Amicus Curiae Brief — Rapanos v. United States
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TABLE OF AUTHORITIES-Continued
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Goemaere-Anderson Wetlands Protection Act of
1979, MICH. COMP. LAWS § 324.30301 ef seq. .......... 18
pines. Ora 6 SON SIS ics secs sarees 20
EA Ee CRU ate sicncnechdinticccsarnenciaebhadiahiesitiohbipamial 20
MONT. ADMIN. R. 17.30.602(12) 0.0... c..ceecceceseeeeeeceeeeeeees 20
MONT. ADMIN. R. 17.30.602(15) ..........csccccsscesseeeseeceeeeees 20
ISA N.C. ADMIN. CODE r. 2H.1300.0............cccceeceeeeeeeeees 19
N.Y. COMP. CODES R. & REGS., tit. 6, § 663.2(b)..... ane
OHIO REV. CODE ANN. § 6111.02 .0..........cceeeseeeseeeeeeteeees 19
UTAH ADMIN. CODE R645-100-200.........ccccescsseee sseseeeeees 20
WO, SIU TEE - Fale OF ae a cstioravrcsviniasinicahedantansstiniditenpaae’ 19
020-080-001 WYO. CODE R. § 2(b)............cccceceeeceeeeeeeees 20
Northwest Ordinance art. FV (1787) ............ccccccccesseereeeeeees 7
Escambia County, Fla. Code of Ordinances, Pt. III,
SY CORIO CARP A AaRel Se TA I, 19
Kane County, Ill. Code of Ordinances ....................00000. 19
Leon County, Fla. Code of Laws § 10-187 0.0... 19
Miscellaneous:
Jonathan H. Adler, Wetlands, Waterfowl, and the
Menace of Mr. Wilson: Commerce Clause
Jurisprudence and the Limits of Federal Wetland
Regulation, 29 ENVTL. L. 1 (1999) ......... ec ceeeeeeees 18,19
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TABLE OF AUTHORITIES-Continued
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Council on Environmental Quality, Conserving
America’s Wetlands (Apr. 2005), www.
coastalamerica.gov/Conserving_Americas_
I tide aninisdcencstnAipschinnbsidhobiebahivhsilanevadaniipinibhdiincicn 22
58 Fed. Reg. 45,008 (Aug. 25, 1993) oo... ceceeeeseeeeeees 17
61 Fed. Reg. 65,874 (Dec. 13, 1996) .0.....ccceeeeeeees 17
64 Fed. Reg. 47,175 (Aug. 30, 1999) 000... eeeeeeeeees 16
Royal C. Gardner, Money for Nothing? The Rise
of Wetland Fee Mitigation, 19 VA. ENVTL.
RE RR Tes aeU Pe r SALT yO OE 16
Fred R. Jensen, Developing the Future of Michigan
Environmental Law: Expanding and Blending
MEPA with the Public Trust Doctrine,
Ps Sica Mes iP naetanipeieasdiicinibinbentcicbinincndtidienseen 18
Legislative History of the Water Pollution Control
Act Amendments of 1972 (Comm. Print
Compiled for the Comm. on Public Works by
the Library of Congress, Ser. No. 93-1 (1973)) .....9, 11
Deborah Jones Merritt, Commerce!, 94 MICH.
i 18
~ Natural Resources Conservation Service, National
Resources Inventory: 2002 Annual NRI (2002),
www.nrcs.usda. gov/technical/land/nri02/
CO iaicis tai ce en cate ideanecinidillbdidadlncnpnteccsbieetinen 16
ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL
REGULATION: LAW, SCIENCE, AND POLICY
CI EE IO Pihtpecncconeninpininqreernstnitiitgnotemiuianninatinnies 18
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TABLE OF AUTHORITIES-Continued
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Richard L. Revesz, Rehabilitating Interstate
Competition: Rethinking the “Race to the Bottom”
Rationale For Federal Environmental Regulation,
OF PE TAD. Bn BV. BZIO CIGD oscccisnicecccsisisccrscveissees 17
U.S. EPA, Catalog of Federal Funding Sources,
http://cfpub.epa.gov/fedfund .................ccccceeeeeeeeeeeeees 21
U.S. EPA, Wetlands: Status and Trends,
www.epa.gov/OW OW/wetlands/vital/status.htm] ..... 16
U.S. GENERAL ACCOUNTING OFFICE, WATERS
AND WETLANDS: CORPS OF ENGINEERS NEEDS TO
EVALUATE ITS DISTRICT OFFICE PRACTICES IN
DETERMINING JURISDICTION (Feb. 2004)................... 26
WILLIAM L. WANT, LAW OF WETLANDS REGULATION
Fn EIR aE ORT SESE 18
INTEREST OF THE AMICUS CURIAE
The American Farm Bureau Federation (“Farm Bu-
reau’’) is a voluntary general farm organization established
in 1920 to protect, promote, and represent the business,
economic, social, and educational interests of American
farmers and ranchers. Farm Bureau has member organiza-
tions in 49 states and Puerto Rico, representing more than
5.6 million member families.’ It has regularly participated
as amicus curiae in this Court in cases involving the juris-
dictional provisions of the Clean Water Act, including
Solid Waste Agency of Northern Cook County
(“SWANCC”) v. U.S. Army Corps of Engineers, 531 U.S.
159 (2001), Borden Ranch Partnership v. U.S. Army
Corps of Engineers, 537 U.S. 99 (2002), South Florida
Water Management District v. Miccosukee Tribe, 541 U.S.
95 (2004), and Newdunn Associates v. U.S. Army Corps of
Engineers, 541 U.S. 972 (2004).
Farm Bureau farmer and rancher members produce vir-
tually every kind of agricultural commodity raised in the
United States. They own or lease land on which they de-
pend for their livelihoods and upon which Americans rely
for food, fiber, and other basic necessities. Farm Bureau’s
member families increasingly face multiple layers of local,
state, and national regulations that impair their ability to
farm that land productively, make a fair profit, and provide
consumers with abundant food and fiber at fair prices.
' Pursuant to Rule 37.6, amicus states that this brief was not au-
thored in whole or in part by counsel for a party and that no per-
son or entity, other than the amicus curiae, its members, and its
counsel made a monetary contribution to its preparation and
submission. The written consents of the parties to the filing of
this brief have been filed with the Clerk.
2
The Corps’ regulation of wetlands under Section 404
of the Clean Water Act (“CWA” or “Act”) is one of the
more serious regulatory problems that American agricul-
ture faces today. Vast areas of the country that qualify as
wetlands under the Corps’ expansive definition are located
on agricultural property and ranch land. Significant uncer-
tainty exists as to whether particular wetlands fall within
the geographic scope of Section 404 as “navigable waters”
“of the United States”’—for example, wetlands in the vi-
cinity of farm irrigation ditches. Farmers and ranchers face
uncertainty too over what activities in wetlands constitute
an “addition” requiring a permit, including uncertainty
concerning the scope of the agricultural exemption to Sec-
tion 404. A farmer or rancher who guesses wrong and en-
gages in some activity deemed to add fill to jurisdictional
waters or wetlands faces potentially massive civil penalties
and harsh criminal sanctions. See, e.g., Borden Ranch, su-
pra (affirming by an equally divided vote a $1 million civil
penalty assessed against a rancher who deep-ploughed in
seasonally damp areas to convert land from livestock pas-
ture to deep-rooted tree-fruit and grape crops).
These issues should never arise for farmers and ranch-
ers under the Clean Water Act. The plain jurisdictional
language used by Congress in the Act does not reach be-
yond navigable waters and wetlands that are so intercon-
nected with navigable waters as essentially to be part of
them. Congress specifically reserved regulation of other
waters and wetlands, like those at issue in these cases, to
the States. That is the unmistakable import of the Act’s
- operative terms, which have a long history of use and in-
terpretation. The United States would now have this Court
ignore that history in favor of an interpretation built on
general statutory goals, snippets of legislative statements,
and shifting agency approaches that promote the Corps of
Engineers to the role of a national super-zoning board able
3
to halt any project in “the public interest.” 33 C.F.R.
§ 320.4(a). Because the plain language of the statute re-
quires it, Farm Bureau asks this Court to reverse.
FACTUAL SUMMARY
The Carabells owned property in Michigan that con-
tained wetlands. A ditch formed one edge of the property,
but a dirt berm prevented drainage of surface water from
the property to the ditch. The ditch connected to other
ditches and drains, which emptied into a creek, which
eventually connected to Lake St. Clair, which is navigable.
Carabell Pet. App. 2a-3a.
Unlike the isolated wetlands in Carabell, the Rapanos
family’s Michigan wetlands had surface water connections
to other waters. Surface water from one site reached a
drain, which flowed to a creek, which connected to the
Kawkawlin River, which ran into the Saginaw River be-
fore emptying into Lake Huron. Approximately 20 miles
separated this site from the nearest navigable water. Sur-
face water from two other sites also reached ditches and
drains that eventually connected to navigable waters. Ra-
panos Pet. App. A22-A23; United States v. Rapanos, 339
F.3d 447, 449 (6th Cir, 2003).
