

decisions and investments of state and local governments

that are intended to meet vital public needs, including life

saving infrastructure.

For example, sand and gravel pits, settling ponds

related to sand and gravel operations, and ditches along rail

lines made from borrowing material to build the railway

berm have been claimed by the Corps as jurisdictional. In

other circumstances, the mere presence of a 100-year flood

plain has led to speculation about a potential hydrological

connection that is adjudged sufficient to declare a wetland as

jurisdictional. In other cases, wetlands have been claimed by

the Corp as "adjacent" due to the presence of man-made

conveyances. No mention of a determinable distance

between a wetland and navigable water has ever been

dictated to assert the difference between “adjacent” and

"isolated" wetlands. As a result, many aggregate mining

operations and road construction companies must participate

in the lengthy and complex Section 404 permitting process.

Moreover, stormwater management agencies

generally require access to wetlands and streams and other

areas that are seasonally wet due to collection of rainwater.

Depending on whether such areas are within federal

jurisdiction, these agencies may be required to obtain permits

from the Corps to conduct basic, but important, maintenance

functions such as cleaning debris basins and clearing

vegetation and other obstructions that choke flood control

channels. Such activities are critical to maintaining the

9

maximum capacity and proper functioning of the flood

control systems during major flood events.

The current state of confusion amongst the regulated

community has been well documented in a February 2004

report issued by the United States General Accounting

Office ("GAO") that reviewed the problems in the Corps's

jurisdictional determination process in the wake of this

Court's decision in SWANCC. Among other findings, the

GAO noted that the Corps has been utilizing “vague”

language to make jurisdiction determinations and has been

forced to rely “on the key terms in the regulatory definitions

of waters of the United Sates which [have] not been well

defined." United States General Accounting Office, Waters

and Wetlands: Corps of Engineers Needs to Evaluate Its

District Office Practices in Determining Jurisdiction, GAO-

04-297 at 26. The result, the GAO found, has been

"confusion in the districts" and “differences in jurisdictional

determination practices among Corps districts...." Id.

The concerns voiced in the GAO's report have been

confirmed and amplified in a survey conducted by NSSGA

of its members seeking information about the state of the

CWA jurisdictional regulations as they are being applied in

the wake of SWANCC. The survey asked respondents to

describe the jurisdictional tests that Corps personnel were

using to evaluate wetlands, including separate questions

regarding the use by field personnel of groundwater, man-

made conveyances and the 100-year floodplain to establish

jurisdiction. The results of the survey reveal a gross

inconsistency of implementation that is at best unpredictable

and at worst, indecipherable.

The following are a few examples of survey

responses demonstrating the inconsistent approaches

currently being used by Corps field personnel:

10

“The Corps has required fill permits for wetlands

adjacent to streams (a stream is anything that is a

blue line on a topo[graphical] map).” (CA)

“(The Corps] chose to assert jurisdiction because of a

man-made ditch that drained the isolated wetland.

The ditch was dry but the Corps claimed a

groundwater connection.” (NY)

"In one permit where there was a hydrologic

connection with the wetland via a large drainage

ditch, they still claimed no permit required. ” (FL)

“{T]he Corps will make an assessment .. . to

determine if a specific intermittent stream has a

surface flow all the way to the tributary or interstate

water at least every other year.” (CO)

“At present, the mere presence of a 100-year flood

plain and the absence of two barriers to prevent

wetland waters from reaching the navigable waters

are sufficient criteria to name the wetland as

jurisdictional.” (SC)

“The Charleston District uses a combination of

distance from the navigable waters to the isolated

wetlands and any connection such as « ditch to assert

jurisdiction.” (SC)

“No distinction is made by the Corps between natural

and man-made conveyances in their assertion of

jurisdiction . . . There is no distance threshold

between an “isolated” wetland and a navigable

water.” (CO)

11

e “Every swale and abandoned agricultural drainage

ditch was subjected to jurisdiction.” (VA)

e Sand and gravel pits, settling ponds related to sand

and gravel operations, and ditches along rail lines

made from borrowing material to build the railway

berm have been asserted by the Corps as

jurisdictional. (TX)

e The presence of a 100-year floodplain has been used

to assert jurisdiction on tributaries and isolated

wetlands. Ephemeral and intermittent waterways are

considered jurisdictional by the Corps if they can be

tied to a navigable waterway and exhibit an ordinary

high water mark ("OHWM") (TX).

