Amicus Curiae Brief — Rapanos v. United States

2

standards. Continued progress depends on how the Court

resolves the fundamentai jurisdictional issues presented in

these consolidated cases.

Petitioners offer crabbed and unscientific interpretations of

the term “waters of the United States” as used in the Act.

Rapanos asserts that the Act reaches no farther than “tradi-

tionally navigable waters” and wetlands that “physically

abut” them. By this measure the vast majority of the waters of

the United States that Congress intended to protect, and many

of the sources of pollutants that Congress intended to regu-

late, would lie outside the geographic scope of the Act. Such

a dramatic reduction in the Act’s scope at this late date would

wreak havoc within a broad spectrum of water quality pro-

grams at every level of government.

Carabell takes a somewhat different tack, arguing that

“waters of the United States” can never include a body of

water that lacks a “physical connection” to a traditional navi-

gable water. According to Carabell’s theory, the Environ-

mental Protection Agency (EPA) and the Army Corps of

Engineers (Corps) must prove such a connection for every

discharge permit, a wholly unworkable and unnecessary re-

quirement that would impose substantial costs on both the

government and permit applicants.

There is no merit to either of these novel jurisdictional

theories.

First, petitioners’ statutory interpretations flatly contradict

Congressional intent. Both as initially enacted in 1972 and as

amended in 1977, Congress made it clear that the purpose of

the Clean Water Act was to restore and maintain the integrity

of the nation’s waters by controlling polluting discharges at

the source. Congress intentionally abandoned its previous

reliance on concepts of navigability and instead made water

quality and ecological integrity the touchstones of the statu-

tory and regulatory program. Moreover, Congress repeatedly

demonstrated its commitment to protecting wetlands as key

3

components of aquatic ecosystems. Significantly, in 1977

Congress rejected proposals to reduce the geographic scope

of the section 404 permit program as petitioners suggest.

- Second, petitioners misconstrue this Court’s unanimous de-

cision in Riverside Bayview. Contrary to Rapanos’ argument,

Riverside Bayview did not hold that adjacent wetlands must

“physically abut” a traditional navigable water. Rather the

Court upheld the Corps’ broad, programmatic interpretation

of “waters of the United States” as including the entire

tributary system of navigable waters and adjacent wetlands.

Further, contrary to Carabell’s argument, Riverside Bayview

did not require proof of a “physical connection” between

wetlands and navigable waters. Rather the Court deferred to

the Corps’ expert judgment that wetlands in close proximity

to “waters of the United States” were “within the class of

waters” subject to regulation under the Act.

Third, petitioners’ reliance on SWANCC is misplaced.

SWANCC held that the Corps overreached when it asserted

jurisdiction over an “isolated” sand and gravel pit used by

migratory birds. Here, the Corps has asserted jurisdiction over

wetlands that are “adjacent to,” and “inseparably bound up”

with, tributaries of navigable waters within the meaning of

Riverside Bayview as reaffirmed in SWANCC.

Fourth, the weight of judicial authority strongly supports

the agencies interpretation here. Petitioners’ reliance on the

minority view of the Fifth Circuit, expressed in dictum, is

misplaced in light of the countervailing authority as reflected

in the thorough and well reasoned decisions of the Fourth

Circuit in the Deaton case and the Seventh Circuit in Gerke.

Finally, petitioners’ arguments that the regulation of these

wetlands raises Federalism concerns under the Commerce

Clause are well off the mark. Under its broad power over the

“channels of commerce,” Congress has ample authority to

prevent degradation of navigable waters by regulating dis-

charges into nonnavigable tributaries and adjacent wetlands.

4

Moreover, Congress has authority under the Commerce Clause

to regulate the discharge of pollutants as a class of economic

activity having, in the aggregate, a substantial effect on

interstate commerce.

For all of these reasons, Amici respectfully request that the

judgment of the Sixth Circuit in each of these cases be

affirmed.

