Amicus Curiae Brief — Rapanos v. United States

6

which are navigable in fact. It is further

intended that such waters shall be considered

to be navigable in fact when they form, in

their ordinary condition by themselves or by

uniting with other waters or other systems of

transportation, such as highways or railroads,

a continuing highway over which commerce

is or may be carried on with other states or

with foreign countries in the customary means

of trade and travel in which commerce is

conducted today. In such cases, the

commerce on such waters would have a

substantial economic effect on _ interstate

commerce.

116 Cong. Rec. 8985 (March 24, 1970).? Moreover, in 1971,

EPA’s General Counsel opined that the term “navigable

waters of the United States” was used in its traditional sense

in the 1970 Act. See EPA General Counsel Opinion (Dec. 9,

1971).

Two years after enactment of section 11, Congress

enacted the Federal Water. Pollution Control Act

Amendments of 1972 (hereafter, “1972 Amendments”).

Pub. L. No. 92-500, 86 Stat. 816 (1972). The 1972

Amendments carried forward the oil pollution control

provisions of section | 1, with some amendments not relevant

here, and redesignated section 11 as section 311. Pub. L.

No. 92-500, § 2, 86 Stat. 862 (1972) (current version at 33

U.S.C. § 1321 (2000)). The Conference Report stated that

section 311 was intended to be “basically the same as

: Senator Muskie later used similar language to describe the

CWA section 502(7) definition of “navigable waters” — added by the

Federal Water Pollution Control Act Amendments of 1972, Pub. L. No.

92-500, 86 Stat. 816 (1972) — in his manager's statement on those 1972

Amendments. See infra at 11.

7

existing law,” i.e., basically the same as the 1970 enactment.

S. Conf. Rep. No. 1236, 92d Corg., 2d Sess. 132, 133

(1972), reprinted in 1 Congressional Research Service,

Legislative History of the Water Pollution Control Act

Amendments of 1972 at 315, 316 (1973) (hereafter, “1972

Legislative history”). Under then existing law, the

“navigable waters of the United States” meant traditional

navigable waters, as shown above.

It is possible, of course, that Congress intended

section 311 to have a narrower scope than other provisions

of the CWA.* However, it is the position of the United

States that section 311 has the same scope as sections 404

and 502(7), 33 U.S.C. §§ 1344, 1362(7) (2000) (at issue

here), as well as section 402, 33 U.S.C. § 1342 (2000). This

is demonstrated by the practically identical language of the

several definitions of “navigable waters” or “waters of the

United States” in the regulations that purportedly implement

those statutory provisions. Compare 33 C.F.R. § 328.3(a)

(2005) with 40 C.F.R. § 112.2 (2005) and 40 C.F.R. § 122.2

(2005). If all of those statutory provisions do have the same

scope, then the history of section 311 must be considered in

defining that scope.

The history of section 311 establishes that its original

scope was limited to traditional navigable waters, and that

Congress did not intend to enlarge that scope (i.e., did not

intend to depart dramatically from “existing law”) in the

1972 Amendments. Assuming, arguendo, that the scope of

section 311 is the same as the scope of the rest of the CWA,

. In fact, in its pending motion for summary judgment in API v.

Johnson, No. 02-2247 (D.D.C. filed Nov. 14, 2002), API has argued in

the alternative that if other provisions of the CWA are held to reach far

beyond traditional navigable waters in their use of the term “navigable

waters” or “waters of the United States,” then section 311 must have a

narrower scope than the rest of the CWA.

any suggestion that Congress intended to go far beyond

traditional navigable waters in sections 404 or 502(7) is

extremely difficult to reconcile with the history of section

311.° In fact, as shown below, the language and legislative

history of those other provisions establish a continued focus

upon protecting traditional navigable waters (waters subject

to the federal servitude), while otherwise preserving state

authority to protect state waters.

Il. Congress’ Objectives In The 1972 Amendments

In addition to carrying forward the oil spill

prevention provisions of former section 11 (now section

311), the 1972 Amendments added significant new

regulatory programs aimed at protecting water quality. In

particular, the 1972 Amendments established the National

Pollutant Discharge Elimination System (“NPDES”), which

requires a permit from EPA for the discharge of “pollutants”

to the “navigable waters;” and the section 404 program,

which requires a permit from the Army Corps of Engineers

(“Corps”) for the discharge of “dredged or fill material” to

the “navigable waters.” Pub. L. No. 92-500, § 2, 86 Stat.

844, 880, 884, 886 (1972) (current versions at 33 U.S.C. §§

1311, 1342, 1344, 1362(12) (2000)).

=. es

. In the late 1970's, the courts of two federal circuits held that the

section 502(7) definition of “navigable waters” governs the scope of

section 311, and that navigability is irrelevant. However, those cases

were decided long before SWANCC, and it does not appear that the courts

considered the full history of section 311, as discussed herein. United

States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979); United

States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1324-25 (6th Cir.

1974). See Ward v. Coleman, 598 F.2d 1187, 1188 n.1 (10th Cir. 1979)

(dictum), rev'd, 448 U.S. 242 (1980); Wyoming v. Hoffman, 437 F. Supp.

114, 115-16 (D. Wyo. 1977) (dictum).

9

In a new section 502(7), the 1972 Amendments

defined the pivotal term “navigable waters” as “the waters of

the United States, including the territorial seas.” Pub. L. No.

