Amicus Curiae Brief — Rapanos v. United States

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No. 04- and No. 04-T!

IN THE

SUPREME COURT OF THE UNITED STATES

JOUN A. RAPANOS, ef al.,

Petitioner,

-V.-

UNITED STATES OF AMERICA,

Respondents,

JUNE CARABELL, ef al.,

Petitioner,

“V.-

UNITED STATES ARMY CORPS OF ENGINEERS, e¢ ai.,

Respondents.

On Writs of Certiorari to the United States Court of

Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE THE CITY OF NEW YORK

IN SUPPORT OF RESPONDENTS

MICHAEL A. CARDOZO,

Corporation Counsel of the

City of New York

Attorney for Amicus Curiae

The City of New York

100 Church Street

New York, NY 10007

(212) 788-1585

LEONARD J. KOERNER,*

’ HILARY MELTZER,

AMANDA C. GOAD,**

of Counsel.

*Counsel of Record

** Awaiting Admission to the Bar of the State of New York

January 13, 2006

a

QUESTION PRESENTED

The City of New York (“City”) relics on wetlands

to protect and improve watcr quality in the watershed of its

surface drinking water supply system. The qucstion the

City addresses is whether Clean Watcr Act protection

extends to all wetlands that provide such watcr quality

bencfits, and that thus have a significant nexus, to

navigable watcrs.

TABLE OF CONTENTS

Page

QUESTION ie SS

TABLE OF AUTHORITIES ........cccccsscsssssssssss0ss0ssss0ss00e ii

INTERESTS OF AMICI CURIAE cocccesscssssosssssssss0sseseeeeeee

SUMMARY OF ARGUMENT .....cccccssssssessscsssssesceesseeeeees 6

WETLAND FUNCTIONS WITHIN A WATERSHED ..7

AE ceenssinticnieininnsmsnivinviensacineneesinnniatiannmiiiantatts 11

1. THE CLEAN WATER ACT PROVIDES

FEDERAL JURISDICTION OVER ANY

WETLAND WITH A “SIGNIFICANT NEXUS”

TO NAVIGABLE WATERS. ...........0:.ccccccessseeseseeees 1]

Il. PRESERVATION OF WATER QUALITY BY

REGULATING WETLANDS WITH A

SIGNIFICANT NEXUS TO NAVIGABLE

WATERS IS AN APPROPRIATE FEDERAL

FUNCTION UNDER THE COMMERCE

Fay <ncsuncsieiniceconisensdeniniecntsnnncaieindinmnighemnssenieniet 17

Se eicocsiisceninnassscasenentinsnnntnitteisnaneciiinnntentenaiaenes 21

iii

TABLE OF AUTHORITIES

Cases Page

Carabell v. United States Army Corps of Engineers,

391 F.3d 704 (6th Cir, 2004) 0.0... cccceceeerereeees passim

Citizens Bank v. Alafabco,

ee Me inti tccnstnnlinntiiicincesiniccitnseiintntengih 19

Gonzalez v. Raich,

__ U.S. __, 125 S.Ct. 2195 (2005).........ccrsreceserees 7,19

Headwaters v. Talent Irrigation District,

243 F.3d 526 (9th Cir. ZOOL) .0......eccscceseeseeseeeereeenes 13

Northern California River Watch v. City of Healdsburg

No. C01-04686, 2004 U.S. Dist. LEXIS 1008 (N.D.

Cal. Jan. 23, 2004) (9th Cir. argued Nov. 16,

(ETRE ee Re RTE 15, 16

Rancho Viejo, LLC v. Norton,

Ee 18

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers.,

ee ee I ccincinniciintcantininsauiintcinadvinnetl passim

Treacy v. Newdunn Associates,

344 F.3d 407 (4th Cir. 2003),

cert. denied, Newdunn Associates v. United States

Army Corps of Engineers, 541 U.S. 972

SESTTUTIE ssnsitielalensaniceiecetaeciebbsanntesiitsaiemuibaibinntanntplatabel 7, 14, 16

iv

United States v. Cortes,

299 F.3d 1030 (9th Cir. 2002) ........c cc ceceececseseeetseceees 20

United States v. Deaton,

332 F.3d 698 (4th Cir. 2001),

cert, denied, 541 U.S. 972 (2004).............06. 12, 14, 16

United States v. Eidson,

108 F.3d 1336 (1 bth Cir, 1997) ooo eccccceeeeeeeees 13

United States v. Gerke Excavating,

412 F.3d 804 (7th Cir. 2005) 0.0... cceeeeee 7, 18, 19, 20

United States v. Lamplight Equestrian Center,

No. 00 C 6486, 2002 U.S. Dist. LEXIS 3694 (N.D.

