Amicus Curiae Brief — Rapanos v. United States

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| SUPR ECLERK |

Nos. Ae and 04-1384 REME COURT, U.S.

In the Supreme Court of the Anited States

JOHN A. RAPANOS, ET AL., Petitioners

V.

UNITED STATES OF AMERICA, Respondent

JUNE CARABELL, ET AL., Petitioners

V.

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

On Writ of Certiorari to the United States Court of Appeals

for the Sixth Circuit

BRIEF FOR

WESTERN COALITION OF ARID STATES

(“WESTCAS”) AS AMICUS CURIAE

SUPPORTING REVERSAL

LAWRENCE S. BAZEL

Counsel of Record

se JOHN BRISCOE

BRISCOE IVESTER & BAZEL LLP

155 Sansome Street

Seventh Floor

San Francisco, California 94104

(415) 402-2700

(415) 398-5630 (Fax)

QUESTION PRESENTED

Do tributaries within the jurisdiction of the Clean

Water Act extend so far upstream that they include large

areas of dry land?

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................20ceeeeeeeeees i

CONSENT OF THE PARTIES.................:seeeeeees l

INTEREST OF THE AMICUS.....................0e0ees ]

SUMMARY OF THE ARGUMENT

“TRIBUTARY” SHOULD NOT BE DEFINED

SO BROADLY THAT IT INCLUDES

VIRTUALLY ALL DRY LAND..................... 4

SE si chin cscktsitincvviciniaahprcditinbadnivintiteties 9

1 Courts And Federal Agencies Have Defined

“Tributary” To Include Dry

i Aditecicdansinkescngnlsedensitiiuiiindsivaiaiesetiveten 9

Il. Tributary Jurisdiction Should Be Limited To

Waters Inseparably Bound Up With Navigable

WN cascavignanievintentisceesnninibesibstieigseses

Ill. | The Overextended Definition of “Tributary” Is

Not Needed To Protect Navigable Waters...... 17

A iiiipinntincnnedescashilasiigniainibetepibbidnannsi 22

il

TABLE OF AUTHORITIES

Cases

Carabell v. United States, 391 F.3d 704 (6"

Cir. 2004)

Headwaters v. Talent Irrigation District,

243 F.3d 526 (9" Cir. 2001)

In re Needham, 354 F.3d 340 (5" Cir. 2003)

Oregon Natural Desert Association v.

Dombeck, 172 F.3d 1092 (1998), cert.

denied, 528 U.S. 964 (1999)

Quivira Mining Co. v. United States, 765

F.2d 126 (10" Cir. 1985), cert. denied,

474 U.S. 1055 (1986)

Rice v. Harken Ex loration Company, 250

F.3d 264 (5" Cir. 2001)

Solid Waste Agency of Northern Cook

County v. United States, 531 U.S. 159

(2001)

South Florida Water Management District v.

Miccosukee Tribe Of Indians, 541 U.S.

95 (2004)

United States v. Deaton, 332 F.3d 698 (4"

Cir. 2003), ), cert. denied, 541 U.S. 972

(2004)

United States v. Eidson, 108 F.3d 1336 (11"

Cir. 1997), cert. denied, 522 U.S. 899

United States v. Rapanos, 376 F.3d 629 (6"

Cir. 2004)

Page

4,9, 10

4,5, 10, 18

7, 8, 16, 20

18

5,10, 11

13

4, 7,9, 10,

13, 14, 16, 18

4, 5, 8, 10,

11, 18, 20

4-6, 9, 1810,

16

United States v. Rapanos, 339 F.3d 447 (6"

Cir. 2003), cert. denied, 541 U.S. 972

(2004)

United States v. Riverside Bayview Homes,

474 U.S. 121 (1985)

Statutes

California Fish & Game Code § 5650

California Water Code § 13050(e)

California Water Code § 13260

California Water Code § 13263

California Water Code § 13264

California Water Code § 13304

Clean Water Act § 208(b)(2)(F), (K), 33

U.S.C. § 1288(b)(2)(F), (K)

Clean Water Act § 301(a), 33 U.S.C.

