# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A46

## Record

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

## Text

4
Nos. 04-1034, 04-1384

IN THE
Supreme Court of the United States

JOHN A. RAPANOS, et ai.,
Petitioners,
v.

UNITED STATES OF AMERICA,
Respondent.

JUNE CARABELL, et ai.,
Petitioners,
v.

UNITED STATES ARMY CORPS OF ENGINEERS, et ai.,
Respondents.

On Writs or CERTIORARI TO THE UNITED STATES

CALIFORNIA, CONNECTICUT, DELAWARE, FLoripa, Hawau, ILLINors,
Iowa, Kentucky, Louisiana, Maine, MARYLAND, MASSACHUSETTS,
Minnesota, Mississippi, Missourt, MONTANA, New Hampsuire, New
Jersey, New Mexico, Nortu Carouina, On10, OKLAHOMA, OREGON,
Ruope Is_tanp, Soutnh CAROLINA, TENNESSEE, VERMONT,
WASHINGTON, AND Wisconsin, Tue District Or Co_umsia, THE
PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND
THe INTERNATIONAL ASSOCIATION OF Fish AND WILDLIFE AGENCIES
As Amici Curiaz In Support Or RESPONDENTS

Micuael A. Cox EvioT SPItzER
Attorney General of the Attorney General of the
State of Michigan State of New York
THomas L. Casey CarTuN J. HALLIGAN*
Solicitor General Solicitor General
P.O. Box 30212 120 Broadway
Lansing, MI 48909 New York, NY 10271
(517) 373-1124 (212) 416-8016

* Counsel of Record
Attorneys for Amici Curiae
(Additional Attorneys Listed on Signature Page)

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............--..+-.
INTEREST OF AMICICURIAE .............-.

SUMMARY OF ARGUMENT ...............-.-

WETLANDS ADJACENT TO
TRIBUTARIES OF NAVIGABLE WATERS
ARE “WATERS OF THE UNITED STATES”
QOS SEE ME 6 oasis siuseevescss

A. The Experience of the States in
Implementing the Act Confirms the
Importance of Headwaters. to
Downstream “Navigable” Waters. .....

B. Requiring a Case-by-Case Determination
of a Significant Effect for Each Wetland
Would Undermine State and Federal
Efforts to Control Water Pollution.

COVERAGE OF WETLANDS ADJACENT TO
TRIBUTARIES IS NECESSARY
TO MAINTAIN THE RESPECTIVE ROLES
ASSIGNED BY THE ACT TO THE
FEDERAL AND STATE GOVERNMENTS

1]

14

Contents
Page

Ill. FEDERAL POWER OVER INTERSTATE
COMMERCE INCLUDES THE POWER TO
REGULATE DISCHARGES INTO
WETLANDS ADJACENT TO NON-
NAVIGABLE TRIBUTARIES ........... 18

CREE Fic ccedccurvecnendsuheoes bese 23

iii

TABLE OF AUTHORITIES

Page

CASES
Arkansas v. Oklahoma,

Se es DRG: cdovavicenaneabedBéees ka 14
Baccarat Fremont Developers, LLC v.

U.S. Army Corp of Eng’rs,

425 F.3d 1150 (9th Cir. 2005) ............... 21
Chem. Waste Mgmt., Inc. v. Hunt,

OR Re rere? Tere 21
City of Milwaukee v. Illinois,

er ED 6 dp cscewbonteemacese se 10, 14
Cont’! T.V., Inc. v. GTE Sylvania Inc.,

PEROT UR sea barker cdet-cocnreane vex 14
EPA v. California,

ER a ee 12
Friends of the Earth v. Hintz,

800 F.2d 822, 824 (9th Cir. 1986) ............ 21
Gonzalez v. Raich,

Pa ae SUPE .accccaptawessvess 19, 20, 21
Harris v. United States,

Se PE 6b oo Cas chdicvascneeue de 19

Hill v. Boy,
144 F.3d 1446 (llth Cir. 1998) .............. 21

iv

Cited Authorities
Page

Hoffman Homes, Inc. v. U.S. EPA,

op Te Le | es zl
Int'l Paper Co. v. Ouellette,

ye ee COS S euckes coddeanan ce 10, 14, 15
Mich. Peat v. U.S. EPA,

Sem Was See Cl Ge, TOUED «cc ccdcccvsvonsen 21
Monongahela Power Co. v. Marsh,

ee a Oe Cae Ge BOFD. bcc cesncccperers 21
Moskal v. United States,

sy Ge COE o's on covucevansanoessnee 17
Oklahoma ex rel. Phillips v. Guy F- Atkinson Co.,

DEP a SOC POES eo cnvcuapecceceectsnasan 20
Save Our Sonoran, Inc. v. Flowers,

408 F.3d 1113 (9th Cir. 2005) ............... 21
Solid Waste Agency v. U.S. Army Corps of Engineers,

os ee. | rey rr er 13,21
Stone v. INS,

See Se OE 0 ba ccvdcheanvsdsatbesss 17
The Daniel Ball,

he fs | Pere irir err rt 19

United States v. Brace,
43 RSG 847 GS Cer. BERG cc ccocccscocccnces 21

Vv

Cited Authorities
Page

United States v. Deaton,

209 F.3d 331 (4th Cir. 2000) ................ 21
United States v. Grand River Dam Auth.,

rh cae wubhivendeeeéee tt 19
United States v_ Lopez,

Go 0 ee ee te ee dae be be 19, 22
United States v. Morrison,

EY TT eT eee 22
United States v. Pozsgai,

Pe CD cvcewkecedncescces 21
United States v. Rio Grande Dam & Irrigation Co..,

i i. ioekctndeaedandceces 19-20
United States v. Riverside Bayview Homes, Inc.,

ED be dbcdecwadkes es bee 6, 13, 17, 21
United States v. Wilson,

SE ae GUE BODUP cocccecicccccccs 21
Weyerhaeuser Co. v. Costle,

Ey Ee Gin GE EOUED ccocccecsceces 12
CONSTITUTION

Ss Ge GIR EBS ccc cccccccsvccccccsecss 18

vi

Cited Authorities
Page

STATUTES
Rivers and Harbors Act of 1899, ch. 425, 30 Stat. 1121

(codified at 33 U.S.C. § 407) ............... 8-9, 16
PRE wee enecactincedsessecestane 1S
RD Pee eee 5
BP Pen SD BED coccccercnuecscétcucsses 13, 16, 17
PED Os dons 0c hbb60 cbbGK thn ced ete 5
REGULATIONS
+ & ) » EE error = 5, 10
SEED preccccodeunaveebastateccer 5, 10
SP ENED 0 cacacotdndeavaceckanbedss 3
SS, ee eee 3
40 Fed. Reg. 31,320 (July 25, 1975) ............ 5

65 Fed. Reg. 12,818 (Mar. 9, 2000) ............. 5

vil

Cited Authorities

CONGRESSIONAL DOCUMENTS

S. Rep. No. 92-414 (1971), reprinted in
i ah on ko dsancedsesuceeres

MISCELLANEOUS AUTHORITY

Bruce J. Peterson et al., “Control of Nitrogen Export
from Watersheds by Headwater Streams,”
SE. CED. Sin ve ve kcesuvedtebodced

Carol A. Johnston, “Sediment and Nutrient Retention
by Freshwater Wetlands: Effects on Surface Water
Quality,” 21 Critical Revs. Envtl. Control 491
SEED os abuibsdude6stbniseusseée3ennasede

Charles A. Rhodes, Jr., Findings in the Mid-Atlantic
Region Concerning Implications for Clean Water
Act Jurisdiction for Various Interpretations of
SWANCC, at 10 (2005), available at http://

www.aswm.org/calendar/legal/rhodes.pdf. .....