EF RRS EE 15

United States v. Lopez,

EL nn ea 7,17, 19

United States v. Pozsgai,

999 F.2d 719 (3rd Cir, 1999) oo... ceeceeceteeseeeeeeeneees 13

United States v. Kung-Shou Ho,

311 F.3d 589 (Sth Cir. 2002) ................ sdemsdiieaiinal 20

United States v. Rapanos,

376 F.3d 629 (6th Cir. 2004) .0........ ccc ceeeeeeseeees passim

United States v. Riverside Bayview Homes,

GOA. TAG Cot incrcssssesinsscisstisssisenatananatia passim

Federal Statutes

Rules of the Supreme Court of the United States, 28

Se aI wincsctiacsmnsseceuscsnsscstestsonensnecescenee |

Clean Watcr Act, 33 USC. §§ 1251 ef seq

SORT RL RE ae passim

Clean Water Act, 33 U.S.C. § 1251 (a) ccccccscsscesssveesen 6, 18

Clean Water Act, 33 U.S.C. § 134468) .........ccccccccesereeesenes 6

Clean Water Act, 33 U.S.C. § 1344(D) ......---seecereeeeseren 13

Safe Drinking Water Act, 42 U.S.C. § 300g-1 (2005)......1

Federal Regulations

33 C.F.R. §§ 320-29 (2006)...cicsercrsneisnnserernrntnesersere

dca eeesnndvertnictensriienion 5

Re Cea

Fe a eee ee eeD

State Statutes

N.Y. Pub. Health Law § 1100(1) (McKinney 2005) ........ 5

vi

State Regulations

N.Y. Comp. Codes R. & Regs. tit. 10, Part 128 (2005)....5

N.Y. Comp. Codes R. & Reys. tit. 10, § 128-

NS EISELE TLE 5

N.Y. Comp. Codes R. & Reys. tit. 6, § 663.2(p) (2005)...5

Other

Issuance of Nationwide Permits; Noticc, Part II, 67 Fed.

Rey. 2020, 2093 (Jam. 15, 2002) 0... eecceeceeesseeneeeeeee 5

James Hassett, State University of New York College

of Environmental Science and Forestry, The Croton

Process Studies Project (2003)..............cccccecceeeeeenees 10

National Research Council, Compensating for Wetland

Losses under the Clean Water Act (2001),

http://books.nap.edu/catalog/10134.html.................... 9

R.W. Tiner, C.W. Polzen, and B.J. McClain, United

States Fish and Wildlife Service, Wetland

Characterization and Preliminary Assessment of

Wetland Functions for the Croton Watershed of the

New York City Water Supply System (2004)............ 4

United States Environmental Protection Agency, New

York City Filtration Avoidance Determination,

(November 2002), http://www.epa.gov/Region2/

water/nycshed/fad2002.pdf.............ccccceecereeserererenreees 2

vu

United States Environmental Protection Agency,

Managing Urban Runoff: Pointcr No. 7, (May 20,

2004), http://www.cpa.gov/owow/nps/facts/

SITET <hecint csteaistiinstnestetinnssimedatailtinateetiaatiiatlacegtinmataatel 4

United States Environmental Protcction Agency,

Wetlands: Status and Trends (March 23, 2005),

http://www.cpa.gov/OW OW/wetlands/vital/

IS cicttrnsncecneeccestiinnctnanivininientidmnsidgpetincmeniniel +

United States Environmental Protection Agency, What

is Nonpoint Source (NPS) Pollution, Questions and

Answers (August 18, 2003), hitp://www.cpa.gov/

I ccstitnrcscsnediinhnttinitisbiinaliisipansigatiegs 4

INTERESTS OF AMICUS CURIAE

Amicus curiae the City of New York (“City”)

submits this bricf in support of respondents United Statcs

of America, United States Army Corps of Enginccrs

(“Army Corps’), and United States Environmental

Protcction Agency (“EPA”) seeking affirmance of the

United States Court of Appeals for the Sixth Circuit's

decisions in United States v. Rapanos, 376 F.3d 629 (6th

Cir. 2004) and Carabell v. United States Army Corps of

Engineers, 391 F.3d 704 (6th Cir. 2004).'

The City, a political subdivision of the State of New

York, owns and operates a water supply system that

provides water of excellent quality to some ninc million

residents of the City and State of New York. The City’s

water supply is not currently filtered and, based on the high

quality of the water and the City’s long-term plans for

protecting ayainst its degradation, EPA has granted a

filtration avoidance determination’ for the City’s Catskill

' Pursuant to Rule 37.6 of this Court, the City represents that

counsel for the City authored this brief in its entirety and that no

person or entity other than the City and its representatives made

any monetary contribution to the preparation or submission of

this brief. Consent to the filing of amicus briefs in support of

either party was filed by counsel for the Rapanos petitioners on

November |, 2005, and by counsel for the Carabell petitioners

on November 25, 2005. Counsel for respondents has consented

to the filing of this brief, and a letter reflecting that consent is

submitted to the clerk's office with this brief.

? Public water systems must either provide filtration or must

demonstrate that they meet the rigorous requirements for

filtration avoidance. 42 U.S.C. § 300g-1; 40 CFR §§ 141.71 and

141.171.