92-500, § 2, 86 Stat. 886 (current version at 33 U.S.C. §

1362(7) (2000)). At the same time, Congress declared its

policy “to recognize, preserve, and protect the primary

responsibilities and rights of States to prevent, reduce, and

eliminate pollution [and] to plan the development and use

... Of land and water resources... .” Pub. L. No. 92-500, §

2, 86 Stat. 816 (1972) (current version at 33 U.S.C. §

1251(b) (2000)).

A. The language of the definition of

“navigable waters”

Exactly why Congress chose to define “navigable

waters” as “the waters of the United States” is not clear from

the face of the statute. However, given Congress’ stated -

policy of preserving state primacy over state water resources,

it may well be that Congress wanted to distinguish federal

waters (covered under the Act) from other waters (to be

regulated by the states). After all, the term “navigable

waters” has been described as “defin[ing] a federal servitude,

derived from the commerce clause, that overlays what might

otherwise be considered state waters,” Northern Cal. River

Watch v. City of Healdsburg, 2004 U.S. Dist. LEXIS 1008,

*18(N.D. Cal. Jan. 23, 2004).

In any event, both the phrase “navigable waters” and

the phrase “waters of the United States” had an established

meaning in federal law, i.e., traditional navigable waters.

Congress had previously used the terms “waters of the

United States” and “navigable waters of the United States”

interchangeably in section 10 of the Rivers and Harbors Act,

33 U.S.C. § 403 (2000). Section 10 has been held to apply

only to traditional navigable waters. United States v. Stoeco

10

Homes, Inc., 498 F.2d 597, 608-10 (3d Cir. 1974).

Moreover, as long ago as 1871, the District Court in 7he

Daniel Ball case had used the phrase “waters of the United

States” to mean traditional navigable waters:

I regard it to be well settled doctrine of the

supreme court of the United States, that all

waters within the United States which are

navigable for the purpose of commerce, or in

other words, waters whose navigation

successfully aids commerce, are waters of the

United States.

_ The Dasiel Ball, 6 F. Cas. 1161, 1163 (W.D. Mich.), rev'd

on other grounds, 77 U.S. (10 Wall.) 557 (1871) (emphasis

added). See Black’s Law Dictionary 1761 (4th ed. rev.

1968) (defining “Waters of the United States” and citing The

Daniel Ball).

Moreover, had Congress intended in the 1972

Amendments to cover purely state waters, in addition to

traditional navigable waters, it knew how to say so. In the

Water Quality Act of 1965, Congress had provided for

development grants to states and cities for controlling

discharges of inadequately treated sewage into “any waters.”

Pub. L. No. 89-234, § 3, 79 Stat. 903, 905 (1965). Congress

could have employed the same term in the 1972

Amendments, but instead used the narrower term “waters of

the United States.”

B. The legislative history of the definition

The legislative history of the 1972 Amendments

confirms that Congress used the terms “navigable waters”

and “waters of the United States” in their traditional sense.

It also demonstrates Congress’ intent that the concept of

1]

traditional navigable waters be understood by reference to

modern federal case law. See generally Albrecht and

Nickelsburg, Could SWANCC Be Right? A New Look At The

Legislative History Of The Clean Water Act, 32 Envtl. L.

Rep. 11042, 11044-46, 11048-49 (2002).

The explanatory statements of the Senate and House

floor managers both describe “navigable waters” with

reference to their use as a “highway” or part of a “highway”

in interstate commerce. See 1 1972 Legislative History at

178 (Statement of Senator Muskie), 250-251 (Statement of

Congressman Dingell). Senator Muskie used language in his

statement nearly identical to language he had used to

describe the term “navigable waters of the United States” in

section 11 two years earlier. Compare | 1972 Legislative

History at 178 with 116 Cong. Rec. 8985 (March 24, 1970).

At the same time, the two floor managers’ statements

and the Conference Report all expressed a desire that the

term “navigable waters” be given “the broadest possible

constitutional interpretation unencumbered by agency

determinations which have been made or may be made for

administrative purposes.” 1 1972 Legislative History at 178,

251, 327. The legislative history compiled by the

Congressional Research Service does not explain what were

the “agency determinations” made for “administrative

purposes” about which Congress had been concerned.

However, a broader look at the legislative history shows that

Congress had been frustrated with the Corps of Engineers’

implementation of the Rivers and Harbors Act and with

EPA’s interpretation of the 1970 version of FWPCA.

Before enactment of the 1972 amendments to

FWPCA, the Rivers and Harbors Act had been viewed as a

potentially useful federal mechanism for controlling water

pollution. However, until 1970, the Corps had not regulated

12

dredging or filling in aquatic areas shoreward of harbor lines,

even though under the old Daniel Ball definition of

“navigable waters of the United States,” the Corps plainly

had the authority to regulate such areas. The House

Committee on Government Operations expressly found fault

with the Corps’ policy, as reflected in its report of March

1970, entitled “Our Waters And Wetlands: How The Corps

of Engineers Can Help Prevent Their Destruction And

Pollution.” H.R. Rep. No. 917, 91st Cong., 2d Sess. 6-10

(1970).°

Another concern was that the Corps had not been

regulating waters not presently navigable in fact, even

though under cases such as Economy Power & Light Co. v.

United States, 256 U.S. 113 (1921) and United States v.

