# Amicus Curiae Brief — Rapanos v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A48 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2006 - **Citation:** 547 U.S. 715 ## Text f , / fs aa . 4) ee . 3 7 ‘ r : re ° No. 04-1034 IN THE | gupseye Supreme Court of the United States JOHN A. RAPANOS, et ai., Petitioners, Vv. UNITED STATES OF AMERICA, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit BRIEF OF AMICI CURIAE WASHINGTON LEGAL FOUNDATION, ALLIED EDUCATIONAL FOUNDATION, LAURENCE A. PETERSON, AND EDMOND C. PACKEE, JR., IN SUPPORT OF PETITIONERS DANIEL J. POPEO MARK A. PERRY PAUL D. KAMENAR Counsel of Record W ASHINGTON LEGAL GIBSON, DUNN & CRUTCHER LLP FOUNDATION 1050 Connecticut Ave., NW 2009 Massachusetts Ave.. NW Washington, D.C. 20036 Washington, D.C. 20036 (202) 955-8500 (202) 588-0302 Counsel for Amici Curiae Deceimber 2, 2005 QUESTIONS ADDRESSED BY AMICI The climactic escape scene in the movie Finding Nemo is premised on the notion that “all drains lead to the ocean.” The court below adopted this same premise in holding that the Clean Water Act authorizes the federal government to regulate any property, however remote, that shares a “hydro- logical connection” with an ocean or other navigable waier- way. The questions addressed by amici are: I. Whether the court of appeals erred in adopting a con- struction of the Clean Water Act that gives no meaning what- soever to the statutory requirement of navigability. Il. Whether, if the regulatory authority conferred by the Clean Water Act is not constrained by the navigability re- quirement, the Act exceeds Congress’s power under the Commerce Clause. TABLE OF CONTENTS NUE NOT a nsciccntriininncsicnsviniibiduictinbiimaiinciudseneaislinatiois I EA NII er siscissischeridiincingicnscqnnpiigiticciansisisneiliiessenienstinasaibes 2 TT biiesicciteiidaetisid ad hiecsinssinippglalek cdleasssathicnicisdipaiimibiinical 3 SUMMARY OF ARGUMENT. ........0::cccsccsccsocsoscsscsocovsssessooses 5 PT ccercctitndiiiesiectindipintncenitbicarotivinnaniaosndiigihn nine 7 I. THE REQUIREMENT THAT REGULATED WATERS BE “NAVIGABLE” CANNOT BE READ OUT OF THE CLEAN WATER ACT ..................0..- 8 A. “Adjacency” Is A Permissible Construction Of “Navigable” ..0............:cccceeseeceees 8 B. “Hydrological Connection” Is Not A Permissible Construction Of IIE chethit clinica bitaediasbieocernsssdnimedbiiece 10 ll. IF THE “NAVIGABILITY” REQUIREMENT IS MEANINGLESS, THEN THE CLEAN WATER ACT IS eS 14 A. The Regulated Activity Is RN aiichiiiartinsininnteniteiinscchpsdndecssbcesiodiaies 14 B. The Discharge Sought To Be Regulated Here Does Not Substantially Affect Interstate I ile ctctadicilbsniidtietelilctsconapininicthabadinasiisiiiees 16 C. Congress Has No General Police Power To Regulate All Water ...0............:ccceeeeee 23 RIT sdsahiinitiedsciandiiteininicapincitibiepeiecyctaiepiinadceiantiitndens 25 iV TABLE OF AUTHORITIES Cases Economy Light & Power Co. v. United States, 256 USB. 113 (AGRA) nncncoccccccsscserncssosesovenonecces sossscsncsscsenens 1} Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. SEB (1DBB) 00. icccccosccvsccrescescssensseescscsscososcenssnesessscsecseoosootos 13 Ex parte Boyer, 109 U.S. 629 (1884).......seeseereereres 17,24 GDF Realty Invs., Lid. v. Norton, 326 F.3d 622 (BBs CWr. BOGS) occccccscesrsescsscnsessccoccoveecsccssesoconsesessenessvooesans 19 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)............ 11,17 Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000)...........:..c08 19 Gilbert v. United States, 370 U.S. 650 (1962) .....ccccecceeeeeees 12 Gonzales v. Raich, 125 §. Ct. 2195 (2005) ................ 7, 18, 19 Kaiser Aetna v. United States, 444 U.S. 164 (BDFD) .ncvcococecsssssessiescesssesorentooootasconsnsecennesneccosesesoeooasis 6, 17 McDermott Int'l, Inc. v. Wilander, 498 U.S. 337 EBBIED cxcncccsniniistints ectiticnsinesintinsnneiineritemepnaneanndiils 11 Morissette v. United States, 342 U.S. 246 (1952) .......cccc0cee 11 Nat'l Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, SBS CLE, DBF CRED ccctccesescrstntirserstercscisensrenininenini 22 NLRB vy. Catholic Bishop of Chicago, 440 U.S. GIO IGT ccccevisitvsiasinisnrenisipmiieseciaiteineiiintnatetiapuimeniinga 13 Rancho Viejo, LLC v. Norton, 334 F.3d 1158 SLE. CAP, FD i ovececncigtanssviptincnistortinvesrtiaumandiinausians 15, 19 Solid Waste Agency of N. Cook County v. United States Army Corps of Eng ’rs, 531 U.S. 159 CGE scccniccviccniancaiecasdeséineimanipemmenteaininamanancaniiin passim South Carolina v. Georgia, 93 U.S. 4 (1876).........cccccccc0e 17 The Daniel Ball, 77 U.S. (10 Wall.) 587 (1871)............ 11,17 The Montello, 87 U.S. (20 Wall.) 430 (1874) ...........0.00008. 17 United States v. Deaton, No. MJG-95-2140 (D. Md. Jan. 28, 2002), aff'd, 332 F.3d 698 (6th REE i EN, CTE 23 United States v. Lopez, 514 U.S. 549 (1995) 0.0.0.0... passim United States v. Morrison, 529 U.S. 598 (2000) ......... passim United States v. Rapanos, 190 F. Supp. 2d 1011 SS SEU Saisie ceciiistaidnatesiiindlgnsiy venesntntpannsindinst 4 United States v. Rapanos, 339 F.3d 447 (6th Cir. EE ES SS 15, 16 United States v. Riverside Bayview Homes, 474 ES Ee passim United States v. Rueth Dev. Co., 189 F. Supp. 2d 874 (N.D. Ind. 2001), vacated in part, 189 F. Supp. 2d 874 (2002), aff'd, 335 F.3d 598 DST ES Sa 20, 22, 23 United States v. Rybar, 103 F.3d 273 (3d Cir. SE SS Ce 7,17, 18,21 Wickard v. Filburn, 317 U.S. 111 (1942)... 7,19 Statutes el iciaciniasielgthcnampnantiasienitnebiaetninaing 3, 7, 20 ee a idinicrrctaicanttenierinintaintioapesnenitennsinithipiatencnemasibnntins 23 ST CE TR 3 er ie Oy Ge ititercrerinctinnstionennnmnnninnnt passim i 9, 10 A ET eS ae 3 er eas Oe i irinectaicsidineeninnccinaiiennanintbininnsinmnneniimmmie 3 vi Regulations am 3, 20 ela 3 ve NE ae See eet 3 Constitutional Provisions Se alae aa oan nae aE 23 Other Authorities | Clean Water Authority Restoration Act of 2005, S. 912, H.R. 1356, 109th Cong. (2005) .........ccscscsessseee 12 Edward A. Fitzgerald, SWANCC: Isolated Waters, Migratory Birds, Statutory and Constitutional Interpretation, 43 Nat. EE ie Gr isiendiitintnnnsntetmnnns 12 GAO Report No. 04-297, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices In Determining Jurisdiction (Feb. 2004) ................0-.-. 