2

and Delaware water supply systems.’ Together, the

Catskill and Delaware systems supply approximaicly 90%

of the City’s drinking water. The water in the oldest of the

City’s three interconnected water supply sysicms, the

Croton sysicm, is scheduled to be filtered by 2011, but ~

gencrally mects all applicable watcr quality requirements

and is currently unfiltered.“

The extremely high quality of the City’s water thus

derives not from mechanical treatment but rather from the

protection and ircatment provided naturally within the

nearly 2000 square miles of land that drain into the City’s

nineteen collecting reservoirs, including the cxtensive

wetlands — approximately 25,800 acres — in that watershed

arca.

Within a watershed (the land area that drains into an

ultimate receiving water), wetlands provide multiple

functions that benefit the receiving water body. They

ameliorate non-point source pollution by removing

sediment, nutrients, and other pollutants from influent

water sources.” They absorb water during high surfacc

> See United States Environmental Protection Agency, New York

City Filtration Avoidance Determination, (November 2002),

available at _ http://www.epa.gov/Region2/water/nycshed/

fad2002.pdf.

* Unlike the watersheds of the Catskill and Delaware supply

systems, which consist largely of forested land west of the

Hudson River, the Croton watershed is in more densely

developed counties close to the City. Accordingly, the quality of

Croton water has been adversely affected by development.

* Wetland vegetation (“hydrophytic vegetation”) absorbs

nutrients through biotic uptake, and slows the flow of surface

waters, promoting sedimentation. The low oxygen conditions in

3

flow events storms and snowmelt, which decreases the

volume and velocity of water cnicring streams and thus

prevents or reduccs downstream flooding and crosion.

Wetlands also rcicasc stored watcr slowly back into

streams, through surface outflows or groundwater recharge,

maintaining stream flow within the watcrshed cven under

dry conditions.

Wetlands may occur in a varicty of scttings within a

watcrshed. Many wetlands are within riparian zoncs along

intcrmiticnt and perennial watercourses. Others arc

geographically remote from sircams, surrounded by

uplands, with discernable surface water connections to

tributary systems only during periods of high flows, if ever.

The benefits described above, which are critical to

maintaining water quality in the City’s watershed in

particular, and in navigable waters in general, are provided

by all wetlands within a watershed, regardless of how direct

or frequent their surface connections to streams may be.°

The invaluable benefits provided by wetlands are

particularly important in watersheds in which there has

been significant land development, where stormwater

runoff from impervious surfaces (i.e., surfaces which do

not allow water to be absorbed into the ground, such as

buildings and paved surfaces) may be a serious cause of

wetland soils (“hydnc soils”), resulting from their periodic

saturation or inundation, promote biogeochemical

transformations, such as denitrification. Thus, a variety of

physical and biogeochemical mechanisms allow wetlands to

remove nutrients, sediments, and other pollutants. :

* A more detailed description of the functions of wetlands

throughout a particular watershed is provided below.

4

pollution and degradation of surface watcrs. Stormwatcr

runoff from developed arcus transports pollutants,

including nutricnts from fertilizers, oi] and grease from

roadways, and scdiments from improperly managed

construction sites, to surface waters.’ Similarly,

impervious surfaces associated with devclopment incrcasc

the volume and velocity of stormwater runoff." Wetlands,

as further described below, offer a valuable and natural

means for dealing with these issucs. Yct, devclopment and

associated land usc changes arc primary causcs of loss and

degradation of wetlands.

The protection of wetlands through regulation is

therefore critical. Wetlands protection regulations afford

expert agencies, and the public, the opportunity to review

and consider the valuc of wetlands in guarding against

pollution, and the impacts of land use activities that will

disturb, impair, or destroy wetlands.

The extensive freshwater wetlands in the City’s

watershed are protected pursuant to a variety of federal,

” See, e.g. UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, WHAT IS NONPOINT SOURCE (NPS) POLLUTION,

QUESTIONS AND ANSWERS (August 18, 2003), available at

http://www.epa.gov/OWOW/NPS/qga.html.

* See, e.g., UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, MANAGING URBAN RUNOFF: POINTER NO. 7, (May

20, 2004), available at http://www.epe.gov/owow/nps/facts/

point? htm.

* See, e.g., UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, WETLANDS: STATUS AND TRENDS (March 23, 2005),

available at http://www.epa.gov/OWOW/wetlands/vital/

status. html.

5

State, and local laws and regulations. The City has

unusual, extraterritorial authority to revicw and approve

certain activitics in and adjacent to certain wetlands within

the watershed of its drinking watcr supply. N.Y. Pub.

Health Law § 1100(1) (McKinney 2005); N.Y. Comp.

Codes R. & Reys. tit. 10, Part 128 (2005). The City’s

regulatory authority, however, like New York State's, is

gencrally limited to wetlands exceeding 12.4 acres. N.Y.

Comp. Codes R. & Regs. tit. 10, § 128-1.6(a)(1 16) (2005);

N.Y. Comp. Codes R. & Regs. tit. 6, § 663.2(p) (2005).

Bascd on the City’s inventory of wetlands in the watershed

of its water supply, ncarly 10,000 acres, or 40 percent of

these wetlands are not subject to regulation by New York

State or the City because they do not meet the size

threshold. Moreover, of these smaller wetlands, which

nonetheless provide significant water quality benefits,

approximately 4,300 acres, or 43 percent, lack regular,

obvious surface connections to surface waters.