Appalachian Elec. Power Co., 311 U.S. 377 (1940), the

“waters of the United States” included waters that had at one

time been navigable in fact (although presently obstructed)

and waters that could be navigable, with reasonable

improvement. In 1972, the Conservation and Natural

Resources Subcommittee of the House Committee on

Government Operations held hearings “concerning the role

of the Corps of Engineers in administering and protecting

our Nation’s wetlands and waterways,” and in August the

full committee issued a report, entitled “Increasing

Protection For Our Waters, Wetlands, And Shorelines: The

Corps Of Engineers.” H.R. Rep. No. 1323, 92d Cong., 2d

Sess. 1 (1972). In its report, the committee criticized the

Corps for its narrow approach:

The corps’ regulations currently

define navigable waters as those “which are

P In May 1970, the Corps changed course and promulgated a rule

regulating activities shoreward of harbor lines. 35 Fed. Reg. 8280 (May

27, 1970) (amending 33 C.F.R. § 209.150).

13

navigable in fact when they are used, or are

susceptible of being used, in their ordinary

condition,” for conducting trade or travel “in

the customary modes of trade and travel on

water.” (33 C.F.R. 209.260 (a).) That

language is based on similar language used

over 100 years ago in the Supreme Court’s

opinion in The Daniel Ball... .

sian ten ee be teases a

Id. at 29-30.’

Finally, the Corps had declined to exercise

jurisdiction over intrastate lakes, even if navigable-in-fact,

because such lakes did not, in the precise words of The

Daniel Ball, “form . . . by themselves, or by uniting with

other waters, a continued highway over which commerce is

. conducted by water,” 77 U.S. (10 Wall.) at 563. The

Committee on Government Operations apparently believed

that railroad or highway links between navigable intrastate

lakes and other states should be sufficient to establish federal

jurisdiction, and that modern case law supported this view:

, Congressman Dingell repeated language from this hearing

report in his floor statement on the 1972 Amendments. See | 1972

Legislative History at 250-51.

14

Although most interstate commerce 150 years

ago was accomplished on waterways, there is

no requirement in the Constitution that the

waterway must cross a State boundary in

order to be within the interstate commerce

power of the Federal Government. Rather, it

is enough that the waterway serves as a link in

the chain of commerce among the States as it

flows in the various channels of transportation

(highways, railroads, air traffic, radio and

postal communication, waterways, etc.). The

“gist of the Federal test” is the waterway’s

use “as a highway,” not whether it is “part of

a navigable interstate or international

commercial highway.” Utah v. United States,

403 U.S. 9, 11 (1971); U.S. v. Underwood, 4

ERC 1305, 1309 (D.C., Md., Fla. Tampa

Div., June 8, 1972).

H.R. Rep. No. 1323, 92d Cong., 2d Sess. 30 (1972).

Although Congress’ expressed discontent was

focused on the Corps, Congress presumably also was aware

that in 1971, EPA’s General Counsel had issued an opinion

concerning the scope of the term “navigable waters of the

United States” in then section 13 of the FWPCA, which

regulated sewage discharges from vessels. EPA General

Counsel Opinion (Dec. 9, 1971). The opinion addressed

navigable intrastate waters lacking a water connection to

other states, which might nonetheless be linked to other

states by railroads or highways (essentially the same issue on

which the Committee on Government Operations had

disagreed with the Corps, discussed immediately above).

The opinion said that “[s}uch waters have never been

held to be within the ‘navigable waters of the United States,’

15

and the possibility of securing such a holding is remote.” /d.

Significantly, the General Counsel recommended against

would only marginally increase federal regulatory coverage,

and “(t}his additional margin . . . does not appear to justify

the legal and administrative difficulties it presents.” Id.

(emphasis added).

Thus, it is clear that the “agency determinations”

made for “administrative purposes” about which Congress

complained in the 1972 legislative process involved the

federal agencies’ failure to assert jurisdiction over traditional

navigable waters as fuily as justified under modern federal

case law. The focus of Congress’ frustration appears to have

been the Corps, but Congress was likely also disappointed

with EPA’s position.

Thus, in defining “navigable waters” as the “waters

of the United States” in the 1972 FWPCA Amendments,

Congress intended only to reach traditional navigable waters,

although it intended that such waters be understood to be as

extensive as described in modern federal case law. In other

words, Congress wanted to ensure that the agencies would

exercise their full constitutional power over navigation.

In SWANCC, this Court confirmed that Congress’

focus in 1972 was upon traditional navigable waters. 531

U.S. at 168 & n.3, 172. This Court also confirmed its

opinion in United States v. Riverside Bayview Homes, 474

U.S. 121 (1985), that in the Clean Water Act of 1977, Pub.

L. No. 95-217, 91 Stat. 1566 (1977), Congress had

acquiesced in the Corps of Engineers’ assertion of CWA

jurisdiction over wetlands abutting traditional navigable

waters. 531 U.S. at 167, 170-72.

16

C. The regulation of the “discharge of

pollutants”

Although Congress focused the federal effort upon

protection of water quality in traditional navigable waters

(and their abutting wetlands), and chose to have the states

retain primary authority to protect water quality in waters

traditionally regarded as state waters, see SWANCC, 531

U.S. at 166-67, Congress gave EPA and the Corps adequate

tools to protect traditional navigable waters from pollution

from or through upstream sources, such as non-navigable

tributaries. Specifically, Congress prohibited the

“discharge” of pollutants, except in compliance with a

section 402 NPDES permit or a section 404 permit to

discharge “dredged or fill material.” 33 U.S.C. § 1311(a)

(2000). See also 33 U.S.C. §§ 1321(a)(2), (b)(3) (2000).