The Carabells applied to Michigan authorities in 1987
for a permit to excavate their 20-acre property to construct
residential housing. Pet. of June and Keith Carabell, 1998
WL 710423, at *7-8 (Mich. Dep’t Natural Res. Sept. 30,
1998). After Michigan regulators denied the permit, the
Carabells reapplied for a permit in 1993 with plans for a
smaller development. Carabell Pct. App. 3a. During the 5-
year permit process that followed, which included a full
trial, the Carabells submitted revised proposals for still
smaller developments that reduced the amount of wetlands
involved. Pet. of June and Keith Carabell, 1998 WL
710423, at *8. In 1998, Michigan regulators finally
4
granted the Carabells a permit to fill 12 acres of wetlands,
requiring them to enhance the remaining 4 wetland acres
by planting “diverse plant species to improve the quality,
function, and aesthetics of the wetland” and installing a
detention pond. /d. at *9.
Then—after 11 years of state proceedings—the Corps
and EPA intervened, asserting jurisdiction. The Carabells
applied for a federal permit in 1998, were denied in 2000,
and following a fruitless administrative appeal filed this
action in federal district court in 2001, 14 years after first
seeking a permit. Carabell Pet. App. 4a-6a.
The Rapanoses also had a challenging relationship with
federal regulators. Between 1994 and 2003, John Rapanos
defended himself in two criminal trials, was convicted,
sentenced to three years’ probation and fined $185,000,
made four separate trips to the Sixth Circuit—where his
conviction was vacated and then reinstated—and twice
sought review from this Court. Rapanos Pet. App. A4-AS.
In 2003, the Sixth Circuit ordered Rapanos, who is 70
years old, resentenced to 10-16 months’ incarceration.
United States v. Rapanos, 339 F.3d 447, 454 (6th Cir.
2003), cert. denied, Rapanos v. United States, 124 S. Ct.
1875 (2004).
At the same time, the government pursued a civil ac-
tion against the Rapanoses for allegedly filling protected
wetlands. It sought $10 million in fines, $3 million in envi-
ronmental mitigation fees, and the forfeiture of 80 acres of
property. After a 13-day bench trial, in which the district
court granted summary judgment for the Rapanoses re-
garding one site and concluded that the government failed
to establish that wetlands even existed at two others, the
district court found the Rapanoses liable for filling at three
other sites. Rapanos Pet. App. B1-B2, B32-36. The Sixth
Circuit affirmed. /d. at Al-A34.
5
INTRODUCTION AND SUMMARY OF
ARGUMENT
The Corps now correctly recognizes—as this Court’s
decision in SWANCC forced it to do—that the constitu-
tional basis for the Clean Water Act is Congress’s com-
merce power over the channels of interstate commerce, not
the more expansive “affects” power. U.S. Br. in Opp. in
Rapanos, at 23 (in contrast to cases involving “the regula-
tion of activities that ‘substantially affect’ interstate com-
merce,” this case “involves legislation falling within the
first category of permissible Commerce Clause legislation
***. regulation of the use of the channels of interstate
commerce”); SWANCC, 531 U.S. at 168 n.3 (finding no
indication that “Congress [in Section 404] intended to ex-
ert anything more than its commerce power over naviga-
tion”); id. at 172 (“Congress had in mind as its authority
for enacting the CWA * * * its traditional jurisdiction over
waters that were or had been navigable in fact or which
could reasonably be so made”).
The Corps is correct that this “channels” power permits
Congress, when it so chooses, to regulate beyond naviga-
ble waters to reach related locations and activities that may
adversely impact the use of the navigable waters as chan-
nels for commerce. See, e.g., Oklahoma ex rel. Phillips v.
Guy F. Atkinson Co., 313 U.S. 508, 523 (1941) (“it is clear
that Congress may exercise its control over the non-
navigable stretches of a river in order to preserve or pro-
mote commerce on the navigable portions”); Heart of At-
lanta Motel, Inc. v. United States, 379 U.S. 241, 258
(1964); United States v. Lopez, 514 U.S. 549, 558 (1995):
Pierce County v. Guillen, 537 U.S. 129, 146-147 (2003).
Where the Corps is seriously mistaken is in its claim
that Congress in Section 404 of the Clean Water Act chose
to assert its channels power so broadly as to reach any wa-
6
ter or wetland with any physical connection to navigable
waters, on the theory that some activities in some of those
waters or wetlands might have some adverse effect on
navigable waters as channels of commerce. That claim is
inconsistent with the plain language of the Act, which ex-
tends jurisdiction only to navigable waters. It is inconsis-
tent with Congress’s and this Court’s long history in using
the operative terms of the statute more narrowly. And it is
refuted by contrasting the language of the CWA with the
language Congress uses in statutes in which it does intend
to reach more broadly than the navigable waters.
The Corps’ claim to have jurisdiction over virtually
any activity on any damp patch anywhere in the Nation is
squarely at odds with Congress’s explicit goal in the CWA
to preserve the traditional power of the States over land
and water use as part of a model scheme of environmental
protection by cooperative federalism. It further violates
important principles embodied in the rule of lenity, which
requires fair warning of what conduct constitutes a crime.
ARGUMENT
I. BY THE PLAINEST OF LANGUAGE, THE
CLEAN WATER ACT LIMITS THE CORPS’
SECTION 404 JURISDICTION TO WATERS
THAT ARE NAVIGABLE.
The Clean Water Act prohibits “any person” from dis-
charging “dredged or fill material” into “navigable waters”
without a permit from the U.S. Army Corps of Engineers.
33 U.S.C. §§ 1311(a), 1344(a), 1362(12). The Act defines
“navigable waters” as “the waters of the United States, in-
cluding the territorial seas.” Jd. § 1362(7). The terms
“navigable waters” and “waters of the United States” do
not authorize regulation of water and wetlands that merely
have some connection to navigable waters.
7
A. “Navigable Waters” Are Waters That Are, Have
Been, Or Could Be Made Navigable In Fact.
The Northwest Ordinance, art. [V (1787), provided that
“(t]he navigable waters leading into the Mississippi and
Saint Lawrance * * * shall be common highways.” See
also Railroad Co. v. Maryland, 88 U.S. (21 Wall.) 456,
470 (1874). Consistent with this understanding of naviga-
ble waters as “common highways” of commerce, this
Court’s early cases held that the “navigable waters” are
waters “which are navigable in fact,” meaning “susceptible
of being used, in their ordinary condition, as highways for
commerce.” The Daniel Ball, 77 U.S. (10 Wall.) 557, 563
(1871). That standard “applie{[d] to all water courses.”
Utah v. United States, 403 U.S. 9, 11 (1971). Later deci-
sions expanded the concept of “navigable waters” to in-
clude waters that had previously been used in navigation
or that could be made navigable through reasonable im-
provements. See United States v. Appalachian Elec. Power
Co., 311 U.S. 377, 407-408 (1940); SWANCC, 531 U.S. at
172. That expanded definition, in requiring that water is,
was, or could be made navigable in fact, does not reach
non-navigable streams, ditches, culverts, or wetlands that
eventually feed into navigable waters (Rapanos) or that are
simply physically proximate to waters that eventually con-
nect to navigable waters (Carabell).
B. Congress Did Not Expand The Scope Of The Act
By Defining “Navigable Waters” As “Waters Of
The United States.”
Congress’s definition of “navigable waters” as “waters
of the United States,” far from expanding the Act’s reach,
confirms that navigability is the key to the Corps’ jurisdic-
tion. The phrase “navigable waters of the United States”
has long been used to mean waters over which interstate
commerce may pass. E.g., Donnelly v. United States; 228
8
U.S. 243, 262 (1913) (“what are navigable waters of the
United States” depends on whether the water “affords a
channel for useful commerce”); The Montello, 78 U.S. (11
Wall.) 411, 415 (1870) (a river that “is not of itself a
highway for commerce with other States or foreign coun-
tries, or does not form such a highway by its connection
with other waters * * * is not a navigable water of the
United States”); accord Rivers and Harbors Act § 10, 30
Stat. 1121, 1151 (1899); The Daniel Ball, 77 U.S. at 563;
Leovy v. United States, 177 U.S. 621, 632 (1900); Perry v.
Haines, 191 U.S. 17, 28 (1903); North Shore Boom Co. v.
Nicomen Boom Co., 212 U.S. 406, 411 (1909); Gromer v.
Standard Dredging Co., 224 U.S. 362, 367 (1912).
When Congress used the phrase “waters of the United
States” to define the term “navigable waters” it tapped into
this long history, in which the two phrases are inseparable
and mean the same thing. See McDermott Int'l, Inc. v.