ARGUMENT

I. BY DEFINING “NAVIGABLE WATERS” TO

MEAN “WATERS OF THE UNITED STATES”

CONGRESS MEANT TO EXPAND THE

GEOGRAPHIC SCOPE OF THE CLEAN

WATER ACT TO INCLUDE TRIBUTARIES

AND ADJACENT WETLANDS

The Clean Water Act prohibits the discharge of pollutants,

including dredge or fill material, into “navigable waters”

without a permit under sections 402 or 404 of the Act. 33

U.S.C. § 1331(a). The Act defines “navigable waters” as

“waters of the United States including the territorial sea.” 33

U.S.C. § 1362(7). Regulations of the Corps and the EPA

further define “waters of the United States” to include tribu-

taries and adjacent wetlands. 33 C.F.R. § 328.3(a)(5)(7); 40

C.F.R. § 122.2. Petitioners challenge the validity of these

regulations as applied to wetlands on their property. Thus, the

crux of the issue here is whether the agencies’ interpretation

of Congressional intent is entitled to deference under Chevron

U.S.A. v. Natural Resources Defense Council, 467 U.S. 837

(1984) (Chevron).

It is axiomatic that, in determining the meaning of a statute,

courts look not only to the particular statutory language, but

to the design of the statute as a whole and to its object and

policy. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291

(1988); Bob Jones Univ. v. United States, 461 U.S. 574, 586

(1983). Contrary to this core principle of statutory construc-

tion, petitioners insist on a literal reading of the words “navi-

5

gable waters” that disregards the object, structure, policy, and

historical context of the 1972 Act. To understand what Con-

gress had in mind at that time, it helps to recall a few of the

dramatic events that stirred it to action. The Cuyahoga River

was so contaminated with industrial waste it regularly caught

fire.? Lake Erie was so polluted with untreated sewage scien-

tists pronounced it “dead.”’ An oil spill in 1969 coated

the beaches of Santa Barbara.‘ A record-setting fish kill—

26 million fish—had just occurred in Lake Thonotasssa,

Florida.”

These conditions did not arise overnight. Congress had en-

acted no less than six federal statutes in the previous 24 years

in an effort to develop a workable approach to pollution

control,® only to conclude that the entire effort had been

“inadequate in every vital aspect.” Congressional Research

Service, 95th Cong., Ist Sess., Legislative History of the

Federal Water Pollution Contro] Act Amendments (hereafter

“Leg. Hist.”) Vol. 2 at 1425 (1973) (Senate Committee

Report). As this Court recognized in Envtl. Prot. Agency v.

California ex rel. State Water Resources Bd., 426 U.S. 200,

? See http://www.epa.gov/ginpo/aoc/cuyahoga.html (accessed Jan. 5,

2006).

>See http://www.usatoday.com/news/science/enviro/2002-06- 14-erie.

htm (accessed Jan. 5, 2006).

“See http://www.countyofsb.org/energy/information/1969blowout.asp

(accessed Jan. 5, 2006).

* See Hon. James Oberstar, The Clean Water Act in Peril, 6, House

Committee on Transportation (Oct. 18, 2002), available at http://www.

house.gov/transportation_democrats/Of_Interest/021017_CleanWaterAct

Rept.pdf (accessed Jan. 5, 2006).

* Water Pollution Control Act of 1948, ch. 758, 62 Stat. 1155; Federal

Water Pollution Control Act Amendments of 1956, ch. 518, 70 Stat. 498;

Federal Water Pollution Control Act Amendments of 1961, Pub. L. No.

87- 88, 75 Stat. 204; Water Quality Act of 1965, Pub. L. 89-234, 79 Stat.

903; Clean Water Restoration Act of 1966, Pub. L. No. 89-753, 80 Stat.

1246; Water Quality Improvement Act of 1970, Pub. L. 91-224, 84 Stat. 91.

6

203 (1976), the 1972 Act was passed to remedy these failings,

including the complete failure of the federal enforcement pro-

gram. Under the pre-1972 legislation, federal abatement suits

were limited to pollution of interstate, navigable-in-fact, or

coastal waters.’ As a result only one case had been brought

between 1948 and 1972, and it failed.