§ 1311(a)

Clean Water Act § 402(p), 33 U.S.C.

§ 1342(p)

Clean Water Act § 502(7) 33 U.S.C.

§ 1362(7)

Clean Water Act § 502(12), 33 U.S.C.

§ 1362(12)

Regulations

33 CFR § 328.1(a)

33 CFR § 328.3(e)

iv

9,10, 18, 19

20-21

6,12

33 CFR § 328.4 6, 12

40 CFR § 122.26 13

Other Materials

65 Fed.Reg. 12818 12

California — Water Quality Control 15

Board, San Diego Region, Order No. 2001-

01, NPDES Novc CA 108758, Waste

Discharge Requirements For Discharges Of

Urban Runoff From The Municipal

Separate Storm Sewer S (MS4s)

The W Of The County Of

Diego, The Cities Of San

Diego om oke , And San Diego

ed Port District (February 21, 2001)

Scentiesenaeeienentiagn anahantiennien

/sd% a

: nal, “hoy

U.S. Army Corps of Engineers, The 1}

Mississippi River and Tributaries Proj

mer nteterhenmaepe rte se HM

stb.htm

U.S. Environmental Protection Agency, Acid 17

Rain

Jf epa.gov/aci

U.S. ee Survey, Water Science ll

Glossary of Terms oo

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CONSENT OF THE PARTIES

Having obtained the consent of all parties, whose

letters have been filed with the Clerk, the Western Coalition

of Arid States respectfully submits this Brief as Amicus

Curiae supporting reversal of the judgments below. |

INTEREST OF THE AMICUS

The Western Coalition of Arid States (“WESTCAS”)

represents its members on water and wastewater issucs

relevant to the arid West. Its members include more than one

hundred water and wastewater utilities in Arizona, California,

Colorado, Nevada, New Mexico, Oregon, and Texas.

WESTCAS members operate storm sewers and other

municipal facilities that discharge into desert washes,

drainage ditches, concrete-lined flood-control channels, and

other areas that normally are dry, or at most carry a trickle of

runoff from overzealously watered lawns.

These dry channels are invariably characterized as

“waters of the United States” by the U.S. Environmental

Protection Agency (“EPA”) and the U.S. Army Corps of

' No counsel for any party authored any part of this brief and

no one other than Amicus Curiae made any monetary

contribution to the preparation and submission of this brief.

l

Engineers (“Corps”). Dry channels thereby become

regulated under the Clean Water Act. Despite their dryness,

these “waters” take on the regulatory classifications of actual

bodies of water downstream, and become classified for

fishing, swimming, and other uses such as drinking-water

supply. These classifications, and the criteria established to

protect them, are known as “water-quality standards”.

WESTCAS members are issued federal permits prohibiting

the discharge of any substance in concentrations that might

interfere with fishing or swimming in the dry channel, or

otherwise cause the channel to exceed applicable water-

quality standards. In this way, federal and state agencies

declare that dry channels of the arid West must be protected

for fishing and swimming, and exercise their authority to

impose and enforce Clean Water Act requirements intended

for wet waters.

Worse, discharges into dry channels are more heavily

regulated than most discharges into wet waters. Regulators

do not need to impose special requirements on most

discharges into wet waters, where the discharge is diluted and

quickly assimilated without causing violations of water-

"quality standards. Because dry channels lack water for

dilution, regulators may impose special requirements to

ensure that the dry channel does not exceed its water-quality

standards, and that the classified uses are fully protected.

It does no good to point out that fish cannot live on

dry land, or that swimmers cannot swim without water.

Because the dry channel automatically receives the

classification of a wet water downstream, the classified uses

must be protected until the dry channel is reclassified. Why

not simply reclassify? Alas, reclassification is extremely

difficult at best, and often impossible.