Wilander, 498 U.S. 337, 342 (1991) (“when a statute uses”
a legal term of art “Congress intended [the term] to have
its established meaning”); Davis v. Michigan Dep't of
Treasury, 489 U.S. 803, 813 (1989) (Congress intends to
“adopt the interpretation placed on that concept by the
courts”); Cannon v. University of Chicago, 441 U.S. 677,
696-697 (1979). The “normal rule” is that Congress is un-
derstood to have changed such established meanings only
if “it makes that intent specific,” which it did not do in the
CWA. Midlantic Nat'l Bank v. New Jersey Dep't of Envitl.
Prot., 474 U.S. 494, 501 (1986).
The interchangeable nature of the Act’s jurisdictional
terms is made abundantly clear by comparing the language
of the CWA with that of the Aquatic Nuisance Prevention
Act of 1990, 16 U.S.C. § 4702(16). While the CWA de-
fines “navigable waters” as “waters of the United States,”
the Aquatic Nuisance Prevention Act exactly reverses that
9
definition, stating that the “waters of the United States” _
there “means the navigable waters and the territorial sea of
the United States.”
By contrast, when Congress intends to reach beyond
waters that are, have been, or could be made navigable in
fact, it does not use the terms “navigable waters” or “wa-
ters of the United States” by themselves. For example, in
the Flood Control Act of 1936, 49 Stat. 1570, which this
Court considered in Oklahoma ex rel. Phillips, 313 U.S. at
517-518, Congress explicitly asserted jurisdiction over
“navigable waters or their tributaries, including watersheds
thereof.” Little wonder, given that broad statutory lan-
guage, that this Court held the United States could dam
non-navigable portions of the Red River to prevent Missis-
sippi River flooding. By its reference to “tributaries” and
“watersheds thereof,” this Court observed, “Congress ex-
ercised all the power it possessed to control navigable wa-
ters.” Jd. at 523. See also, e.g., Federal Power Act, 16
U.S.C. §817 (asserting jurisdiction over projects on
“navigabie waters of the United States” and other waters
“over which Congress has jurisdiction under its authority
to regulate commerce”); id. § 797(e) (same); cf. Gulf Oil
Corp. v. Copp Paving Co., 419 U.S. 186, 199 (1974) (re-
jecting argument that “facially narrow” statutory language
was intended “to manifest the full degree of [Congress’s]
commerce power’).
No such broad terms define the Corps’ jurisdiction un-
der CWA Section 404. To the contrary, Congress rejected
a Senate proposal to extend jurisdiction to “the navigable
waters of the United States, portions thereof, and the tribu-
taries thereof,’ adopting instead the historically narrower
definition that appears in Section 502(7). S. 2770, 2 Legis-
lative History of the Water Pollution Control Act Amend-
ments of 1972 (Comm. Print Compiled for the Comm. on
10
Public Works by the Library of Congress, Ser. No. 93-1
(1973), at 1698) (“Leg. Hist.”) (emphasis added).
Accordingly, in Congress’s understanding, as in more
than a century of this Court’s decisions, the “waters of the
United States” are waters that are “navigable”—that “were
or had been navigable in fact or which could reasonably be
so made.” SWANCC, 531 U.S. at 172. They are not non-
navigable waters and wetlands that are simply physically
connected to navigable waters. When Congress means to
assert jurisdiction over non-navigable tributaries and other
waters within a watershed it knows well how to say so.
The CWA does not reach so far, intentionally leaving
regulation of such waters and wetlands to the States. See
Part II.A, infra.’
C. The CWA’s Legislative History Does Not Ex-
pand The Plain Meaning Ot The Act’s Jurisdic-
tional Terms.
Although the government can point to snippets of leg-
islative history that suggest a broader scope for the Act, it
conceded in SWANCC that this history is “somewhat am-
biguous.” 531 U.S. at 168 n.3. Legislative history, of
course—especially when it is ambiguous—cannot “cloud a
statutory text that is clear.” Rarzlaf v. United States, 510
* As this Court concluded in SWANCC, Congress’s amendment
of the CWA in 1977 did not alter the meaning of Section 404(a)
or of Section 507’s definitions, which this Court found “to be
clear.” 531 U.S. at 172. Neither Section 404(g) nor other provi-
sions amended in 1977 “conclusively determine the construc-
tion to be placed on the use of the term ‘waters’ elsewhere in
the Act (particularly in § 502(7), which contains the relevant
definition of ‘navigable waters’).” /d. at 171; see also id. at 170
(“The relationship between the actions and inactions of the 95th
Congress and the intent of the 92d Congress in passing
§ 404(a)” is “considerably attenuated”).
U.S. 135, 147-148 & nn.17-18 (1994); see Exxon Mobil
Corp. v. Allapattah Servs., 125 S. Ct. 2611, 2626 (2005)
(“the authoritative statement is the statutory text, not the
legislative history or other extrinsic material”). And here
there is plenty of legislative history that confirms Con-
gress’s focus on navigability as the touchstone of federal
jurisdiction.
Senator Muskie, for example, Senate floor manager for
the conference bill, explained that the Act would reach wa-
ters “which are navigable in fact,” such that “they form, in
their ordinary condition by themselves or by uniting with
other waters or other systems of transportation * * * a con-
tinuing highway over which commerce is or may be car-
ried.” 1 Leg. Hist. at 178. House floor manager
Representative Dingell likewise described the scope of the
Act in terms of commercial navigability: “it is enough that
the waterway serves as a link in the chain of commerce,” |
Leg. Hist. at 250, citing Utah, 403 U.S. at 11 (“The lake
was used as a highway and that is the gist of the federal
test”). In light of such statements, the assertion that the
legislative history shows Congress meant to regulate far
beyond the navigable waters is untenable.
D. Contemporaneous Regulatory Interpretations
Correctly Determined The Scope Of The CWA.
As in SWANCC, “the Corps’ original interpretation of
the CWA, promulgated two years after its enactment, is
inconsistent with that which it espouses here.” 531 U.S. at
168. Consistent with the long history of the terms “naviga-
ble waters” and “waters of the United States” in Congress
and this Court, the Corps in 1974 defined “navigable wa-
ters” to mean waters subject to the ebb and flow of the tide
or that “are presently, or have been in the past, or may be
in the future susceptible for use for purposes of interstate
or foreign commerce.” 33 C.F.R. § 209.120(d)(1) (1974).
12
The Corps explained that “i]t is the water body’s capabil-
ity of use by the public for purposes of transportation or
commerce which is the determinative factor.” /d.
§ 209.260(e)(1). This Court in SWANCC found “no per-
suasive evidence that the Corps mistook Congress’ intent
in 1974.” 531 U.S. at 168. Indeed, the Corps’ definition of
“navigable waters of the United States” still reflects that
view, see 33 C.F.R. §§ 329.4, .5, .6, regulating only to the
poirt where water changes “from navigable to non-
navigable.” /d. § 329.11(b).
The Corps embarked on efforts to expand its power
under Section 404 in response to a single adverse district
court decision, which it did not appeal. NRDC v. Calla-
way, 392 F. Supp. 685 (D.D.C. 1975). Once untethered
from the language of the statute the Corps struck out
wildly, asserting jurisdiction over all waters “the use, deg-
radation or destruction of which could affect interstate or
foreign commerce” (33 C.F.R. § 328.3(a)(3))—though this
Court has observed that the CWA does not rest on Con-
gress’s “affects commerce” power. That path culminated
in the Corps’ frankly absurd “migratory bird rule,” which
this Court struck down in SWANCC.
The Corps then switched its attention to an “any hydro-
logical connection to navigable waters” approach (Ra-
panos), stretching so far in cases like Carabell as to claim
power over wetlands that are merely proximate to, but not
hydrologically connected with, non-navigable waters that
eventually connect to navigable waters. Like the bird rule,
that approach subjects virtually every wet patch in the
country to federal regulation, and like the bird rule it has
no basis in the CWA’s language. It should suffer the same
fate as the bird rule.
13
E. The Isolated Wetlands In Carabell And Wet-
lands That Drain To Non-Navigable Ditches In
Rapanos Are Beyond The Scope Of Section 404.
It follows from the plain language of the statute that the
Corps has no power over water simply because its “use,
degradation, or destruction * * * could affect interstate
commerce.” Nor may it properly claim jurisdiction over
any water that is merely a “tributary” of a navigable water
or over “wetlands adjacent to” such tributaries. 33 C.F.R.
§ 328.3(a)(5), (7). Non-navigable tributaries and their ad-
jacent wetlands are not “navigable waters” or “waters of
the United States.”
To be sure, this Court held in United States vy. River-
side Bayview Homes, 474 U.S. 121, 131, 134 (1985), that
wetlands that actually abut a “navigable waterway” fall
within Section 404 because they are “inseparably bound up
with the ‘waters’ of the | 'nited States.” Such wetlands may
be viewed as an integral part of the navigable waters them-
selves. See Brief of the United States in Riverside Bay-
view, at 47 (“Riverside’s property is simply part of a larger
divided-ownership marsh that abuts and borders Black
Creek,” which is “a navigable waterway”); cf 33 C.F.R.