Viewed against this backdrop, petitioners’ argument that

Congress intended to do no more than tinker at the edges of

federal navigability doctrines is unpersuasive. By defining

“navigable watezs” to mean “waters of the United States”

Congress clearly signaled its intent to abandon the jurisdic-

tional limits that had foiled its earlier attempts to cure the

problei. of water pollution. Importantly, it is Congress’

definition that is controlling, not, as petitioners would have it,

the common law definition of traditional navigable waters.

Babbitt v. Sweet Home Chapter of Communities for a Greater

Oregon, 515 U.S. 687, 697-98 n.10 (1995) (looking to the

statutory definition of “take” instead of the common law

' definition). The legislative history strongly confirms Con-

gress’ intent that the term “navigable waters” was to be given

“the broadest possible constitutional interpretation.” S. Conf.

Rep. No. 92-1236, at 144 (Sep. 28, 1972), reprinted in 1972

U.S.C.C.A.N. 3776, 3822. Indeed, even before the 1972 Act,

Congress had broad power to regulate “navigable waters,”

which included nonnavigable tributaries."

" Id. 1948 Act, §§ 2(d) and 3(e); 1956 Act §§ 8 and I1(e); 1961 Act

§§ 8 and 8(f)(2); see also H.R. Rep. 87-306 (Apr. 25, 1961), reprinted in

1961 U.S.C.C.A.N. 2076, 2082-84 (definition of “navigable waters”).

* See Section 13 of the Rivers and Harbors Act, also known as the Re-

fuse Act, prohibiting inter alia, the “discharge . . . of any refuse matter . . .

into any navigable water of the United States, or into any tributary of any

navigable water from which the same shall float or be washed into such

navigable water.” 33 U.S.C. § 407 (emphasis added); see also Oklahoma

ex rel. Phillips v. Guy F. Atchison Co., 313 U.S. 508, 525 (1941) (Con-

gress’ Commerce Clause power also extends to nonnavigable intrastate

tributaries which flow into traditional navigable streams).

7

Further, this Court has repeatedly recognized the compre-

hensive nature of the Act and its geographic scope. See, e.g.,

City of Milwaukee v. Illinois and Michigan, 451 U.S. 304,

318 (1981) (Act was intended to “establish a comprehensive

long-range policy for the elimination of water pollution.”);

see also Int'l Paper Co. v. Ouellette, 479 U.S. 481, 486 n.6

(1986) (“While the Act purports to regulate only ‘navigable

waters,’ this term has been considered expansively to cover

waters not navigable in the traditional sense.”’).

In the seminal case of United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 133 (1985) (Riverside Bayview),

the Court, after thoroughly examining the text, purpose, and

history of the Act, reached the unanimous conclusion that

Congress intended “to repudiate limits that had been placed

on federal regulation by earlier pollution control statutes and

to exercise its powers under the Commerce Clause to regulate

at least some waters that would not be deemed ‘navigable’

under the classical understanding of that term.” The Court

reaffirmed Riverside Bayview’s core holding in Solid Waste

Auth. of Northern Cook County v. Corps of Engineers, 531

U.S. 159 (2001) (SWANCC).’

Il. RIVERSIDE BAYVIEW UPHELD THE AGEN-

CIES’ INTERPRETATION THAT “WATERS OF

THE UNITED STATES” INCLUDES TRIBU-

TARIES AND ADJACENT WETLANDS

Petitioner Rapanos contends that the decisions in Riverside

Bayview and SWANCC establish a “strict significant nexus”

requirement that can only be satisfied if wetlands “actually

abut and are inseparably bound up with a traditional naviga-

ble water.” (Rapanos Br., 16). Petitioner Carabell contends

that Riverside Bayview and SWANCC together stand for the

proposition that the Corps must establish a “continuous hy-

* As explained in I. B., infra, SWANCC’s holding that certain “iso-

lated” waters were not within the Act’s scope is inapposite given the facts

presented here.

drological connection,” via surface or groundwater, between

a wetland and a navigable water before it can assert jurisdic-

tion. (Carabell Br., 23-28). Petitioners misconstrue both

decisions.

