# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A49

## Record

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

## Text

¥$ ) (a) OFFICE OF TH |
| 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)

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/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

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“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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A49. Public record. Not legal advice.