Cliff R. Hupp & David E. Bazemore, “Spatial and
Temporal Aspects of Sediment Deposition in West
Tennessee Forested Wetlands,” 141 J. Hydrology
SEP EIEEED csacounepondetaabetsedesouese:

Comments of David R. Cox, Technical Guidance
Supervisor, North Carolina Wildlife Resources
Commission on the ANPRM (Apr. 15, 2003) ...

Comments of Jan H. Reitsma, Director, Rhode Island

Department of Environmental Management on the
ANPRM (Apr. 16, 2003) ...............+.4..

Page

12

Cited Authorities

Comments of Jeffrey R. Vonk, Director, lowa
Department of Natural Resources on the ANPRM
GREE, DE NED 6 ce hmdedbdv ccs cess necwsesdce

Comments of Larry D. McKinney, Senior Director,
Aquatic Resources, Texas Parks and Wildlife
Department on the ANPRM (Apr. 15, 2003) ....

Comments of Lori F. Kaplan, Commissioner, Indiana
Department of Environmental Management
ROE HER EOD oc cbsvdedecedecccccoossceres

Comments of the Delaware Department of Natural
Resources and Environmental Control (Apr. 16,
SE on dbbe ds puteedenaksekee sans née pbax<

Comments of the Tennessee Wildlife Resources
Agency on the ANPRM (Feb. 26, 2003) .......

Corps of Engineers, New York District, Public Notice:
Regional Conditions for Nationwide Permits
and Designation of Critical Resource Waters, at 2
(May 21, 2002), available at http://
www .nan.usace.army.mil/business/buslinks/

regulat/pnotices/nwp_pn.pdf. ................

Judy L. Meyer et al., Where Rivers Are Born: The
Scientific Imperative for Defending Small Streams
and Wetlands 6-7 (2003) ...........+4.-005-

Lance D. Wood, “Don’t Be Misled: CWA Jurisdiction
Extends to All Non-Navigable Tributaries of the
Traditional Navigable Waters and to Their Adjacent
Wetlands,” 34 Envtl. L. Rep. 10,187 (2004) ....

Page

12

15

15

10

10

9-10

17

ix

Cited Authorities

Lars O. Hedin et al., “Thermodynamic Constraints
on Nitrogen Transformations and Other
Biogeochemical Processes at Soil-Stream
Interfaces,” 79 Ecology 684 (1998) ...........

Mark M. Brinson et al. U.S. Army Corps of
Engineers, A Guidebook for Application of
Hydrogeomorphic Assessments to Riverine
TGOROIE 060 ndsnwse sens cheneniooens

Mark R. Walbridge & Judith P. Struthers, “Phosphorus
Retention in Non-Tidal Palustrine Forested
Wetlands of the Mid-Atlantic Region,” 13 Wetlands
EE inc dnddhaaabslaaeh eda cadexs<

Memorandum from Diana Klemans, Chief, Surface
Water Assessment Section, Water Bureau, Mich.
Dep’t of Envtl. Quality, to S. Peter Manning, Dep’t
of Attorney General (Jan. 10, 2006) ...........

National Research Council, Wetlands: Characteristics
SEC o 6c ctdcdetosdecbnéetes

N.Y. State Dep’t of Envtl. Conservation & Conn.
Dep’t of Envtl. Prot., A Total Maximum Daily
Load Analysis To Achieve Water Quality Standards
for Dissolved Oxygen in Long Island Sound
(Dec. 2000), available at http://www.dec.state.
ny.us/website/dow/tmdllis.pdf................

Oliver A. Houck, The Clean Water Act TMDL
Program: Law, Policy, and Implementation (2d ed.
Di cusntiddwusn 6udcdtsdeeas cloedeven«

Page

17

15

x

Cited Authorities

Peter M. Groffman et al., “Nitrate Dynamics in
Riparian Forests: Microbial Studies,” 21 J. Envel.
CP GPCR 6 vido cvbcckecnces insases

Robert M. Holmes et al., “Denitrification in a
Nitrogen-Limited Stream Ecosystem,”
33 Biogeochemistry 125 (1996) .............

Thomas F. Waters, Sediment in Streams: Sources,
Biological Effects and Control (1995) .........

U.S. EPA, “Great Lakes Strategy 2002 - A Plan for
the New Millennium,” http://www.epa.gov.ginpo/
gis (last visited Jan. 12, 2006) ...............

U.S. Fish & Wildlife Service & U.S. Census Bureau,
2001 National Survey of Fishing, Hunting, and
Wildlife - Associated Recreation (2002) ........

U.S. Nat’! Marine Fisheries Service, Fisheries of the
United States 2004 (2005) .........--0c eens

Vt. Dep’t of Envtl. Conservation & N.Y. State Dep’t
of Envtl. Conservation, A Phosphorus Budget,
Model, and Load Reduction Strategy for Lake
Champlain (1997), http://www.anr.state.vt.us/dec/
waterq/lakes/docs/|p_lcdfs-finalreport.pdf. .....

Mich. Comp. Laws. § 324.30101 ...............

N.Y. Environmental Conservation Law § 17-0105 ...

S.C. Code Ann. § 48-1-10 2.2... eee cece e eee

Page

INTEREST OF AMICI CURIAE'

For three decades, federal and state agencies, courts, and
private parties have understood the federal Clean Water Act to
regulate the discharge of pollutants into “traditional” navigable
waters, their non-navigable tributaries, and wetlands adjacent
to these bodies.? These cases present the question of whether
the Act covers wetlands adjacent to non-navigable tributaries
of traditional navigable waters — in particular, whether section
404 of the Act requires a person to obtain a permit from the
U.S. Army Corps of Engineers before discharging dredge
or fill material into these wetlands. While amici curiae
States, the District of Columbia, the Pennsylvania Department
of Environmental Protection, and the International Association
of Fish and Wildlife Agencies (“IAFWA”)’ agree that

1. Under Rule 37.4 of this Court, amici States and the District of
Columbia are not required to obtain consent for the filing of this brief. The
parties have consented to the filing of this brief by the Pennsylvania
Department of Environmental Protection, a State agency, and the
International Association of Mish and Wildlife Agencies. This brief was not
written in whole or part by counsel for a party, and no one other than
amici made a monetary contribution to its preparation and submission.

2. In this brief, the phrase “traditional navigable waters” refers to waters
that ase used (or susceptible to use) in interstate or foreign commerce, and
the phrase “non-navigable” or “headwater” tributaries refers to tributaries
that are not traditional navigable waters. We note, however, that traditional
navigable waters include many tributaries that historically were used in
commerce by, for example, fur traders or timber companies floating
logs to their mills. Additionally, in some States, waters that can be used
by recreational vessels like canoes are considered “navigable.”

3. The IAFWA is a not-for-profit corporation whose members
include the fish and wildlife agencies of all fifty States, the
Commonwealth of Puerto Rico, and seven Canadian provinces and
territories, as well as federal and dominion agencies having jurisdiction
and responsibility for fish and wildlife resources. For over one hundred
years, the Association has coordinated efforts of public agencies
responsible for protection and management of North American fish and
wildlife resources, and it has participated as amicus curiae in more than
20 cases.

2

the federal government should regulate intrastate activity only
when important national interests are at stake, the filling of or
other discharge of pollutants into wetlands adjacent to the
nation’s tributaries presents such an occasion. Amici therefore
urge this Court to affirm the Sixth Circuit's decisions in these
consolidated cases.

The issues presented by these cases are important to amici
for three reasons. First, water flows downhill, and each of the
lower 48 States has water bodies that are downstream of one or
more other States. As set forth in the Appendix to this brief,
every State in the continental United States has at least one
traditional navigable water with a portion of that river or lake
within one or more other States; many have several such waters.
Because wetlands adjacent to non-navigable tributaries
profoundly influence the quantity, quality, and biological
integrity of downstream waters, amici strongly support federal
protection for these wetlands.