In contrast, the federal Clean Water Act regulates

wetlands based on hydrology, soils, and vegetation rather

than on size. See, e.g., 33 C.F.R. § 328.3(b) (2006). The

City thus relies on federal protection of smaller wetlands

within its watershed. Indeed, recognizing the essential

importance of small wetlands in the portion of the City’s

water supply system most affected by.development, the

ACOE has designated the City’s Croton watershed as a

Critical Resource Water. As a consequence, many of the

“Nationwide Permits” that generally authorize projects

disturbing less than half an acre of wetlands, subject to

certain categorical conditions, do not apply in the Croton

watershed, and thus any activity that will disturb a wetland

— regardless of the size of the wetland or extent of

disturbance — requires an individual permit. See Issuance

of Nationwide Permits; Notice, Part II, 67 Fed. Reg. 2020,

2093 (Jan. 15, 2002).

6

The functioning of wetlands including wetlands

that lack discernable surface connections to sircams - in a

typical sub-watershed within the City’s water supply

system is described below. Because of the critical

importance of such wetlands, the City respectfully urges

this Court to affirm that the Clean Water Act cstablishes

jurisdiction over all wetlands with a significant nexus to the

quality and quantity of the Nation's navigable waicrs.

SUMMARY OF ARGUMENT

Since 1972, the Federal Water Pollution Control

Act, or “Clean Water Act,” has provided a comprchensive

framework for federal efforts to protect waters of the

United States. 33 U.S.C. § 1251 ef seg. Its objcctive is to

“restore and maintain the chemical, physical, and biological

integrity of the Nation's waters.” /d. § 1251(a). Pursuant

to Section 404(a) of the Act, any person must obtain a

permit from the Army Corps of Engineers before

discharging “dredged or fill material” into navigable

waters. 33 U.S.C. § 1344(a). The Army Corps’ regulations

implementing Section 404(a) specify that permits are

required for all fill activities that affect navigable waters,

either directly or indirectly via tributary water bodies or

wetlands. 33 C.F.R. §§ 320-29.

In United States v. Riverside Bayview Homes, this

Court upheld the Army Corps’ jurisdiction over wetlands

adjacent to navigable waters, deferring to “the Corps’

ecological judgment about the relationship between waters

and their adjacent wetlands.” 474 U.S. 121, 134 (1985)

(“Riverside Bayview”). In Solid Waste Agency of Northern

Cook County v. United States Army Corps of Engineers,

this Court clarified tne scope of federal Clean Water Act

jurisdiction by requiring a “significant nexus” between the

regulated wetland and traditionally navigable waters. 531

7

U.S. 159, 167 (2001) (“SWANCC”). Several appellate

courts, including the United States Court of Appcals for the

Sixth Circuit in the instant cases, have used this type of

analysis to sustain federal jurisdiction over wetlands that

affect the quantity and quality of surrounding navigable

watcrs, even when their hydrological conncctions to the

navigable waters arc intermittent or circuitous. See, ¢.g.,

United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004);

Carahell v. United States Army Corps of Engineers, 39\

F.3d 704 (6th Cir. 2004); United States v. Gerke

Excavating, 412 F.3d 804 (7th Cir. 2005); Treacy v.

Newdunn Associates, 344 F.3d 407, 417 (4th Cir. 2003).

Federal authority to restrict filling of such wetlands stems

from the power to regulate activities which, particularly in

the aggregate, “substantially impact interstatc commerce,”

as discussed in United States v. Lopez 514 U.S. 549, 557

(1995). See also Gonzalez v. Raich, 125 S.Ct. 2195, 2205-

08 (2005).

The City of New York, as the manager of a large

and complex drinking water system and a regulator of

certain land use activities in its watershed, shares the Army

Corps’ considered view that protecting hydrologically and

ecologically connected wetlands is essential to protecting

the quality and quantity of navigable waters. In fact, it

would not be possible to achieve the stated purpose of the

Clean Water Act if federal agencies lacked authority to

regulate wetlands that satisfy the “significant nexus” test.

WETLAND FUNCTIONS WITHIN A WATERSHED

To illustrate the nexus of wetland protection to the

protection of navigable waters, and particularly to

emphasize the importance of small and remotely connected

wetlands in protecting water quality, the City describes the

water quality benefits provided by various wetlands within

&

the watershed of the City’s West Branch reservoir. The

West Branch reservoir is located within the City’s Croton

watcr supply sysicm which, as notcd above, is the most

affected by development of the City’s three interconnected

watcr supply systcms. It is a critical reservoir to the City, »

as it gencrally reccives water from the City’s Delaware

Aqueduct, which carrics approximatcly 50% of the City’s

entire water supply from four rescrvoirs to the west of the

Hudson River, as well as from its own watershed.

Streams in the lowest portions of the watershed of

the West Branch reservoir have the largest drainage arcas,

highest flows, and arc typically navigable by canoe or

kayak. Wetlands along these mainstem waters comprise

roughly 40% of the wetland arca in the West Branch

reservoir watershed. When the flows in these streams

exceed channel capacity — when the streams reach flood

Stage — adjacent wetlands detain and remove sediments,

nutrients, and other pollutants from the floodwaters,

minimizing flood damage and maintaining water quality.