The term “discharge of pollutants” is defined as “any

addition of any pollutant to navigable waters from any point

source.” 33 U.S.C. § 1362(12) (2000). The term “point

source” is defined to include “any discernible, confined and

discrete conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete fissure . . .

from which pollutants are or may be discharged.” 33 U.S.C.

§ 1362(14) (2000) (emphasis added). Thus, the addition of

pollutants to navigable waters through a ditch is prohibited,

except in compliance with a permit. But that does not mean

the ditch is a “navigable water.”

Similarly, a common dictionary definition of

“channel” is “the bed where a natural stream of water runs.”

Webster’s Ninth New Collegiate Dictionary 226 (1988).

Thus, a non-navigable tributary adding pollutants to a

navigable water (either directly or through another non-

17

navigable tributary*) can be a “point source” and subject to

regulation, but not because the non-navigable tributary is a

“navigable water” or “water of the United States.”

Conversely, a ditch or non-navigable channel that receives

pollutants but that itself cannot reasonably be expected to

convey pollutants to navigable waters (either directly or

through another point source) is not subject to regulation

under the CWA. However, it can still be regulated as a state

water by the applicable state. See S. Novick (ed.), | Law Of

Environmental Protection § 7:9 & n.2 (2004) (“[Cjommon

. . « iS a@ provision prohibiting the ‘discharge’ of any

‘pollutant’ into the ‘waters of the state’ without a permit.

Virtually every state has a provision of this type.”’).

There are many cases where it is highly probable that

a discharge to a tributary (in particular a primary tributary)

will result in an addition of pollutants to traditional navigable

waters. But there are also many cases where a discharge to a

remote “tributary” cannot reasonably be expected to reach

traditional navigable waters.

This is certainly true in the oil and gas industry,

where many production wells and pipeline facilities are

located in arid areas near normally dry streambeds or washes

that eventually lead through a lengthy series of drainages to

traditional navigable waters. A spill of oil or produced water

could reasonably be expected to reach the dry streambed or

wash, but in many such cases could not reasonably be

expected to reach traditional navigable waters. While such a

spill may never reach traditional navigable waters, such a

spill can be cleaned up before a precipitation event even

. See South Fla. Water Mgt. Dist. v. Miccosukee Tribe, 541 U.S.

95, 105 (2004) (“a point source need not be the original source of the

pollutant; it need only convey the pollutant to ‘navigable waters,’ which

are, in turn, defined as ‘the waters of the United States." "’).

18

begins to cause any migration toward traditional navigable

waters.

In such instances, the CWA would not apply.

However, the states may, and generally do, regulate

discharges of oil to state waters, and require that they be

cleaned up promptly. See D. Selmi & K. Manaster, State

Environmental Law § 18:1 (2003) (“Liability for oil spills

has long been a prominent feature on the landscape of state

environmental law’’). See generally id. at ch. 18.

III. Where The Sixth Circuit Errs

Underlying the Sixth Circuit’s opinions in the present

cases is the notion that the CWA was intended to protect

water quality in traditional navigable waters. That much of

the Sixth Circuit’s reasoning is surely correct, given this

Court’s conclusion in SWANCC that “The term ‘navigable’

has at least the import of showing us what 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.” 531 U.S. at

172.

But the Sixth Circuit errs in its understanding-of how

Congress went about protecting traditional navigable waters.

In essence, the Sixth Circuit’s theory is that because A (a

non-navigable water or wetland) might somehow affect B (a

traditional navigable water), therefore A is B. See Unii :d

States v. Rapanos, 376 F.3d 629, 639 (6th Cir. 2004) (“*[a}ny

contamination of the Rapanos wetlands could affect the

Drain, which, in turn could affect navigable-in-fact

waters.””) (citation omitted). Yet this theory enjoys no

support in the statute. It is made of whole cloth, presumably

in an effort to accomplish the perceived ends of the statute.

19

This Court has often cautioned against reliance upon

the general ends of a statute to enlarge or otherwise alter its

intended reach. This Court has explained that

Application of “broad purposes” of legislation

at the expense of specific provisions ignores

the complexity of the problems Congress is

called upon to address and the dynamics of

legislative action. Congress may be

unanimous in its intent to stamp out some

vague social or economic evil; however,

because its Members may differ sharply on

the means for effectuating that intent, the final

language of the legislation may reflect hard-

fought compromises.

Board of Governors of the Fed. Reserve Sys. v. Dimension

Fin. Corp., 474 U.S. 361, 373-74 (1986). See also

Rodriguez v. United States, 480 U.S. 522, 526 (1987) (“{I}t

frustrates rather than effectuates legislative intent

simplistically to assume that whatever furthers the statute’s

primary objective must be the law.”) (emphasis in the

original).

In fact, CWA jurisprudence in most of the lower

federal courts appears to have been largely purpose-driven

both before and after this Court’s decision in SWANCC.

Before SWANCC, the prevailing theory was that to protect

water quality as broadly as possible, Congress had directed

EPA and the Corps to regulate any waters that might be

regulated under the federal power to regulate interstate

commerce. See United States v. Earth Sciences, Inc., 599

F.2d 368, 375 (10th Cir. 1979) (“Every court to discuss the

issue has used a commerce power approach... .”).