Petitioners are mistaken in suggesting that the regulation
of wetlands adjacent to tributaries has no bearing on the
regulation of either navigable waters or their non-navigable
tributaries. Wetlands generally drain into the tributaries or other
waters to which they are adjacent, and the vitality of the lower
reaches of watersheds is inseparably connected with the vitality
of tributaries and their adjacent wetlands. The federal agencies
have thus properly applied the Act to both non-navigable
tributaries and to the wetlands adjacent to them for over thirty
years, and a contrary interpretation would frustrate the Act’s
purpose of restoring and maintaining the physical, chemical and
biological integrity of the nation’s waters.

Second, maintaining consistency among water pollution
programs throughout the nation is essential. The Clean Water
Act is key to achieving this relative parity, because it creates a
federal “floor” for water pollution control.

3

Third, over the past three decades, the States have come to
rely on the Clean Water Act’s core provisions and have structured
their own water pollution programs accordingly. The States
already play a vital role in administering parts of the Clean Water
Act, but they would be heavily burdened, both administratively
and financially, if forced to assume sole responsibility for
regulating fill activities in wetlands adjacent to non-navigable
tributaries.‘

SUMMARY OF ARGUMENT

1. Wetlands are both practically and ecologically
inseparable from the waters they abut. Because the Clean Water
Act plainly covers the tributaries of traditional navigable waters,
it covers the wetlands adjacent to those tributaries as well. Even
if the primary goal of the Clean Water Act is viewed narrowly
as merely controlling pollution in traditional navigable waters,
coverage of wetlands adjacent to non-navigable tributaries is
essential because a large portion of the pollution in traditional
navigable waters is originally discharged into non-navigable
tributaries and their adjacent wetlands.

Federal regulation is particularly important because
discharges into non-navigable tributaries or their adjacent
wetlands in one State often affect the waters of a downstream
State. Without federal standards, the downstream State would
find itself significantly hampered in protecting its own water
quality and preventing harmful fluctuations in water quantity.

4. This is true even for the two States — Michigan and New Jersey
— that administer the wetland program under section 404(g) of the
Act. See 40 C.F.R. §§ 233.70, 233.71. While these States have assumed
primary authority for permitting and enforcement, federal agencies retain
the right to review and veto permit applications and to bring enforcement
actions. The state and federal agencies act as partners, sharing
information, resources, and enforcement responsibilities. Loss of
jurisdiction under the Act would not only eviscerate state section 404
programs but would leave these States without this federal backstop.

4

It is not enough for the Clean Water Act to be invoked only
when there is proof that a specific discharge is connected to
navigation or interstate movement. Even if the chances are small
that any particular discharge will reach a downstream State or a
traditional navigable waterway, collectively such discharges
have an enormous effect — often the dominant effect — on
water quality and quantity. Furthermore, a case-by-case approach
would be inherently unpredictable, costly, and immensely
burdensome both for public agencies and for property owners
needing permits from them. For this reason, in enacting the Clean
Water Act, Congress explicitly rejected the case-by-case
approach that the Act’s predecessor, the Rivers and Harbors
Act, had taken.

2. Comprehensive coverage under the Clean Water Act is
necessary to maintain t..* balance between federal and State
authority established by the Act. The Act preempts certain
common-law remedies traditionally used to address interstate
water pollution, leaving the federal statutory provisions as the
primary mechanism for protecting downstream States from the
effects of upstream pollution. Curtailing the Act’s coverage
would also unfairly require States to impose disproportionate
limits on in-state sources to offset unregulated upstream

discharges.

Coverage of wetlands adjacent to non-navigable tributaries

also gives force to a provision of the Act, section 404(g), that
~~ allows States to assume administration of the federal program
for discharges of fill material into wetlands except for those
wetlands that are adjacent to traditional navigable waters. If
those were the only wetlands covered by the Clean Water Act,
then the statutory provision would be practically meaningless.

3. Respondents’ reading of the Clean Water Act does not
raise any serious question about the Act’s constitutionality under
the Commerce Clause. The Act is a necessary and proper

5

regulation of activity that threatens traditional navigable waters,
which are channels of interstate commerce. It likewise properly
regulates a class of activity that substantially affects interstate
commerce.

ARGUMENT

I, WETLANDS ADJACENT TO TRIBUTARIES OF
NAVIGABLE WATERS ARE “WATERS OF
THE UNITED STATES” UNDER THE ACT

The core provision of the Clean Water Act — the prohibition
of “discharge of any pollutant,” including fill material, without
a permit, 33 U.S.C. § 1311(a) — applies to discharges into
“navigable waters,” which the Act defines as the “waters of the
United States, including the territorial seas.” 33 U.S.C.
§ 1362(7), (12)(A). For the last thirty years, the federal agencies
charged with implementing the Act have interpreted the phrase
“waters of the United States” to include “traditional”
navigable waters; all tributaries of those waters, including those
that are intermittent and ephemeral; and wetlands
“adjacent” to traditional navigable waters or their tributaries.’
33 C.FR. § 328.3(a)(1),(S),(7) (Corps definition); 40 C.F.R.
§ 230.3(s)(1),(5),(7) (EPA definition); 40 Fed. Reg. 31,320,
31,324-25 (July 25, 1975). State agencies and courts have done
the same. This longstanding interpretation is correct and should
be affirmed.

A. The Experience of the States in Implementing the
Act Confirms the Importance of Headwaters to
Downstream “Navigable” Waters.

These cases are not about the regulation of hydrologically
isolated wetlands, as petitioners suggest. The wetlands at issue
in these cases are those that this Court has recognized are

5. The Corps defines intermittent streams as those that have “flowing
water during certain times of the year .. .,” and ephemeral streams as those
with “flowing water oniy during, and for a short duration after, precipitation
events in a typical year. ‘65 Fed. Reg. 12,818, 12,897-98 (Mar. 9, 2000).

6

“inseparably bound up” with the open waters to which they are
adjacent. United States v. Riverside Bayview Homes, Inc., 474
U.S. 121, 134 (1985). Wetlands tend to drain into adjacent
waters, either constantly or intermittently, so that discharges
into the wetlands are effectively the same as discharges into the
waters. Jd. The Clean Water Act would be eviscerated if it applied
only to tributaries of navigable waters and not to the wetlands
adjacent to those tributaries.

Coverage under the Act of wetlands adjacent to tributaries
is essential because those waters strongly influence the quantity
and quality of water entering traditional navigable waters. They
retain sediment that otherwise would be transported
downstream, where it might block the flow of water or release
other pollitants.* They also play a major role in the regulation
of downstream water chemistry, as, for example, by transforming
excess nitrate leaking from septic systems and agricultural fields
into harmless gases through the natural process of
denitrification.’ And headwater wetlands also reduce flood peaks

6. See, e.g., Thomas F. Waters, Sediment in Streams: Sources,
Biological Effects and Control (1995); Cliff R. Hupp & David E.
Bazemore, “Spatial and Temporal Aspects of Sediment Deposition in
West Tennessee Forested Wetlands,” 141 J. Hydrology 179 (1993); Mark
R. Walbridge & Judith P. Struthers, “Phosphorus Retention in Non-Tidal
Palustrine Forested Wetlands of the Mid-Atlantic Region,” 13 Wetlands
84 (1993); Carol A. Johnston, “Sediment and Nutrient Retention by
Freshwater Wetlands: Effects on Surface Water Quality,” 21 Critical
Revs. Envtl. Control 491 (1991).

7. See, e.g., Bruce J. Peterson et al., “Control of Nitrogen Export
from Watersheds by Headwater Streams,” 292 Sci. 86 (2001) (small
headwater stream in Michigan and others elsewhere throughout the
United States); Lars O. Hedin et al., “Thermodynamic Constraints on
Nitrogen Transformations and Other Biogeochemical Processes at Soil-
Stream Interfaces,” 79 Ecology 684 (1998) (small Michigan stream),
Robert M. Holmes et al., “Denitrification in a Nitrogen-Limited Stream
Ecosystem,” 33 Biogeochemistry 125 (1996) (small Arizona stream),
Peter M. Groffman et al., “Nitrate Dynamics in Riparian Forests:
Microbial Studies,” 21 J, Envtl. Quality 666 (1992) (small Rhode Island
streams).