§ 329.11(a) (navigable water “extend[s] laterally to the en-
tire water surface and bed of a navigable waterbody, * * *
even though portions” are “extremely shallow, or ob-
structed by shoals, vegetation or other barriers,” as with
“{mJarshlands”).
The wetlands at issue here are much farther removed
from the navigable waters of the United States. Those in
Carabell are merely physically adjacent to—not even hy-
drologically connected to—a non-navigable ditch or drain.
They are as “isolated” from navigable waters as the ponds
this Court addressed in SWANCC. The wetlands in Ra-
panos are 20 miles removed from actually navigable wa-
14
__ ters, draining into non-navigable ditches and drains. By no
stretch of the language of the CWA can these wetlands be
labeled “navigable waters” “of.the United States” within
the Corps’ Section 404 jurisdiction.
Il. ESTABLISHED RULES OF STATUTORY CON-
STRUCTION CONFIRM THAT THE CWA
REACHES ONLY WATERS THAT ARE, HAVE
BEEN, OR COULD BE MADE NAVIGABLE IN
FACT.
Two bedrock canons of construction confirm this scope
___of Section 404. The Corps’ theory that it may rest jurisdic-
J
tion on a drop of wetland water eventually reaching a
navigable waterway upsets the traditional State-Federal
balance of power. It also subjects landowners to severe
criminal and civil penalties without fair warning. Both
problems require that the Act be read more narrowly.
A. The CWA Explicitly Preserves Local Power
Over Land And Water Use.
‘
There is an “‘ordinary rule of statutory construction’
that ‘if Congress intends to alter the usual constitutional
balance between States and the Federal Government, it
must make its intention to do so unmistakably clear in the
language of the statute.’” Vermont Agency of Natural Res.
v. United States ex rel. Stevens, 529 U.S. 765, 787 (2000).
This Court has consistently “concluded that, absent a clear
indication of Congress’ intent to change the balance, the
proper course was to adopt a construction which maintains
the existing balance.” Salinas v. United States, 522 U.S.
52, 59 (1997); see also Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 242 (1985); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984); United States v. Bass,
404 U.S. 336, 349 (1971); Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947) (“the historic police pow-
ers of the States were not to be superseded * * * unless
—=—<_——— a =
15
that was the clear and manifest purpose of Congress”).
“This plain statement rule is nothing more than an ac-
knowledgment that the States retain substantial sovereign
powers under our constitutional scheme, powers with
which Congress does not readily interfere.” Gregory v.
Ashcroft, 501 U.S. 452, 461 (1991). It is not satisfied here.
I. The Corps’ “any physical connection” approach
improperly overrides State and local authority that
Congress sought to preserve.
The States have long controlled land and water use
within their borders. SWANCC, 531 U.S. at 174. Regula-
tion of land and water use “is perhaps the quintessential
state activity,” FERC v. Mississippi, 456 U.S. 742, 768
n.30 (1982), and “the authority of state and local govern-
ments to engage in land use planning” remains unques-_
tioned. Dolan v. City of Tigard, 512 U.S. 374, 384 (1994).
See also City of Edmonds v. Oxford House, 514 U.S. 725,
744 (1995) (“land-use regulation is one of the historic
powers of the States”).
Far from clearly stating in the CWA that it intended to
usurp State power by granting the Corps authority over
every drop of water and tract of damp land in the Nation,
Congress stated its intent to “preserve, and protect the pri-
mary responsibilities and rights of States to prevent, re-
duce, and eliminate pollution” and “to plan the
development and use * * * of land and water resources.”
33 U.S.C. § 1251(b). Congress also unequivocally stated
that “[e]xcept as expressly provided,” “nothing in this
chapter shal] * * * be construed as impairing or in any
manner affecting any right or jurisdiction of the States
with respect to the waters (including boundary waters) of
such States.” /d. § 1370. .
These provisions highlight Congress’s commitment to
cooperative federalism in protecting the Nation’s waters.
16
See Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992) (“The
Clean Water Act anticipates a partnership between the
States and the Federal Government”); New York v. United
States, 505 U.S. 144, 167 (1992) (“cooperative federal-
ism[] is replicated in numerous federal statutory schemes.
These include the Clean Water Act”); /nternational Paper
Co. v. Ouellette, 479 U.S. 481, 490 (1987).
The Corps’ new test for Section 404 jurisdiction tram-
ples that scheme. There should be no doubt about the im-
pact on State authority of the Corps’ claim of jurisdiction
based on “any hydrological connection” to navigable wa-
ters, no matter how remote or theoretical. Alaska alone has
170 million acres of wetlands. Royal C. Gardner, Money
for Nc xing? The Rise of Wetland Fee Mitigation, 19 VA.
ENVTL. v.J. 1, 19 n.99 (2000). Florida, Louisiana, Minne-
sota, Texas, Michigan, Maine, Georgia, North Carolina,
and Wisconsin each contain 5 million acres or more of
wetlands. /bid.; U.S. EPA, Wetlands: Status and Trends,
www.epa.gov/OWOW/wetlands/vital/status.html; Natural
Resources Conservation Service, National Resources In-
ventory: 2002 Annual NRI 1-2 (2002), www.nrcs.usda.
gov/technical/land/nri02/wetlands.pdf (300 million acres
of wetlands nationwide). Most are undoubtedly connected
in some roundabout fashion to a navigable waterway.
Once the Corps has asserted jurisdiction, it claims au-
thority to regulate every use of the land that could con-
ceivably affect the water or wetlands. The Corps’
regulations prohibit the discharge of any fill material, de-
fined without limitation to mean “[rjeplacing any portion
of a water of the United States with dry land.” 33 C.F.R.
§ 323.2(e)(1)(i). The Corps has construed this expansive
language to include “construction or expansion of a single-
family home” or construction of a “garage, driveway, stor-
age shed,” or “yard.” 64 Fed. Reg. 47,175, 47,178 (Aug.
17
30, 1999); 61 Fed. Reg. 65,874, 65,898 (Dec. 13, 1996).
See also 33 C.F.R. § 323.2(f). The Corps has even claimed
that walking or bicycling on a wetland could have a for-
bidden effect of degrading or destroying a wetland. 58
Fed. Reg. 45,008, 45,020 (Aug. 25, 1993). The Corps’ “re-
assurance” that a permit is not required for de minimis
wetland impacts is far from comforting: the Corps has em-
phasized that “the threshold of adverse effects for the de
minimis exception is a very low one.” /bid.
And once it asserts jurisdiction, the Corps reviews state
and local land use decisions in light of its view of “the
public interest,” engaging in a “general balancing” of fac-
tors including “economics,” “aesthetics,” “land use,” “the
needs and welfare of the people,” and the “practicability of
* ** alternative locations,” freely rejecting “local * * *
decisions” whenever it deems issues of “national impor-
tance” to be “overriding.” 33 C.F.R. §§ 320.4(a)(1),
(a)(2)(11), (j)(2). The Corps operates, in short, as a sort of
national zoning board, freely overthrowing local land use
determinations made by those best placed to understand
local needs and concerns.
2. The Corps’ “any physical connection” approach
is unnecessary to achieve wetlands protection.
There is no evidence that this layer of federal bureauc-
racy is necessary to achieve environmental goals. The my-
thology of state ineptitude in areas of wetlands
preservation is unfounded. There has been no “race to the
bottom” in terms of environmental regulation by the
States. See Richard L. Revesz, Rehabilitating Interstate
Competition: Rethinking the “Race to the Bottom” Ra-
tionale For Federal Environmental Regulation, 67 N.Y .U.
L. REV. 1210, 1244-1247 (1992) (challenging the theoreti-
cal foundations of the “race to the bottom”). Nor would
such a race make sense, for local governments have as
- 18
much or more to gain from a “race to the top” that results
in a clean and desirable environment for its present and
future residents. See Jonathan H. Adler, Wetlands, Water-
fowl, and the Menace of Mr. Wilson: Commerce Clause
Jurisprudence and the Limits of Federal Wetland Regula-
tion, 29 ENVTL. L. 1, 43 (1999); Deborah Jones Merritt,
Commerce!, 94 MICH. L. REV. 674, 706 (1995). State and
local governments have served as strong leaders in envi-
ronmental regulation, taking seriously their “primary re-
sponsibilities * * * to prevent, reduce, and eliminate
pollution.” 33 U.S.C. § 1251(b).
For example, Michigan, home of the petitioners, has
long been at the forefront of protecting water resources.
The Michigan Constitution requires the legislature to
“provide for the protection of the air, water and other natu-
ral resources of the state from pollution, impairment and
destruction.” MICH. CONST. art. IV, § 52. The Michigan
Environmental Protection Act of 1970 (MEPA) is “consid-
ered the finest example of an environmental protection
statute” and “has been copied by several state legislatures
around the nation.” Fred R. Jensen, Developing the Future
of Michigan Environmental Law: Expanding and Blending
MEPA with the Public Trust Doctrine, 1989 DET. C. L.