Following SWANCC’s rejection of this “full extent of the

commerce power” theory, many of the federal circuits

20

(including the Sixth Circuit here) have shifted to a new

purpose-driven theory, i.e., since Congress wanted to protect

traditional navigable waters, any aquatic area with any

hydrological connection with traditional navigable waters

must itself be deemed a traditional navigable water, and

subject to federal protection. See United States v. Gerke

Excavating Inc., 412 F.3d 804, 807 (7th Cir. 2005), petition

for cert. filed, 74 U.S.L.W. 3309 (U.S. Nov. 11, 2005) (No.

05-623); Rapanos, 376 F.3d at 639; United States v. Deaton,

332 F.3d 698, 711-12 (4th Cir. 2003), cert. denied, 124 S. Ct.

1874 (2004).

Yet Congress’ very specific regulatory scheme in the

CWA must be given effect, even though some may believe

that scheme does not go far enough to serve the ends of the

statute or represent the perfect balance of policy choices. In

the CWA, Congress asserted authority over traditional

navigable waters (and their abutting wetlands), including the

authority to protect such waters from upstream pollution.

But Congress chose to protect traditional navigable waters

by regulating additions of pollutants to such waters (whether

directly or through ditches, channels, or other “point

sources”) -- not by rendering subject to federal regulation all

activities affecting non-navigable, state waters. Congress

relied upon the states to regulate activities affecting only

State waters.

Here, if the Corps can show Mr. Rapanos’ wetland-

filling activities result in an addition of pollutants to

traditional navigable waters, then those activities may be

regulated. But this is quite different from the Corps’ current

approach, approved by the Sixth Circuit, under which the

mere potential for drainage from a distant wetland to a

traditional navigable water renders the wetland itself a

“navigable water.”

21

Similarly, if the Corps can show that filling of the

Carabells’ property results in an addition of pollutants to

traditional navigable waters, then that activity may be

regulated. But mere proximity to a traditional navigable

water, in the absence of any hydrological connection, cannot

render a wetland 2 “navigabie water.” In fact, in the

Carabell case, the only proximity is to a non-navigable

“tributary” of a traditional navigable water. Thus, the

wetlands on the Carabells’ property cannot even be said to

be “inseparably bound up” (SWANCC, 531 U.S. at 167) with

traditional navigable waters.

IV. Implications Of The Sixth Circuit’s Holdings

If, as the Sixth Circuit holds, any hydrological

connection with a traditional navigable water renders an area

a “navigable water,” then even normally dry hillsides would

be “navigable waters,” assuming there is at least occasional

precipitation. One could start tracing paths of drainage at the

highest point in the Rocky Mountains and follow them to the

sea — and every land mass drained along the way would be

“navigable waters.” Thus, the potential area of the nation

covered as “navigable waters” could be far greater even than

the 100 million acres of wetlands (an area itself the size of

California) that petitioners Rapanos, et al. referred to in their

reply brief on the petition for certiorari, see Reply Br. of

Petitioners Rapanos, ef al. (On Petition) at 10.

As a result, remote oil and gas production and

pipeline facilities could be required to prepare and

implement SPCC plans under section 311, even where they

have no reasonable likelihood of ever affecting traditional

navigable waters. Also, such facilities currently are subject

to fines for spills to remote, dry stream beds and washes,

even if the spills are promptly cleaned up and never get

22

anywhere near navigable waters. See 33 U.S.C. §§

1321(b)(6), (6)(7) (2009).

Morcuver, under the mere proximity test of the

Carabell case, man-made retention ponds at industrial

facilities, such as petroleum refineries, pipeline facilities, or

natural gas plants (located close to, but with no surface

hydrological connection to, traditional navigable waters),

could be “navigable waters.” This would make no sense, as

such ponds are specifically designed to prevent or limit the

addition of pollutants to traditional navigable waters. Their

mere operation in catching and holding pollutants could now

be subject to NPDES permitting.’

Even assuming, arguendo, that a “significant nexus”

with traditional navigable waters is enough to render any

non-navigable water or wetland “navigable waters,” see

Rapanos, 376 F.3d at 639, the Sixth Circuit’s theories make

a mockery of this Court’s concept. Cf SWANCC, 531 U.S.

at 167 (“It was the significant nexus between the wetlands

and ‘navigable waters’ that informed our reading of the

CWA in Riverside Bayview Homes.”). \f, as under Rapanos,

any hydrological connection constitutes a “significant

nexus,” then very little land area would not have a

“significant nexus” with traditional navigable waters.

Carabell makes the mockery complete, holding that merely

being close to an area that has any hydrological connection

with traditional navigable water establishes a “significant

nexus” with traditional navigable waters.

° In some cases, water from the retention basins is pumped to the

facility’s waste water treatment plant and discharged to navigable waters.

That discharge is subject to NPDES permitting. But that is quite

i from regulating the retention basins themselves as “navigable

waters.”

23

CONCLUSION

The judgments in cases 04-1034 and 04-1384 are

based on a faulty construction of the CWA and should be

reversed.

Respectfully submitted,

December 2, 2005 THOMAS SAYRE LLEWELLYN

(COUNSEL OF RECORD)

5125 MacArthur Blvd., NW

Suite 32-A

Washington, DC 20016

(202) 237-7291

HARRY M. NG

RALPH J. COLLELI JR.