As a result, EPA and state agencies using delegated

federal authority are beginning to impose stringent

requirements to protect swimming and fishing in places

where these activities are constrained by the lack of water.

These requirements will impose unnecessary and

unreasonable costs on those who pay for municipal

stormwater and wastewater treatment—the public.

Much of the problem can be solved simply by

limiting the Clean Water Act’s protection of fishing and

swimming to channels fit for fishing and swimming—that is,

to actually navigable waters and wet tributaries inseparably

bound up with them.

SUMMARY OF THE ARGUMENT:

“TRIBUTARY” SHOULD NOT BE DEFINED

SO BROADLY THAT IT INCLUDES VIRTUALLY

ALL DRY LAND

WESTCAS submits this brief to make three simple

points about tributaries, which may come within the

jurisdiction of the Clean Water Act as extensions of

“navigable waters” or “waters of the United States”. (See

Clean Water Act §§ 502(12), 502(7), 33 U.S.C. §§ 1362(12),

1362(7) (defining “discharge of a pollutant” as addition of

pollutant to navigable waters, and “navigable waters” as

waters of the United States).)

First, several courts of appeals have abused the

~ tributary concept by defining the word to include large

expanses of dry land. The Sixth Circuit held that Clean

Water Act jurisdiction “can be satisfied by the presence of a

hydrological connection”, which can be established by

artificial “tributaries” such as roadside ditches and drains.

(United States v. Rapanos, 376 F.3d 629, 639, 642-43 (6"

Cir. 2004) (“Rapanos IT’); accord Carabell v. United States,

391 F.3d 704, 708 (6" Cir. 2004).) The Ninth and Fourth

Circuits agree. (Headwaters v. Talent Irrigation District,

243 F.3d 526, 533 (9" Cir. 2001) (irrigation canal); United

States v. Deaton, 332 F.3d 698, 708-712 (4" Cir. 2003), cert.

denied, 541 U.S. 972 (2004) (roadside ditch); see also United

States v. Eidson, 108 F.3d 1336, 1342 (11" Cir. 1997), cert.

denied, 522 U.S. 899 (man-made ditches and canals); Quivira

Mining Co. v. United States, 765 F.2d 126, 130 (10" Cir.

1985), cert. denied, 474 U.S. 1055 (1986) (gullies and

arroyos).) The “hydrological connection” need not be an

actual hydrological connection in which water is flowing at

the time of the discharge; instead, the connection is

established even if water flows only intermittently or

seasonally, or only during significant or intense rainfall.

(Headwaters at 534 (intermittent); Rapanos I] at 643

(seasonal); Fidson at 1342 (significant rainfall); Quivira at

130 (intense rainfall).) None of these cases limits how far

inland a tributary exfends.

These cases go too far. By defining “tributary” to

include artificial channels, they extend the concept not only

to roadside ditches and irrigation canals but arguably also to

urban gutters, concreted storm drains, and even underground

storm sewers. By defining “tributary” to include intermittent

hydrological connections, these cases extend “waters of the

United States” to cover virtually all dry land, because with

few exceptions rain falls on land and then flows downhill,

eventually reaching a navigable water and thereby

establishing an intermittent hydrological connection. Yet

surely Congress did not intend the Clean Water Act to apply

to Western deserts, mountain peaks, urban streets, and all the

otherwise dry land where rain falls and runs off. Dry land is

not a water of the United States.

These concerns are not merely hypothetical. Federal

agencies routinely classify dry land in the arid West as waters

within the jurisdiction of the Clean Water Act. For example,

the Corps of Engineers takes the position that all natural

drainage features, including dry desert washes and dry eroded

cuts high up on a mountain ridge, are waters of the United

States so long as the dry land includes any perceptible mark

left by flowing water. (See 33 CFR §§ 328.4, 328.3(e).)

Second, this Court has effectively excluded dry land

from the scope of regulated waters in its previous wetland

cases, which explain that wetlands within the jurisdiction of

the Clean Water Act have a “significant nexus” with

navigable waters, and are “inseparably bound up” with them.