The responses to the NSSGA survey leave the reader

with nothing but a tangible sense of confusion. A blue line

on a topographical map is jurisdictional; perhaps an OHWM

is required, or a groundwater connection, or a flow which

occurs every other year. A ditch may draw a jurisdictional

connection, or it may not. Nothing is covered. Everything is

covered. This is an unsustainable regulatory environment

under which to responsibly run a business.

It is vitally important that this Court reaffirm the

limited jurisdiction of the federal government under the

CWA and provide the Corps with clear jurisdictional criteria.

Such a ruling will go a long way toward providing Amici's

diverse membership with the certainty and predictability that

has long been lacking in wetlands permitting, and will ensure

that Amici can continue to provide their — important

services to the public at large.

12

B. Adoption Of The Mere Hydrological Connection

Or The "Migratory Molecule" Standards Urged

By The Government And Adopted By The Sixth

Circuit In Rapanos And Carabell Would Have

Severe Consequences For The Public Works

Community

While the Amici desperately need a certain and

consistent approach to the assertion of federal jurisdiction

under the CWA, it is equally important to ue Amici that the

approach adopted by this Court is rooted in the CWA and

recognizes the limitations of federal jurisdiction over

wetlands and waters that are far removed from traditionally

navigable waterways.

Under the “migratory molecule” test espoused by the

Government and adopted by the Sixth Circuit in Rapanos

and Carabell, every isolated wetland with even the most

tenuous and fleeting of connections to a navigable water will

be subject to federal jurisdiction under the CWA if one

molecule of water from the wetland eventually reaches, or

could potentially reach, a navigable water. Such a test would

have a severe impact upon the Amici, as virtually every

project that occurs in wet terrain would be swept into the

CWA, with the resulting costs and delays of the Section 404

permitting process. Such expansion of the 404 permitting

process is not only burdensome, but contrary to the intent of

CWA.

Whether or not a 404 permit is required has a huge

impact on the expense and timeframe of public projects, as

Amici often face great costs and significant delays under the

404 program. A 1999 survey indicates that it takes an

average of 788 days to process an individual permit under

Section 404 at an average cost in excess of $270,000 per

13

application.”

This delay and expense is particularly troublesome in

the wake of the unprecedented damage wrought by the 2005

hurricane season. As a result of storms like Hurricane

Katrina, the demand for new public infrastructure is

immense. In Louisiana alone, more than $32.6 billion has

been requested to rebuild the state's transportation

infrastructure and hurricane defenses. See Testimony

provided to Committee of Transportation and Infrastructure:

Before Subcomm. on Highways, Transit, and Pipelines,

109th Cong. (2005) (statement of Johnny B. Bradberry,

Secretary of Louisiana Department of Transportation and

Development) at 2 (available online at

http://www.house.gov/transportation/highway/ 10-27-05/

bradberry.pdf) Clear criteria defining “substantial nexus"

will help ensure that these critical projects are not impeded

by the confusion and uncertainty that currently exists as to

what is and what is not a regulated water of the United States

under the CWA.

In addition to the broad national implications of this

overreach, the process of aggregate mining itself

demonstrates the “real world" consequences of the Sixth

Circuit's ruling. For example, NSSGA member Martin

Marietta Aggregates constructed a dam which created a

pond at its Appling Quarry, in Columbia County, Georgia for

sedimentation control, water supply and final treatment of

process water — mecessary aspects of such mining.