ERIK G. MILITO

American Petroleum Institute

1220 L Street, NW

Washington, DC 20005

(202) 682-8000

Nos. 04-1034 and 04-1384

In The

Supreme Court of the Gnited States

°

— JOHN A. RAPANOS; JUDITH A. NELKIE RAPANOS;

PRODO, INC.; ROLLING MEADOWS HUNT CLUB,

And PINE RIVER BLUFF ESTATES, INC.,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

SJ

JUNE CARABELL, et al.,

Petitioners,

v.

UNITED STATES ARMY

CORPS OF ENGINEERS, et al.,

Respondents.

Sd

On Writs Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

S

BRIEF OF AMERICAN PLANNING

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

s

NANcY STROUD* Lora A. LUCERO, AICP

LEWwis, Stroup & DEuTscH, L.P. 122 S. Michigan Avenue

1900 Giades Road, Suite 251 Suite 1600

Boca Raton, FL 33431 Chicago, IL 60603

(561) 826-2800 ~ (505) 247-0844

“Counsel of Record for Amicus Curiae

American Planning Association

COCKLE LAY BRIEF PRINTING CO wot) 225-6964

Wh CALL COLLECT (hu2) $42 2331

QUESTIONS PRESENTED FOR REVIEW

1. Does the Clean Water Act prohibition on unpermitted

discharges to “navigable waters” extend to non-navigable

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?

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW................. i

TABLE OF AUTHORITIES ...00........:ccccceseccessesereeeceesees iii

INTEREST OF AMICUS CURIAE.............cccsccsseseeeeeeees 1

STATEMENT OF THE CASE. ..............:ccccccseseeseesreeeeeens 2

SUMMARY OF ARGUMENT? ...0.0........:cccccceccesceeseceeeees 3

TE citendenninipuititibitectipiniineiisisiiiiiatingtamianiins 4

I. Wetlands Are A Critical Natural Resource In

Need Of Protection..............:..ccccssseseseesesseeereeeees 4

II. “Waters Of The United States” Must Be

Defined Broadly In Order To Achieve The Fed-

eral Goal Of No Net Loss..............::cc:ccccceseseeeees 11

III]. Planning And Land Use Regulatory Tools

Provide A Range Of Options For Wetland Pro-

STITT: cdadecihninthticiddditlniieaiiidiebaletnahaaaniiaitedetaliden nasi 13

| ESM TS Lee N SPN OOD ME oS) Te 20

TABLE OF AUTHORITIES

CASES

City of Monterey v. Del Monte Dunes at Monterey,

City of Rancho Palos Verdes v. Abrams, 125 S.Ct.

1453, 73 USLW 4217, 161 L.Ed.2d 316 (2005)............... 2

Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct.

2309, 129 L.Ed.2d 304 (1994)..0...........cccccecceeeeeeeeeeeeeeeeeees 2

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 107 S.Ct.

2378, 96 L.Eid.2d 260 (1967).........0.c0ccscccccrsorsesersorssscesosees 1

Headwaters, Inc. v. Talent Irrigation District, 243

F.3d 526 (Oth Cir, 2001)......ccscccsesssscssssssessesessesecsesscsesees 11

Kelo v. City of New London, 125 S.Ct. 2655, 73

USLW 4552, 162 L.Ed.2d 439 (2005) ...........cccecseeseeeeeenees 2

Lingle v. Chevron, 125 S.Ct. 2074, 73 USLW 4343,

161 L.Ed.2d 876 (2005)...............-sccssecssssssssssesseressersssesees 2

Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)................ 1

Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct.

2448, 150 L.Ed.2d 592 (2001)..............ccccecesseseerseeeeseereeees 2

Rice v. Harken Exploration Co., 250 F.3d 264 (5th

Gs SD ces Misinnsthniiaiinsetinepitatninnibitlsiiapeliinibiiddimiptniteiteinions 11

San Remo Hotel, L.P. v. City and County of San

Francisco, 125 S. Ct. 2491, 73 USLW 4507, 162

Ses EP TEENY cncucesicsitasanaedindnancimmesassensensennumepnbenciaie 2

iv

TABLE OF AUTHORITIES — Continued

Page

Solid Waste Agency of Northern Cook County uv.

Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675,

148 L.Ed.2d 576 (2001)...........0ccccssccscerrorssereccssescerseeees 11

Suitum v. Tahoe Reg'l Planning Agency, 520 U.S.

725, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997)...............0+6 2

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Reg’ Planning Agency, 535 U.S. 302, 122 S.Ct.

1465, 152 L.Ed.2d 517 (2002)............cccseescesseereeeseereeeeenes 2

United States v. Buday, 138 F. Supp.2d 182 (D.

BAO, BREED. sncsiteicsiebcstinsinsinnnsencitsnieiiinindidiuanissiiieadbuainiuaaniai 11

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

SEED ..ccinnscrtnsscctsinstnniapiniiiacisitecsipsansanbidaiaitiedaiiicisemiaiina 11

United States v. Newdunn Associates, 195

F. Supp.2d 751 (B.D. Va. 2002).............:sccccsesesesreeeeeeeeees 11

Village of Euclid v. Ambler Realty Co., 272 U.S. 365

CRD cccteritinsnccinsumneneninectanuninipbiatmecinciiiaiabbiiiieaiiumaitiilds 15

Williamson County Regl Planning Comm'n v.

Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87

RFE DS BOD CD encicrsccicinnnssersiivectadsisinssnticiuninsiitiiinbiimaptii 1.

Yee v. City of Escondido, 503 U.S. 519, 112 S.Ct.

1522, 118 L.Ed.2d 153 (1992)...........sccsecrrssseesereesereessesees 1

STATUTES |

16 U.S.C. § 3801-BBG2 ...............seccccrrcssrscessccenseessrees pantie 14

16 U.S.C. $§ 3837-38371.............:ssssssressssssesseesssssrsserersens 14

v

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

American Planning Association, POLICY GUIDE ON

WETLANDS, ratified by the Board of Directors

April 2002. Available at http://www.planning org/

policyguides/wetlands.htm [last accessed on De-

SIE TITEL TIT cceenerneninnninntsintnnegneenenntntepencenpncsimenn passim

Bates, Sarah F., David H. Getches, and Lawrence J.

MacDonnell, Charles F. Wilkinson, SEARCHING

OUT THE HEADWATERS — CHANGE AND REDISCOV-

ERY IN WESTERN WATER POLicy, Island Press,

Burke, David, Eric Meyers, Ralph Tiner, Jr. and

Hazel Groman, Protecting Non-Tidal Wetlands.

ning Advisory Service, Report Number 412/413,

Se eedileiciatdincisiiaendinaictasiei intl nianpmacatimesmmnainnantantnamemmen 7

Dahl, T.E., STATUS AND TRENDS OF WETLANDS IN

THE COTERMINOUS UNITED StaTes 1986-1997.

U.S. Department of the Interior, Fish & Wildlife

Service, Washington, DC, 2000 200..............ccccccccceeeeeees 6,7

RONMENTAL PLANNING HANDBOOK FOR SUSTAIN.

Leopold, Aldo, The Round River, Luna B. Leopold,

ed. ROUND RIVER: FROM THE JOURNALS OF ALDO

LEOPOLD, Minocqua, WI: Northwood Press, 1991 ..........4

Maltby, Edward, WATERLOGGED WEALTH: WHY

WASTE THE WORLD'S WET PLACES? Washington,

DC: International Institute for Environment and

vi

TABLE OF AUTHORITIES — Continued

Page

McElfish, James M., Jr., NATURE-FRIENDLY ORDI-

NANCES, Environmental Law Institute,

dicted inicnicidiemnchindinidintinbabasiialinibieial 8, 15, 16, 17, 18, 19

McHarg, Ian L., DESIGN WITH NATURE, Deu vleday &

8 ee 9

Nolon, John R., FLEXIBILITY IN THE LAW: THE RE-

ENGINEERING OF ZONING TO PREVENT FRAG-

MENTED LANDSCAPES, New York Law Journal,

February 18, 1998. Available at http://www.law.

NATURE’S LEGACY: PROTECTING AND RESTORING

GEOGRAPHY, LAW, AND PuBLic Po.icy, Island

Pruetz, Rick, BEYOND TAKINGS AND GIVINGS -

LANDMARKS WITH TRANSFER OF DEVELOPMENT

Wildlife Federation. Available at hhttp:/iwww.cwn.org/

Strand, Margaret N. and Lowell Rothschild, Wet-

land Basics in the Twenty-First Century, LAND

Use Law & Zoninc Dicest, Vol. 55, No. 10,

American Planning Association, October 2003............. 19

USDA, Natural Resources Conservation Service,

http:?//www.nrcs.usda.gov/programs/wrp...................... 14

1

INTEREST OF AMICUS CURIAE’

The American Planning Association (“APA”) is a

nonprofit, public interest and research organization

founded in 1978 to advance the art and science of planning

at the local, regional, state, and national levels — including

land use, economic, and social planning. The APA resulted

from a merger between the American Institute of Plan-

ners, founded in 1917, and the American Society of Plan-

ning Officials, established in 1934. The organization has

46 regional chapters and 19 divisions devoted to special-

ized areas of planning, including the Environment, Natu-

ral Resources and Energy Division, which promotes the

adoption of scientifically sound and effective policies to

promote protection of the environment and the wise and

sustainable use of natural resources and energy. The APA

represents more than 38,500 professional planners,

commissioners, and citizens involved in formulating and

implementing planni tan eel eid lati

The APA has submitted amicus curiae briefs in many

landmark cases of importance to the planning profession,

including: Williamson County Regl Planning Comm'n v.

Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d

126 (1985); First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96

L.Ed.2d 250 (1987); Yee v. City of Escondido, 503 U.S. 519,

112 S.Ct. 1522, 118 L.Ed.2d 153 (1992); Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886,

‘ The parties have consented *> the filing of this brief.

Counsel for a party did not author this brief in whole or in part. No

person or entity, other than the Amicus Curiae, its members, or its

counsel made a monetary contribution to the preparation and submis-

sion of this brief.

120 L.Ed.2d 798 (1992); Dolan v. City of Tigard, 512 U.S.

374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); Suitum v.

Tahoe Reel Planning Agency, 520 U.S. 725, 117 S.Ct.

1659, 137 L.Ed.2d 980 (1997); City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687, 119 S.Ct.