_ A. Riverside Bayview

As framed by the Court, the issue in Riverside Bayview

was whether the Corps had authority to require landowners to

obtain permits “before discharging fill material into wetlands

adjacent to navigable bodies of water and their tributaries.”

474 U.S. at 123 (emphasis added). The Court answered in the

affirmative: “We are thus persuaded that the language, poli-

cies and history of the Clean Water Act compel a finding that

the Corps has acted reasonably in interpreting the Act to

require permits for the discharge of fill material into wetlands

adjacent to the ‘waters of the United States’.” /d. at 139. The

Court specifically found that Congress intended the term

“waters of the United States” to be given broad geographic

scope because “[p]rotection of aquatic ecosystems . . . de-

manded broad federal authority to control pollution” at the

source. /d. at 132-33.

Petitioners, however, seize on the fact that the wetland at

issue in Riverside Bayview was adjacent to a navigable creek

that flowed into Lake St. Clair, and attempt to draw two

untenable inferences. First, Rapanos argues that the Court's

holding must be limited to wetlands that “immediately abut”

navigable waters. However, a careful reading of the Court’s

rationale rebuts this suggestion.

The threshold question in Riverside Bayview was whether

the EPA and Corps regulations defining “waters of the United

States” to include wetlands was a reasonable interpretation of

the statute.'° The regulations in existence at the time covered

"© As the Court noted: “On a purely linguistic level, it may appear un-

reasonable to classify ‘lands,’ wet or otherwise, as ‘waters’. Such a sim-

plistic response, however, does justice neither to the problem faced by the

Corps in defining the scope of its authority under § 404 nor to the realities

9

the entire tributary system of navigable waters, including

“primary, secondary and tertiary” tributaries and wetlands

adjacent thereto.'' Significantly, the Court acknowledged that

the regulations “include not only navigable waters but also

tributaries of such waters, interstate waters and their tributar-

ies, and nonnavigable intrastate waters whose use or misuse

could affect interstate commerce.” 474 U.S. at 123 (emphasis

added). Moreover, the Court took note of the fact that Con-

gress had rejected proposals in 1977 to overturn these regula-

tions by restricting the scope of section 404 to “waters

navigable in fact and their adjacent wetlands.” 474 U.S. at

137 (emphasis original). Instead, Congress “acquiesced in the

Corps’ definition of waters as including adjacent wetlands.”

Id. at 138. Finally, the Court stated “we therefore conclude

that a definition of ‘waters of the United States’ encompass-

ing all wetlands adjacent to other bodies of water over which

the Corps has jurisdiction is a permissible interpretation of

the Act.” /d. at 135 (emphasis added).

In sum, the Riverside Bayview decision cannot fairly be

read as establishing a categorical rule that wetlands must

“immediately abut” a traditional navigable water. To the con-

trary, the Court issued a broad ruling that the Corps had au-

thority to regulate adjacent wetlands as a special jurisdictional

class of “waters of the United States.” /d. at 139 (“The

regulation in which the Corps has embodied this interpre-

tation by its terms includes the wetlands on respondent's

property within the class of waters that may not be filled

without a permit.”) (emphasis added).

Second, Carabell stretches too far in suggesting that the

Riverside Bayview Court conditioned its holding on proof of a

hydrological connection between the adjacent wetland and

of the problem of water pollution that the Clean Water Act was intended

to combat.” 474 U.S. at 132.

" See 33 CFR. § 209.120(e)(2(c); 40 Fed. Reg. 31,320 (July 25, 1975)

(since recodified at 33 C_F.R. § 328.3).

10

a navigable water body. Contrary to Carabell’s assertion

(Carabell Br., 25 n.3), the District Court in Riverside did not

find a direct hydrological connection between the wetland

and Lake St. Clair. At most, according to the Sixth Circuit

opinion, the record showed that there was “periodic” flooding

of the wetland.'? More significantly, the Riverside Bayview

Court specifically rejected the argument, on which the

Sixth Circuit had relied, that a wetland must be “frequently

flooded” by a navigable water in order to be considered a

“water of the United States.” 474 U.S. at 129. Indeed, the

Court said that “wetlands that are not flooded by adjacent

waters may still tend to drain into those waters.” Jd. More-

over, the Court noted that Congress singled out wetlands for

special protection because of the important functions they

perform including filtering poilutants, slowing runoff, con-

and resting areas for aquatic species. /d. at 134. As discussed

in Il. B., infra, these functions do not depend on whether

there is a “physical connection” between the wetland and the

adjacent water body.