Data collected by the City from wetlands along Gipsy Trail

Creek, a large stream in the West Branch reservoir

watershed, show a net retention of flow, dissolved

phosphorus, and suspended solids during the highest stream

flows. In addition to the obvious benefit of such reduced

flooding to riparian lands, the lower stream velocities

produced by these wetlands mitigate against the erosion

and suspension of sediments associated with high and rapid

waters.

A system of “headwater” wetlands occurs in the

upper reaches of the West Branch basin stream network,

often at the sources of streams. These headwater wetlands

comprise over 50% of the wetlands in the West Branch

reservoir watershed, and all have intermittent or ephemeral

surface connections to the mainstem channels that are

Y

tributary to the West Branch reservoir. These headwater

wetlands perform a multitude of functions and are among

the most important for the quality of surface waters, despite

their typical lack of perennial connections.

Headwatcr wetlands have the grcatcst opportunity

of all wetland types to ameliorate non-point source

pollution as they remove nutrients, sediment, and other

pollutants from surface runoff hefore it is transporicd

through the upstream tributaries into the mainsiems of the

watershed.'” Of the wetlands predicted by the United

States Fish and Wildlife Service (“USFWS”), in its

functional assessment of wetlands in the City’s Croton

watershed, to be significant for nutrient transformation and

sediment retention in the West Branch reservoir basin, 49%

and 67%, respectively, are along headwater tributarics. ''

Headwater wetlands slow the velocity of surface runoff,

which stabilizes stream banks and prevents erosion and

associated water quality degradation. Forty percent of the

wetlands predicted by the USFWS to be significant for

shoreline stabilization in the West Branch watershed are in

headwater positions.

"© NATIONAL RESEARCH COUNCIL, COMPENSATING FOR

WETLAND LOSSES UNDER THE CLEAN WATER ACT (2001)

available at http://books.nap.edu/catalog/10134.html.

'' R.W. Tiner, C.W. POLZEN, AND BJ. MCCLAIN, UNITED

STATES FISH AND WILDLIFE SERVICE, WETLAND

CHARACTERIZATION AND PRELIMINARY ASSESSMENT OF

WETLAND FUNCTIONS FOR THE CROTON WATERSHED OF THE

NEw YORK CITY WATER SUPPLY SYSTEM (2004), prepared for

and available from the New York City Department of

Environmental Protection, Valhalla, NY. Subsequent references

in this section to USFWS predictions also refer to this report.

10

In addition to these water quality benefits,

headwatcr wetlands detain surface water from thcir

catchment arcas, which reduces and delays peak stream

flows, thus reducing the frequency and severity of floods.

In its watershed-scale functional assessment, USFWS

estimated that approximatcly half of the wetlands that arc

significant for surface water detention in the West Branch

reservoir watershed arc located in headwater positions.

Another study of the Croton Watershed found decreased

peak flow and increased lay time between the period of

maximum rainfall and maximum runoff in a sub-basin that

contained a headwater wetland when compared to a similar

sub-basin without such wetlands. "”

Headwater wetlands are also important for

maintaining stream flow, as detained stormwater is released

slowly to stream channels during times of low flow.

Ninety percent of wetlands predicted by the USFWS to be

highly significant for streamflow maintenance in the West

Branch Reservoir Watershed are along headwater

tributaries. In addition, many of these headwater wetlands

replenish groundwater, which forms the base flow for

tributaries during dry periods.

Finally, a number of wetlands lack regular surface

connections to tributary systems. These geographically

isolated wetlands comprise approximately 4% of the

wetland area in the West Branch reservoir watershed.

Despite their lack of discernable surface water connections,

these wetlands, like those in headwater wetland positions,

are important for detaining surface waters and ameliorating

'2 JAMES HASSETT, STATE UNIVERSITY OF NEW YORK COLLEGE

OF ENVIRONMENTAL SCIENCE AND FORESTRY, THE CROTON

PROCESS STUDIES PROJECT (2003).

non-point source pollution from their local catchment arcas.

Because they lack outflows, these wetlands scrvc as

permanent “sinks” for precipitation, overland flow and any

associated nutricnts and pollutants that would othcrwisc

flow to downgradicnt waters in surface runoff. Thesc

“isolatcd” wetlands also restore groundwater rcsources and

thus contribute to the base flows of downgradient surface

waters.

The wetlands in the West Branch reservoir

watershed thus all have a significant nexus to watcr quality

and quantity in the West Branch reservoir, among other

navigable water bodies.

ARGUMENT

|

THE CLEAN WATER ACT PROVIDES

FEDERAL JURISDICTION OVER ANY

WETLAND WITH A “SIGNIFICANT

NEXUS” TO NAVIGABLE WATERS.

It is well established that protection of wetlands was

integral to Congress’ efforts to preserve water quality on a

broad scale under the Clean Water Act. United States v.

