# Amicus Curiae Brief — Rapanos v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A50 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2006 - **Citation:** 547 U.S. 715 ## Text vou. Booa ana 6 rT nana In The OFFICE OF THE CLEPK Supreme Court of the Anited States JOHN A. RAPANOS, et ux., et al., Petitioners, V. UNITED STATES, Respondent. SJ JUNE CARABELL, et al., Petitioners, Vv. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Respondents. SJ On Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit o BRIEF OF AMICI CURIAE WESTERN ORGANIZATION OF RIVER BASIN COUNCIL, DAKOTA RESOURCE COUNCIL, OREGON RURAL ACTION, WESTERN COLORADO CONGRESS, COMMUNITY ASSOCIATION FOR RESTORATION OF THE ENVIRONMENT, CONCERNED CITIZENS FOR CLEAN WATER, AMIGOS BRAVOS, NEW RIVER WATCH, ARIZONA WILDLIFE FEDERATION, WALKER LAKE WORKING GROUP, WYOMING OUTDOOR COUNCIL, IOWA FARMERS UNION and MINERAL COUNTY IN SUPPORT OF RESPONDENTS ° CHARLES M. TEBBUTT Counsel of Record Western Environmental Law Center 1216 Lincoln St. Eugene, OR 97401 541-485-2471 January 13, 2006 COCKLE LAW BRIEF PRINTING CO (800) 225-6064 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED (as presented by Petitioners) No. 04-1034 Rapanos v. United States 1. Does the Clean Water Act prohibition on unpermitted discharges to “navigable waters” extend to nonnavigable wetlands that do not even abut a navigable water? 2. Does extension of Clean Water Act jurisdiction to every intrastate wetland with any sort of hydrological connec- tion to navigable waters, no matter how tenuous or remote the connection, exceed Congress’ constitutional power to regulate commerce among the states? No. 04-1384 Carabell v. United States Army Corps of Engineers 1. Does the Clean Water Act extend to wetlands that are hydrologically isolated from any of the “waters of the United States”? 2. Do the limits on Congress’ authority to regulate interstate commerce preclude an interpretation of the Clean Water Act that would extend federal authority to wetlands that are hydrologically isolated from any of the “waters of the United States”? TABLE OF CONTENTS Page QUESTIONS PRESENTED ...............ccccsceccseeeeseseeeees i INTERESTS OF AMICI CURIAE .............c0c000000000008 1 SUMMARY OF THE ARGUMENT................c00000000000: 5 FRIST SEIE a Seen ORSON mE 9 ot SR oD 7 I. THE COMPREHENSIVE NATURE OF THE CLEAN WATER ACT AND PRIOR PRECE- DENT GIVES CONGRESS THE POWER TO REGULATE INLAND WATERS TO PRE- VENT POLLUTION AT ITS SOURCE ........... 7 Il. TRIBUTARY STREAMS AND WETLANDS ADJACENT TO OR CONNECTED WITH TRIBUTARY STREAMS ARE THE CAPIL- LARIES OF THE NAVIGABLE-IN-FACT ARTERIAL WATERWAYS ...................:00000ee0000 13 Ill. IN THE WEST, TRIBUTARY STREAMS, AND THE WETLANDS AND OTHER WA- 1ERS THAT HELP FEED THEM, ARE ES- SENTIAL TO ECONOMIC SURVIVAL AND ES SIG BR cccnersnnsncveccccensesnecsesesscovase 20 IO sec csenecccsscicvcsccescennsnsecesecetnepbesosannnpecetoes 28 ill TABLE OF AUTHORITIES Page CASES: Arkansas v. Oklahoma, 503 U.S. 91 (1992) ...............0000008 12 Carabell v. United States Army Corps of Eng’rs, 391 SEE TERE TITS sccasnsundengsenbegsaipnaiiniebiuaiicondedenns 18 Chevron U.S.A. Inc. v. Natural Res. Def. Council, ee Ey ET ETI ccistiinhietvindutnattiniainictantdipasidintinescnbidess 14 Community Ass'n for Restoration of the Env’t v. Henry Bosma Dairy, 65 F. Supp. 2d 1129 (E.D. Wa. 1999), aff'd, 305 F.3d 943 (9th Cir. 2002)...............0:.ee 23, 24, 25 Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d IY Ny Mt Phsneisicetecassebelddiinnianmnendsiasktocanabeititiiens 21, 22 Idaho Rural Council v. Bosma, 143 F. Supp. 2d I i 25, 26 Int'l Paper Co. v. Oullette, 479 U.S. 481 (1987).............. 8,9 Milwaukee v. Illinois, 451 U.S. 304 (1981) .............ccccceeeeees 8 New Jersey v. New York, 283 U.S. 336 (1931)................... 