Finally, petitioners misread the Riverside Bayview Court by

suggesting that its use of the term “open waters” implied “tra-

ditional navigable waters.” (Rapanos Br., 13; Carabell Br.,

25-26) Petitioners cite a footnote in which the Court reserved

the question of “the authority of the Corps to regulate dis-

charges of fill material into wetlands that are not adjacent to

bodies of open water.” 474 U.S. at 131 n.8. However, as the

Solicitor General has pointed out, “when that footnote is read

in context it is clear that the Court in Riverside Bayview was

reserving the question of jurisdiction over wetlands that are

isolated from, rather than adjacent to, any other regulated

waters, without regard to those waters’ navigability.” See

Brief for the United States in Opposition to the Petition for

'2 United States v. Riverside Bayview Homes, Inc., 729 F.2d 321, 396-

97 (6th Cir. 1984).

11

Certiorari, 15. Moreover, petitioners’ argument that “open

waters” is synonymous with “navigable waters” conflicts

with Riverside Bayview’s clear holding that “a definition of

waters of the United States encompassing all wetlands adja-

cent to other bodies of water over which the Corps has juris-

diction is a permissible interpretation of the Act.” /d. at 135.

More plausibly, the Court used “open waters” as shorthand

for “rivers, streams, and other hydrographic features more

conventionally identified as ‘waters’,” to distinguish them

from wetlands areas such as “shallows, marshes, mudflats,

swamps and bogs.” 474 U.S. at 131-32.

B. SWANCC REAFFIRMED RIVERSIDE BAY-

VIEW

Just as Riverside Bayview recognized the breadth of the

Act’s geographic scope, SWANCC noted its limits. In

SWANCC the Corps asserted jurisdiction over an abandoned

sand and gravel pit on the sole basis that it had become

habitat for migratory birds. 531 U.S. at 171-72. Noting that

the pit was a “nonnavigable, intrastate, isolated” body of

water, the SWANCC Court rejected this construction of the

Statute, reasoning that if use by migratory birds was all it took

to turn an isolated pond into a water of the United States, then

the word “navigable” in the statute would be rendered super-

fluous. /d. at 172. While acknowledging Riverside Bayview’ s

observation that the word “navigable” was “of limited im-

port,” the SWANCC Court said, “it is one thing to give a word

limited effect and quite another to give it no effect whatever.”

Id. The Court clearly differentiated the case before it from

Riverside Bayview: “We thus decline respondents’ invitation

to take what they see as the next ineluctable step after River-

side Bayview Homes: holding that isolated ponds, some only

seasonal, wholly located within two Illinois counties, fall

under § 404(a)’s definition of ‘navigable waters’ because they

serve as habitat for migratory birds.” /d. at 171-72.

12

SWANCC did not, as petitioners seem to suggest, implicitly

overrule Riverside Bayview by making navigability rather than

protection of aquatic ecosystems the touchstone for determin-

ing Clean Water Act jurisdiction. The ruling in SWANCC was

quite narrow: “We hold that 33 CFR § 328.3(a)(3) (1999), as

clarified and applied to petitioner’s balefill site pursuant to

the ‘Migratory Bird Rule,’ exceeds the authority granted to

respondents under § 404(a) of the CWA.” /d. at 174 (citation

omitted). Thus, SWANCC invalidated the Corps’ application

of its regulations to isolated ponds based exclusively on mi-

gratory bird use.'? The Court did not invalidate the regula-

tions themselves, nor did it make any ruling on the adjacency

issues presented here.

The cases at bar are easily distinguished from SWANCC.