Discharges from the pond into a nearby creek were permitted

under a CWA Section 402 NPDES permit issued by the State

Sn Dele |. Sut ant Bets Sem, Te

yVvIre

—— cause Caer tet aan 9-10

14

of Georgia and the Corps determined that the pond was not

subject to the jurisdiction of the Corps under section 404 of

the CWA. Despite the fact that the non-jurisdictional pond

cut off any surface flow from wetlands and waters upstream

of the pond to the downstream creek and that any discharges

from the pond itself complied with the NPDES permit and

would not violate water quality standards in the creek, the

Corps still asserted jurisdiction over those wetlands and

waters. The Corps based its decision on the theory that the

construction of the pond did not cut off any pre-existing

continuous surface water connection between the upstream

waters that eventually flowed into the navigable waters.

Martin Marietta filed an administrative appeal contesting the

Corps jurisdiction. The case was eventually remanded by a

federal court to the Corps and the issue remains unresolved

two years after the administrative appeal was filed.‘ This is

but one example of the kind of overreach that the Sixth

Circuit's ruling would sanction should that decision be

upheld by the Court.

* See

ey mae Ga., April 13, 2005).

15

Il. THE REQUISITE "SIGNIFICANT NEXUS"

BETWEEN A NON-NAVIGABLE WETLAND

AND A NAVIGABLE-IN-FACT WATER CAN

ONLY BE ESTABLISHED BY PROOF OF A

SIGNIFICANT HYDROLOGICAL

CONNECTION AND EVIDENCE THAT

POLLUTANTS DISCHARGED INTO THE

WETLAND WOULD BE HARMFUL TO THE

CHEMICAL, PHYSICAL, OR BIOLOGICAL

INTEGRITY OF THE NAVIGABLE WATER

Prior decisions of this Court make clear that unless a

wetland or water is directly adjacent to a navigable water,

there must be a “significant nexus" between the isolated

wetland and a water that is navigable-in-fact. The lower

courts (and the Corps for that matter), however, have

struggled to determine what constitutes the necessary

“significant nexus.” This difficulty has had a profound effect

on Amici and the public they serve through inconsistent and

confusing jurisdictional determinations.

This Court's opinion in United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121 (1985), cannot justify

the overbroad assertion of jurisdiction by the Sixth Circuit

and other lower courts. There, the Court found CWA

jurisdiction only over non-navigable adjacent wetlands that

actually abutted a navigable waterway. The Court reasoned

that the fact that such wetlands were "inseparably bound up"

with the navigable water provided an adequate “legal

judgment" that they too were jurisdictional. 474 U.S. at 134.

This judgment was based on evidence that the adjacent

wetlands have significant effects on water quality and the

aquatic ecosystem of the adjacent waterways. Id. at 135.

The Court, however, specifically did not “express any

opinion” on the “question of the authority of the Corps to

regulate discharges of fill material into wetlands that are not

adjacent to bodies of open water... ." Id. at 131-132, n.8.

16

Nor is SWANCC just a very narrow ruling on the

"migratory bird” test. Rather, in excluding a particular non-

adjacent, isolated pond from CWA jurisdiction, the Court

stressed the importance of establishing a nexus to

traditionally navigable waters (defined in relevant part as

"those waters that are subject to the ebb and flow of the tide,

or have been use in the past, or may be susceptible for use to

transport interstate or foreign commerce.” 33 C.F.R. §

329.4). That is, the "term ‘navigable’ has at least the import

of showing us what Congress had in mind as its authority for

enacting the CWA: its traditional jurisdiction over waters

that were or had been navigable-in-fact or which could

reasonably be so made." Id. at 172. The Court clarified that

"{ijt was the significant nexus between the wetlands and

‘navigable waters’ that informed our reading of the CWA in

Riverside Bayview Homes.” SWANCC, 531 U.S. at 167.

Thus, the true question before this Court is how to define the

parameters of the requisite "significant nexus."

Amici submit that this “significant nexus" must

constitute more than a mere hydrological connection. In

order to be true to the statute, the significant nexus ought to

meet two factors. There must be credible evidence of: (1) a

direct, discrete and defined surface hydrological connection

to a navigable water (based on Congress's limited power over

navigation, 33 U.S.C. §§ 1344(a), 1362(7)); and (2) a

demonstration that a discharge into that “connected” water

has a substantial injurious impact on the water quality of

navigable water (based on the CWA's stated purpose of

protection of the chemical, physical, and biological integrity

of the Nation's waters, 33 U.S.C. § 1251(a) (2000)).