REV. 65, 66, 75. MEPA contains “[s]ome of the most in-
novative environmental protection measures.” ROBERT V.
PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW,
SCIENCE, AND POLICY 101 (4th ed. 2003). Michigan is also
one of only two states that assumed Section 404 responsi-
bility from the federal government, having done so in
1984. 33 U.S.C. § 1344(g); 40 C.F.R. § 233.70. It has en-
acted several stringent laws to protect wetlands and other
water resources. Inland Lakes and Streams Act of 1972,
MICH. COMP. LAWS § 324.30101 ef seqg.; Goemaere-
Anderson Wetlands Protection Act of 1979, MICH. COMP.
LAWS § 324.3030] et seq.; see WILLIAM L. WANT, LAW OF
19
WETLANDS REGULATION § 13:18 (2005). As the Carabells’
lengthy process to obtain a permit from State authorities
shows, Michigan regulators are fiercely protective of the
State’s wetlands.
States and local governments have been at the van-
guard of wetlands conservation. Massachusetts enacted its
wetlands protection statute in 1963. Comm'r of Natural
Res. v. S. Volpe & Co., Inc., 206 N.E.2d 666, 668 (Mass.
1965). By 1975, 14 of the 15 States with more than 10% of
their land area in wetlands had passed wetlands protection
statutes. Adler, 29 ENVTL. L. at 49. Nearly every State now
has some statutory or regulatory scheme governing wet-
lands. See SWANCC, Amicus Br. of State of Ala., App. A
(listing state wetlands statutes and regulations). Many of
these statutes are more stringent than the Clean Water Act.
For instance, New York regulates not only wetlands but
also any land within a hundred feet of a wetland. N.Y.
ComP. CODES R. & REGS., tit. 6, § 663.2(b).
SWANCC also has served as an impetus for local envi-
ronmental protection. Since 2001 several States enacted
legislation or altered their regulations to cover isolated
wetlands. See IND. CODE ANN. § 13-18-22; ISA N.C.
ADMIN. CODE r. 2H.1300; OHIO REV. CODE ANN.
§ 6111.02; Wis. STAT. ANN. § 281.36. Likewise, munici-
pal governments such as Kane County, Illinois and Es-
cambia and Leon Counties, Florida, have taken
responsibility for isolated waters in their jurisdictions. See
Kane County Code of Ordinances §§ 9-90, 9-351 to 9-360;
Escambia County Code of Ordinances, Pt. III, § 7.13.00;
Leon County Code of Laws § 10-187.
The myth of State wetlands neglect is intertwined with
the untenable proposition that the federal government
knows best when it comes to wetlands. Because of the va-
riety of wetlands in this country—from mangrove forests
20
in the Southeast to prairie potholes in the Plains—States
possess specialized wetland management abilities that re-
flect their unique knowledge of their unique wetlands.
Several western States distinguish between ephemeral, in-
termittent, and perennial waters in delineating wetlands
and determining where to devote regulatory resources.
ARIZ. ADMIN. CODE § R18-11-101(22), (30); MONT.
ADMIN. R. 17.30.602(12), (15); UTAH ADMIN. CODE
R645-100-200; 020-080-001 Wyo. CODE R. § 2(b)(xii1),
(xxiv), (xxxvil). Minnesota has unique laws governing cal-
careous fens, which are rare, calcium-rich wetlands that
can contain hard-to-find plant life. MINN. STAT.
§ 103G.223; MINN. R. 8420.1020. Maryland has a statutory
focus on Chesapeake Bay, MD. CODE ANN., ENVIR. § 5-
901 et seqg., while Florida enacted specialized statutes gov-
erning wetlands associated with the Wekiva River System,
the Miami-Dade County Lake Belt, and Lake Okeechobee.
FLA. STAT. ANN. §§ 369.305, 373.41492, 373.4595. The
contrast between the specificity of these State laws and the
generality of the CWA and its regulations demonstrates
that States are well able to regulate in light of the idiosyn-
crasies of their own wetlands.
States are, and have been, strong partners in the preser-
vation of wetlands. They have taken seriously their re-
sponsibilities under the CWA’s cooperative federalist
vision. Their actions demonstrate that Congress chose
wisely when it explicitly preserved local powers over land
and water use. There is no justification for the Corps’ ef-
forts to alter the traditional federa)-state balance.
3. Congress has ample power to protect non-
navigable waters and wetlands when it so chooses.
A proper reading of the CWA to limit Corps authority
to navigable waters and wetlands that abut them will not
deprive the federal government of the ability to protect our
21
Nation’s wetlands. Congress can and has used its spending
and property powers to that end. U.S. CONST. art. 1, § 8.
Many programs operated through many agencies pro-
vide financial incentives—both penalties and benefits—to
preserve and restore wetlands. Since 1985, the Wetlands
Conservation Program, known as “Swampbuster,” has dis-
couraged the destruction of wetlands on agricultural prop-
erty by withholding federal benefits from farmers who do
not comply. 16 U.S.C. § 3821. The Wetlands Reserve Pro-
gram compensates farmers for restoring, protecting, and
enhancing wetlands. /d. § 3837. Many additional programs
utilize cash payments, subsidies, grants, partnerships, or
technical assistance to encourage wetlands preservation.
See id. § 3831 (Conservation Reserve Program) (author-
izes rental payments and financial assistance in exchange
for retirement of wetlands from agricultural use); id.
§ 4401 et seg. (North American Wetlands Conservation
Act) (authorizes funds to acquire, restore, and manage wet-
lands); id. § 1301 et seg. (Water Bank Act) (authorizes
payment of federal funds to private landowners for conser-
vation); id. § 1451 et seg. (Coastal Zone Management
Act); 23 U.S.C. § 133 (Transportation Equity Act for the
21st Century); U.S. EPA, Catalog of Federal Funding
Sources, http://cfpub.epa.gov/fedfund (listing at least 47
different federal sources of financial assistance for wet-
lands preservation).
Congress also protects wetlands through its federal
lands power. The North American Wetlands Conservation
Act requires that “[t]he head of each Federal agency re-
sponsible for acquiring, managing, or disposing of Federal
lands and waters * * * cooperate with * * * the United
States Fish and Wildlife Service to restore, protect, and
enhance the wetland ecosystems.” 16 U.S.C. § 4408. Other
statutes promote wetlands preservation on federal lands.
22
See, e.g., id. § 1604 (National Forest Management Act)
(requiring U.S. Forest Service to protect wetlands in har-
vesting timber); 43 U.S.C. § 1701 et seq. (Federal Land
Policy and Management Act) (mandating protection of
wetlands by public land managers). Because approxi-
mately 13% of the Nation’s wetlands are on federal lands,
Congress’s federal lands power provides a significant tool
for wetlands protection. Council on Environmental Qual-
ity, Conserving America's Wetlands 17 (Apr. 2005),
www.coastalamerica.gov/Conserving_Americas_Wetlands
pdf.
Accordingly, restoring the Corps’ power to the bounda-
ries set by the CWA will not unleash a wave of wetlands
destruction. Active state regulation and a litany of federal
programs will preserve wetlands in precisely the manner
intended by Congress—as a function of cooperative feder-
alism.
B. The Rule Of Lenity Prohibits The Corps’ Asser-
tion Of Jurisdiction Over All Waters And Wet-
lands With Any Physical Connection To Navi-
gable Waters.
Though we do not believe that the CWA is at all am-
biguous, if the Court were to find it so the “rule of len-
ity’—a rule of statutory construction “not much less old
than construction itself,” United States v. Wiltberger, 18
U.S. (5 Wheat.) 76, 95 (1820)}—would require a narrow
interpretation of the terms “navigable waters” and “waters
of the United States.”
23
1. The CWA sets forth a scheme of harsh criminal
and civil penalties.
The CWA prescribes heavy and conjunctive civil and
criminal sanctions. Civil and administrative penalties can
equal $25,000 per day, 33 U.S.C. § 1319(d), (g). Crimi-
nally, a “knowing” violation of the CWA carries fines up
to $100,000 per day and six years’ imprisonment. /d.
§ 1319%(c)(2). Even negligence can result in fines of
$50,000 per day and two years’ jail time. /d. § 1319(c)(1).
The permit application process presents further peril: a
false statement, representation, or certification can bring
fines up to $20,000 per day and four years’ imprisonment.
Id. § 1319(c)(4).
The threat of jail time and large fines is far from ab-
stract. John Rapanos was levied a $185,000 fine and faced
10-16 months’ incarceration. Rapanos Pet. App. A4-AS.