9, 22 Lawrence R. Liebesman & Stuart Turner, Summary of Federal Court Decisions Interpreting the Supreme Court's 2001 Decision in SWANCC, SHO088 ALI-ABA Webster’s Third New Int’! Dictionary ee 4,11 Wetlands Desperado, Editorial, Wall St. J., Aug. BRIEF FOR THE WASHINGTON LEGAL FOUNDATION, ALLIED EDUCATIONAL FOUNDATION, LAURENCE A. PETERSON, AND EDMOND C. PACKEE, JR.., AS AMICI CURIAE SUPPORTING PETITIONERS Amici curiae Washington Legal Foundation (WLF), Al- lied Educational Foundation (AEF), Laurence A. Peterson, and Edmond C. Packee, Jr. respectfully submit that the judgment of the court of appeals should be reversed. ! INTEREST OF AMICI WLF is a nonprofit public interest law and policy center based in Washington, D.C., with thousands of supporters na- tionwide. WLF engages in litigation and the administrative process in a wide variety of areas, including cases involving property rights and the scope of the federal government's Commerce Clause powers. In particular, WLF has partici- pated as amicus curiae in several recent cases that raise statu- tory and constitutional issues similar to those asserted by the parties in this case, including Solid Waste Agency of North- ern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC’). AEF is a nonprofit charitable and educational foundation based in New Jersey. Founded in 1964, AEF is dedicated to promoting education in diverse areas of study, including law | Pursuant to this Court's Rule 37.6, amici state that this brief was not authored in whole or in part by counsel for any party, and that n© person or entity other than amici or their counsel made a monetary contribution to the preparation or submission of this brief. Letters consenting to the filing of this brief have been sub- mitted to the Clerk. and public policy. AEF has appeared as amicus curiae in many cases in which WLF has been involved, including SWANCC. Laurence A. Peterson is the Operations Manager for Travis/Peterson Environmental Consulting, Inc. (““TPECTI”), an Alaskan wetlands consulting company. He earned a Mas- ter of Science degree in Environmental Health Science from the University of Alaska Fairbanks, completed the U.S. Army Corps of Engineers wetland delineation course, and has identified, evaluated, and permitted wetlands in Alaska for twenty years. Edmond C. Packee, Jr., a professionally registered soil scientist and certified professional in erosion and sediment control, and Senior Scientist at TPECI, also earned a Master of Science degree from the University of Alaska Fairbanks in Mine Reclamation Science, and has identified, evaluated, permitted, and reconstructed wetlands in Alaska for thirteen years. Packee and Peterson have a combined thirty-three years of first-hand experience with the Corps’ haphazard and contradictory methods of determining wetlands jurisdiction. INTRODUCTION At the climax of the animated movie Finding Nemo, a small but plucky fish escapes the clutches of an overenthusi- astic child by swirling down a dentist’s drain. As his cohorts look on with hope, one of the fish asks the ringleader, “Is he gonna be okay, Gill?” Gill, confident that young Nemo is now safe, replies: “Don’t worry. All drains lead to the ocean.” While Finding Nemo makes for a very good children’s movie, it does not make good law. Yet the Army Corps of Engineers would have this Court adopt the principle “all drains lead to the ocean” as the method for deciding whether the federal government can regulate local waters and lands. The moniker for this method, where intermittent surface wa- ter runoff connects to drains, which connect to creeks, which connect to streams, which connect to rivers, which, at some point, widen and deepen enough to become navigable, is the so-called “hydrological connection” rule invented by the Sixth Circuit. Adopting the Finding Nemo principle as a rule of con- struction of the Clean Water Act, as the court below effec- tively did, cannot be reconciled with either the statute or our Constitution. It would leave the term “navigable waters” in the Act devoid of any meaning and purpose. And if that were a permissible construction of the Act, the statute would exceed Congress’s power under the Commerce Clause by granting the Corps jurisdiction over every drop of water in the Nation. STATEMENT In 1972, Congress enacted what came to be known as the Clean Water Act, 86 Stat. 884, as amended, 33 U.S.C. § 1251 et seq. The Act prohibits the discharge of any “pollutant,” including fill materials, into “navigable waters” without a permit from the United States Army Corps of Engineers. 33 U.S.C. §§ 1311(a), 1344(a), 1362(12). The “navigable wa- ters” subject to the Corps’ jurisdiction are defined in the Act as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). Notwithstanding the statutory requirement of navigabil- ity, the Corps nas by regulation attempted to define the “wa- ters of the United States” as, inter alia, “intrastate lakes, riv- ers, streams (including intermittent streams), mudflats, sand- flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruc- tion of which could affect interstate or foreign commerce.” 33 C.F.R. § 328.3(3). The Corps also included “[w)etlands adjacent to” any such waters in this definition, thereby claim- ing jurisdiction over them as well. 33 C.F.R. § 328.3(7).2 When Petitioner John Rapanos decided to develop some of his property in the late 1980s, he discovered that the gov- ernment considered the property to be “wetlands” within the Corps’ regulatory authority. This came as a great surprise to Rapanos, because his “wetlands” are actually dry—and re- plete with corn—thanks to the county drain commission, which had dug drains at the turn of the twentieth century in order to make the land suitable for farming. See Wetlands Desperado, Editorial, WALL ST. J., Aug. 23, 2004, at Al2. Yet the government now insisted that the very drains that kept petitioners’ property dry magically transformed his farmland into protected “wetlands” subject to regulation. Even more fantastically, the government declared that those same man-made drains were “navigable waters” that some- how affected interstate commerce, and therefore subjected petitioners’ property to federal jurisdiction. None of petitioners’ property directly abuts navigable water, but the district court still reached the amazing conclu- sion that the “wetlands ... are adjacent to waters of the United States” See Pet. App. B34. This decision was based on the irrelevant tangent of whether the lands had surface wa- ter connections to distant navigable waters. /bid. lt appar- ently did not matter that the closest navigable water is twenty miles away. United States v. Rapanos, 190 F. Supp. 2d 1011, 1012 (E.D. Mich. 2002). The court of appeals declared that deciding whether a piece of land actually touches a navigable body of water is 2 “The term adjacent means bordering, contiguous, or neighbor- ing.” 33 C.F.R. § 328.3(c). “{H]aving a common border: abut- ting, touching.” Webster's Third New Int’l Dictionary 26 (un- abridged ed. 1976). just too complicated and abandoned the adjacency test alto- gether. See Pet. App. A8 (“Determining which wetlands ere considered ‘adjacent to’ traditional navigable waters or their tributaries has proved to be a complication in defining CWA jurisdiction”). In its place, it invented a new “hydrological connection” test, stating that a “significant nexus between the wetlands and navigable waters ... can be satisfied by the presence of a hydrological connection.” Pet. App. A16 (cita- tion omitted). SUMMARY OF ARGUMENT I. The Clean Water Act does not grant the Corps the au- thority to regulate every drop of water in the Nation. Rather, the statute appl’es only to discharges into “navigable waters.” 