In their struggle to define what constitutes a

"significant nexus” many courts have settled for the Corps

providing any sort of hydrological connection, even in the

absence of evidence that water from the non-navigable area

actually reaches the navigable water. See, ¢.g. United States

17

v. Rueth Development Co., 335 F.3d 598 (7th Cir. 2003) and

United States v. Deaton, 332 F.3d 698 (4th Cir. 2003). Yet,

as explained by the Fifth Circuit, a definition of "navigable

waters" that would include all waters that have any

hydrological connection with “navigable water" is

"unsustainable under SWANCC.” In re Needham, 354 F.3d

340 (Sth Cir. 2003).

A. The Extension Of CWA Jurisdiction To Waters

That Have Only An Intermittent, Indirect,

Tenuous Or Remote Hydrological Connection To

Navigable Waters Exce -ds The Corps's Authority

Under The CWA

In Rueth, the district court reasoned that if "a

molecule" of water from the disputed wetland eventually

intermingles with the molecules of a navigable water, the

Corps has jurisdiction: "A drop of rainwater landing in the

Site is certain to intermingle with water from the Little

Calumet River . . . the Site, therefore, has the ‘significant

nexus’ to a navigable waterway [required by SWANCC]."

Rueth, 189 F. Supp. 2d 874, 878. This "migratory molecule"

theory, which is perhaps the most extreme and aggressive

construction of the Corps’s authority acknowledged in the

wake of SWANCC, has already spread to other courts,

including the Fourth Circuit in Deaton.’

Staking CWA jurisdiction upon an indirect, tenuous

* The Fourth Circuit in Deaton, while showing respect for the

notion that there must be at least a hydrologic connection,

did not require the connection to be significant, allowing for

regulation if a drop of water could potentially end up in the

navigable water no matter how far this molecule would

migrate and regardless of the path it would take. Deaton, 332

F.3d at 714.

18

hydrological connection quite simply ignores the clear

import of SWANCC. A "significant nexus" constitutes more

than a mere hydrological connection or "migratory

molecule” but rather should require the Corps to establish

that there is a discernable, discrete and uninterrupted surface

water connection between the wetlands and/or "wet" area

involved and a navigable-in-fact water. "Consequently, . . .

the United States may not simply impose regulations over

puddles, sewers, roadside ditches and the like." Needham,

354 F.3d. at 345.

Amici submit that asserting CWA jurisdiction based

upon an intermittent, remote or indirect connection to a

navigable water -- without any consideration of the

connection between a given discharge and the water quality

of the navigable water -- expands CWA jurisdiction well

beyond the limits set by Congress. "Significant nexus”

requires limiting principles because, if an indirect connection

is enough to create jurisdiction, then the Corps will have

jurisdiction over practically every drop of water anywhere in

the nation, unless that drop of water is caught in a jar as

rainfall from the sky.° Amici submit that, in determining if a

discrete hydrologic connection exists, evidence of one or

more of the following criteria should apply:

First, non-navigable waters should not be determined

to be connected “navigable waters" by virtue of some

temporary, artificial and reversible man-made conveyance,

such as a ditch, swale, pipe, storm drain or similar

manipulation. The Eastern District Court of Virginia

recognized this problem in United States _v. Newdunn

® Justice Stevens, dissenting in SWANCC, noted that most

wetlands designated as "isolated" in fact have some degree

of hydrological connection to the surrounding water system.

SWANCC, 531 U.S. at 176, n.2.

19

Associates, 195 F. Supp. 2d 751 (E.D. Va. 2002); rev

Treacy _v. Newdunn Associates, 344 F.3d. 407 (4th Gir

2003). In rejecting Corps jurisdiction over a wetland site

connected to navigable water by a series of swales and

drainage culverts, the court noted that defining a storm drain

as a tributary would unreasonably expand Corps jurisdiction

because any property connected to a storm drain system

could be regulated (presuming that water discharged into a

storm drain eventually found its way to navigable water

somewhere down its path). Moreover, allowing for use of

man-made tributaries when calculating the reach of

jurisdiction creates jurisdiction that shifts whenever a new

culvert is laid or removed. Id. at 765 ("wetlands could

alternately become jurisdictional or non-jurisdictional in

tandem with adjacent road and storm drainage

construction.")