(Solid Waste Agency of Northern Cook County v. United

States, 531 U.S. 159, 167 (2001) (“SWANCC’”), citing United

States v. Riverside Bayview Homes, 474 U.S. 121, 134

1985).) The Sixth Circuit, however, has not respected the

word “significant” in the phrase “significant nexus”. Instead,

it has asserted that any nexus—any hydrological

connection—is sufficient. (Rapanos 1], 376 F.3d at 639

(“What is required for CWA jurisdiction . . . is a ‘significant

ee , which can be satisfied by the presence of a

hydrological connection”).) The Fifth Circuit, in comparison,

has properly held that dry land and intermittent creeks are not

waters of the United States. (Rice v. Harken Exploration

Company, 250 F.3d 264, 270-271 (5" Cir. 2001); see In re

Needham, 354 F.3d 340, 345 (5" Cir. 2003) (no jurisdiction

over “puddles, sewers, roadside ditches and the like”).)

Tributary waters should be treated as within the jurisdiction

of the Clean Water Act only when they are so “inseparably

bound up” that a discharge into the tributary will produce

imminent, actual, identifiable, and significant contamination

in a navigable water. (See Rice at 272.)

Third, the decisions improperly extending Clean

Water Act jurisdiction to tributaries rest on the mistaken

notion that jurisdiction must be extended to protect the truly

navigable waters. In the words of the Fourth Circuit, a

discharge into a tributary has “the potential to move

downstream and degrade the quality of the navigable waters”.

(Deaton, 332 F.3d at 707.) But anything deposited almost

anywhere on dry land has the potential to be washed into

navigable waters. Rain undoubtedly washes into navigable

waters some droppings of bears in the woods, cows in the

fields, and dogs on city streets, but Congress could hardly

have intended “navigable waters” to include every wood,

field, and street. The Clean Water Act simply does not

regulate discharges with nothing more than the potential to

be carried into navigable waters. It regulates only actual

discharges into navigable waters.

And that is enough. When point-source discharges

into tributaries flow far enough to reach a navigable water,

they are regulated directly as discharges into navigable

waters. (See e.g. Needham, 354 F.3d at 346 (proper inquiry

is whether farthest traverse of spill reached navigable or

adjacent waters); Eidson, 108 F.3d at 1340 (discharge

flowing through storm drain treated as discharge to navigable

water).) Discharges eventually carried to navigable water by

stormwater runoff are regulated indirectly through the

permitting of stormwater discharges. (See Clean Water Act

§ 402(p), 33 U.S.C. § 1342(p).) Both are also within the

jurisdiction of state and local governments, which regulate

the discharge of wastes into water and the dumping of wastes

onto the ground. Therefore, navigable waters can be

protected without categorizing dry land as waters of the

United States.

For these reasons, the decisions of the Sixth Circuit in

the Rapanos II and Carabell cases should be reversed.

ARGUMENT

I. Courts And Federal Agencies Have Defined

“Tributary” To Include Dry Land

”

Corps regulations define “waters of the United States

to include wetlands adjacent to tributaries of navigable

waters. (Carabell, 391 F.3d at 708, citing 33 C.F.R.

§ 328.1(a).) Here the wetlands at issue in both Rapanos I]

and Carabell were determined to be within the jurisdiction of

the Clean Water Act because they were adjacent to non-

navigable tributaries. (Jd.; Rapanos IJ at 641-642.) The

proper definition of “tributary” is therefore an issue fairly

subsumed within the questions presented by petitioners.