7

in navigable rivers and streams by temporarily storing water
and gradually releasing it to maintain normal flow.*

The States’ own studies confirm the importance of
tributaries and their adjacent wetlands for downstream water
quality. For example, an analysis of Lake Champlain by Vermont
and New York concluded that of the estimated 647 metric tons
of phosphorus (which tends to deplete dissolved oxygen and
thereby create “dead zones” in which most marine life cannot
survive) entering the lake from all sources each year, 573 tons
— 89% — entered the lake through its tributaries, most of which
are non-navigable and intrastate.’ Similarly, Rhode Island's
studies have shown that “small, non-navigable tributary streams
[are] important contributors of pollutant loadings in nearly every
case.” Comments of Jan H. Reitsma, Director, Rhode Island
Department of Environmental Management on the ANPRM 2
(Apr. 16, 2003)."°

The States’ studies also confirm that this is an interstate
issue, because pollutants discharged in one State may contribute
significantly to the impairment of water quality in a traditional
navigable water in another State. For example, a study of Long
Island Sound by New York and Connecticut found that 13.5%
of the estimated 100,436 tons of nitrogen entering the Sound

8. See, e.g., Mark M. Brinson et al., U.S. Army Corps of Engineers,
A Guidebook for Application of Hydrogeomorphic Assessments to
Riverine Wetlands 15, 21, 24, 27 (1995); National Research Council,
Wetlands: Characteristics and Boundaries 34-5, 40-1 (1995).

_ 9. Vt. Dep't of Envtl. Conservation & N.Y. State Dep’t of Envitl.
Conservation, A Phosphorus Budget, Model, and Load Reduction
Strategy for Lake Champlain 95 tbl. 28 (1997), http://
www.anr.state, vt.us/dec/waterg/lakes/docs/Ip_icdfsfinalreport.pdf.

10, These comments, as well as other States’ comments cited in
this brief, are available at http://www.asiwpca.org/statecomments.htm.

each year came from headwater tributary watersheds north of
Connecticut."

The biological links between headwaters and traditional
navigable waters, and the connection between these waters’
biological health and their role in interstate commerce, are
illustrated by the life cycles of anadromous fish — those that
live at sea but spawn in freshwater — such as the pacific salmon
and steelhead trout of California and the Northwest and the
alewifes of the East Coast. These fish need tributaries with
specific water quantity and quality in which to spawn and rear
their young. The salmon and trout of the Great Lakes — which
as adults live in the lakes but spawn and live as fry in the
tributaries— have similar requirements. The presence of these
fish in the nation’s waterways directly or indirectly supports
commercial and recreational activities that generate at least
hundreds of millions of dollars of economic activity annually."

Coverage of headwaters is also consistent with the long
history of federal regulation in this area. Congress recognized
the necessity of regulating tributaries to protect traditional
navigable waters under Section 13 of the Rivers and Harbors

11. N.Y. State Dep’t of Envtl. Conservation & Conn. Dep't of
Envtl. Prot., A Total Maximum Daily Load Analysis To Achieve Water
Quality Standards for Dissolved Oxygen in Long Island Sound 16-18
(Dec. 2000), available at http://www.dec.state.ny.us/website/dow/
tmdllis.pdf.

12. See, e.g., U.S. EPA, “Great Lakes Strategy 2002 - A Plan for
the New Millennium,” http://www.epa.gov.ginpo/gls (last visited Jan.
12, 2006) (the annual value of the commercial and sport fishery of the
Great Lakes is estimated at over $4.5 billion); U.S. Fish & Wildlife
Service & U.S. Census Bureau, 200] National Survey of Fishing,
Hunting, and Wildlife - Associated Recreation 58, tb\.4 (2002) (33% of
Great Lakes recreational fishing targeted salmon or steelhead trout);
U.S. Nat! Marine Fisheries Service, Fisheries of the United States 2004
1-3 (2005) (listing the value of the 2004 commercial harvest for pacific
salmon, alewife, striped bass, and bluefish (the last two of which prey
on alewifes) at $287 million).

9

Act of 1899 (sometimes also called the Refuse Act), ch. 425,
§ 13, 30 Stat. 1121, 1152 (codified at 33 U.S.C. § 407). Among
other things, this provision prohibited certain discharges “into
any tributary of any navigable water” and even “on the bank of
any tributary of any navigable water.” 33 U.S.C. § 407. Congress
intended the Clean Water Act’s broader language to cover more
than the Rivers and Harbors Act did, not less. See S. Rep. No.
92-414, at 70 (1971) (explaining that “the Refuse Act authority
has significant gaps . . . that render it seriously inadequate as a
means of implementation of a water pollution control program’’),
reprinted in 1972 U.S.C.C.A.N. 3668, 3736. As Congress stated,
the Clean Water Act is meant to continue federal coverage of
non-navigable tributaries of traditional navigable waters. /d. at
77 (noting that the broad definition of “navigable waters” is
intended to include “tributaries thereof”), reprinted in 1972
U.S.C.C.A.N. at 3742.

Moreover, the headwaters are vital in their own right. For
example, the EPA found that non-navigable tributaries in the
mid-Atlantic region contain 558 separate sources of drinking
water and serve a population of 5.2 million." Similarly, certain
non-navigable bodies of water and wetlands in the New York
City Water Supply Watershed have been designated Critical
Resource Waters because of their importance in assuring he
purity of the city’s water.'*

Non-navigable tributaries comprise at least 75% of the
nation’s stream and river miles, see Judy L. Meyer et al., Where

13. See Charles A. Rhodes, Jr., Findings in the Mid-Atlantic Region
Concerning Implications for Clean Water Act Jurisdiction for Various
Interpretations of SWANCC, at 10 (2005), available at hitp://
www.aswm.org/calendar/legal/rhodes.pdf.

14. Corps of Engineers, New York District, Public Notice:
Regional Conditions for Nationwide Permits and Designation of Critical
Resource Waters, at 2 (May 21, 2002), available at http://
www.nan.usace.army.mil/business/buslinks/regulat/pnotices/

nwp_pn.pdf.

10

Rivers Are Born: The Scientific Imperative for Defending Small
Streams and Wetlands 6-7 (2003), and it is these tributaries that
adjacent wetlands mostly abut. The Delaware Department of
Natural Resources and Environmental Control has determined
that fewer than 10% of the freshwater wetlands in that State are
directly adjacent to traditional navigable waters. '* Similarly, the
Tennessee Wildlife Resources Agency has found that the
majority of the State’s wetlands are not adjacent to navigable
streams." The predominance of non-navigable tributaries and
their adjacent wetlands led the federal agencies to reasonably
conclude that they are covered by the Act, which this Court has
repeatedly characterized as comprehensive, e.g., City of
Milwaukee v. Illinois, 451 U.S. 304, 317-19 (1981), and has
described as covering “virtually all surface water in the country,”
Int'l Paper Co. v. Ouellette, 479 U.S. 481, 486, 492 (1987).
See 33 C.FR. § 328.3(a)(1),(5),(7) (Corps definition); 40 C.F.R.
§ 230.3(s)(1),(5),(7) (EPA definition).

The contrasting interpretation of the Act urged by Amici
American Petroleum Institute (“APT”) and National Association
of Homebuilders (“Homebuilders”) has nothing to recommend
it. They argue that decades-old drainage ditches, such as the
county drainages next to the Carabell wetland, and other non-
navigable tributaries that drain several or many areas ought to
be regarded not as tributaries but as “point sources”— i.e.,
original sources of discharges — that require permits under the
Act. Homebuilders Br. at 2-12; API Br. at 16-18."’ If true,

15. Comments of the Delaware Department of Natural Resources
and Environmental Control (Apr. 16, 2003), at 2.

16. Comments of the Tennessee Wildlife Resources Agency on
the ANPRM (Feb. 26, 2003), at 2.

17. Homebuilders mistakenly claims that the Sutherland-Oemig
drain at issue in Carabell is treated as a point source rather than a
tributary under the relevant permit. Homebuilders Br. at 8-9. In fact,
the permit authorizes the discharge of storm water to the drain, which
indicates that the drain is being treated as a tributary, not a point source.
Homebuilders Br. at App. 3b, 6b.