Second, a wetland or pond created in uplands for

various purposes such as sediment control should not be

considered jurisdictional absent a clear surface connection to

a navigable water. For example, members of NSSGA often

create surface mining pits in uplands as settling basins for

materials excavated during aggregate mining. Such basins

must be reclaimed under state law and cannot be simply

"abandoned" when the mining ceases. However, while, the

Corps concedes that waters of the United States does not

include "pits excavated in dry lands for the purpose of

obtaining fill, sand or gravel, unless or until the construction

or excavation is abandoned," the agency “reserves the right

on a case-by-case basis to determine that a particular water

body within these categories of waters is a water of the

United States." 51 Fed. Reg. 41206, 41217 (1986). Such

waters, by definition, cannot be part of a "connected"

tributary system during mining and should also be excluded

after mining ceases and reclamation is completed without

clear evidence that they have become "inseparably" linked to

20

navigable waters via a natural surface channel.

Third, "wet" spots such as vernal pools, ephemeral’

areas that pond after rain events, mud puddles, indistinct

depressions and farm ditches that lack any evidence of

continuous surface flow to navigable waters should not be

considered jurisdictional. An acceptable indicator of surface

flow between the "wet area" and the navigable water might

include a continuous “ordinary high water mark"

("OHWM").® However, manmade structures should be

considered in assessing whether regular flow has been

interrupted and can prevent establishment of an OHWM.

For example, a wetland adjacent to a ditch where that ditch

follows an indistinct path to a navigable water interrupted by

uplands and manmade structures would not have the

requisite substantial nexus to that navigable water. In

United States v. RGM Corp., 222 F. Supp. 2d 780 (E.D. Va.

2002), the court rejected the suggestion that manmade

’ The Corps defines "ephemeral streams" as having "flowing

water only during, and for a short duration after,

precipitation events in a typical year. Ephemeral stream

beds are located above the water table year-round.

Groundwater is not a source of water for the stream. Runoff

from rainfall is the primary source of water for stream flow."

65 Fed. Reg. 12818, 12897 (March 9, 2000). This lack of a

continuous flow does not comply with “significant nexus"

principles laid out in SWANCC.

® The term "ordinary high water mark" is defined as "that

line on the shore established by the fluctuations of water and

indicated by physical characteristics such as clear, natural

line impressed on the bank, shelving, changes in the

character of soil, destruction of terrestrial vegetation, the

presence of litter and debris, or other appropriate means that

consider the characteristics of the surrounding areas." 33

C.F.R. § 328.3(e).

21

Obstacles, such as catch basins and culverts, are not

considered interruptions of a continuous OHWM, noting that

the Corps engages in circular logic by relying on manmade

features (such as ditches) to assert the presence of a

continuous hydrological connection, while attempting to

disavow their presence when they interrupt the connection.

Id. at 788.

Fourth, ground water alone should not create a

hydrologic connection, unless the wetland connected by

groundwater is directly abutting a navigable water so as to be

"inseparably bound up" with that water (as in Riverside

Bayview). As the Fifth Circuit explained in Rice v. Harken

Exploration Co., 250 F.3d 264 (Sth Cir. 2001), it would be

an unwarranted expansion of the CWA to conclude that a

discharge that migrates into a navigable water via natural

groundwater seepage could become a "discharge" into a

navigable water. Jd, at 271 (Congress was aware of the

connection between groundwater and surface water but

nonetheless decided to leave groundwater unregulated under

the CWA).