He faced this punishment, along with nearly $15 million in
civil fines and forfeiture of his land, even though his wet-
lands are some 20 miles from the nearest navigable water-
way and there was no evidence that his actions actuaily
impaired any navigable waters. He is noi alone. Criminal
prosecutions for CWA violations are frequent. See, e.g.,
United States vy. Ortiz, 427 F.3d 1278, 1281 (10th Cir.
2005) (one year in prison); United States v. Phillips, 367
F.3d 846, 854 (9th Cir. 2004) (five years’ probation);
United States v. Wilson, 133 F.3d 251, 253 (4th Cir. 1997)
(21 months in prison, $1 million fine, eventually over-
turned); United States v. Eidson, 108 F.3d 1336, 1340
(lith Cir. 1997); United States v. Sinskey, 119 F.3d 712,
714 (8th Cir. 1997); United States v. Hopkins, 53 F.3d
533, 537-541 (2d Cir. 1995); Mills v. United States, 36
F.3d 1052, 1055 (11th Cir. 1994). Multiple prosecutions
from one site are also common. See, e.g., Phillips, 367
24
F.3d at 850-851 (landowner, landowner’s employee, and
passive investor all indicted).
2. Criminal statutes like the CWA are subject to the
rule of lenity, which requires that they be nar-
rowly construed.
This Court has made clear that “when there are two ra-
tional readings of a criminal statute, one harsher than the
other, we are to choose the harsher only when Congress
has spoken in clear and definite language.” McNally v.
United States, 483 U.S. 350, 359-360 (1987); see also
Pasquantino v.. United States, 125 S. Ct. 1766, 1787
(2005) (Ginsburg, J., dissenting, joined by Breyer, Scalia,
and Souter, JJ.) (“the rule of lenity counsels against”
adopting a broad statutory reading); Scheidler v. NOW,
Inc., 537 U.S. 393, 408 (2003) (“‘this being a criminal
statute, it must be strictly construed’”); Rewis v. United
States, 401 U.S. 808, 812 (1971) (“ambiguity concerning
the ambit of criminal statutes should be resolved in favor
of lenity”); United States v. Universal C.I.T. Credit Corp.,
344 U.S. 218, 222 (1952) (“We should not derive criminal
outlawry from some ambiguous implication’’).
This rule stems not “out of any sentimental considera-
tion, or for want of sympathy with the purpose of Congress
in proscribing evil or antisocial conduct.” Bell v. United
States, 349 U.S. 81, 83 (1955). Rather, it is “founded on
two policies that have long been part of our tradition.”
Bass, 404 U.S. at 348. The first is that “‘a fair warning
should be given to the world in language that the common
world will understand.’” J/bid. “The vice of vagueness in
criminal statutes is the treachery they conceal either in de-
termining what persons are included or what acts are pro-
hibited.” United States v. Cardiff, 344 U.S. 174, 176
(1952). The second reflects our “instinctive distaste
25
against men languishing in prison unless the lawmaker has
clearly said they should.” Bass, 404 U.S. at 348.
The rule of lenity applies to criminal provisions prem-
ised on the Commerce Clause. In Bass, for example, this
Court considered whether the jurisdictional hook of a fire-
arms statute—“‘in commerce or affecting commerce”—
applies to “possesses” and “receives,” as well as “trans-
ports.” Applying the rule of lenity, it held that it does. 404
U.S. at 347. In Rewis, the Court held that the rule of lenity
compelled a narrow interpretation of the Travel Act, which
prohibited interstate travel in furtherance of illicit gam-
bling. 401 U.S. at 809, 811-812. Because the statute did
not indicate an intent to implicate those who cross state
lines to gamble, the Court applied the rule that “ambiguity
concerning the ambit of criminal statutes should be re-
solved in favor of lenity.” /d. at 812; see also United States
v. Plaza Health Labs, 3 F.3d 643, 649 (2d Cir. 1993) (ap-
plying rule of lenity to construe the CWA term “point
source” narrowly and dismissing criminal prosecution);
United States v. Borowski, 977 F.2d 27, 31-32 (1st Cir.
1992) (strictly construing “knowing endangerment” provi-
sion of CWA and vacating conviction).
The rule of lenity also applies to civil applications of
statutes with criminal consequences, like the CWA. “Be-
cause we must interpret the statute consistently, whether
we encounter its application in a criminal or noncriminal
context, the rule of lenity applies.” Leocal v. Ashcroft, 125
S. Ct. 377, 384 n.8 (2004); see also Clark v. Martinez, 125
S. Ct. 716, 724 (2005) (“It is not at all unusual to give a
statute’s ambiguous language a limiting construction
called for by one of the statute’s applications, even though
other of the statute’s applications, standing alone, would
not support the same limitation”). Thus, in United States v.-
Thompson/Center Arms Co., this Court employed the rule
26
of lenity to resolve “a tax statute * * * in a civil setting” in
the defendant’s favor. 504 U.S. 505, 517-518 & n.10
(1992) (plurality opinion); id. at 519 (Scalia, J., concurring
in judgment) (also invoking rule of lenity). See also Cran-
don v. United States, 494 U.S. 152, 168 (1990) (applying
lenity to a criminal statute invoked in a civil action);
Commissioner v. Acker, 361 U.S. 87, 91 (1959).
The jurisdictional provisions of the CWA must be con-
strued in civil cases like these with the same lenity that
guides their interpretation in a criminal prosecution. 33
U.S.C. §§ 1344, 1362(7). The Court “must interpret the
statute consistently” in both contexts. Leocal, 125 S. Ct. at
384.
3. The Corps’ theory of jurisdiction leaves citizens in
considerable doubt whether their actions are
criminal.
The jurisdictional line set forth in the CWA 1s bright
and raises no issues triggering the rule of lenity. In con-
trast, the Corps’ approach creates enormous practical prob-
lems for citizens seeking to know if their proposed conduct
is criminal or legitimate. Indeed, so uncertain is the appli-
cation of the rule it advocates that the Corps has been un-
able to make consistent jurisdictional determinations. See
UNITED STATES GFNERAL ACCOUNTING OFFICE, WATERS
AND WETLANDS: CORPS OF ENGINEERS NEEDS TO
EVALUATE ITS’ DISTRICT OFFICE PRACTICES IN
DETERMINING JURISDICTION 3 (Feb. 2004).
The Corps’ “any hydrological connection” theory—
and its view that Section 404 even reaches wetlands that
are merely physically proximate to waters hydrologically
connected to navigable waters—present a frightening lack
of “fair warning * * * that the common world will under-
stand.” Bass, 404 U.S. at 348. It is impossible for every
owner of a wetland—let alone every laborer or contractor
27
working on the land—to know where every molecule of
water eventually flows. Yet the Corps contends that a
landowner or anyone working on the land falls under its
jurisdiction if a molecule of wetlands water wends it way
through multiple non-navigable, even ephemeral, water-
ways before eventually reaching a navigable waterway 20
miles (Rapanos), 32 miles (United States vy. Deaton, 332
F.3d 698, 702 (4th Cir. 2003)), or even 235 miles away.
United States v. Buday, 138 F. Supp. 2d 1282, 1291 (D.
Mont. 2001). The result of the Corps’ theory is that farm-
ers and other landowners are burdened with a daunting and
unrealistic task of determining every avenue of every
molecule of water in a wetland on their property, under
any weather conditions, so as to avoid the risk of criminal
prosecution.
Furthermore, under the Corps’ theory a wetland that
once had no hydrological connection to a navigable wa-
terway may, with no warning, transform into a wetland
within the Corps’ realm. A sudden and severe rainstorm
creating sheet flow across the land’s surface may establish
a hydrological connection with a distant lake where none
existed three hours before. A far-away landslide. felled
tree, or construction of a ditch, culvert, or sewer line may
suddenly divert water to a navigable waterway. A farmer
consequently must not only ascertain the path of all his or
her water. He or she must also be aware of every compo-
nent of the hydrological system between his or her prop-
erty and a navigable waterway, and update that knowledge
constantly or face severe repercussions. Incarceration and
seven-figure penalties should not depend on the potential-
ity that a “drop of rainwater” will somewhere “intermingle
with water” of a navigable river. United States v. Rueth
Dev. Co., 189 F. Supp. 2d 874, 877-878 (N.D. Ind. 2001),
aff'd, 335 F.3d 598 (7th Cir. 2003).
28
This is precisely the lack of “fair warning” that the rule
of lenity is designed to combat. The rule compels a reading
of the CWA that does not subject landowners to severe
penalties for conduct that only the most detailed hydro-
logical study could reveal to be within the scope of the
CWA’s criminal provisions, and then only uncertainly and
provisionally.
The Corps’ desire to control any wetland in the coun-
try, no matter how limited (or in the Carabells’ case, non-
existent) its connection to a navigable waterway, conflicts
with the second principle supporting the ruie of lenity.