11

whenever a tributary merges with another stream it could be
called a discharge point. But such a reading has no support in
the structure of the Act, which aims to control pollution at its
source rather than permitting pollutants to enter the water and
dealing with them at some downstream location. See S. Rep.
No. 92-414, at 77 (1972) (“[{I}t is essential that discharge of
pollutants be controlled at the source.”). That reading of the
statute would also impose enormous new burdens on landowners
who do not add pollution to water but happen to own the site at
which a tributary flows into navigable water, and who would
have to obtain a permit for every single drainage ditch and non-
navigable tributary."

B. Requiring a Case-by-Case Determination of a
Significant Effect for Each Wetland Would
Undermine State and Federal Efforts to Control
Water Pollution.

Perhaps recognizing the importance of wetlands adjacent
to headwater tributaries, some of petitioners’ amici (including
the States of Alaska and Utah) argue that the Act can be invoked
only after a case-by-case assessment of whether any particular
wetland “significantly affect{[s]” the flow or condition of a
traditional navigable waterway. Alaska Br. at 10. This

18. Morzover, since many state laws do not distinguish between
man-made drains and natural streams, treating them differently under
federal law would unnecessarily complicate the administration of state
programs. See, e.g., Mich. Comp. Laws. § 324.30101(f) (defining
“{ijniand lake or stream” to include “a river, stream, or creek which
may or may not be serving as a drain” and “any other body of water that
has definite banks, a bed, and visible evidence of a continued flow or
continued occurrence of water”); id. § 324.3101(g) (defining “[w)Jaters
of the state” as “groundwaters, lakes, rivers, and streams and all other
watercourses and waters .. . within the jurisdiction of this state”); N.Y.
Environmental Conservation Law § 17-0105(2) (defining “waters of
the state” to include natural or artificial water bodies); S.C. Code Ann.
§ 48-1-10(2) (same).

12

unworkable proposal is contrary to the history and structure of
the Act.

Requiring wetland-by-wetland analysis would make
administration of the Clean Water Act cumbersome and wildly
unpredictable." Without extensive studies, it is often unclear
whether a particular wetland “significantly affects” traditional
navigable waters, and thus whether state or federal authorities
have jurisdiction. Property owners would be uncertain whether
they need a permit and, if so, from which agency they could
obtain one. And because discharges often have significant
downstream effects only in the aggregate, a wetland-specific
analysis will be largely meaningless.

That is why Congress in the Clean Water Act squarely
rejected the effects-based approach of earlier federal water-
pollution-control laws that were widely regarded as having
failed. See, e.g., EPA v. California, 426 U.S. 200, 202-06 (1976)
(discussing the categorical approach to controlling water
pollution adopted in the 1972 amendments in contrast to the
ambient water-quality-based discharge-by-discharge approach
taken by the Federal Water Pollution Control Act before 1972);
Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1042-43 (D.C. Cir.
1978) (discussing the scientific and administrative difficulties
of tying water pollution controls to discharge-by-discharge
effects). This Court likewise rejected a wetland-by-wetiand
approach to Clean Water Act jurisdiction, noting that while
“jt may well be that not every adjacent wetland is of great

19. See Comments of David R. Cox, Technical Guidance
Supervisor, North Carolina Wildlife Resources Commission on the
ANPRM 5 (Apr. 15, 2003) (“Without this type of presumptive foundation
for jurisdiction, a wetland-by wetland demonstration of hydrologic
relationships would make enforcement of the [Act] impossible.”);
Comments of Jeffrey R. Vonk, Director, lowa Department of Natural
Resources on the ANPRM (Mar. 31, 2003), at 3 (“The burden of
requiring regulatory agencies to make wetland by wetland determinations
based on physical linkages to streams is unreasonable and will make
CWA regulation ineffective.”).

13

importance to the environment of adjoining bodies of water,”
the Corps nonetheless properly asserted jurisdiction over all
such wetlands since they often have a significant effect on
adjacent bodies of open water. Riverside Bayview, 474 U.S. at
135 n.9. As the Court explained, if a particular wetland turns
out not to be important to the adjacent waterway, “the Corps
may always allow develupment of the wetland for other uses
simply by issuing a permit.” /d.

The same is true here: If a wetland adjacent to a non-
navigable tributary in fact has little ecological value and
discharges into it are unlikely to affect downstream waters, the
appropriate agency may permit the discharges. But the proper
place for this inquiry is as part of the decision whether to issue
a particular permit, not the decision whether the wetland is
covered by the statute in the first place. See 33 U.S.C.
§ 1344(e)(1) (authorizing dredge and fill discharge permits on
a state, regional, or nationwide basis for activities that alone
and cumulatively have only minimal adverse effect on the
environment).

Nothing in this Court’s decision in Solid Waste Agency v.
U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC),
requires a wetland-by-wetland analysis of connection to
traditional navigable water to determine jurisdiction 'inder the
Act. SWANCC merely held that the Act does not cover non-
navigable, intrastate waters just because those waters are used
by migratory birds. 531 U.S. at 162, 174. But flooded mine pits
whose sole connection to traditional navigable waters is their
use by migratory birds are a far cry from wetlands that are
adjacent to tributaries flowing into traditional navigable waters.
As a general matter, these wetlands affect the quantity, quality,
and biological integrity of downstream traditional navigable
waters, and for that reason are squarely covered by the Act
without the need for a wetland-by-wetland analysis. See
Riverside Bayview, 474 U.S. at 135 n.9 (“If it is reasonable for

14

the Corps to conclude that in the majority of cases, adjacent
wetlands have significant effects on water quality and the aquatic
ecosystem, its definition can stand.”); see also Cont'l T.V., Inc.
v. GTE Sylvania Inc. , 433 U.S. 36, 50 n.16 (1977) (noting that
general rules “tend to provide guidance” and “minimize the
burdens on litigants and the judicial system”).

Il. COVERAGE OF WETLANDS ADJACENT TO
TRIBUTARIES IS NECESSARY TO MAINTAIN THE
RESPECTIVF ROLES ASSIGNED BY THE ACT TO
THE FEDERAi AND STATE GOVERNMENTS

Construing the Clean Water Act as narrowly as petitioners
and amici urge would deprive the Act of the broad coverage
that Congress intended. The nation’s system of waters, though
broad in geographic scope, is highly interconnected. Pollutants
discharged into the Mississippi River in Minnesota can affect
the waters of nine downstream States as far away as the Gulf of
Mexico. See Ouellette, 479 U.S. at 497 n.17; see also Arkansas
v. Oklahoma, 503 U.S. 91 (1992) (considering the effect of
effluent discharged into an unnamed tributary in Arkansas
connected through a series of three creeks before entering the
Illinois River, 22 miles upstream of the Arkansas-Oklahoma
border).

While the Act gave downstream States “‘a strong voice in
regulating their own pollution,” it provided them with only an
advisory role in regulating pollution that originates outside
their borders. Ouellette, 479 U.S. at 490. A State may not
establish a separate permit system to regulate out-of-state
sources. /d. at 491. And this Court has held that the Act’s
comprehensive regulation of upstream sources preempts
traditional common-law remedies that downstream States might
otherwise have for upstream sources of pollution. See City of
Milwaukee, 451 U.S. at 317 (federal common law preempted);
Ouellette, 479 U.S. at 494 (common law of an affected State
preempted). The Court’s preemption decisions reflect the fact
that the Clean Water Act’s core provisions are the primary

15

bulwark protecting downstream States from upstream water
pollution. Given the Clean Water Act’s focus on controlling
pollution at its source, see 33 U.S.C. § 1251(a), the broad
geographic interconnection among waters, and the limited power
of downstream States to contro! pollution sources in upstream
States, the Act must be construed to protect waters in downstream
States by “expansively . . . cover[ing] waters that are not
navigable in the traditional sense,” Ouellette, 479 U.S. at 486
n.6, but that are hydrologically connected with downstream
waters, even if only occasionally.