B. Evidence Of Significant Impact To The Water

Quality Of A Navigable Water Is Necessary To

Demonstrate That A Non-Navigable Water Is

"Inseparably Bound Up" With A Navigable

—. Water

Amici are concerned that in requiring merely an

indirect hydrological connection, the courts lose sight of the

underlying purpose that Congress sought to achieve in

enacting the CWA. The connection must not only be direct

but there must be evidence that the pollutants discharged into

the "connected" water will eventually discharge into and

"significantly" impair the water quality of the navigable

water. Congress passed the CWA for the stated purpose of

"restor[ing] and maintain{ing] the chemical, physical, and

22

biological integrity of the Nation's waters." 33 U.S.C. §

1251(a) (2000). Hence, where the discharge of the pollutant

will not have a "significant" impact on a navigable water that

is hydrologically connected, there is no "substantial nexus."

The district court in Rapanos, 190 F. Supp. 2d 1011

(E.D. Mich. 2002), correctly required a showing by the

Corps that “navigable[-in-fact] waters [were] impacted by

Defendant’s activities," in order for those activities to be

regulated under the CWA. 190 F. Supp. 2d at 1017. The

analysis of the yoo a of New wan in ED_& F

239 F. Supp. 2d 509 (DNJ. 2003) i is also a In FD

& P the court analyzed the differing interpretations of

SWANCC, and held that after SWANCC "the ‘hydrological

connection’ test is no longer the valid mode of analysis." Id.

at 516. Rather, the court held that the Corps must

demonstrate evidence of “substantial injurious impact" to a

navigable water — which goes “beyond a mere hydrological

connection." Id. According to the court, the question of

whether there is a “substantial nexus" turns on whether

"filling of the wetlands will have a substantial injurious

impact upon the chemical, physical and/or biological

integrity of the [navigable waterway]." Id. at 517. Applying

this test, the FD & P court denied the Corps's motion for

summary judgment despite the Agency's broad assertions

that "the filling of the wetlands would have an injurious

impact on the River by increasing the sediments and

chemicals flowing into the River....and would displace flood

storage capacity.” The court noted that the contrary factual

claims of F D & P created a genuine issue of material fact as

to whether there is a "substantial nexus" between the

wetlands and the Hackensack River.

These decisions are consistent with the Fifth Circuit's

analysis in Rice, which held that there must be "a close,

direct and proximate link" between the discharge of a

23

pollutant in the non-navigable water and any resulting actual,

identifiable impact to natural surface water. Rice, 250 F.3d

at 272. Further, as the Second Circuit recently held, the

simple "potential" for a discharge is not enough to regulate

the underlying activity Water Keeper Alliance v. US EPA,

399 F.3d 486, 505 (2d Cir. 2005) (explaining that the CWA

"gives the EPA jurisdiction to regulate and control only

actual discharges — not pvtential discharges, and certainly

not point sources themselves").

Principles developed by Justice O'Connor in her

concurring opinion in Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon, 515 U.S. 687, 708-14

(1995) (O'Connor, J., concurring), provide a good framework

for analysis in determining whether a discharge would have a

“substantial injurious impact" to navigable waters. In Sweet

Home, the Court addressed a US Fish and Wildlife Service

rule that determined whether "habitat modification” would

result in a Section 9 "take" of species listed as "endangered"

under the Endangered Species Act. See 16 U.S.C. § 1538.

In agreeing with the majority that “significant habitat

modification must cause actual, as opposed to hypothetical

or speculative, death or injury" to protected species, Justice

O'Connor noted that such a test implicates “ordinary

principles of proximate causation, which introduce notions

of foreseeability." Id. at 709 (O'Connor, J., concurring).

More recently, this Court in Department of

Transportation _y. Public Citizen, 541 U.S. 752 (2004),

embraced a similar principle of "proximate causation" in the

context of the agency's underlying authority. In finding that

the National Environmental Policy Act ("NEPA") did not

require the Federal Motor Carrier Safety Administration

("FMCSA") to consider the environmental effects arising

from the entry of Mexican trucks as a result of the President's

lifting or modification of the moratorium against such

entries, this Court found it significant that the FMCSA

24

lacked discretion to prevent such operations. Id. at 766.

Consequently, the Court held that, the "but for" test of

causation was "insufficient to make the agency responsible

for a particular environmental effect under NEPA and the

relevant regulations." Id. at 767.