33 U.S.C. § 1344(a). While this Court has recognized a nar- row exception to the plain definition of “navigable waters” — namely, that wetlands sharing a bank with navigable waters are themselves ccnsidered “navigable”—the scope of the Corps’ proposed definition—under which wetlands twenty miles away from navigable-in-fact waters could be consid- ered “navigable”—runs contrary to the plain text of the stat- ute and the intent of Congress. Wetlands directly adjacent to navigable waters commonly drain into those waters—indeed, this’ Court has held that it is sometimes difficult to tell where “water ends and land be- gins.” United States v. Riverside Bayview Homes, 474 U.S. 121, 132 (1985). The need to prevent discharges into navi- gable waters from adjacent wetlands, combined with evi- dence of Congress’s intent during passage of the Clean Water Act, led to this Court’s holding in Riverside that it was per- fectly reasonable for the Corps to regulate wetlands directly adjacent to navigable waters. Whereas concluding that wetlands adjacent to navigable waters are “navigable” might be reasonable, there is no basis in law or fact for construing the definition of “navigable” to include wetlands twenty miles distant from navigable waters. Yet the court of appeals, using one sentence from the legisla- tive histc’’ out of context, stretched the term “navigable” to include anything with a “hydrologic connection” to navigable waters—even though that would mean every molecule of wa- ter and water vapor in the Nation. This Court should not adopt this preposterous rule, as the repeated use of the term “navigable” throughout the history of this Nation’s laws, as well as this Court’s recent decision in SWANCC, require that “navigable” retain at least some shred of its original meaning. Restoring the plain meaning of “navigable,” moreover, would make the task of determining the constitutionality of the Act’s application unnecessary. Il. If this Court were to accept the construction of the Act as advanced by the Corps, the statute as so construed would exceed Congress’s power under the Commerce Clause. The Act clearly defines the regulated activity as “the dis- charge of dredged or fill material into the navigable waters.” 33 U.S.C. § 1344(a). The government, however, has pre- sented no evidence that petitioners’ actions cause fill material to enter navigable waters, and can only speculate about the remote possibility of such an occurrence. Petitioners’ activi- ties simply do not fall within the regulated activity. Even if they did, the “hydrological connection” rule cannot be sus- tained as a regulation of the channels of interstate commerce. Although certain navigable waters might constitute such channels, the remote wetlands on petitioners’ property do not constitute navigable waters under even the most lenient of this Court’s Commerce Clause precedents. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164, 171-74 (1979). And the government has made no argument that the Act regulates the instrumentalities of interstate commerce. The supposed “hydrological connection” does not have a substantial effect on interstate commerce. Whereas the mari- juana at issue in Gonzales v. Raich, 125 S. Ct. 2195 (2005), and the wheat at issue in Wickard v. Filburn, 317 U.S. 111 (1942), were (at least arguably) both commodities bought and sold in economic markets, there is no such commodity or market at issue in this case. Similarly, the Act contains no jurisdictional element to ensure that the requisite nexus with interstate commerce is present. It only grants the Corps power over “navigable waters,” 33 U.S.C. § 1344(a), and none of the goals of the Act even refer to commerce or eco- nomic activities. See 33 U.S.C. § 1251. Congress made no legislative findings to the contrary. The connection of peti- tioners’ wetlands to navigable waters twenty miles away, moreover, are so far removed as to be almost nonexistent. While such a dilution may be the basis of homeopathic medi- cine, it is certainly too much of an attenuation to have a sub- stantial effect on commerce. “{I]f Lopez means anything, it is that Congress’s power under the Commerce Clause must have some limits.” United States v. Rybar, 103 F.3d 273, 291 (3d Cir. 1996) (Alito, J., dissenting). Congress is prohibited from regulating every drop of wa- ter in the Nation because such an exercise would be nothing less than a federal police power, which has been expressly forbidden by the Constitution and this Court: the “traditional and primary power over land and water use” resides with the states. SWANCC, 531 U.S. at 174. The government would argue that SWANCC has not made one dent in Congress’s power to regulate waters far removed from navigable water- ways—that the Corps can replace the attenuated avian con- nection struck down in SWANCC with an attenuated hydro- logical connection. This Court should not reward such a transparent attempt to reach the same remote waters by dif- ferent means. ARGUMENT By creating the unfounded and vague “hydrological con- nection” rule out of whole cloth, the court of appeals not only ignored the intentions of Congress and this Court that wet- lands must actually be navigable or adjacent to navigable wa- ters to be subject to the Clean Water Act, but also eliminated any possible import of the term “navigable” in the statute. By so doing, the court of appeals impermissibly expanded the reach of Congress’s Commerce Clause power, conceiva- bly allowing it to envelop any molecule of water that might one day reach a river, which would grant Congress jurisdic- tion over all water in the United States. I. THE REQUIREMENT THAT REGULATED WATERS BE “NAVIGABLE” CANNOT BE READ -OUT OF THE CLEAN WATER ACT The Clean Water Act does not apply to every drop of wa- ter in the Nation. The section at issue only makes unlawful unauthorized discharges “of dicdged or fill material into the navigable waters.” 33 U.S.C. § 1344(a) (emphasis added). The court of appeals held that a nouwnavigable drain that (per- haps) eventually connects to navigable waters twenty miles away is “navigable.” The principal question before the Court, then, is whether “navigable” retains any semblance of its ordinary definition. A. “Adjacency” Is A Permissible Construction Of “Navigable” Twenty years ago, in United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), this Court was asked to decide whether wetlands directly adjacent to navigable waters were within the jurisdiction of the Corps. The Court first made the observation that “[oJjn a purely linguistic level, it may appear unreasonable to classify ‘lands,’ wet or otherwise, as ‘wa- ters.’” Jd. at 132. Wetlands could be considered “waters,” however, because “the Corps must necessanly choose some point at which water ends and land begins . . . [and] the tran- sitior: from water to solid ground is not necessarily or even typically an abrupt one.” /bid. This reasoning supported the Court’s conclusion that the Corps had jurisdiction over “wet- lands adjacent to the ‘waters of the United States.’” /d. at 139. The Riverside Bayview Court explicitly did not address whether the Corps could regulate “wetlands that are not adja- cent to bodies of open water.” 