1l Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., I tla 11, 13 Red Lion Broad. Co. v. Fed. Communications Comm'n, 395 U.S. 367 (1969)............cccccccccsccsssseccecescevees 14 Solid Waste Agency of N. Cook County v. United States Army Corps of Eng’rs, 531 U.S. 159 (2001).... 9, 17 Quivira Mining Co. v. United States Envtl. Prot. Agency, 765 F.2d 126 (10th Cir. 1985)..............00.....0000.. 21 Train v. City of New York, 420 U.S. 35 (1975) ...............0000. 9 United States v. Alaska, 503 U.S. 569 (1992) ............0:000. 11 iv TABLE OF AUTHORITIES - Continued Page United States v. Appalachian Elec. Power Co., 311 SAO O CIID sovcitenndengsacingiecnpsicntinitindinidicbidedgeie tines 18 United States v. Eidson, 108 F.3d 1336 (11th Cir. DERI UD vtl. Prot. Agency, 765 F.2d 126, 130 (10th Cir. 1985) (affirming EPA’s determination that CWA permit required for discharges into surface arroyos that, during storms, channeled rainwater both directly to streams and into underground aquifers that connected with such streams); Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 534 (9th Cir. 2001) (“[E]ven tributaries that flow intermittently are ‘waters of the United States’.”). The reasoning for including intermittent tributaries within the jurisdiction of the Act is clear: “‘[A]s long as the tributary would flow into the navigable body [], it is capable of web0.greatbasin.net/~frankly/walker.html (last visited January 6, 2006). * The capacity of wetlands to temporarily store and later release water plays a critical role in supplying water to streams and rivers during dry seasons of the year. See Virginia Carter, Technical Aspects of Wetlands: Wetland Hydrciogy, Water Quality, and Associated Functions, United States Geological Survey Water Supply Paper 2425, available at http-//water.usgs.gov/nwsum/WSP2425/hydrology. html (last visited January 10, 2006); United States EPA, Functions and Values of Wetlands, EPA 843-F-01-002c (Sept. 2001) available at www.epa.gov/ owow/wetlands/pdf/fun_val.pdf (last visited January 10, 2006). 22 spreading environmental damage and is thus a ‘water of the United States’ under the Act.’” Id. at 534 (quoting United States v. Eidson, 108 F.3d 1336, 1342 (11th Cir. 1997)). Intermittent and ephemeral streams feed downstream perennial waters by overland flow during times when streams carry groundwater contribution, snowmelt, and other precipitation runoff. Intermittent and ephemeral streams also provide a means to filter pollutants along the way. At other times streams may disappear into the ground as ground water recharge or reemerge as whole rivers.” Virtually all rivers gain water from tributaries as they proceed downstream, but in areas of the West, streams or rivers dry up at times either from ground infiltration, evaporation, over appropriation, or a combina- tion of these factors. These so-called “losing reaches” still require the same protections as streams with constant surface connections. Without them, ground water would be further depleted, thereby reducing, or in some cases eliminating, ground water used for supplying people with drinking water and irrigation water for crops and live- stock. These losing streams also may again “daylight,” either through springs or from being fed by other down- stream tributaries. If protections are taken away from any parts of these streams they might never again see the light of day. The elimination of federal protections for such waters will ultimately lead to lower flows in the downstream ” The famous McKenzie River in Oregon actually disappears underground through a lava field only to reemerge some two miles downstream. See “A Tale of Two Rivers” available at http://www.4j. lane.edu/partners/eweb/ttr/mckenzie/cdr.html (last visited January 2, 2006). 