These principles of proximate causation and notions

of forseeability, consistent with an agency's underlying

authority to act, can similarly be applied to discharges under

the CWA in determining “substantial injurious effects" to

navigable waters. For example, evidence that an oil or

chemical discharge into a "connected" tributary would

actually reach the navigable water might be sufficient to

establish jurisdiction over the discharge. However, evidence

that filling an isolated (tenuously connected) wetland that

would not foreseeably and substantially impair the functions

of a navigable water several miles away, should be enough to

preclude jurisdiction over the discharge activity. While the

exact nature and extent of the evidence needed to establish

suc. a causal linkage may vary from case to case, such a test

will put an end to the Corps and EPA's presumption that any

filling of wetlands or discharge of pollutants is automatically

subject to CWA jurisdiction due to the interconnected nature

of all aquatic systems.

Il. THE SIXTH CIRCUIT'S BROAD

INTERPRETATION OF "NAVIGABLE

WATERS" VIOLATES THE FUNDAMENTAL

PRINCIPLE OF FEDERALISM THAT ABSENT

A “CLEAR STATEMENT" FROM CONGRESS,

A REVIEWING COURT SHOULD NOT

SANCTION USURPATION OF STATE AND

LOCAL CONTROL OF LAND AND WATER

RESOURCES

By federalizing any wet area, no matter how remote

from navigable waters, the Sixth Circuit adopted an

25

unprecedentedly broad interpretation of the geographic scope

of CWA jurisdiction. As this Court held in SWANCC, the

courts should be hesitant to intrude upon the delicate balance

between federal and state regulation of land and water

resources absent a "clear statement from Congress" that such

a result was intended. 531 U.S. at 174. In enacting the

CWA, Congress did not seek to impinge upon the States’

traditional and primary power over land and water use when

setting out the scope of jurisdiction under the CWA.

One of the principal tenets of federalism is that courts

shall not interpret federal legislation to abrogate local power

unless it is clear that Congress considered and intended,

when it passed the authorizing legislation, to alter the

traditional balance between federal and state powers. This

"clear statement” principle applies "in cases implicating

Congress’s historical reluctance to trench on state legislative

prerogatives or to enter into spheres already occupied by the

States.” United States v. Lopez, 514 U.S. 549, 606 (1995)

(Souter, J., dissenting) (citation omitted). In cases where a

court seeks to invoke the outer limits of Congress's power,

there must be a clear indication that Congress intended that

result. See SWANCC, 531 U.S. at 172. Indeed, this Court

has recognized that there is an underlying assumption that

the power to legislate in areas traditionally regulated by the

States "is an extraordinary power .. . . [that] Congress does

not exercise lightly." Gregory v. Ashcroft, 501 U.S. 452, 460

(1991).

A. Nothing In The CWA Evinces A Clear Statement

That Congress Intended To Encroach Upon Local

Regulation of Activities That Do Not Add

Pollutants to Navigable Waters

Of course, as long as Congress is acting pursuant to

one of its enumerated powers, the Supremacy Clause of the

Constitution permits Congress to trump state law, even in

will clearly upset the "cooperative federalism" inherent in the

CWA. Section 101 of the CWA specifically limits the

authority of federal agencies to intrude into state and local

It is the policy of the Congress to recognize,

preserve, and protect the primary

responsibilities and rights of States to prevent,

33 U.S.C. § 1251(b) (2000). Congress also explicitly stated

that nothing in the CWA is to "be construed as impairing or

in any manner affecting any right or jurisdiction of the States

with respect to the waters ... Of such States." Id. § 1370(2)

(2000).

A review of the plain language of the CWA provides

* See also 33 U.S.C. § 1288 (2000) (encouraging states to

develop area-wide management plans).

27

nothing approaching a “clear statement" from Congress that

it intended CWA jurisdiction to extend to every intrastate

wetland with any sort of hydrological connection to

navigable waters, no matter how tenuous or remote. In truth,

far from being “unmistakably clear" that Congress intended

the statutory term "water of the United States" to encompass

every wet spot, Congress set forth the very sp~< “c limit that

water must be "navigable" in order to fall witix: .ne scope of

the CWA. The "waters" that the Sixth Circuit would have

regulated are more properly addressed under the state and

local land use processes. This careful balance between state

and federal power should not be upset.