First, these cases deal with wetlands adjacent to nonnavigable

tributaries, not isolated, artificial ponds with no connection of

any kind to any other body of water. Second, unlike gravel

pits, these wetlands provide the specific functions that help

maintain the chemical, physical, and biological integrity of

the adjoining waters as well as the larger aquatic ecosys-

tems.'" Third, the Corps based its jurisdictional determina-

tions on the hydrological and ecological relationships of these

wetlands to the adjoining water bodies and the downstream

navigable waters, not simply on migratory bird habitat.’

"The “Migratory Bird Rule” was not a published rule; it refers to

language in the preamble to the 1986 revision of the Corps’ regulations

meant to “clarify” the reach of jurisdiction over intrastate waters used by

migratory birds. See SWANCC, 531 U.S. at 164.

'* These functions include flood peak diminution and water quality

enhancement through sediment trapping and nutrient recycling. JA Vol. [I

at 684-86 (testimony of Dr. Willard). They also support the larger aquatic

ecosystem, including carp spawning ground, /d. at 516-17 (testimony of

Dr. Harrington), and other vegetation and wildlife habitat. /d. at 557-58

(testimony of Dr. Goff).

'S The Corps’ determinations in this case rested on the general adverse

effects on the aquatic ecosystem and downstream waters, including major,

13

With regard to the Rapanos property, it is undisputed that the

wetlands are hydrologically connected to the adjacent tribu-

taries, which ultimately flow into Lake Huron."* In Carabell,

the record shows that the wetland is not “isolated” despite the

existence of a manmade “berm” separating it from a ditch that

- connects to a tributary that flows into Lake St. Clair.'’ In both

cases the wetlands are “inseparably bound up” with tributar-

ies that affect the chemical, physical, and biological integrity

of traditional navigable waters. See United States v. Deaton,

332 F.3d 698, 712 (4th Cir. 2003), cert. denied, 541 U.S. 972

long term, negative impacts on water quality, as well as impacts upon the

ecological balance and integrity of forested wetland cover areas and

floodplains, in addition to the impacts upon a migratory bird stopover and

foraging point. JA Vol. 1 at 111, 116, 126 (Dept. of the Army Permit

Evaluation, File No. 99-250-002-1).

'® The wetlands at the Salzburg site are connected by a drain to Hoppler

Creek which flows into the Kawkawlin River, which flows into Saginaw

Bay in Lake Huron. JA Vol. I at 249 (testimony of Drs. Willard and

Goff). The Hines site has a surface water connection to the Rose Drain

which is connected to the Tittabiwasse River which empties into Saginaw

Bay. /d. The Pine River site is connected by surface water flow to the

nearby Pine River which flows into Lake Huron. JA Vol. I at 271.

'? Carabell’s property is in the shape of a right triangle, which is bor-

dered by an unnamed ditch. JA Vol. |, at 37 (Carabell Permit Applica-

tion). The record indicates that this ditch was created to drain the wetland

on petitioner's property. JA Vol. 3 at 571-72 (Administrative Appeal

Decision). When the ditch was excavated from the wetland, the excavated

spoil was placed alongside the ditch to create an artificial berm. /d. Army

Corps regulations provide that the existence of a man-made spoil berm

waters beyond. 33 C.F.R. § 328.3(c); JA Vol. 3 at 570. Though the berm

limits surface water flow to the ditch, JA Vol. | at 110 (Dept. of the Army

Permit Eval.), it cannot eliminate sub-surface flow. Water also flows from

the wetland via drainage cuts in the ditch. JA Vol. 3 at 639: 16-23 (Wet-

land Application Hearing, Testimony of Timothy Stoepker). Water that

enters the unnamed ditch flows into the Sutheriand-Oemig Drain and

eventually the Auvase Creek and Lake St. Clair. JA Vol. | at 107 (Dept.

of the Army Permit Eval.); JA Vol. 3 at 571-72 (Admin. Appeal Deci-

sion).