Petitioners’ narrow view of the Act, which excluded these
waters from federal regulation, would unavoidably impose
additional, unnecessary burdens on downstream States and their
citizens. Each such State, when dealing with waters within state
boundaries that fail water quality standards mandated by the
Clean Water Act, would be forced to impose disproportionate
limits on in-state sources to offset pollution from out-of-state
sources that the State cannot regulate.” This could produce
unfair differences not only between dischargers in different
States but also between dischargers in different areas of a single
State, since those areas downstream of other States might have
to be regulated more strictly than other areas — all contrary to
the primacy of evenhanded discharge standards under the Act.
See Oliver A. Houck, The Clean Water Act TMDL Program:
Law, Policy, and Implementation, 23-24 (2d ed. 2002) (standards
based on the quality of receiving water are relegated to a backup
role where technology-based standards are insufficient). —

20. See Comments of Larry D. McKinney, Senior Director, Aquatic
Resources, Texas Parks and Wildlife Department on the ANPRM 7 (Apr.
15, 2003) (limiting Clean Water Act coverage to traditional navigable
waters “would most likely result in more restrictive discharge permit
limits to those discharging into the navigable waters to compensate for
those dischargers who would no longer be required to meet standards
set by” the Act); Comments of Lori F. Kaplan, Commissioner, Indiana
Department of Environmental Management |! (April 16, 2003) (same).

16

Additionally, over the last thirty years, the States have relied
on broad Clean Water Act coverage to protect the health of their
citizens and environments. Indeed, federal and state agencies
for over 100 years have recognized federal jurisdiction over
non-navigable tributaries. See Rivers and Harbors Act of 1899,
ch. 425, § 13, 30 Stat. 1121, 1152 (codified at 33 U.S.C. § 407)
(prohibiting certain discharges into tributaries of navigable
waters or onto their banks). Many States rely on the Act as the
sole source of legal protection for adjacent wetlands. Other States
rely in part un the federal law and resources, augmenting them
with state laws and resources, including in some instances state
water-pollution-control laws.”' If federal jurisdiction under the
Clean Water Act were restricted as petitioners propose, many
States will have to develop new regulatory programs to fill the
void. At a minimum, this would take time and money, and even
when operational, the substitute for the federal program would
be a messy patchwork of conflicting regulatory requirements
among the States.

Reading the Clean Water Act as covering wetlands adjacent
to non-navigable tributaries also is necessary to give meaning
to a provision of the Act that retains federal authority over
wetlands adjacent to traditional navigab!e waters while yielding
authority to the States to regulate discharges to other waters. In
1977, after the EPA and the Corps had adopted regulations
establishing the Act’s coverage of wetlands adjacent to
tributaries, Congress amended the Act to authorize States to
assume administration of the federal section 404 permit program
through their own permit programs. 33 U.S.C. § 1344(g)(1)
(section 404(g)(1) of the Act). Practically speaking, the vast
majority of permits issued under these programs concern
wetlands rather than open waters. The 1977 amendments reflect

21. Only twenty states have specific wetland protection statutes.
They are Connecticut, Florida, Indiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey,
New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island,
Tennessee, Vermont, Virginia, and Wisconsin.

17

Congress's decision not to remove wetlands adjacent to
tributaries from the Act’s coverage, but instead to provide
additional procedures to reduce the regulatory burden on the
Corps, and to give States a greater role in implementing the
wetlands program if they want one. See Riverside Bayview, 474
U.S. at 135-39 (discussing the focus on wetlands in the 1977
amendments); see also Lance D. Wood, “Don’t Be Misled: CWA
Jurisdiction Extends to All Non-Navigable Tributaries of the
Traditional Navigable Waters and to Their Adjacent Wetlands,”
34 Envtl. L. Rep. 10,187, 10,214-15 (2004) (discussing the 1977
amendments to section 404).

Under this provision, however, the States may not
administer the section 404 program for “traditional” navigable
waters, waters that could be improved to sustain navigation,
and “wetlands adjacent” to those waters. See 33 U.S.C.
§ 1344(g)(1).” This means two things. First, this section clearly
contemplates coverage of wetlands and improvable tributaries,
not just traditional navigable waters. Second, if the Act covered
only wetlands adjacent to traditional navigable waters, as
Petitioners contend, this statutory provision would be practically
meaningless, since there would be no wetlands covered by the
Act over which States could assume permitting authority. When
Congress amends a statute, though, the Court “presume[s] it
intends its amendment to have real and substantial effect.” Stone
v. INS, 514 U.S. 386, 397 (1995); see also Moskal v. United
States, 498 U.S. 103, 109-111 (1990) (Court must construe a

22. In Michigan's case, after approval of its program the
State entered into a Memorandum of Understanding with the Corps
that defined the extent of traditional navigable waters. The Corps
estimates that less than 500 miles of Michigan's approximately 54,000
miles of river and streams are “traditional” navigable waters.
See Memorandum from Diana Klemans, Chief, Surface Water
Assessment Section, Water Bureau, Mich. Dep't of Envtl. Quality, to S.
Peter Manning, Dep't of Attorney General (Jan. 10, 2006),
available at http://www.deq.state.mi.us/documents/deqexe
issuestowatchRapanosmemo2006. pdf.

18

statute to give effect, if possible, to every provision). The natural
conclusion is that the Clean Water Act covers wetlands adjacent
to non-navigable tributaries, and that Congress intended to create
a process under which the States can assume primary
responsibility for fill operations in these wetlands.

Finally, and contrary to the unsupported assertions of the
Rapanos petitioners and some of their amici, applying the Act
to wetlands adjacent to non-navigable tributaries does not unduly
intrude on the traditional and primary power of States and their
municipal subdivisions over land and water use. Brief for
Petitioners in No. 04-1034 at 28-31; Brief of Amici Curiae
Foundation for Environmental and Economic Progress, et. al.,
at 14-19. This argument, which is advanced mostly by the
leading commercial interests whose activities are subject to
regulation under the Act rather than by States or municipalities
themselves, fails to show that a handful of permit denials by
the Corps constitutes a significant conflict. The argument also
fails to recognize the benefits that a consistent national program
provides to the States. Congress has given the States a major
role in implementing the Act's programs and goals, and has left
the States and their subdivisions ample room to exercise control
over land and water use. At the same time, however, Congress
léarned from experience that only a comprehensive approach
to water-pollution regulation at the federal level can achieve
the Nation’s hopes for clean water.

ll. FEDERAL POWER OVER’ INTERSTATE
COMMERCE INCLUDES THE POWER TO
REGULATE DISCHARGES INTO WETLANDS
ADJACENT TO NON-NAVIGABLE TRIBUTARIES

Construing the Clean Water Act to cover wetlands adjacent
to non-navigable tributaries does not raise any serious — or
even close — constitutional questions. To the contrary, the Clean
Water Act falls comfortably within the federal commerce power.
U.S. Const. art. I, § 8. Under this provision and the Constitution’s
“necessary and proper” clause, the federal government may

19

regulate purely intrastate activities that threaten the use of a
channel of interstate commerce or a Class of activities that in
the aggregate substantially affect interstate commerce. United
States v. Lopez, 514 U.S. 549, 558 (1995); see also Gonzalez v.
Raich, 125 S. Ct. 2195, 2216 (2005) (Scalia, J., concurring)
“({T]he authority to enact laws necessary and proper for the
regulation of interstate commerce is not limited to laws
governing intrastate activities that substantially affect interstate
commerce.”) The Clean Water Act can be upheld under both of
these categories. More importantly, the constitutional question
is not a close call. There is thus no need for this Court to adopt
a limiting construction of the Clean Water Act under the canon
of constitutional avoidance. See Harris v. United States, 536
U.S. 545, 555 (2002) (explaining that the canon applies “only
when there are serious concerns about the statute’s
constitutionality”).