474 U.S. at 131 n.8 (emphasis added). But its examination of congressional intent regard- ing wetlands jurisdiction is especially enlightening regarding that very question. As this Court noted in Riverside Bayview, when the Clean Water Act was revised in 1977 to allow states to create their own Section 404 permit programs, “Congress provided that the States would not be permitted to supersede the Corps’ jurisdiction to regulate discharges into actually navigable waters ... ‘including wetlands adjacent thereto.” Here, then, Congress expressly stated that the term ‘waters’ included adjacent wetlands.” Id. at 138 (quoting 33 U.S.C. § 1344(g)(1)) (emphasis added). When carving out exceptions for state permit programs, Congress specifically included adjacent wetlands in its description of the Corps’ jurisdiction—but did not include non-adjacent wetlands, whether or not they were “hydrologically connected.” Because Riverside Bayview did not expressly rule on whether the Act applied to non-adjacent wetlands, there was initially some confusion of the matter. This Court resolved that confusion and definitively answered the question in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001), stating that “our holding [in Riverside Bayview] was based in large measure upon Congress’s unequivocal acquiescence to, and approval of, the Corps’ regulations interpreting the CWA to cover wetlands adjacent to navigable waters.” Id. at 167 (emphasis added). In other words, Congress acted reasona- bly when it subjected wetlands adjacent to navigable waters to the Corps’ jurisdiction in 33 U.S.C. § 1344(g){1), and this Court similarly found that the “the Corps . . . acted reasona- bly in interpreting the Act io require permits for the discharge of fill material into wetlands adjacent to the ‘waters of the United States.”” 474 U.S. at 139 (emphasis added). Adjacency to navigable waters is therefore compatible with the definition of “navigable waters.” Conversely, lands 10 not adjacent to navigable waters cannot seriously be consid- ered to be “navigable waters.” Yet the court of appeals com- pletely ignored SWANCC, concluding that “[t]here is no “di- rect abutment’ requirement in order to invoke CWA jurisdic- tion.” See Pet. App. A21. This conclusion was necessary because no conceivable definition of “adjacent” could bring petitioners’ property within the Corps’ jurisdiction. B. “Hydrological Connection” Is Not A -Permissible Construction Of “Navigable” After quoting just one sentence from the legislative his- tory of the Act— that “water moves in hydrological cycles and it is essential that discharge of pollutants be controlled at the source”—the court below breezily concluded that “Con- gress clearly envisioned that CWA jurisdiction would extend to bodies of water exhibiting a hydrological connection to traditional navigable waters.” See Pet. App. Al7. The problem with this logic is that every molecule of wa- ter or water vapor in or above the United States has a “hydro- logical connection” to navigable waters. The “hydrologic cycle” cited so favorably by the court of appeals is defined as 3 Indeed, the Corps itself is not quite sure what properties it may regulate under the Act. Different Corps District Offices use dif- ferent rules for how close a wetland must be from navigable water before it can be regulated. For instance, under the rules of the Jacksonville District or the Philadelphia District, this case would not be before the Court: those districts do not regulate wetlands more than 200 feet and 500 feet, respectively, from waters of the United States. GAO Report No. 04-297, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Prac- tices In Determining Jurisdiction, at 19 (Feb. 2004). Such amor- phous and shifting regulatory “standards” make it impossible for landowners, developers, regulators, and other concerned citizens to accurately predict the outcome of the permitting process. Amici Peterson and Packee have experienced these problems first- hand in their consulting business. 11 “a complex sequence through which water naturally passes from water vapor in the atmosphere through precipitation upon land or water surfaces and ultimately back into the at- mosphere as the result of evaporation and transpiration.” Webster’s Third New Int’! Dictionary 1109 (unabridged ed. 1976). One cannot seriously contend from the passing refer- ence to “hydrological cycles” in the legislative history that Congress intended to regulate all of land and sky, yet by the court of appeals’ reasoning, the Corps has been given regula- tory authority over every swimming pool and birdbath that partially evaporates on a summer’s day. Needless to say, “such a ruling would assume that ‘the use of the word navi- gable in the statute ... does not have any independent sig- nificance.’”” SWANCC, 531 U.S. at 172 (citation omitted). Again, the Act prohibits unauthorized discharges “into the navigable waters.” 33 U.S.C. § 1344(a). In this Court’s long history of jurisprudence concerning the Nation’s water- ways, the term of art “navigable” has had but one meaning: whether the waters in question can be traversed, or be rea- sonably made traversable, by boat. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1871); Economy Light & Power Co. v. United States, 256 U.S. 113, 122-23 (1921); United States v. Appalachian Elec. Power Co., 311 U.S. 377, 407-09 (1940). “(W]here Congress borrows terms of art in which are accu- mulated the legal tradition and meaning of centuries of prac- tice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken ....” Morissette v. United States, 342 U.S. 246, 263 (1952). Maritime terms of art, as incorpo- rated into statutes by Congress, are intended to be given their “established meaning.” McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 342 (1991) (construing “seaman’’). Just four years ago, this Court recognized that the holding of Riverside may have stretched the definition of “navigable” slightly, but explained it did not wish to “read[] the term ‘navigable waters’ out of the statute.” SWANCC, 531 US. at 12 172. Although the Court had “said in Riverside Bayview Homes that the word ‘navigable’ in the statute was of ‘lim- ited effect,’” the SWANCC Court explained that “it is