When determining which tributaries are within the

jurisdiction of the Clean Water Act, the Sixth Circuit has

used expansive language. It has held that jurisdiction extends

to “any branch of a tributary system that eventually flows

into a navigable body of water”. (Rapanos I], 376 F.3d at

639, citing United States v. Rapanos, 339 F.3d 447, 452-53

(6" Cir. 2003), cert. denied, 541 U.S. 972 (2004)

(“Rapanos I°).) In Carabell, it quoted the Fourth Circuit's

conclusion that the Corps could properly determine that the

agency had jurisdiction “over the whole tributary system of

any navigable waterway”. (Carabeil at 710, quoting

Rapanos I at 452, quoting Deaton, 332 F.3d at 712.) Because

the Fourth Circuit rejected the argument that tributary

jurisdiction ends at the “headwaters” of a tributary, where

there is a minimum flow, these cases can fairly be read as

extending jurisdiction to dry land. (See Deaton at 710.)

In addition to the Fourth and Sixth Circuits, the Ninth

Circuit has given the word “tributary” an expansive

interpretation, as has the Tenth and Eleventh Circuits in cases

decided before SWANCC. For these courts, a tributary does

not need to be a natural body of water, but can instead be an

artificial construct such as a drain or roadside ditch.

(Rapanos II at 642-43; Rapanos I at 453; Carabell at 708;

Deaton at 708-12; Headwaters, 243 F.3d at 533 (9" Cir.,

irrigation canal); Eidson, 108 F.3d at 1342 (11" Cir., man-

made ditches and canals); Quivira, 765 F.2d at 130 (10" Cir.,

gullies and arroyos).) The “hydrological connection” need

not be an actual hydrological connection in which water is

flowing at the time of the discharge; instead, the connection

is established even if water flows only intermittently or

seasonally, or only during significant or intense rainfall.

(Headwaters at 534 (intermittent); Rapanos II at 643

(seasonal); Eidson at 1342 (significant rainfall); Quivira at

130 (intense rainfall).) In the 10" Circuit, the hydrological

connection can be underground, and so slow that the travel

time is “a lengthy period, perhaps centuries”. (Quivera at

129-30.)

10

These definitions confuse a tributary with a

drainage basin (also called a “watershed”). According to the

U.S. Geological Survey, which monitors streamflows in the

United States, a tributary is “a smaller river or stream that

flows into a larger river or stream.” (Water Science Glossary

of Terms, http://ga.water.usgs.gov/edu/dictionary.html.) A

drainage basin is the “land area where precipitation runs off

into streams, rivers, lakes, and reservoirs.” (/d.) The

Mississippi River drainage basin, for example, extends from

the Rockies to the Appalachians, covers more than a million

square miles, and drains 41 percent of the 48 contiguous

states. (Corps, The Mississippi River and Tributaries Project,

http://www.myn.usace.army.mil/pao/bro/misstrib.htm.) The

Potomac River basin, although much smaller, stretches across

parts of four states and drains more than 14,000 square miles.

(Interstate Commission on the Potomac River Basin, Basin

Facts, http://www.potomacriver.org/about_potomac/basin-

facts. htm. )

When cases such as Eidson and Quivira define

“tributary” by a wet connection with a navigable river during

times of substantial rain, they include the entire drainage

basin. The necessary hydrological connection is formed

whenever rain falls anywhere in a drainage basin and flows to

the navigable river draining the basin. Because almost all the

land in the United States is drained by a navigable river, these

1]

cases would define almost all the land in the United States as

a “water of the United States”.

And not just the land. If these cases mean what they

say, the roof of the Supreme Court Building is a water of the

United States, because the roof maintains an intermittent

hydrological connection with navigable waters. Rain falling

on the roof undoubtedly flows to a drain, down the drain to

the sewers of Washington DC, through the sewers to the

Anacostia or Potomac River, and down the river to

Chesapeake Bay and the Atlantic Ocean.