23 perennial waters that rely on ground water flow to make them perennial. In other words, without these upland waters, some perennial streams might themselves become intermittent streams. In a series of Clean Water Act enforcement cases where the plaintiff group, CARE, one of the amici on this brief, consisted of life-long residents, mostly farmers and orchardists, in the Yakima Valley in south-central Wash- ington, industrial dairies were using natural drains and ditches“ to dispose of manure-contaminated wastewater and to convey it to holding pits, as well as over-irrigating with manure wastewater that then ran off into the natural drains. In some cases, the drains are intermittent or ephemeral streams. They are all tributaries to the Yakima River, located two to five miles downstream from the facilities. See Community Ass’n for Restoration of the Env't (“CARE”) v. Henry Bosma Dairy, 65 F. Supp. 2d 1129, 1138, 1144 (E.D. Wa. 1999) (liability phase), aff’d, 305 F.3d 943, 947 (9th Cir. 2002). These are just the types of waters that Petitioners and their amici argue should not receive Clean Water Act protections, even though they contain water that eventually flows into a navigable water body. One of the CARE cases involved the then-largest dairy in the State of Washington (over 5,000 milking cows contained in pens totaling about 50 acres). High fecal * Many ditches are actually natural waters that have been diverted, straightened, and ditched to promote agriculture, align with property boundaries, or drain wetlands. * Large industrial dairies, with over 700 confined mature dairy cows, are called Concentrated Animal Feeding Operations, or CAFOs, (Continued on following page) 24 coliform (bacteria associated with animal manure that present public health risks) readings were found in the drain that ran through the dairy’s property. See CARE v. Henry Bosma Dairy, 2001 WL 1704240 at *10 (E.D. Wa. 2001) (penalty phase), aff’d, 305 F.3d 943. The drain, which at times was only inches deep, carried natural run- off and man-induced discharges that ran for miles through many people’s properties to the Yakima River. CARE, 65 F. Supp. 2d at 1138, 1144. The drain became part of the dairys NPDES permit and was identified in the permit as waters of the State of Washington.” Jd. at 1145. Another drain next to which manure waste was placed ran about seven miles through farmland to the Yakima River. Id. at 1150. These drains highlight the situation that exists in much of the arid West. While the drains are not navigable themselves, they contribute significant quantities of water (and at times pollutants) to the waters downstream, in this case the Yakima River which flows into the defini- tively navigable-in-fact Columbia River. These drains and ditches may be considered point sources where they are entirely within one person’s prop- erty, but when they flow through multiple properties and give rise to opportunities for many individual discharges and are defined as point sources under the Clean Water Act. 33 U.S.C. § 1362(14). “ The Washington definition directly relies upon the federal definition of waters of the United States. “‘Surface waters of the state’ means all waters defined as ‘waters of the United States’ in 40 C.F.R. § 122.2 that are within the boundaries of the state of Washington. This includes lakes, rivers, ponds, streams, inland waters, wetlands, ocean bays, estuaries, sounds, and inlets.’” Wash. Admin. Code § 173-220- 030(21). It is the Clean Water Act that gives the state authority to regulate the discharges as part of its federally approved program. 25 to contribute waste, they must be regulated as waters of the United States. Otherwise, there would be no means to eliminate the pollution that they carry to navigable waters. In either case, the Clean Water Act gives the EPA jurisdiction to regulate these sources. See 33 U.S.C. § 1362(14) (definition of “point source”); (7) (definition of “navigable waters”). EPA uses its discretion as to how to address the drains and ditches. The Act also has built-in exemptions from discharge limitations for limited types of activities, including “normal farming ... and ranching activities such as plowing, seeding, [etc.].... ” 33 U.S.C. § 