B. The Sixth Circuit Would Upset The Delicate

Balance Between The CWA And Comprehensive

State And Local Programs For Controlling Water

Pollution

Amici recognize the legitimate objective of the CWA

to protect the Nation's waters. However, the CWA does not

extend federal authority to all wetlands and waters in the

Nation. Fundamental principles of federalism dictate that

control of land use decisions are properly within the purview

of State and local governments. Indeed, the Court has

recognized that “regulation of land use is perhaps the

quintessential state activity." See Fed. Energy Regulatory

Comm'n yv. Miss, 456 U.S. 742, 767 n.30 (1980). As

discussed above, the CWA bestows “primary” responsibility

upon the States to protect water resources. The literally

thousands of State and local governments that regulate

wetlands and waters firmly establishes that the States have

enthusiastically assumed this role. '°

© See Federal Wetland Protection Policy, 1993: Hearings on

S. 1304 Before the Subcomm. On Clean Water, Fisheries

28

State and local governments throughout the Nation

have passed comprehensive wetland laws, many of which

are broader in scope than the CWA and provide far greater

protection. In fact, several states began regulating these

areas well before the federal government. “The first

wetlands protection statute in the United States was passed in

Massachusetts in 1963. . By the time Congress enacted

the CWA in 1972, Massachusetts hed nine years of

experience regulating wetlands, and was already reforming

its laws to provide greater local control and accountability

while maintaining state-level oversight." Jonathan H. Adler,

Wetlands, Waterfowl, and the Menace of Mr. Wilson:

Commerce Clause Jurisprudence and the Limits of Federal

Wetland Regulation, 29 Envtr. L. 1, 48 (1999).

State-based clean water laws are typically far broader

than their federal counterpart — regulating a broader scope of

waters. Maryland is an excellent example of a state that has

regulatory regime that goes beyond the 404 program, having

enacted one of the first laws declaring a goal of “no net

overall loss in nontidal wetland acreage and function and to

strive for a net resource gain in nontidal wetlands over

present conditions.” See MD Code. Ann. Envir. Sect. 5- 902

(1996). The Maryland law covers “both surface and

underground waters within the boundaries of the state." MD.

Code Ann., Envir. Sec. 5-102. In turn, California's Porter-

Cologne Water Quality Control Act broadly defines "waters

of the State” as “any surface water or groundwater, including

saline waters, within the boundaries of the state.” Cal. Water

and Wildlife of the Senate Comm. on Environment and

Public Works, 103d Cong., Ist Sess. (1993) (statement of

National Association of State Departments of Agriculture),

available in LEXIS, Legis Library, Cngtst File (noting that

over 5,000 local governments have adopted wetland

protection regulations).

Code Sec. 13050.

Well aware of the comprehensive state-based

initiatives discussed above, the EPA has also recognized the

essential role played by the States in the protection of

wetlands and other waters even as to the permitting of point

source discharges, explaining:

similar to the Federal Section 404 program.

This makes sense because State and Tribal

regulators are, in many cases, located closer

to the proposed activities and are often more

familiar with the local resources, issues, and

needs than are Federal regulators. ''

The Sixth Circuit's expansive interpretation of

jurisdiction under the CWA threatens to displace the

important role played by the States in the regulation of their

aquatic resources. Because such an outcome was never

intended by Congress, this Court should reverse the Sixth

Circuit's decisions below.

'' USEPA Office of Wetlands, Oceans, and Watersheds,

State or Tribal Assumption of the Section 404 Permit

Program (May 25, 1999) available online

at http://www.epa.gov/owow/wetlands/facts/fact23.html.

30

CONCLUSION

Amici respectfully request this Court to reverse the

Sixth Circuit's rulings and provide Clear limiting Principles in

ini the reach of jurisdiction under the Clean Warn

Act.

Respectfully Submitted,

ashington, DC

(202) 955-3000

Counsel for Amici Curiae

* Counsel of Record