The Corps recognizes that a tributary must be less

than the entire drainage basin, but still defines the word to

include dry land. According to the Corps, “The upstream

limit of waters of the United States is the point where the

[ordinary high water mark] is no longer perceptible”. (65

Fed.Reg. 12818, 12823; accord 33 CFR § 328.4.) The

phrase “ordinary high water mark” means “that line on the

shore established by the fluctuations of water”. (33 CFR

§ 328.3(e).) Unfortunately, the Corps interprets this

definition to mean only that a mark must be present, and

brushes aside comments suggesting that water must

ordinarily be present. (65 Fed.Reg. at 12823.) In the arid

West, marks left by flowing water are quite common,

because they are not obscured by vegetation. They are

particularly evident in deserts, where drainage patterns can be

12

seen over large barren areas. Marks left by flowing water

extend to the very tops of mountain ridges. The drier the

landscape, the more likely one is to find upland “waters

the United States”.

According to the Corps, its jurisdiction reaches

beyond natural channels to drainage ditches that “extend the

{ordinary high water mark] of an existing water of the United

States” and that “connect two waters of the United States”.

(Jd.) Whatever these phrases may mean—the Corps seems

unsure itself—they allow the Corps to assert jurisdiction over

ordinary roadside ditches. (Deaton at 704, 710-711.)

By extending its jurisdiction to artificial channels, the

Corps raises an important issue for Western municipalities:

Are storm drains waters of the United States? In the arid

West, stormwater is often managed by a system of

aboveground channels, which may be sophisticated concrete

structures or simple ditches. If these storm drains are waters

of the United States, then they are not point sources, and do

not need NPDES permits. (See South Florida Water

Management District v. Miccosukee Tribe Of Indians, 541

U.S. 95, 112 (2004) (no NPDES permit needed for transfer of

water between two water bodies that are not “meaningfully

distinct”).) If the storm drains are not waters of the United

States, they may be regulated as point sources. (See Clean

Water Act § 402(p), 33 U.S.C. § 1342(p); 40 CFR § 122.26.)

13

The Corps recognizes this problem, but leaves it unresolved:

“Stormwater management facilities constructed in, waters of

the United States may, under certain circumstances, be

considered waters of the United States.” (65 Fed.Reg. at

12824.) No circumstances are identified.

The Fourth and Sixth Circuits do not have the

restraint of the Corps. The Fourth Circuit held that ~

“jurisdiction extends to any branch of a tributary system that

eventually flows into a navigable body of water”, and

adopted a dictionary definition of “tributary” that “would

encompass the entire feeder system”. (Deaton at 710-711.)

Taken literally, the “entire feeder system” would include not

only natural tributaries and artificial roadside ditches, but

also wholly underground storm sewers and the system that

feeds those sewers, including roof gutters, downspouts, and

roadside gutters. With decisions like these, we should not

wonder that the State of California has concluded that “a

Municipal Separate Storm Sewer System (MS4) is always

considered a Waters of the United States”, and that a

municipal system includes “roads with drainage systems,

municipal streets, catch basins, curbs, gutters, ditches, natural

drainage features or channels, modified natural channels,

man-made channels, or storm drains”. (California Regional

Water Quality Control Board, San Diego Region, Order No.

2001-01, NPDES No. CAS0108758, Waste Discharge

14

Requirements For Discharges Of Urban Runoff From The

Municipal Separate Storm Sewer Systems (MS4s) Draining

The Watersheds Of The County Of San Diego, The

Incorporated Cities Of San Diego County, And The San

Diego Unified Port District, at D-4, D-8 (February 21, 2001)

http://www.wa .ca.gov/sandiego/pro s/stormwat

/sd% it/ % %202001-

01%20Final%20with*o20attachmentss.pdf.) Despite this

characterization of municipal storm-sewer systems as waters

of the United States, California regulates them as point

sources. (/d.)

The classification of dry channels and municipal

storm drains as waters of the United States threatens

municipalities with exorbitant costs that will produce little or

no environmental benefit. Because stormwater is not

centrally collected and treated like sanitary wastewater,

municipalities have only limited control over stormwater

quality. Ensuring that dry channels comply with water-

quality standards may be impossible at any cost. And what

will be gained from all this regulation and expense? Even if

municipalities discharged Perrier water instead of

stormwater, the dry channels would return to their dry

condition soon after the rain ended, and would remain unfit

for swimming and fishing because of the lack of water.