Riverside Bayview Ilomes, 474 U.S. 121 (1985). In

Riverside Bayview, respondents challenged the Army

Corps’ jurisdiction over Michigan wetlands they sought to

fill in preparation for construction of housing, arguing that

jurisdiction under the Clean Water Act did not extend to an

area of “low-lying, marshy land” adjacent to a navigable

lake. Jd. at 124. The Court rejected that argument,

concluding that “the language, policies, and history of the

Clean Water Act” supported the Army Corps’

determination that wetlands adjacent to navigable waters

were subject to Clean Water Act regulation. /d. at 139. In

12

unanimously upholding federal jurisdiction over these

wetlands, the Court obscrvcd:

In view of the breadth of federal regulatory

authority contemplated by the Act itsclf and

the inherent difficultics of defining precisc

bounds to rcgulable waters, the Corps’

ccological judgment about the relationship

between waters and their adjacent wetlands

provides an adequatc basis for a legal

judgment that adjacent wetlands may be

defined as waters under the Act.

474 U.S. at 134. The Court did not define or limit the

application of the term “adjacent” in Riverside Bayview.

Rather, the decision emphasized the ecological necessity of

protecting nearby wetlands in order to protect the navigable

waters with which thcy were connected. /d.

Significantly, the Court based its Riverside Bayview

holding largely on deference to the Army Corps’ scientific

conclusions about the role of adjacent wetlands in

preserving the quality of navigable waters. The Army

Corps had determined that adjacent wetlands “may affect

the water quality of adjacent lakes, rivers, and streams”

because the wetlands may “drain into” the larger water

bodies, and that they “may serve to filter and purify water

draining into adjacent bodies of water ... and to ... prevent

flooding and erosion....” /d. at 134. The Court concluded

that these determinations, rooted in “the Corps’ and EPA's

technical expertise,” were reasonable. /d. See also United

States v. Deaton, 332 F.3d 698, 712 (4th Cir. 2001)

(“breadth of congressional concern for protection of water

quality and aquatic ecosystems” justifies federal Clean

Water Act jurisdiction over headwater wetlands whose

waters sometimes flow through drainage ditches into the

13

natural tributary system of a navigable river), cert. denied,

541 U.S. 972 (2004), United States v. Pozsgai, 999 F.2d

719, 727-34 (3rd Cir. 1999) (citing broad jurisdictional

scope envisioned in Icgislative history of Clean Water Act

in upholding federal regulation of wetland adjaccnt to

navigable waters).

This Court next addressed the issuc of Clean Water

Act jurisdiction over wetlands in Solid Waste Agency of

Northern Cook County v. United States Army Corps of

Engineers. 531 U.S. 159 (2000). Under SWANCC, which

affirmed Riverside Bayview, federal regulators must

demonstratc a “significant nexus” between the wetland in

question and traditionally navigable waters in order to

establish jurisdiction under Scction 404(b) of the Clican

Water Act.'* /d. at 167.

" This test has also been used to justify Clean Water Act

jurisdiction over water bodies other than wetlands that are not

navigable in fact, but which affect navigable waters. In

Headwaters v. Talent Irrigation District, 243 F.3d 526 (9th Cir.

2001), for example, the Ninth Circuit held that certain irrigation

canals were subject to federal Clean Water Act jurisdiction. /d.

at 528-29. Although a system of mechanical gates separated the

artificial canals from nearby natural streams under normal

' circumstances, the court found that occasional water leaks from

the canals into the streams were sufficient to render them

“connected” and to establish Army Corps jurisdiction over the

canals. Jd. at 533-34. Cf United Siates v. Eidson, 108 F.3d

1336, 1342 (llth Cir. 1997) (upholding Clean Water Act

jurisdiction over artificial drainage ditches, which intermittently

fed into larger conduits which in turn emptied into Tampa Bay,

noting that polluted water need not flow “immediately or

continuously” from a non-navigable tributary into navigable

waters “in order to inflict serious environmental damages”).

14

In SWANCC, the Court ruled that a significant

nexus to navigable waters did not cxist where the only

asscricd basis for Army Corps jurisdiction over the

wetlands in question was thcir serving as habitat for

migratory birds. /d. Because the Army Corps’ claim to

jurisdiction was bascd cxclusively on the “Migratory Bird

Rule,” the SWANCC Court focused on the inadequacy of

that rule rather than on the question of the requisitc

hydrological connection between wetlands and navigable

watcrs.

Thus, the specific holding in SWANCC has little

bearing on the cases now before this Court, wherc

hydrological connections between the wetlands at issue and

navigable waterways have been demonstrated. In

establishing the “significant nexus” test, howcver, the

Court signaled that the determination of Clean Water Act

jurisdiction over wetlands is appropriatcly made by

agencies with technical expertise to evaluate the nature of

the hydrological connections between wetlands and

navigable waters.