one thing to give a word limited effect and quite another to give it no effect whatever.” Ibid. (emphasis added). Therefore, the Court concluded “[t]he term ‘navigable’ has at least the im- port of showing us what Congress had in mind as its author- ity for enacting the CWA: its traditional jurisdiction over wa- ters that were or had been navigable in fact or which could reasonably be so made.” Jbid. What this Court did not find in SWANCC, unlike the court of appeals, was any indication that Congress intended to use a “hydrological connection” test to determine either navigability or jurisdiction. On the contrary, the Court found that nothing in the legislative history of the Act “signifies that Congress intended to exert anything more than its com- merce power over navigation.” /d. at 168 n.3. Congress could have amended the statute at any time since this Court’s decision in either Riverside or SWANCC to clarify or elimi- nate its use of “navigable.” It did not. Indeed, after the SWANCC decision numerous commentators fretted that wet- lands protection in the United States was coming to an end, and that Congress should amend the Act in order to expand its jurisdiction. See, e.g., Edward A. Fitzgerald, SWANCC; Isolated Waters, Migratory Birds, Statutory and Constitu- tional Interpretation, 43 Nat. Resources J. 11, 68-71 (2003). It is significant that Congress has had multiple opportunities to excise “navigable” from the statute in the four years since SWANCC, but has chosen not to do so. See Gilbert v. United States, 370 U.S. 650, 658-59 (1962).4 4 A bill presently pending before Congress would remove the word “navigable” from the Act. Clean Water Authority Restoration Act of 2005, S. 912, H.R. 1356, 109th Cong. (2005). The court of appeals erred in usurping this quintessentially legislative function. [Footnote continued on next page] 13 By allowing something with a purported “hydrological connection” to a navigable water to be deemed “navigable” itself, the court of appeals has completely disregarded this Court’s ruling in SWANCC and removed all meaning from the term “navigable.” A water’s navigability does not de- pend upon its ultimate destination; the only consideration is whether someone can drive a boat on it. The water in a pud- dle on a sidewalk will eventually find its way to a river, but the puddle is surely not “navigable’”—and Congress certainly did not intend for the Corps to regulate the child who fills the puddle with dirt to make mud pies. Despite this Couri’s ruling in SWANCC just four years ago, numerous lower courts refuse to recognize the plain meaning of “navigable,” creating a great deal of confusion about the constitutional reach of the Act. Therefore, the Court should again instruct the lower courts to “read the stat- ute as written.” SWANCC, 531 U.S. at 174. Such an instruc- tion would provide clear and precise guidance to landowners and developers, and would prevent a word purposely inserted into an Act of Congress from having “no effect whatever.” Id. at 172. Giving meaning to the requirement of “navigabil- ity” would also eliminate the need for this Court to consider the constitutionality of the Act. See, e.g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979) (“an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available”). Accept- ing the Corps’ construction, by contrast, would require the Court to decide whether Congress can constitutionally sub- ject every drop of water in the Nation to federal jurisdiction. As amici demonstrate next, the answer to that question is [Footnote continued from previous page} Of course, if the Act were amended in this fashion, the constitu- tional issue discussed in Part II., infra, would arise. 14 ll. IF THE “NAVIGABILITY” REQUIREMENT IS MEANINGLESS, THEN THE CLEAN WATER ACT IS UNCONSTITUTIONAL In the unlikely event that petitioners’ wetlands are con- sidered “navigable waters” under the Clean Water Act, the Act, as applied to such property, is beyond Congress’s power to regulate under the Commerce Clause. It is undisputed that the congressional power to regulate interstate commerce nec- essarily includes “judicially enforceable outer limits.” United States v. Lopez, 514 U.S. 549, 566 (1995); see also United States v. Morrison, 529 U.S. 598, 608 (2000) (“even under [this Court’s] modern, expansive interpretation of the Commerce Clause, Congress’ regulatory authority is not without effective bounds”). Enforcement of those limits is necessary to ensure that our federal government acts only within the sphere of enumerated powers conferred on it by the Constitution. Amici submit that use of a “hydrological connection rule” as a basis for asserting jurisdiction over wetlands far removed from navigable-in-fact waters clearly exceeds the federal authority to regulate interstate commerce conferred by the Constitution. As a result, the Corps’ asser- tion of regulatory jurisdiction over petitioners’ property should be invalidated as unconstitutional. A. The Regulated Activity Is Discharging Fill The exact nature of the regulated activity must be deter- mined before proceeding with the Commerce Clause analysis because “‘looking primarily beyond the regulated activity .. . would “effectually obliterate” the limiting purpose of the Commerce Clause,’ and under such an approach, ‘the facial challenges in Lopez and Morrison would have failed.’” Ran- cho Viejo, LLC v. Norton, 334 F.3d 1158, 1160 (D.C. Cir. 2003) (Roberts, J., dissenting) (emphasis added). Discerning the regulated activity in this case is a simple task, as it is specified by the statute: “the discharge of dredged or fill ma- terial into the navigable waters.” 33 U.S.C. § 1344(a). 15 But the courts have lost sight of the scope of the regu- lated activity. If the lower court is to be believed, the regu- lated activity at issue is not the discharge of fill into naviga- ble waters, but rather the discharge of fill into wetlands .. . that have a surface water connection to nearby drains . . . that trickle into nonnavigable creeks .. . that connect to streams and rivers . . . that later become navigable. Indeed, the Corps presented no proof, nor did either of the lower courts find, that fill material from Rapanos’s lands ever reached naviga- ble waters. Nor was any mention made that these “surface waters” in the dubious chain-of-connection actually carry fill material to the drains, or are anything more than pure rain- water. The most the court of appeals could do was speculate that “[a]ny contamination of the Rapanos wetlands could af- fect the Drain, which, in turn could affect navigable-in-fact waters.” United States v. Rapanos, 339 F.3d 447, 453 (6th Cir. 2003) (emphasis added).5 In essence, the “hydrological connection” rule supports the contention that the government should have jurisdiction over water that merely touches fill material miles away from navigable water, regardless of whether that fill material is actually “discharge[d] . . . into the navigable waters.” 