1344(f)(1)(A). Filling of wetlands for commercial pur- poses, as in the Petitioners’ case facts, or for discharge of wastes into drains as exemplified in the CARE cases, do not fit within the narrow exceptions to permitting. Another example involves a dairy in Idaho. In that case the dairy (over 2000 cows) was located on a plateau above two adjacent ranches. The plaintiff was the Idaho Rural Council, one of the amici herein, whose members included the ranch families. One ranch was homesteaded by the Butler family nearly a century ago and the family still ranches that property. Each ranch was dependent on springs whose source was the shallow aquifer that ran beneath the industrial dairy. The operator of the dairy had for years simply bulldozed dead animals, calf fetuses, medical waste, syringes, and manure into a ravine where one of the springs surfaced. Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169, 1176 (D. Id. 2001). The spring ran down through one rancher’s property (and was used for watering free-ranging livestock) into an irrigation canal that led to a nearby creek, a downstream recreational reservoir, and then to the Snake River, a navigable water. Id. at 1179. As the court itself noted, “whether pollution is introduced by a visible, above-ground conduit or enters the surface water through the aquifer matters little to the fish, waterfowl, and recreational users which are affected by the degradation of our nation’s rivers and streams.” Jd. at 1180. The Idaho case also involved wet areas on slopes known as “seeps.” These seeps are located in ravines and form the beginning of the surface waters. See Whigham & Jordan, Isolated Wetlands and Water Quality, 23 Wet- LANDS at 544 (“Slope wetlands form where there is a discharge of ground water to the land surface (Brinson 1993). The slope of the '!and surface associated with this wetland class may be gentle or steep, and the sources of water are predominantly ground water (shallow or deep) and precipitation. Wetlands in this category are also called ‘seeps’, and they can support a wide variety of wetland plant communities (Podniesinski and Leopold 1998, Crow et al. 2000, Winter et al. 2001). Wetlands associated with seeps have been shown to be important sites for regional biodiversity because they often contain rare species (Weakley and Schafale 1994).”). Springs such as the ones described are used not only by the people who have home- steaded the areas generations ago, but also by wildlife that depend on them in these arid regions. These small, intermittent streams are critical to the economies of the arid West. If they were to be removed from federal jurisdiction, the types o1 wanton pollution exemplified above would potentially go unchecked and would certainly cause further impairment to our Nation’s waters, in violation of the Clean Water Act’s stated goal of eliminating pollution. See 33 U.S.C. § 1251(a\(1). Each polluter must be responsible for the discharges he creates 27 in order for the point source prohibition scheme to be effective. In New Mexico, amici New Mexico Acequia Associa- tion members depend on intermittent streams to fill their acequias, which have been used for generations to irrigate crops and water livestock.” Pollution discharged into these bodies of water which receive waters not used for agricul- tural purposes. If the tributaries are allowed to be de- stroyed, it would reduce the already limited quantity of surface water upon which people and wildlife depend. Many of the members of the amici organizations on this brief are ranchers or farmers whose direct livelihood Ohio, Illinois, Tennessee, Hudson, Missouri, Yellowstone, Snake, Columbia, Colorado and Rio Grande Rivers, to name just a few. The Clean Water Act prohibits such degrading activities and this Court should uphold the Clean Water Act and its regulatory definition of “waters of the United States.” ¢ CONCLUSION The decisions of the Sixth Circuit