“[B]ecause of the seriousness of criminal penalties, and
because criminal punishment usually represents the moral
~ condemnation of the community,” legislatures—not courts
or administrative agencies—‘“should define criminal activ-
ity.” Bass, 404 U.S. at 348. In the face of the CWA’s text, ©
and in spite of SWANCC, the Corps has employed a theory
of jurisdiction that turns on the most remote and ephemeral
hydrological connections, extending its penal power to vir-
tually any wet patch of ground anywhere in the country.
That is not how Congress defined criminal activity in the
statute and is far too indeterminate to survive scrutiny. See
M. Kraus & Bros., Inc. v. United States, 327 U.S. 614, 621
(1946) (requiring criminal regulatory provisions to be “ex-
plicit and unambiguous” because “[i]n a very literal sense
the liberties and fortunes of others may depend upon [the
regulator’s] definitions and specifications”).
If the text of the CWA left any doubt about the Act’s
scope—and as we have explained it does not—that lan-
guage should be construed in accordance with the rule of
lenity, resolving any doubt in favor of defendants here.
29
CONCLUSION
The judgments of the Sixth Circuit should be reversed.
Respectfully submitted.
JULIE ANNA POTTS TIMOTHY S. BISHOP
DANIELLE QUIST Counsel of Record
American Farm Bureau JEFFREY A. BERGER
Federation JAMES P. GIGNAC
600 Maryland Avenue, S.W. Mayer, Brown, Rowe &
Suite 800 Maw LLP
Washington, D.C. 20024 71 South Wacker Drive
(202) 406-3600 Chicago, Illinois 60606
(312) 782-0600
DECEMBER 2005
P "Bapreme Cuuit, Uno.
Fileo
CEC 2. 2005
OFFICF OF THE CLERK
Nos. 04-1034 and 04-1384
In The Supreme Court of the Anited States
JOHN A. RAPANOS, et ux., et al., Petitioners,
v.
UNITED STATES
JUNE CARABELL, et al., Petitioners,
Vv.
UNITED STATES ARMY CORPS OF ENGINEERS
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SIXTH CIRCUIT
BRIEF AMICUS CURIAE OF THE AMERICAN
PETROLEUM INSTITUTE SUGGESTING
REVERSAL IN NOS. 04-1034 AND 04-1384
HARRY M. NG THOMAS SAYRE LLEWELLYN
RALPH J. COLLELI JR. (COUNSEL OF RECORD)
ERIK G. MILITO 5125 MacArthur Blvd., NW
American Petroleum Institute Suite 32-A
1220 L Street, NW Washington, DC 20016
Washington, DC 20005 (202) 237-729]
(202) 682-8000
TABLE OF CONTENTS
TABLE GP ART ROGEE Bite ccccrecccccccscescsssocnswssssevssvescsenenvoness ii
INTEREST OF THE AMICUS CURIAE........ .sssseseeseresensevees ]
SUMMARY OF THE ARGUMENT.............ccscsessesseeseeseerees 2
SE eeennspcencnerycerscemsesnttnivinsicnsiniinintaiatnitinadunineanian 4
CONGRESS LIMITED “NAVIGABLE WATERS”
TO TRADITIONAL NAVIGABLE WATERS (AND
ABUTTING WETLANDS); DEVISED THE
“DISCHARGE” MECHANISM TO PROTECT
“NAVIGABLE WATERS” FROM UPSTREAM
POLLUTION; AND ALLOWED STATES TO
foto. = Fo DB! RRR Ret Ce 4
L. The Importance Of Section 311 To
Construction Of The Clean Water Act........... 4
Il. Congress’ Objectives In The 1972
I coicncitiniitilinint tia taint ipaiiiiniipaiintsl 8
IIl. Where The Sixth Circuit Errs....................... 18
IV. Implications Of The Sixth Circuit’s
TABLE OF AUTHORITIES
Cases
Board of Governors of the Fed. Reserve Sys. v.
Dimension Fin. Corp., 474 U.S. 361 (1986)............ 19
Economy Power & Light Co. v. United States,
BNR Ce 12
McDermott v. Wilander, 498 U.S. 337 (1991).......scsscseeesees 5
NLRB v. Amax Coal Co., 453 U.S. 322 (1981).......c0ccceeeeeees 5
Northern Cal. River Watch v. City of
Healdsburg, 2004 U.S. Dist. LEXIS
1008 (N.D. Cal. Jan. 23, 2004).................. idintidunaaia )
Rodriguez v. United States, 480 U.S. 522 (1987)...........-.+- 19
Solid Waste Agency of N. Cook County v. Army
Corps of Eng'rs, 531 U.S. 159 (2001).............. passim
South Fla. Water Mgt. Dist. v. Miccosukee Tribe,
eh eR ctcesneescstnicciaincnianinsernecectionbeads 17
The Daniel Ball, 6 F. Cas. 1161 (W.D. Mich.),
rev'd, 77 U.S. (10 Wall.) 557 (1871 )sessssocsseseses 10, 13
United States v. Appalachian Elec. Power Co.,
Se Cas Pe Ce iantiitiiisincitniastiihariindnsnmsetinarictti 12
United States v. Ashland Oil & Transp. Co.,
$04 F.2d 1317 (6th Cir. 1974)... cece eeeeeeceeeenee 8
ili
United States v. Deaton, 332 F.3d 698
(4th Cir. 2003), cert. denied,
124 S. Ct. 1874 (2004)........cccccessereereeeees
United States v. Earth Sciences, Inc.,
599 F.2d 368 (10th Cir. 1979)........0000000
United States v. Gerke Excavating Inc.,
412 F.3d 804 (7th Cir. 2005), petition
for cert. filed, 74 U.S.L.W. 3309
(U.S. Nov. 11, 2005) (No. 05-623)........
United States v. Holland, 373 F. Supp. 665
ee ae
United Staves v. Rapanos, 376 F.3d 629
GEE Ce, FE ccesncccsnscenesesseceennspaninesecsons
United States v. Riverside Bayview Homes,
BFS UB. 121 (UGGS) nncccosscesccessnstentenssecce
United States v. Stoeco Homes, Inc.,
498 F.2d 597 (3d Cir. 1974).......ccecceseeees
United States v. Texas Pipe Line Co.,
611 F.2d 345 (10th Cir. 1979)...........0000
Ward v. Coleman, 598 F.2d 1187 (10th Cir.
1979) , rev'd, 448 U.S. 242 (1980).........
Wyoming v. Hoffman, 437 F. Supp. 114
Ge WEI, BFF pivcemncacccssepeasccnichintsinionrinis
iv
Statutes
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Fe Sis HE 6 Be Er Pitch dithintniniccncecscdcsteincatanadessnntitanmigaitio 4
BO CAE. © i i Pe iccccccncscnscnrecccnsccesernsseseinsanssnanie 4
SB ULBAC. © BAGH CoG i csccnccvcccctesesccccvisincescscsintnneniiioned 4
Beer Were cae: OF I caitinisicechinscintictentpinrilidecsnndantbiatindnstd 4
33 U.S.C. § 1161(j)(1)(C) (1970)..........ccccecsceseeeeeeeesseeseeeeees 4
Be ots Oe PP A ccncentcsunuhtsinncioentosiiescesetinapaiadnias 9
Ba Sete Oe re a acti cient etbidlininitisansaintasiiaimepditeimaintetiel 8
ee Re Oe Be ciccntintinintitnncinsnercssicdeapeubbiiiiicibah 16
ee Sie Oe Bee Be iitchcdicicuciciiadetecestncccebessdvecondaiaied 2, 4,6
er Os © Ee Cie ctadeisinticssccrntanenntnisnasentnaamadiiid 16
FS UBL, © TSAI IS) Ca rocccscsosciccciscsicccncccsccsossceesess 4, 16
BO eae Ee hiiinnirencsiinsiasdtinbdecmnenipetigeniinamsia 4
ee Oates OF Ca mrcnccettincichtnccietinnicniteeidessiieasi 22
FO ears Se ET ee icciscnisisctennicincnsatinniptsccdaidnmea 22
Be Recs Ee ee iciaicictpissibericiscinchunsedpeeettiniahidbabeiidaiel 4
BS ULB © TFAI A Ci ccccscseccrcccsecscesseptnncenstoadonnes 4
Be ae Pe iicccinitintinticitiniintiainbetiutictaininitiiidaapii 7,8
Be Cheeta Ue Ee eR tcinrecindienins wicatcichnibistnaibinimebcdiadiasta 7,8
eS Ce Re cree. 7,9
SP CTIA © Te ee ecccassencitscnatiictaiianaitiaicediiiatia 8, 16
BP Cc, Re Cee cede stcsibiuhlliahiepiiisatencotadinchlinatitniinilics 16
Session Laws
Clean Water Act of 1977, Pub. L. No. 95-217,
RT g , Ee ren 1S
Federal Water Pollution Control Act, ch. 758,
eB EE ee 4
Federal Water Pollution Control Act
Amendments of 1972, Pub. L.