In applying this Court’s decisions in Riverside

Bayview and SWANCC, courts have generally deferred to

expert agencies when they have found a “significant nexus”

between wetlands and navigable waters, even where the

hydrological connections have been seemingly remote. In

Treacy v. Newdunn Associates, for example, the Fourth

Circuit upheld federal jurisdiction over wetlands connected

to a traditionally navigable river through natural and

artificial waterways, even though water flowed from the

wetlands only “intermittently” and traveled along a

convoluted 2.4 mile path, including a ditch running under

an interstate highway, before reaching the river. 344 F.3d

407, 417 (4th Cir. 2003), cert. denied, Newdunn Assocs. v.

United States Army Corps of Engineers, 541 U.S. 972

15

(2004). In United States v. Deaton, supra, the Fourth

Circuit also found Clean Water Act jurisdiction over a

wetland arca whose path of hydrological connection to a

navigable river streiched morc than cight miles and

consisted in part of a human-made roadside ditch.

Similarly, in Northern California River Watch v.

City of Healdsburg, a district court found a significant

nexus betwcen an artificial gravel pit and the nearby

Russian River, whcre “the wetlands in question help[{cd]

filter pollutants cntcring the aquifer and hence the river

proper.” No. C01-04686, 2004 U.S. Dist. LEXIS 1008,

*29 (N.D. Cal. Jan. 23, 2004), No. 04-15442 (9th Cir.

argued Nov. 16, 2005). Based on this finding of a direct

water quality benefit provided by the wetland, the court

held that fedcral jurisdiction was appropriate even though

the water was exchanged through an underground aquifer

rather than a surface connection. In United States v.

Lamplight Equestrian Center, the Northern District of

Illinois found Clean Water Act jurisdiction appropriate

where seasonally saturated ground adjacent to a drainage

ditch created an intermittent hydrological connection to a

navigable river, observing that “[w]ater need not flow in an

unbroken line at all times to constitute a sufficient

connection to navigable water or its tributaries” for federal

Clean Water Act jurisdiction. No. 00 C 6486, 2002 U.S.

Dist. LEXIS 3694 at *20-*23 (N.D. Ill. Mar. 8, 2002).

In the cases now before the Court, the government

has reasonably determined that the wetlands at issue are

hydrologically connected to navigable waters and have a

Significant nexus to water quality and quantity in those

waters. Rapanos, 376 F.3d at 634, 639-40; Carabell, 391

F.3d at 708-10. The Rapanos petitioners, whose wetlands

bear an important hydrological connection to navigable

waters, Rapanos at 642-43, challenge federal jurisdiction

16

because of the artificial nature of portions of the connection

and the length and circuity of the route watcr travels |

between the wetlands and navigable waters. Where the

agency with authority and cxpertisc has found a significant

nexus, however, these arguments must fail. Deaton, 332

F.3d 698, Northern California River Watch v. City of

Healdsburg, 2004 U.S. Dist. LEXIS 1008.

Similarly, in Carabell, the court focused on the

Army Corps’ finding that the wetlands at issue provided

“water storage functions that, if destroyed, could result in

an increased risk of crosion and degradation of water

quality in” downgradicnt navigable waters. 391 F.3d at

706.- As in Treacy, 344 F.3d 407, and Lamplight

Equestrian Center, 2002 U.S. Dist. LEXIS 3694, the

intermittent nature of a connection docs not destroy its

ecological significance during the seasons when flooding or

secpage occur.

Petitioners ask this Court to evaluate the

hydrological connections between the particular wetlands at

issue in the instant cases and navigable waters, and to make

a determination that these connections are insufficient to

give rise to Clean Water Act jurisdiction. As this Court has

appropriately recognized, however, such determinations

must be made by experts, based on _ site-specific

information about the effects wetlands have on their

receiving waters. See Riverside Bayview, 474 U.S. at 133-

134; SWANCC 531 U.S. at 167.

Wetlands within a watershed may contribute

significant base flow to, attenuate erosive flows in, and

'* Indeed, as noted above, wetlands perform many important

functions during flooding.

17

remove cxcessive nutricnts, scdiments, and other

contaminants from downgradicnt navigable waters. Such

wetlands thus have a significant ncxus to navigable watcrs,

and should therefore be regulated under the Clean Water

Act.

PRESERVATION OF WATER

QUALITY. BY REGULATING

WETLANDS WITH A SIGNIFICANT

NEXUS TO NAVIGABLE WATERS IS

AN APPROPRIATE FEDERAL

FUNCTION UNDER THE COMMERCE

CLAUSE.

Contrary to the petitioners’ protestations, federal

jurisdiction over wetlands sharing a “significant nexus”

with navigable waters of the United States is entirely

appropriate under the Commerce Clause of the United

States Constitution. Congress may properly assert

jurisdiction pursuant to the Commerce Clause when it has a

rational basis for believing that the regulated activity

affects interstate commerce “sufficiently” to justify federal

regulation. United States v. Lopez, 514 U.S. 549, 557

(1995).