14

(2004) (“discharges into nonnavigable tributaries and adja-

cent wetlands have a substantial effect on water quality in

navigable waters.) (Deaton); accord, United States v. Gerke

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

Headwaters, Inc. v. Talent Irrigation Dist.-243 F.3d 526,

533-34 (9th Cir. 2001) (Headwaters).

Contrary to Rapanos’ contention, SWANCC does not cate-

gorically prohibit federal regulation of wetlands that do not

immediately abut a traditional navigable water. Nor is it rea-

sonable to infer such a rigid rule from the SWANCC Court’s

reference to what it called the “significant nexus” test em-

ployed in Riverside Bayview. Indeed, the Riverside Bayview

Court made it clear that a broad, ecological test for the Act’s

jurisdiction was more appropriate than one based strictly on

navigability. 474 U.S. at 134 (“water moves in hydrologic

cycles,” and pollution of waters that do not themselves meet

traditional tests of navigability “will affect the quality of the

other waters within that aquatic system.”).

Similarly, Carabell is incorrect in asserting that SWANCC

“repudiated the proposition that federal jurisdiction could be

based solely on an ecological connection between a wetland

and a navigable water.” (Carabell Br., 28). The question in

SWANCC was whether migratory bird habitat by itself was a

sufficient basis on which to regulate an isolated, artificial

pond. The question here is whether the Corps made a reason-

able determination, based on the best available information,

that the wetlands on Carabell’s property are hydrological’ y

and ecologically connected, via surface and groundwater, to

Lake St. Clair. The record shows that the Corps’ decision was

not arbitrary and it should therefore be upheld. See City of

Shoreacres v. Watterworth, 420 F.3d 440, 446 (Sth Cir. 2005)

(“The Corps generally has broad discretion to decide whether

a sufficient hydrological nexus exists to bring wetlands under

regulatory contro!.”’).

15

Ili. THE AGENCIES’ INTERPRETATION OF

“WATERS OF THE UNITED STATES” IS

BASED ON SOUND SCIENCE AND POLICY

CONSIDERATIONS

A. Jurisdictional Determinations Must Be Made

Within a Watershed Context That Takes

Account of the Vital Role of Headwaters and

Associated Wetlands

A watershed is composed of rivers, streams, lakes, wet-

lands and estuaries in a treelike pattern with the leaves and

twigs (first and second order streams, ditches, and wetlands)

at the top of the tree forming the headwaters of a watershed

linked by branches (tributaries of ever-increasing size) that

reach to the trunk of the tree (mainstem) and extend to the

roots (estuary). Like a tree, each part of the watershed per-

forms specific roles or functions that cannot be performed by

other parts of the tree. Eliminating and altering small streams,

ditches, and wetlands have impacts similar to stripping the

outermost leaves and twigs from a tree. Small alterations have

little impact, but many alterations in aggregate severely im-

pair the overall health of the tree. Over the past 200 years half

the wetlands in the United States have been drained or filled,

and millions of miles of streams and rivers have been

straightened and altered. '*

Headwaters serve as a key transitional area between land

and water resources because they collect water, sediment,

energy, and chemicals from the surrounding landscape and

deliver them to the larger streams, rivers, lakes, estuaries, and

oceans downstream, linking the terrestrial habitats in the upper

watershed with the aquatic habitats in the lower watershed.'®

"* See Thome* E. Dahl, Status and Trends of Wetlands in the Contermi-

nous United States 1986 to 1997, 9 (U.S. Fish & Wildlife Service 2000).

'? Morrice, J.A., H.M. Valett, C.N. Dahm and M.E. Campana. 1997.

Alluvial characteristics groundwater-surface water exchange and hydro-

logical retention in headwater streams. Hydrological Processes 11:253-

16

This happens because water moves slowly through these

areas allowing these chemical processes to work. Headwaters

also eae salinity and fertility of estuaries and coastal

Consequently, a close connection exists between the

water quality of the headwater streams and the water quality

of downstream water bodies.”'

