# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 932

## Text

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).

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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.

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A13. Public record. Not legal advice.