33 U.S.C. § 1344(a). Such a contention goes far beyond the regulated activity. Under the Act, the government can regulate only discharges “into the navigable waters,” and thus, only those discharges where fill will reach navigable waters. See Rapanos, 339 F.3d at 451 (“As [SWANCC] makes clear, however, the need 5 Although this statement 1s taken from petitioners’ criminal case and not the one before this Court, the court of appeals incorpo- rated the holding of the criminal case into the civil case: “Ra- panos’ argument regarding SWANCC has previously been adjudi- cated by this court, in a published disposition, and its conclusion is entitled to stare decisis. See Rapanos, 339 F.3d at 453.” See Pet. App. A21. 16 to protect the navigable waters from pollution, as the Clean Water Act intends, does not require extending the federal government's jurisdiction over all non-navigable waters.”). This is completely consistent with both Riverside and SWANCC. In Riverside, fill material discharged into a wet- land directly adjacent to navigable waters would reach those waters, and therefore such activity fell under the Act. In SWANCC, fill material discharged into an isolated pond would not find its way to navigable waters, and thus jurisdic- tion in that case was unfounded.® There is no evidence to support the remote possibility that fill materials from peti- tioners’ lands will reach navigable waters, and therefore peti- tioners’ activities do not even fall within the regulated activ- ity. B. The Discharge Sought To Be Regulated Here Does Not Substantially Affect Interstate Commerce In Lopez and Morrison, this Court refined the framework for evaluating the propriety of federal action under the Commerce Clause. Accordingly, the Act’s application to non-adjacent, “hydrologically connected” wetlands can be sustained only if the regulation targets the channels of inter- state commerce, the instrumentalities of interstate commerce, or i: the targeted activity substantially affects interstate com- merce. Lopez, 514 U.S. at 558-59; see also Morrison, 529 U.S. at 609. Assuming, arguendo, that the regulated activity at issue is the discharge of fill materials into wetlands that have surface water connections to nonnavigable waters that connect to remote navigable waters, application of the Lo- 6 To be sure, fill material from an isolated pond could find its way to navigable waters if a migratory bird saw fit to make a nest ad- jacent to the navigable waters from fill material it had carried from the pond, but this Court did not base its SWANCC decision on such remote possibilities, and should not do so here. 17 Lopez/Morrison framework establishes that the activity is far beyond the outer reaches of the Commerce Clause. 1. The first Lopez test is whether Congress is regulating the “use of the channels of interstate commerce.” 514 U.S. at 558. This test boils down to whether the statute regulates “the passage in interstate commerce of either people or goods.” United States v. Rybar, 103 F.3d 273, 288-89 (3d Cir. 1996) (Alito, J., dissenting). Some navigable waters of the United States are, literally, channels of commerce among the States, and are therefore subject to federal regulation. See, e.g., Gibbons, 22 U.S. at 1. The hydrological connection rule adopted by the Corps and the court of appeals, however, cannot be sustained on this rationale. No serious reading of this Court’s Commerce Clause jurisprudence concerning the Nation’s waterways could find that the sporadic occasions of surface water, in- termittent drains, or creeks near petitioners’ wetlands are “navigable waters” used as channels of interstate commerce. Kaiser Aetna v. United States, 444 U.S. 164, 171 (1979) (navigable waters were a marina and pond frequented by boats); South Carolina v. Georgia, 93 U.S. 4 (1876) (the Sa- vannah River); The Montello, 87 U.S. (20 Wall.) 430 (1874) (Wisconsin’s Fox River, used by steamboats); The Daniel Ball, 77 U.S. (10 Wall.) 557 (1871) (Michigan’s Grand River, capable of holding a steamboat with a 123-ton load). The drains and creeks at issue certainly do not comprise part of the “highway for commerce between ports and places in different States’’ that justifies the exercise of federal power. Ex parte Boyer, 109 U.S. 629, 632 (1884). If the government wished to bar the shipment of fill mate- rials across state lines, it could easily do so under its power to regulate the channels of interstate commerce. Likewise it could decree the required depth or width of navigable rivers used in interstate commerce under tha‘ same power. But the regulation of wholly intrastate nonnavigable drains and creeks, and the minute amounts of water that drain into them, 18 clearly does not fall under the first category of Congress's Commerce Clause authority. 2. The second Lopez test is whether Congress is regulat- ing “the instrumentalities of interstate commerce.” 514 U.S. at 558. These instrumentalities are “the means of conveying people and goods across state lines, such as airplanes and trains.” Rybar, 103 F.3d at 290. Amici do not dispute that the federal government has *he power to regulate boats and ships used in interstate commerce. The provision at issue of the Act, however, does nothing of the sort, and the govern- ment has not argued that it does. See Opp. to Pet. for Cert. at 24. 3. Thus, the hydrological connection rule can be upheld only upon a finding that it constitutes a regulation of activi- -- ties that “substantially affect interstate commerce.” 514 U.S. at 558-59. But the Corps’ attempt to extend its jurisdiction to petitioners’ property cannot be upheld on this ground either. Lopez and Morrison instruct that four inquiries are relevant to determining whether a regulated activity has a substantial effect on interstate commerce: (a) whether the regulation by its terms reaches commercial or economic activity; (b) whether the regulation includes an express jurisdictional element; (c) whether Congress has made findings regarding the regulated activity’s effect on interstate commerce; and (d) whether the link between the regulated activity and interstate commerce is direct or attenuated. Lopez, 514 U.S. at 559-65; Morrison, 529 U.S. at 610-12. a. The hydrological connection rule is not aimed at any commercial or economic activity. This Court explained in Morrison that “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.” 529 U.S. at 613. The Clean Water Act clearly is not economic in nature. ““Economics’ refers to the production, distribution, and con- sumption of commodities.” Gonzales v. Raich, 125 S. Ct. 2195, 2211 (2005) (citation omitted). Whereas there was (at 19 least arguably) an “established, and lucrative, interstate mar- ket” for the marijuana at issue in Raich, or for that matter, for the wheat in the seminal case Wickard v. Filburn, 317 U.S. 111 (1942), there is no commodity or market at issue here. “Commercial” activities are those “produced for sale.” Raich, 125 S. Ct. at 2206. There are no sales at issue in this case, only the possible paths of sand and dirt, and therefore no commercial activity.’ As this Court said in Raich, Con- gress can only regulate non-commercial activities, “if it con- cludes that failure to regulate that class of activity would un- dercut the regulation of the interstate market in that commod- ity.” Ibid. There is no market here. Neither the Corps nor the court of appeals have put forth any argument that a grain of sand that travels from petitioners’ land to a river twenty miles distant has a measurable effect on the economic mar- kets of one or more States.8 7 Although the government might argue that fill materials can be bought and sold on the market, the Act does not require such ma- terials to have been in interstate commerce, or any commerce, for that matter. Nor is the Act geared toward regulating the market for fill materials. The Act may apply to any person who shovels dirt from one end of his property and dumps it at the other end— assuming, of course, that the other end is, or is adjacent to, navi- gable water. 8 The Corps did not put forth an argument that petitioners’ wet- lands or any other “hydrologically connected” wetlands economi- cally affect commerce. Whereas in the past the Corps has argued that interstate commerce is significantly affected by wild animals such as migratory birds, SWANCC, 531 U.S. at 159, arroyo toads, Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003), red wolves, Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), or small, subterranean invertebrates, GDF Realty Invs., Ltd. v. Nor- ton, 326 F.3d 622 (Sth Cir. 2003), no potentially commercial fish or wildlife is at issue here—only water. 20 Congress has not determined that all forms of water pol- lution have economic effects, and therefore did not base the jurisdiction of 33 U.S.C. § 1344(a) on the economic effects of pollution—it based the jurisdiction on navigability. “{W]hat Congress had in mind as its authority for enacting the CWA [was] its traditional jurisdiction over waters that were or had been r.avigable in fact or which could reasonably be so made.” SWANCC, 531 U.S. at 172. And the only rea- son Congress has jurisdiction over the “navigable waters” listed in the Act at all is because “[i]t was held early in our history that the power to regulate commerce necessarily in- cluded power over navigation,” and “[t]o make its control effective the Congress may keep the ‘navigable waters of the United States’ open and free.” Appalachian Elec. Power Co., 311 U.S. at 404-05. The assertion that an intrastate nonnavigable waterway may become tainted with minute quantities of sand fails as an economic argument. b. The Act must contain a “jurisdictional element” to en- sure that the requisite nexus with interstate commerce is pre- sent. See Lopez, 514 U.S. at 561-62. The Corps would point to its own promulgated rule, that grants itself jurisdiction over “[a]ll other waters such as .. . wetlands . . . the use, deg- radation or destruction of which could affect interstate or for- eign commerce.” 33 C.F.R. § 328.3(3). But the applicable question is not what authority the Corps wishes to grant to itself, but rather whether Congress granted its power to the Corps. Not only does the Act grant the Corps power only over “navigable waters,” 33 U.S.C. § 1344(a), but none of the stated goals of the Act even mention interstate commerce. See 33 U.S.C. § 1251. The Act, then, contains no jurisdic- tional element, and the Corps has no basis to expand its reach to any property with “water molecules currently present . . . [that] will inevitably flow towards and mix with water from connecting bodies.” United States v. Rueth Dev. Co., 189 F. Supp. 2d 874, 877 (N.D. Ind. 2001), vacated in part, 189 F. Supp 2d 874 (2002), aff'd, 335 F.3d 598 (7th Cir. 2003). 21 c. The third factor that a court must weigh as part of its substantial effects analysis is whether Congress made legisla- tive findings regarding the manner in which the regulated activity impacts interstate commerce. Simply stated, Con- gress has never sought to explain how an extension of the Corps’ authority to wetlands far from navigable waters sub- stantially affects interstate commerce. Indeed, this Court stated that there was “no persuasive evidence” that Congress ever acquiesced to “the Corps’ claim of jurisdiction over nonnavigable, isolated, [and] intrastate waters,” SWANCC, 531 U.S. at 171, and went on to.say that nothing in the legis- lative history of the Act “signifies that Congress intended to exert anything more than its commerce power over naviga- tion.” Jd. at 168 n.3. Congress has made no findings that the filling of remote wetlands far removed from navigable waters has any economic effect on interstate commerce. d. If the filling of wetlands twenty miles from navigable waters could have a substantial effect on interstate com- merce, that would give new meaning to the term “attenu- ated.” This is precisely the type of reasoning condemned by the Court in Lopez: “To uphold the Government's conten- tions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional author- ity under the Commerce Clause te a general police power of the sort retained by the States.” 514 U.S. at 567. “{I}f Lopez means anything, it is that Congress’s power under the Commerce Clause must have some limits.”” United States v. Rybar, 103 F.3d 273, 291 (3d Cir. 1996) (Alito, J., dissenting). The federal government does not have the con- stitutional power to regulate every drip and drop of water in the Nation that might eventually find its way to a navigable waterway. Yet that is precisely what the court below allowed the Corps to regulate: any water that trickles from petition- ers’ land via a hole in the ground that tortuously, but eventu- 22 ally, reaches a navigable river. The distance to the nver— twenty miles—is irrelevant; all that matters is that the water eventually teaches thetiver.? The glaring problem with this logic is that it has “no logi- cal stopping point.” Nat'l Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 1065 (D.C. Cir. 1997) (Sentelle, J., dissent- ing), cert. denied, 524 U.S. 937 (1998). Even if the property were 100 miles away, it could still be “connected” to the river via intermittent drains, brooks, creeks, and streams, and therefore would still be subject to the claws of the federal government. Taking the logic even further, the water that drains out of every sink, toilet, shower, and bathtub in the Nation eventually reaches a body of navigable water, and therefore Congress can regulate private citizens’ kitchens and bathrooms. If this argument seems like