The Court has recognized three permissible

categories of regulation under the Commerce Clause:

regulation of channels of interstate commerce; protection of

instrumentalities of interstate commerce, including persons

or things traveling interstate; and regulation of activities

“having a substantial relation to” or “substantially

affecting” interstate commerce. /d. at 558-59. While

federal Clean Water Act jurisdiction includes direct

regulation of waters that are navigable in fact and thus

constitute “channels of commerce,” Congress appropriately

18

assumed jurisdiction over a much broadcr range of waters,

tributary to or otherwise influcncing navigable watcrs,

because they “substantially affect” interstate commerce. '*

In order “to restore and maintain the chemical, .

physical, and biological integrity of the Nation's waters,”

33 U.S.C. §1251(a), regulation of more than waters that are

navigable in fact is thus required. To achieve the stated

purpose of the Clean Water Act, agencics need the

flexibility to regulate tributarics to the Nation's watcrs,

wetlands with consistent or intermittent surface connections

to such watcrs and, in some instances, wetlands which arc

hydrologically “isolated,” but which nevertheless have a

significant nexus to the commercial and ecological value of

navigable waters.

in United States v. Gerke Excavating, 412 F.3d 804

(7th Cir. 2005), the Seventh Circuit rejected the argument

that federal jurisdiction over privately owned wetlands

exceeded the scope of federal Commerce Clause authority.

Like the wetlands at issue in Rapanos and Carabell, and

like many in the watershed of New York City’s drinking

water supply, the wetland at issue in Gerke was connected

'S In SWANCC, this Court considered whether Congress relied

solely upon the “channels of commerce” basis of jurisdiction for

the Clean Water Act but declined to reach a holding. 531 U.S. at

169 n.3, 172. Indeed, recognizing that the Clean Water Act

covers activities well beyond the use of channels of commerce,

the Court noted that to determine the extent of Clean Water Act

regulation permissible under the Commerce Clause, it “would

have to evaluate the precise object or activity that, in the

aggregate, substantially affects interstate commerce.” Id. at 173

(emphasis added). See also Rancho Viejo, LLC v. Norton, 323

F.3d 1062, 1071 (D.C. Cir. 2003).

19

only indirectly via a ditch, a creck, and then a

nonnavigable “river” to a river that was navigable in fact.

Id. at 805. The court held first that by restricting the filling

of wetlands that “supply some of the water in navigable

watcrways,” federal regulators were protecting channcls of

interstate commerce. The Seventh Circuit went on to notc

that federal jurisdiction is appropriate “even if the pollution

has no [physical] effect on naviyability” and the impact on

navigable watcrs’ quality is the sole basis for asserting

federal jurisdiction. /d. at 807.

Although filling a single wetland might sccm

attenuated from interstate commerce, through aggregation

such fill activities can “substantially affect interstate

commerce” and thus trigger federal jurisdiction under the

Commerce Clause. See Gerke, 412 F.3d at 806-07; see

also Citizens Bank v. Alafabco, 539 U.S. 52, 56-57 (2003)

(Commerce Clause power ‘may be exercised in individual

cases without showing any specific effect upon interstate

commerce’ if in the aggregate the economic activity in

question would represent ‘a general practice . . . subject to

federal control.’”); Gonzales v. Raich, _ U.S. _, 125

S.Ct. 2195, 2205-08 (2005).

As noted above, SWANCC and its subsequent

interpretations have established that a “significant nexus”

between a wetland and navigable waters is sufficient to

justify federal regulation of the wetland. Where there is a

significant nexus between wetlands and navigable waters,

impairment of the wetlands significantly threatens water

quality in the navigable body. This represents a

“substantial relation” between the regulated activity (filling

or other impairment of hydrologically connected wetlands)

and interstate commerce (as practiced via navigable

waters), and thus fulfills the test for Commerce Clause

jurisdiction. United States v. Lopez, 514 U.S. 549; United

20

States v. Gerke Excavating, 412 F.3d at 806. See also

United States v. Cortes, 299 F.3d 1030, 1036 (9th Cir.

2002), United States v. Kung-Shou Ho, 311 F.3d 589, 600-

04 (Sth Cir. 2002).

The functions of wetlands in the New York City

watershed illustrate the substantial relationship between

federal regulation of wetlands and interstate commerce.

Ensuring that plans to dredge or fill wetlands are subject to

appropriate revicws and approvals supports the

maintenance of a clean drinking water supply - a service

the absence of which would substantially affect interstate

commerce. Protecting wetlands from fill and other

impairments also helps wetlands store and discharge water

when appropriate, thus ensuring a sicady quantity and

velocity of water flow in navigable bodies (in contrast to

flood or drought conditions which can impair drinking

water supplies). See, e.g., Gerke, 412 F.3d at 806.

2)

CONCLUSION

For all the forcgoing rcasons, amicus the City of

New York respectfully urges this Court to affirm the

decisions of the Court of Appeals for the Sixth Circuit in

order to avoid scrious negative consequences for the many

public agencics and authoritics nationwide involved in

maintaining clean and safe water supplics.

Respectfully submitted,

MICHAEL A. CARDOZO

Corporation Counscl of the

City of New York

Attorncy for Amicus Curiae

The City of New York

100 Church Street

New York, New York 10007

(212) 788-1585

LEONARD J. KOERNER,*

HILARY MELTZER,

AMANDA GOAD,**

of Counsel.

*Counsel of Record

** Awaiting Admission to the Bar of the State of New York