Because traditional navigable waters are an important
channel of interstate commerce, the Commerce Clause
encompasses “such legislation as will insure the convenient and
safe navigation of all the navigable waters of the United States,”
including legislation that “requir[es] the removal of obstructions
to their use.” The Daniel Ball, 77 U.S. 557, 564 (1871).
Moreover, as noted above, many waters that are not
“traditionally” navigable are navigable in fact by recreational
vessels, which themselves engage in an important activity in
interstate commerce. The Commerce Clause also allows the
federal government to regulate activities outside of the traditional
navigable waters — for example, in non-navigable tributaries
— that potentially threaten navigation within those waters.
See United States v. Grand River Dam Auth., 363 U.S. 229, 232
(1960); United States v. Rio Grande Dam & Irrigation Co., 174

20

U.S. 690, 709-10 (1899); see also Oklahoma ex rel. Phillips v.
Guy F. Atkinson Co., 313 U.S. 508, 525 (1941) (“There is no
constitutional reason why Congress cannot, under the commerce
power, treat the watersheds as a key to flood control on navigable
streams and their tributaries.”). As explained above, discharges
into wetlands adjacent to non-navigable tributaries may impair
navigation in a number of ways: by causing flooding
downstream, by allowing silt to run off and accumulate in a
downstream waterway, or (if the discharge contains toxic
chemicals that flow downstream) by making use of the waterway
dangerous. The federal government rationally may conclude that
pollution discharged into these wetlands substantially affects
downstream traditional navigable waters.

Nor is federal authority under the Commerce Clause limited
by any requirement that the Clean Water Act cover only those
specific discharges that by themselves can be proven to
substantially affect traditional navigable waters. Even when the
chances that any particular discharge will reach a traditional
navigable water are low, it is overwhelmingly likely that some
of the pollutants discharged into wetlands adjacent to headwater
tributaries will be swept downstream into traditional navigable
waters, and collectively even a small percentage of all discharges
can impair navigability. An inability to control discharges into
non-navigable tributaries and adjacent wetlands would thus
leave the Clean Water Act with a “gaping hole.” Raich, 125 S.
Ct. at 2209.

The Clean Water Act is also constitutional as regulation of
a class of economic activity that in the aggregate substantially
affects interstate commerce. Petitioners and their amici do not
seriously dispute that the activities regulated by the Clean Water
Act, in the aggregate, substantially affect interstate commerce.
The polluting activities that are regulated by the Clean Water
Act are economic in nature. Point-source discharges are a means
to dispose of waste, which is the kind of commercial activity
that is subject to regulation under the Commerce Clause.

21

See, e.g., Chem. Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 340
n.3 (1992) (noting that solid waste, even if it has no value, is an
“article of commerce”). More specifically, discharging fill
material into a wetland — the precise activity that is at issue in
these cases — is almost always done for economic reasons.
This activity, which literally creates land that can be developed
where none was before, is inherently “economic.” See Raich,
125 S. Ct. at 2211 (noting that “economics” means “the
production, distribution, and consumption of commodities”
(emphasis added) (quotation marks and citations omitted)). The
activity also has direct economic effect in terms of downstream
flooding and water-quality impairment. Tellingly, virtually every
reported decision involving the discharge of fill material,
including both Rapanos and Carabell themselves, has involved
large-scale commercial development — construction of a
residential subdivision, an industrial building, or public works.”

23. See, e.g., SWANCC, 531 U.S. at 163 (construction of a disposal
site for baled nonhazardous solid waste); Riverside Bayview, 474 U.S.
at 124 (construction of residential housing development); Baccarat
Fremont Developers, LLC v. U.S. Army Corp of Eng’rs, 425 F.3d 1150,
1152 (9th Cir. 2005) (construction of a sixbuilding office, research, and
manufacturing facility); Save Our Sonoran, Inc. v. Flowers, 408 F.3d
1113, 1118 (9th Cir, 2005) (construction of an “upscale gated residential
community” containing 794 single-family houses); United States v.
Deaton, 209 F.3d 331, 333 (4th Cir. 2000) (construction of residential
housing development); Mich. Peat v. U.S. EPA, 175 F.3d 422, 425 (6th
Cir. 1999) (peat mining); Hill v. Boy, 144 F.3d 1446, 1448 (1 Ith Cir.
1998) (construction of earthen dam and 650 acre reservoir); United
States v. Wilson, 133 F.3d 251, 254 (4th Cir. 1997) (construction of
planned unit development project serving 80,000 residents); United
States v. Brace, 41 F.3d 117, 120 (3d Cir. 1994) (commercial farming
operation); Hoffman Homes, Inc. v. U.S. EPA, 999 F.2d 256, 257-58
(7th Cir. 1993) (residential subdivision); United States v. Pozsgai, 999
F.2d 719, 722 (3d Cir. 1993) (construction of commercial truck repair
garage); Monongahela Power Co. v. Marsh, 809 F.2d 41, 42 (D.C. Cir.
1987) (construction of hydroelectric facility); Friends of the Earth v.
Hintz, 800 F.2d 822, 824 (9th Cir. 1986) (sawmill logging complex).

22

That economic aspect sets this case apart from Lopez and
Morrison, the only recent cases striking down federal legislation
on Commerce Clause grounds. The regulated activities in those
cases — possession of a gun in a school zone and gender-
motivated violence — were in no way economic in at least the
vast majority of circumstances. See Lopez, 514 U.S. at 561;
United States v. Morrison, 529 U.S. 598, 613 (2000). Whatever
motives someone might have for wandering by a school while
carrying a gun or for committing a brutal act of violence against
a fellow human being, those motives are unlikely to include
profit. Nor are the activities at issue in Lopez and Morrison
closely associated with any traditional economic activities like
manufacturing or construction. The polluting activities covered
by the Clean Water Act, by contrast, are almost always directly
tied to traditional economic activity. They are undertaken
precisely because of the value that they provide, either by saving
on the costs of storage and disposal or by enabling new uses of
property. They thus fall within the core of activities that can be
regulated under the Commerce Clause.

23

CONCLUSION
The judgments of the Court of Appeals should be affirmed.

Respectfully submitted,
Micuaet A. Cox Eviot Sprrzer
Attorney General of the Attorney General of the
State of Michigan State of New York
THomas L. Casey Carmmun J. HALLIGAN®
Solicitor General Solicitor General
P.O. Box 30212 Peter H. LEHNER
Lansing, MI 48909 Chief, Environmental
(517) 373-1124 Protection Bureau
Danie. SMIRLOCK
Deputy Solicitor General
BeniAMIn N. GutTMaAN
Assistant Solicitor General
Lemuet M. Srovovic
Assistant Attorney General

120 Broadway, 25th Floor
New York, NY 10271
(212) 416-8020

* Counsel of Record
Attorneys for Amici Curiae

Terry GODDARD

Attorney General State

of Arizona

1275 West Washington Street
Phoenix, AZ 85007

(602) 542-4266

MIKE BEEBE

Attorney General

of Arkansas

323 Center St., Suite 200
Little Rock, AR 72201
(501) 682-20007

But Lockyer

Attorney General

State of California
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244
(916) 323-1996

RICHARD BLUMENTHAL
Attorney General
of Connecticut

24

Cuar_es J. Crist, Jr.
Attorney General of Florida
The Capitol PL-01
Tallahassee, FL 32399-1050
(850) 414-3300

Marx J. Bennett

Attorney General of Hawaii
425 Queen St.