No. 92-500, 86 Stat. 816 (1972)........ccccccccccceccee 6, 8,9
Vv
Water Quality Act of 1965, Pub. L. No. 89-234,
aI PTE ctninitnindntiteredenionteinenniteidibaiemans 10
Water Quality Improvement Act of 1970, Pub.
L. No. 91-224, 84 Stat. 91 (1970)..........ccccccceceeeeeens 4
Legislative History
116 Cong. Rec. 8985 (March 24, 1970)............ccccceceeeeeee 6, 11
Congressional Research Service, Legislative
History of the Water Pollution Control
Act Amendments of 1972 (1973)........... ~——- © 5
H.R. Rep. No. 917, 91st Cong., 2d Sess. (1970).................. 12
H.R. Rep. No. 1323, 92d Cong., 2d Sess. (1972).....12, 13, 14
S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. (1972)............. 7
Reguladons
SEER Se nT 12
Ps ee I rteceneeniernnscepatmsnantncemeentanttonninas 7
NT 2
incite errteeaicnameaneeeeeeies 7
CE 7
Federal Register Notices
35 Fed. Reg. 8280 (May 27, 1970).............c.ccccseccessesessereeees 12
67 Fed. Reg. 47042 (July 17, 2002)............c-ccccccccecesseeeeeeeeees 2
Agency Opinions
EPA General Counsel Opinion (Dec. 9, 1971)................ 6, 14
vi
Legal Treatises And Periodicals
Albrecht and Nickelsburg, Could SWANCC Be
Right? A New Look At The Legislative
History Of The Clean Water Act,
32 Envtl. L. Rep. 11042 (2002)..................0
Black’s Law Dictionary (4th ed. rev. 1968)..............
Webster’s Ninth New Collegiate Dictionary
l
The American Petroleum Institute (“API”)
respectfully submits this brief amicus curiae, suggesting
reversal in both of these consolidated cases. All petitioners
and the respondent have granted consent to the filing of this
brief.
INTEREST OF THE AMICUS CURIAE
API is a non-profit, nationwide trade association
ing more than 400 member companies +
all aspects of the petroleum and natural gas industry.
et aaa eneperne = ne a sh Abt
administrative rulemaking proceedings in the various state
and federal agencies, and in litigation in state and federal
courts.
The industry operates tens of thousands of oil and gas
production wells and thousands of pipeline facilities (e.g.,
pump stations, terminals, and breakout tanks), many of
which are located great distances from any “navigable
waters” in the traditional sense of the term. Under the
reasoning of the Sixth Circuit in the cases at bar, such
remotely located facilities could nonetheless be subject to
regulation under the Clean Water Act (“CWA”) if they are
located near any land or aquatic area that eventually drains to
any “navigable waters.” This would be so even in those
cases where there is no reasonable likelihood that a release
of oil would ever reach “navigable waters.”
Also, many petroleum refining facilities and natural
located near “navigable waters” in the traditional sense of the
No counsel for any party in these consolidated cases has
authored this brief in whole or in part. No entities other than AP! and its
members have made monetary contributions to the preparation and
submission of this brief.
2
term, have no surface hydrological connection with such
“navigable waters.” Under the Sixth Circuit's ruling in the
Carabell case that mere proximity to a regulated water body
renders a given aquatic area itself subject to CWA
regulation, storm water retention basins could be subject to
regulation, even though they lack any surface hydrological
connection to “navigable waters.”
Section 311 of the CWA, 33 U.S.C. § 1321 (2000),
regulates discharges of oil to the “navigable waters of the
United States,” and directs the Environmental Protection
Agency (“EPA”) to promulgate regulations to prevent and
remediate such discharges. In July 2002, EPA promulgated
revised regulations known as the Spill Prevention Control
and Countermeasure or “SPCC” regulations under section
311. 67 Fed. Reg. 47042 (July 17, 2002) (codified at 40
C.F.R. Part 112 (2005)). The SPCC regulations contain a
definition of “navigable waters” nearly identical to the one
that the Sixth Circuit applied in the present cases. API is
currently prosecuting an action for judicial review of that
definition in federal district court American Petroleum
Institute v. Johnson, No. 02-2247 .~.D.C. filed Nov. 14,
2002).
SUMMARY OF THE ARGUMENT
The Sixth Circuit erred in holding that any
hydrological connection with traditional navigable waters
renders an area a “navigable water” and in holding that mere
proximity to a regulated water renders an area a “navigable
water.” A review of the language and the full legislative
history of the CWA makes clear Congress intended
“navigable waters,” “waters of the United States,” and
“navigable waters of the United States” to include only
traditional navigable waters and their abutting wetlands.
3
This does not mean that pollution of non-navigable
waters cannot be regulated under the CWA if such pollution
results in the addition of pollutants to traditional navigable
waters. Congress deliberately employed the “discharge”
mechanism to provide for regulation of pollution of
traditional navigable waters from upstream sources. But this
is quite different from (1) designating as “navigable waters”
any and all areas or water bodies that have any hydrological
connection with traditional navigable waters or (2)
designating as “navigable waters” any water that is merely
near traditional navigable waters. Moreover, as this Court
emphasized in Solid Waste Agency of N. Cook County v.
Army Corps of Eng’rs, 531 U.S. 159 (2001) (“SWANCC’”),
Congress intended to preserve primary state authority over
activities affecting only state waters.
Under the Sixth Circuit’s theory in the Rapanos case,
few areas of the United States (including normally dry land
areas) would not be “navigable waters” subject to pervasive
federal regulation, because most areas have a drainage path
that eventually leads to traditional navigable waters. Worse,
under the Sixth Circuit’s theory in the Carabell case, mere
proximity to another area that eventually drains to traditional
navigable waters would render an area a “navigable water”
subject to federal regulation. The judgments in both cases
are founded on a faulty construction of the CWA and should
be reversed.
4
ARGUMENT
CONGRESS LIMITED “NAVIGABLE WATERS” TO
TRADITIONAL NAVIGABLE WATERS ' (AND
ABUTTING WETLANDS); DEVISED THE
“DISCHARGE” MECHANISM TO PROTECT
“NAVIGABLE WATERS” FROM UPSTREAM
POLLUTION; AND ALLOWED STATES TO PROTECT
STATE WATERS.
I. The Importance Of Section 311 To Construction
Of The Clean Water Act
The Federal Water Pollution Control Act (“FWPCA,”
now commonly known as the Clean Water Act or “CWA”)
was originally enacted in 1948, ch. 758, 62 Stat. 1155
(1948), and has been amended many times. Often
overlooked in the construction of the scope of the CWA is
the history of section 311, 33 U.S.C. § 1321 (2000). Section
311 traces its roots to the Water Quality Improvement Act of
1970, Pub. L. No. 91-224, 84 Stat. 91 (1970). That Act
added to FWPCA a new section 11, entitled “Control Of
Pollution By Oil” and codified at 33 U.S.C. § 1161 (1970)
(current version at 33 U.S.C. § 1321 (2000)).
Section 11 prohibited the discharge of oil in harmful
quantities “into or upon the navigable waters of the United
States, adjoining shorelines, or into or upon the waters of the
contiguous zone.” 33 U.S.C. § 1161(6)(2) (1970) (current
version at 33 U.S.C. § 1321(b)(3) (2000)). It also required
reporting of discharges; established liability for discharges;
and directed the President to issue regulations “establishing
procedures, methods, and requirements for equipment to
prevent discharges.” 33 U.S.C. §§ 1161(b)(4), (f), and
(1 XC) (1970) (current versions at 33 USC. §§
1321(6\5), (f), and (j1)(C) (2000)).
Although the term “navigable waters of the United
States” was used throughout section 11, the term was not
defined by statute. However, the term already had a well-
established meaning in federal law, i.e., those waters that are,
were, or with reasonable improvements could be, used for
navigation in interstate commerce.’ See United States v.
Stoeco Homes, Inc., 498 F.2d 597, 608-611 (3d Cir. 1974),
United States v. Holland, 373 F. Supp. 665, 669-70 (M.D.
Fla. 1974). See also Black’s Law Dictionary 1179 (4th ed.
rev. 1968). Congress must be presumed to have used the
term in 1970 in its traditional sense, unless the statute
dictates otherwise. McDermott v. Wilander, 498 U.S. 337,
342 (1991); NLRB v. Amax Coal Co., 453 U.S. 322, 329
(1981).
The 1970 enactment did not dictate otherwise. In
fact, the Senate floor manager’s summary of conference
action on the 1970 Water Quality Improvement Act
confirmed that Congress used the term in its traditional
sense:
One matter of importance throughout
the legislation is the meaning of the term
“navigable waters of the United States.”
The conference agreement does not
define the term. Based on the history of
consideration of this legislation it is obvious
that its provisions and the extent of
application should be construed broadly. It is
intended that this term include al] water
bodies, such as lakes, streams, and rivers,
regarded as public navigable waters in law
. API refers to such waters throughout this brief as “traditional
navigable waters.”
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.