15

In summary, the definition of “tributary” has

improperly been extended to include all the land extending

from a navigable river to the tops of the mountain ridges at

the edges of its drainage basin, and to artificial structures

including urban streets and gutters.

Il. Tributary Jurisdiction Should Be Limited To Waters

Inseparably Bound Up With Navigable Waters

The problems caused by an overexpansive definition

of “tributary” can be solved by applying the concepts of

SWANCC and limiting tributary jurisdiction to those waters

that have a “significant nexus” and are “inseparably bound

up” with navigable waters. (See SWANCC at 167.)

Unfortunately, in extending tributary jurisdiction to any

hydrological connection, the Fourth and Sixth Circuits have

changed the standard from “significant nexus” to any nexus.

(See Deaton at 710-711; Rapanos IT at 639 (“a ‘significant

SB cise ue can be satisfied by the presence of a

hydrological connection”)

The Fifth Circuit, however, has properly interpreted

the concepts established in SWANCC. It has concluded that

jurisdiction “is not so broad as to permit the federal

government to impose regulations over ‘tributaries’ that are

neither themselves navigable nor truly adjacent to navigable

waters”, and that “the United States may not simply impose

16

regulations over puddles, sewers, roadside ditches and the

like”. (Needham, 354 F.3d at 345; see Needham at 344

(jurisdiction under Oil Pollution Act same as Clean Water

Act).) Jurisdiction should not be extended to regulate

discharges “that have only an indirect, remote, and attenuated

connection with an identifiable body of ‘navigable waters.’”

(Rice, 250 F.3d at 272.) Discharges are subject to regulation

only if there is a “close, direct, and proximate link” between

the discharges and “resulting actual, identifiable . . .

contamination of a particular body of natural surface water”

that satisfies jurisdictional requirements. (/d.)

This Court should adopt the Fifth Circuit’s

application of the SWANCC standard, and hold that tributary

waters are within the jurisdiction of the Clean Water Act only

when they are so inseparably bound up with a truly navigable

water that a discharge into the tributary will produce

imminent, actual, identifiable, and significant contamination

in the navigable water.

It. The Overextended Definition of “Tributary”

Is Not Needed To Protect Navigable Waters

Natural water is never pure H»O. Even normal

rainwater has an acidic pH of 5.5, rather than a neutral pH of

7.0, because carbon dioxide dissolves into the rain as it falls and

forms carbonic acid. (See http://www.epa.gov/acidrain/.) As

17

water runs over and through the land, it dissolves some of

what it comes into contact with, and washes some into

navigable waters. In agricultural areas, cow droppings may

fall directly into navigable waters, or be carried in by

stormwater. (See Oregon Natural Desert Association v.

Dombeck, 172 F.3d 1092, 1093, 1098-1099 (1998), cert.

denied, 528 U.S. 964 (1999).) No doubt bison droppings also

fell directly into navigable waters, and were carried in by

stormwater, when millions of bison roamed the Great Plains.

Because rain falls almost everywhere, and runs off the land

into navigable waters, almost anything exposed to rain has

some potential for affecting water quality in navigable

waters.

The courts of appeal are therefore wrong when they

suggest that the potential to affect navigable waters defines a

tributary. (See e.g. Deaton at 707 (“Any pollutant or fill

material that degrades water quality in a tributary has the

potential to move downstream and degrade the quality of the

navigable waters themselves”); Rapanos J at 451; Rapanos II

at 639-640; Headwaters at 534 (“as long as the tributary

would flow into the navigable body . . ., it is capable of

spreading environmental damage and is thus a ‘water of the

United States’ under the Act”), quoting Eidson at 1342.)

Nowhere does the Clean Water Act imply that “waters of the

United States” are to be determined by these standards of

18

“potential to move downstream” and “capable of spreading

environmental damage”. If these were truly the standards to

be applied, they would make Corps regulations meaningless,

because surely fill material placed on the bank of a navigable

water has more potential to move into the navigable water

and spread environmental damage than the same fill placed in

a wetland miles away and connected to the navigable water

only through a series of roadside ditches and drains.