hyperbole, consider that a court has conjectured that the federal government has jurisdiction over private land if even a single raindrop or molecule of water from the land “ultimately” mixes with a navigable river. See United States v. Rueth Dev. Co., 189 F. Supp. 2d 874, 877-78 (N.D. Ind. 2001), vacated in part by 9 This leads to the logical, but absurd, conclusion that to evade ju- risdiction, Rapanos should prevent any water from his land from reaching the Kawkawlin River—by filling the drains. The Gal- veston District of the Corps of Engineers actually recognizes this practice: “Officials at the Galveston District said a result of this policy is that a nonjurisdictional ditch [a manmade ditch with no high water mark that is not itself a wetland] can be filled without a section 404 permit, severing the jurisdictional connection of the wetland to the water of the United States. After the connection is severed, the previously jurisdictional wetland is rendered non- jurisdictional and can be filled without a section 404 permit.” See GAO Report No. 04-297, Waters and Wetlands, at 23-24. This recognized Corps practice begs another question—f a drain is so remote from navigable waters as to be nonjurisdictional, how does jurisdiction magically manifest if a parcel of wetlands is placed next to the drain? 23 189 F. Supp 2d 874 (2002), aff'd, 335 F.3d 598 (7th Cir. 2003); see aiso Lawrence R. Liebesman & Stuart Turner, Summary of Federal Court Decisions Interpreting the Su- preme Court's 2901 Decision in SWANCC, SH088 ALI- ABA (May 2003) (ci *ditine both Rueth and United States v. Deaton, No. MJG-95-2140 (D. Md. Jan. 28, 2002), aff'd, 332 F.3d 698 (6th Cir. 2003), for espousing the “migratory mole- cule” theory of jurisdiction). Such reasoning shows that un- der a “hydrological connection” rule, even the most attenu- ated link between “pollutant” and “navigable water” could be a basis for federal jurisdiction. C. Congress Has No General Police Power To Regulate All Water Affirmance of the decision below would constitute noth- ing less than the assertion of a federal police power over all water in the United States, something the Constitution explic- itly prohibits: “The Constitution ... withhold{s] from Con- gress a plenary police power that would authorize enactment of every type of legislation. See Art. I, § 8.” Lopez, 514 U.S. at 566. “With its careful enumeration of federal powers and explicit statement that all powers not granted to the Federal Government are reserved, the Constitution cannot realisti- cally be interpreted as granting the Federal Government an unlimited license to regulate.” Morrison, 529 U.S. at 618 n.8. This is especially true in the context of land and water regulation, as the Congress and this Court both have recog- nized that the “traditional and primary power over land and water use” resides with the States: “Congress chose to ‘rec- ognize, preserve, and protect the primary responsibilities and rights of States ... to plan the development and use ... of land and water resources ....""” SWANCC, 531 U.S. at 174 (quoting 33 U.S.C. § 1251(b)). Because this Court “a/ways ha[s] rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exer- cise a police power,” the attempted creation of a police power over the Nation’s waters must be stopped immedi- 24 ately. Morrison, 529 U.S. at 618-19 (quoting Lopez, 514 U.S. at 584-85 (Thomas, J., concurring)). Indeed, the federal government would need a general po- lice power to regulate petitioners’ land, because the land cer- tainly has nothing to do with the government’s power to regulate interstate commerce. The drains and creeks near the property do not support watercraft used to transport goods or provide services, and therefore definitely are not channels of interstate commerce or part of the “highway for commerce between ports and places in different States.” Boyer, 109 U.S. at 632. Neither do the drains and creeks substantially affect interstate commerce, even though the Corps argues that commerce is affected because the property’s pollut- ants—or, more accurately, sand—may mix eventually with a body of navigable water. The decision below flies in the face of this Court’s deci- sion in SWANCC. The issue in SWANCC was whether Con- gress had regulatory power over an abandoned gravel pit filled with water. As the pond was an isolated body of water, did not carry boats shuttling people_or cargo to and fro across state lines, and therefore had absolutely no direct connection to interstate commerce, the Corps went over the top in its at- tempt to regulate the pond—literally. As it could not allege a commercial connection to the pond via waterway, the Corps took to the sky and claimed that because there were commer- cial activities associated with migratory birds and those birds landed on the pond in question, the pond, therefore, affected interstate commerce. This Court flatly rejected that argu- ment, finding that there was “no persuasive evidence” that Congress ever acquiesced to “the Corps’ claim of jurisdiction over nonnavigable, isolated, intrastate waters.” SWANCC, 531 U.S. at 171. Therefore, the Court “decline[d] respon- dents’ invitation to .. . hold[] that isolated ponds, some only seasonal, wholly located within two Illinois counties, fall un- der § 404(a)’s definition of ‘navigable waters’ because they serve as habitat for migratory birds.” /d. at 171-72. This 25 Court made clear that isolated ponds are not subject to the Act, and off-limits from Congress’s attempts at jurisdiction. Yet though the Corps’ aerobatics failed in SWANCC, it now wants to bore below the surface in a transparent attempt to regulate remote nonnavigable properties by other means. During heavy rains, water from the abandoned gravel pit in SWANCC could overflow and find its way to a drain, possi- bly mixing with an underground creek, later trickling into a stream, and eventually flowing into a river used to carry cargo between states. The Corps now tries to reassert juris- diction over petitioners’ land via such a dubious connection to interstate commerce. But to do so would render this Court’s decision in SWANCC meaningless—the gravel pit had absolutely no role in interstate commerce, regardless of whether the purported connection was bird migrations or sur- face runoff. If the Corps could not reach the SWANCC pond from above, this Court should prevent the Corps from grasp- ing petitioners’ property from below. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. DANIEL J. POPEO MARK A. PERRY PAUL D. KAMENAR Counsel of Record Washington Legal GIBSON, DUNN & CRUTCHER LLP Foundation 1050 Connecticut Avenue, N.W. 2009 Mass. Avenue, N.W. Washington, D.C. 20036 Washington, D.C. 20036 (202) 955-8500 (202) 588-0302 Counsel for Amici Curiae December 2, 2005 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A48. Public record. Not legal advice.