Honolulu, HI 96813

(808) 586-1500

Lisa MADIGAN

Attorney General of Illinois
Office of the Illinois Attorney
General

100 West Randolph Street,
12th Floor

Chicago, IL 60601
(312) 814-3000

THomas J. MiLLer
lowa Attorney General
1305 E. Walnut Street
Des Moines, IA 50319

Office of the Attorney General (515) 281-8373

55 Elm Street
Hartford, CT 06106
(860) 808-5250

Cari C. DanBerc
Attorney General
State of Delaware
820 N. French Street

Wilmington, DE 19801
(302) 577-8400

Greoory D. Stumso
Attorney General
Commonwealth of Kentucky
Suite 118

Capitol Building

700 Capitol Ave.

Frankfort, KY 40601

(502) 696-5300

25

Cuar.es C. For, Jr.
Attorney General

Louisiana Department of Justice

P.O. Box 94005
Baton Rouge, LA 70804
(225) 326-6705

State of Maine

Six State House Station
Augusta, ME 04333-0006
(207) 626-8599

J. JosepH Curran, Jr.
Attorney General

of Maryland

200 St. Paul Place
Baltimore, MD 21202
(410) 576-6300

Tuomas F. ReILLy

Attorney General of
Massachusetts

Office of the Attorney General
One Ashburton Place
Boston, MA 02108

(617) 727-2200

Mike Hatcu

Attorney General ©

of Minnesota

102 State Capitol

St. Paul, MN 55155-1002
(651) 297-4272

Jom Hoop

Attorney General
State of Mississippi
P.O. Box 220
Jackson, MS 39201
(601) 359-3680

JEREMIAH W. (Jay) Nixon
Attorney General of

Mi é;

Supreme Court Building
207 West High Street
Jefferson City, MO 65101
(573) 751-3321

Mixe McGratu
Attorney General of
Montana

P.O. Box 201401
Helena, MT 50620
(406) 444-2026

Keiiy A. AYOTTE
Attorney General of
New Hampshire

33 Capitol Street
Concord, NH 03301
(603) 271-3658

Perer C. Harvey

Attorney General of

New Jersey

R.J. Hughes Justice Complex
25 Market Street

P.O. Box 080

Trenton, NJ 08625

(609) 292-8576

Patricia A. Maprip
Attorney General of
New Mexico

P.O. Drawer 1508
Sante Fe, NM 87504
(505) 827-6000

Roy Cooper

Attorney General of

North Carolina

North Carolina Department
of Justice

P.O. Box 629

Raleigh, NC 27602

(919) 716-6400

Jum PETRO

Ohio Attorney General

30 E. Broad St., 17th Floor
Columbus, OH 43215
(614) 466-8980

W.A. Drew EDMONDSON

Attorney General of Oklahoma

2300 N. Lincoln Boulevard
Suite 112

Oklahoma City, OK 73105
(405) 521-3921

Harpy Myers
Attorney General
State of Oregon
1162 Court St. N.E.
Salem, OR 97301
(503) 378-6002

Parrick LYNCH
Attorney General
State of Rhode Is'and
150 South Main Street
Providence, RI 02903
(401) 274-4400

Robert ©. Dennis Office Bldg.
Post Office Box 11549
Columbia, SC 29211-1549
(803) 734-3970

Pau, G SUMMERS
Attorney General of the
State of Tennessee

P. O. Box 20207
Nashville, TN 37202
(615) 741-3491

WituraM H. Sorrecr

Attorney General of Vermont
Office of the Attorney General
109 State Street

Montpelier, VT 05609

(802) 828-3173

Ros McKenna
Attorney General of Washington
1125 Washington Street
P.O. Box 40100
Olympia, WA 98504
(360) 753-6245

27

Peccy A. LAUTENSCHLAGER
Attorney General of Wisconsin
Wisconsin Department of Justice
17 West Main Street

Madison, WI 53707

(608) 266-1221

Rosert J. SPAGNOLETTI
Attorney General for the
District of Columbia

Wilson Building

1350 Pennsylvania Ave., NW
Washington, DC 20004
(202) 727-3400

SUSAN SHINKMAN

Chief Counsel

Marcaret O. Murruy
Assistant Counsel
Pennsylvania Department of
Environmental Protection
400 Market Street
Harrisburg, PA 17101

(717) 787-6853

M. Caro. BAMBERY

Association Counsel
International Association of Fish
and Wildlife Agencies

444 N. Capitol Street, NW

Suite 725

Washington, DC 20001

(202) 624-3687

APPENDIX
Navigable Water Within Each Continental U.S. State

With a Portion of the River or Lake
in One or More Other States'
State Navigable States with Notes
Water Upstream or
Border Portions
AL Chattahoochee | GA 1
River
AZ Colorado River | CO, UT, NV, CA 1
AR Arkansas River | CO, KS, OK 1
CO _ | Navajo NM 2,3
Reservoir (San
Juan River)
CT Connecticut NH, MA, VT 1
River
DC Potomac River | WV, VA, MD 1
DE Delaware River | NY, PA, NJ 1
FL Apalachicola GA 1
River j
GA Savannah River | SC 1
ID Snake River WY, OR, WA 1
IL Lake Michigan | Mi, Wi, IN 1

‘This table lists only one water body for each State, although
most States have many such water bodies. For purposes of this
appendix, the District of Columbia is treated as a State.

A-1

State Navigable States with
Water Upstream or
Border Portions
IN Lake Michigan | Mi, Wi, IL
IA Missouri River | MT, ND, SD, NE
KS Missouri River | MT, ND, SD, NE,
lA, MO
KY Mississippi MN, WI, IA, iL,
River MO, TN
LA Mississippi MN, WI, IA, IL,
River MO, KY, TN, AR,
MS
ME | Piscataqua NH
River
MD | Potomac River | WV, VA, DC
MA_ | Connecticut NH, VT
River
MI Lake Michigan | IN, Wi, IL
MN | Mississippi WI
River
MS _ | Mississippi MN, WI, IA, iL,
River MO, KY, TN, AR,
LA
MO | Missouri River | MT, ND, SD, NE,
lA, KS
MT | Yellowstone wy
River
NE Missouri River | MT, ND, SD, IA,
MO

A-2

State Navigable States with Notes
Water Upstream or
Border Fortions
NV | Colorado River | CO, UT, AZ 2
NH Piscataqua ME
River
NJ Delaware River | NY, PA, DE 1
NM _ | Navajo co 2,3
Reservoir (San
Juan River)
NY Delaware River | PA 1
NC Roanoke River | VA 1
ND | Missouri River {| MT 1
OH | Ohio River PA, WV, KY 1
OK | Arkansas River | CO, KS 1
OR | Snake River WY, ID 1
PA Delaware River | NY, NJ 1
RI Mount Hope MA 1
Bay
sc Savannah River | GA 1
SD Missouri River | MT, ND, NE 1
™ Mississippi MN, WI, IA, IL, 1
River MO, KY, AR
T™ Rio Grande CO, NM
UT Green River wy, CO 2.4

A-3

State Navigable States with Notes
Water Upstream or

VT Lake NY 5
Champlain

VA | Potomac River | WV, MD, DC
WA _ | Columbia River | OR

WV | Ohio River PA, OH
Wi Mississippi MN, IA
River
WY | Green River UT 2
(Flaming Gorge
Reservoir)
Notes

1. U.S. Army Corps of Engineers, Bridges Over the Navigable
Waters of the United States (1961).

2. Comments of the Western Water Alliance to the U.S. Environ-
mental Protection Agency, Docket ID OW-2002-0050, April 16, 2003.

3. Wreyford v. Arnold, 477 P.2d 332 (N.M. 1970).
4. United States v. Utah, 283 U.S. 801 (1931).
5. U.S. Army Corps of Engineers, Navigation in Vermont,

http://www.nae.usace.army.mil/water/navigation2.asp?mystate=VT
(accessed January 11, 2006).

AA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A46. Public record. Not legal advice.