1624, 143 L.Ed.2d 882 (1999); Palazzolo v. Rhode Island,

533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001);

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regi

Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152

L.Ed.2d 517 (2002); and most recently in Kelo v. City of

New London, 125 S.Ct. 2655, 73 USLW 4552, 162 L.Ed.2d.

439 (2005); Lingle v. Chevron, 125 S.Ct. 2074, 73 USLW

4343, 161 L.Ed.2d 876 (2005); City of Rancho Palos Verdes

v. Abrams, 125 S.Ct. 1453, 73 USLW 4217, 161 L.Ed.2d

316 (2005); and San Remo Hotel, L.P. v. City and County of

San Francisco, 125 S.Ct. 2491, 73 USLW 4507, 162

L.Ed.2d 315 (2005).

As the need arises, the APA develops policy guides

that represent the collective thinking of its membership on

both positions of principle and practice. Such policies are

developed through a strenuous process that involves

examination and review by both the chapters and divi-

sions of APA. In April 2002, the Policy Guide on Wetlands

was ratified by the Board of Directors. Available at http/

www.planning org/policyguides/wetlands htm flast accessed

on December 30, 2005).

a

~

STATEMENT OF THE CASE

Amicus American Planning Association adopts the

statement of the case as set forth by Respondent.

Ln

vy

3

SUMMARY OF ARGUMENT

At the heart of Petitioners’ position, and the amici

that support them, is their desire to escape the jurisdic-

tional requirements of the Clean Water Act in order to

avoid the regulatory oversight needed to protect wetland

resources. While this position may be consistent with the

immediate and short-term needs of the current property

owners, it is short-sighted and in conflict with the public

interest and the needs of society in the long-term.

Wetlands are complex and critical resources which

should be protected, enhanced and restored, where feasi-

_ble, in order to increase the quality and quantity of the

nation’s wetland resource base. The American Planning

Association supports the goal of no net loss of the nation’s

remaining wetlands. This goal requires reasonable regula-

tory oversight of activities which may impact wetlands

and a broad interpretation of “navigable waters” to include

isolated and non-navigable waters.

Although voluntary wetland conservation efforts are

commendable and should be encouraged, they cannot

Effective planning must engage and inform the public and

property owners about the importance of wetland protec-

tion. In addition to the important incentive programs that

encourage property owners to conserve wetlands, there are

a number of regulatory mechanisms that can successfully

address the goal of wetland protection in the context of

growth and development.

4

ARGUMENT

I. Wetlands Are A Critical Natural Resource In

’ Need Of Protection

The great naturalist and writer Aldo Leopold elo

quently explained in his essay “The Round River”:

If the land mechanism as a whole is good,

then every part is good, whether we understand

it or not. If the biota, in the course of aeons, has

built something we like but do not understand,

then who but a fool would discard seemingly use-

less parts? To keep every cog and wheel is the

first precaution of intelligent tinkering.’

Wetlands are perhaps the most over-worked, under-

valued and least understood and appreciated natural

resource on the planet. In their natural state, they per-

form ecological functions which are vitally important to

the environment and economic health of the nation and

are impossible or costly to replace.’ From flood protection,

erosion control, storm water absorption, filtering of sedi-

ment and pollutants, aquifer recharge, fish and wildlife

habitats, carbon sinks, and open space — wetlands are

unsurpassed in their ability to moderate the damaging

impacts from human activities and development.‘

* Leopold, Aldo, The Round River, Luna B. Leopold, ed. ROUND

River: FROM THE JOURNALS OF ALDO LEOPOLD, Minocqua, WI: North-

wood Press, 1991.

* See, Bates, Sarah F., David H. Getches, Lawrence J. MacDonnell,

Charles F. Wilkinson, SEARCHING OUT THE HEADWATERS — CHANGE AND

REDISCOVERY IN WESTERN WATER POLICY, Island Press, 2003.

* See, Noss, Reed F., and Allen Y. Cooperrider, Savinc NATURE'S

LEGACY: PROTECTING AND RESTORING BIODIVERSITY, Island Press, 1994.

5

Planners have an important role and responsibility in

protecting wetlands. They help the public and elected

officials understand the importance of the wetland re-

sources; they assist in the preparation of community plans

which balance the rights of the property owner with the

needs of the community-at-large and the natural environ-

ment; they understand the multitude of land use tools

available and prepare appropriate local regulations to

implement the adopted plans; they help the property

owner and developer navigate through the oftentimes

complex regulatory world involved in wetlands protection;

they continually reassess the effectiveness of their plans

and land use tools; and they engage in public planning

processes to update and amend the plans and regulations.

Is protection of our nation’s wetland resources worth this

effort? The American Planning Association believes it is,

because all wetlands, including isolated wetlands, perform

valuable ecological functions.

Wetlands protect the quality of surface waters by

retarding the erosive forces of moving water. They provide

a natural means of flood control, protecting against the

loss of life and property. The catastrophic flooding in New

Orleans heightened the public’s awareness of the critical

role of wetlands as a natural approach to flood control.

Wetlands improve water quality by intercepting and

filtering out waterborne sediments, excess nutrients,

heavy metals and other pollutants. Wetlands hold enor-

mous amounts of carbon and thus are important in regu-

lating climate as well as recycling carbon.‘

* Daniels, Tom and Katherine Daniels, THe ENVIRONMENTAL

PLANNING HANDBOOK FOR SUSTAINABLE COMMUNITIES AND REGIONS,

Planners Press, American Planning Association, 2003, at 229.