in Rapanos and Carabell should be affirmed in their entirety. Respectfully submitted, CHARLES M. TEBBUTT Counsel of Record Western Environmental Law Center 1216 Lincoln St. Eugene, OR 97401 541-485-2471 January 13, 2006 Table Navigable River and Stream Mileage in the West Total Miles | COE Sec. 10 Navigable 90,373 211,513 107,403 115, 595 134,338 176,750 81,573 143,578 110,741 54,373 114,823 9,937 85,916 70, 439 108,767 1,616,119 Total miles from 1998 EPA 30Sb report. http://www epa.gov/305b/98report/appenda.pdf Navigability determined by Corps of Engineers for purposes of Section 10 of the Rivers and Harbors Act a. Some navigable mileage estimated. b. Nav. Rivers: Sacramento Dist. http://www.spk.usace.mil/cespk-co/regulatory/navigable. html. c. Nav. Rivers: San Francisco District Spreadsheet, 8/2/71 d. Nav. Rivers: LA District Pers. Comm. 2/18/03 e. Nav. Rivers: Walla Walla Dist., http://www .nww.usace.army.mil/htmV/offices/op/rf/Pamphlet/webpam htm f. Nav. Rivers: Portland District, Navigable Riverways, Oregon , October 1993 g. Nav. Rivers: Seattle District, Navigable Waters, Washington May 5, 2000 bh. Nav. Rivers: Section 10 Waters of the Omaha District, undated. 1. Nav. Rivers: Albuquerque District, http://www spa.usace army mil/reg/brochure4 htm Table 2 a Nonperenniat River Mites by Region _ Notes | Region _—_, Jurlecietton _| Tote! Mites __ Mites ___} sities _____ _Nonperennia! | Nonperennial | Midwest Diinoss 87,110 30.246 54,741 63% Midwest indiana 35.673 20,365 15,308 | « 43% Midwest lowa 71.665 26.630 42,957 60% Midwest Michigan 51.438 28,719 22.719 | @ 44% Midwest Minnesota 91,944 32,196 59,748 | a 68% Midwesi Missouri 51,978 21,978 30,000 S8% Midwest Ohio 29,113 27,825 1,288 4% Midwest Wisconsin 57,698 0 23,777 41% Midwest 476,619 219,969 250,538 53% Northeast Connecucut 5,830 S 484 344 6% Northeast Delaware 2,509 1,778 405 16% Northeast Maine 31,752 23,457 8.295 ia 26% Northeast Mas>*ch ssetts 8,229 6,808 1421 ia 17% New Northeast Hampshure 10,881 8,636 2.238 21% Northeast New Jersey 6,450 6,450 Ole O% Northeast New York $2,337 46,266 $5,075 10% Northeast Pennsylvania 83,260 39,179 44.711 s 53% Northeast Rhode Isiand 1,392 887 ee | 36% Northeast Vermont 7,099 _ 6,958 * [a 2% Nor the as! 209,739 145,903 €2.505 | 30% Pacific Cahforma 211,513 64,438 124,615 59% Pacific Oregon 114,823 51.695 59.299 52% Pacific Wash 70,439 39.483 30,956 | a 44% Pacific 396,775 155.616 214,870 S4& South Alabama 77,274 47,072 30,170 39% South Arkansas 87,617 28 408 53,465 61% South Florida 51,858 22,993 2.956 6% South Georgia 70,150 44,056 23,906 WR South Kentucky 49.105 34,152 14,953 | « 30% South Lourssana 66,294 32,955 20,667 31% South Maryland 17,000 12,343 2,104 12% South Mississippi 84,003 26.454 54,862 65% South North Carolana 37.853 45,571 b O% South Oklahoma 78,778 22,386 55,413 70% South Seuth Carolina 29.898 24,115 5.783 ja 19% South Tennessee 61,075 53,872 7.203 ia 12% South Texas 191,228 40,194 144,603 76% South Virgmua 49,350 49,350 oO O% South West Vurguma 32,278 21,.14 11,164 35% South __ 983.761 | ___505.035 | ___427.249 —*) 2 West Kansas 134,338 23.731 110,225 ~ 82% West Nebraska 81,573 17,783 62,958 77% West North Dakota 54,373 5,483 48,896 90% West South Dakota 9.937 1,932 8,005 81% West Arizona 90,373 3,528 86,845 96% West Colorado 107,403 29,553 778530 | a 72% West idaho 115,595 54 945 52,704 46% West Montana 176,750 53,221 116,608 66% West Nevada 143,578 14.988 126,257 38% West New Mexico 110,741 8.682 99.332 9O% Wess Utah 85.916 16,457 65,442 76% West Wyoming 108,767 35,151 73,616 68% National Tatai 3.286.238.) _1.291 980 Sl. Notes: Tonal, Percamal and Nonperenmeal (except as noted) from 1998 EPA 305d repor.. hup//www epe gow 305b/98reporVappenda pdf 2 Nuopereamal oulage sot reported. caiculated by suttracung Perenmal fram Taal b Nonperenmal mileage nat meamngfu /data isconsisiency Z ddy --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A50. Public record. Not legal advice.