The Sixth Circuit reads too much into the statement in

the Legislative History that “Water moves in hydrological

cycles and it is essential that discharge of pollutants be

controlled at the source.” (Rapanos J at 451.) Regardless of

how water moves, Congress explicitly limited the reach of

the Clean Water Act to “point” sources, and imposed only -

general planning requirements on nonpoint sources. (Clean

Water Act §§ 301(a), 502(12), 33 U.S.C. §§ 1311(a),

1362(12) (prohibiting point-source discharges into navigable

waters), §§ 208(b)(2)(F), (K), 33 U.S.C. §§ 1288(b)(2)(F),

(K) (planning process to consider control of “agriculturally

and silviculturally related nonpoint sources of pollution” and

“the disposal of pollutants on land”’).) Congress therefore

excluded many sources, and many waters, from regulation

under the Clean Water Act.

The courts of appeal are also wrong to the extent that

they suggest that discharges to non-navigable waters cannot

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be regulated under the Clean Water Act, even if they pollute

navigable waters. Discharges that reach navigable waters by

way of non-navigable waters and artificial conveyances such

as pipelines are routinely treated as discharges to navigable

waters. In Needham, for example, the Fifth Circuit held that

the proper inquiry in determining whether an oil spill violated

the Oil Pollution Act was not where the oil was initially

deposited, but whether it reached navigable waters or

jurisdictional adjacent waters. (Needham at 346; but cf. Rice

at 272 (generalized assertion that covered surface waters will

eventually be affected insufficient).) In Eidson, the

defendant discharged material to a storm sewer, and the

material apparently flowed through the sewer to a ditch.

(Eidson at 1340.) In upholding the conviction, the Eleventh

Circuit never stopped to consider whether the storm sewer

was a water of the United States. It treated the discharge as a

discharge to the ditch, which it found to be a navigable water.

(Id. at 1342-1343.) In this way, point-source discharges that

reach navigable waters are routinely subject to Clean Water

Act requirements.

Discharges that reach navigable waters indirectly,

when they are carried downstream by rain, are regulated as

stormwater discharges. (See Clean Water Act § 402(p), 33

U.S.C. § 1342(p); 40 CFR § 122.26.) They are also regulated

by state and local governments. (See e.g. California Water

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Code § 13050(e) (defining “waters of the state” to include all

surface water and groundwater), § 13260 (requiring report of

waste discharges that could affect waters of state), § 13263

(authorizing state agency to issue waste-discharge

requirements), § 13264 (prohibiting discharge of waste

before filing report with state agency), §13304 (authorizing

state agency to issue cleanup and abatement order for wastes

deposited where they may create a condition of pollution or

nuisance); Fish & Game Code § 5650 (prohibiting deposit of

substances deleterious to fish where they may pass into the

waters of the state).) Navigable waters can therefore be well

protected without categorizing all tributaries and dry land as

waters of the United States.

In summary, by misusing the concept of a tributary,

several courts of appeals have defined “waters of the United

States” so broadly that the phrase covers virtually all the land

in the United States. Clean Water Act jurisdiction should

extend only to those tributaries that are so inseparably bound

up with a truly navigable waver that a discharge into the

tributary will produce imminent, actual, identifiable, and

significant contamination in the navigable water. A more

expansive definition would be inconsistent with Corps

regulations and the specific provisions of the Clean Water

Act.

CONCLUSION

For these reasons, the decisions of the Sixth Circuit in

the Rapanos IT and Carabeil cases should be reversed.

Respectfully submitted,

LAWRENCE S. BAZEL

Counsel of Record

JOHN BRISCOE

Briscoe Ivester & Bazel LLP

Attorneys for Amicus Curiae

Western Coalition of Arid States (““WESTCAS”)

December 2, 2005

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