B. Headwaters and Adjacent Wetlands Provide

Irreplaceable Ecosystem Services That Support

Many Beneficial Uses of Navigable Waters

Headwater streams and associated wetlands affect hydrol-

ogy, geomorphology, and biological conditions in down-

stream reaches, including navigable waters.” Functions of

headwater streams include but are not limited to: regulation

of sediment export, retention of nutrients, maintenance of

water quality characteristics, processing of terrestrial organic

matter, and maintenance of natural discharge patterns.~ The

following list further summarizes the functions and values of

headwater streams.

Sediment Control Headwaters and associated wetlands re-

duce the amount of sediment delivered to downstream waters

267; Wipfli, M.S. and D.P. Gregovich. 2002. Export of invertebrates and

detritus from fishless headwater streams in southeastern Alaska: Implica-

tions for downstream salmonid production. Freshwater Biology 47(5):

957-969( 13).

® National Research Council. 1995. Wetlands: Characteristics and

Boundaries. National Academy Press, Washington, D.C., p. 287.

*" State of Ohio Environmental Protection Agency. 2003. Nonpoint

source impacts on primary headwater streams, at http://www.epa.state.

oh.us/dsw/wqs/head waters/HWH_nonpoint_jan2003.pdf (accessed Jan. 5,

2006) (hereafter, Ohio EPA 2003).

* Gomi, T., R. C. Sidle and J. S. Richardson. 2002. Understanding

processes and downstream linkages of headwater systems. BioScience

52:905-916.

* Lowe, W. H. and G. E. Likens. 2005. Moving headwater streams to

the head of the class. BioScience 55:196-197, p. 196. .

17

by stabilizing stream banks to reduce bank erosion and filter-

ing sediment from water and runoff.”* This overall reduction

in sediment decreases the nicd for and cost of dredging in

downstream waterways while lowering flood frequency, water

treatment costs, and deposition in downstream habitats.”> Each

year the Corps of Engineers and contractors spend more than

$500 million annually on maintenance dredging of navigable

waters.”

Pollutant Control The smallest streams are responsible for

most nutrient removal.”’ Headwaters and associated riparian

buffers reduce the amount of nutrients and other pollutants

delivered to downstream waters by filtering them from water

and runoff.”* Nutrients are removed from streams by biotic

and abiotic (e.g. physical or chemical) processes; headwaters

are more efficient at nutrient transformation and removal,

which reduces nutrient loading in downstream ecosystems

and improves water quality.” This overall reduction in

pollutants decreases the cost of water treatment, the

* Dieterich, M. and N.H. Anderson. 1998. Dynamics of abiotic pa-

rameters, solute removal and sediment retention in summer-dry head-

water stream of Western Oregon. Hydroviologia 379:1-15.

23 Ohio EPA 2003.

© National Academy of Sciences, “Sedimentation Control to Reduce

Maintenance Dredging of Navigational Facilities in Estuaries” (1987).

7 Meyer, J.L. and J.B. Wallace. 2001. Lost linkages in lotic ecology:

Rediscovering small streams. Ecology: Achievement and Challenge (M.C.

Press, N.J. Huntly and S. Levin eds., Blackwell Science), at 310.

** Hall, K.J., and B.C. Anderson. 1988. The toxicity and chemical com-

position of urban stormwater runoff. Canadian Journal of Civil Engi-

neering 15:98-106; Lieb, D.A., and R.F. Carline. 2000. Effects of urban

runoff from a detention pond on water quality, temperature and caged

Gammarus minus (Say) (Amphipoda) in a headwater stream. Hydrobiolo-

gia 441 (1/3):107-116; Alexander, R.B., R.A. Smith and G.E. Schwarz.

2000. Effect of stream channel size on the delivery of nitrogen to the Gulf

of Mexico. Nature 403:758-761.

2° Meyer and Wallace 2001, at 309.

degradation of downstream water quality, and the risks to

human health and aquatic life while improving recreational

opportunities such as fishing.”°

Fish and Wildlife Habitat Headwaters and associated ripar-

ian buffers provide habitat and protection for wildlife, fish,

and other organisms living in and near the stream. They also

serve as migratory corridors for birds and fish. These areas

can improve or maintain biological integrity, stabilize stream

banks, and control water temperatures in the downstream

system. They also provide recreational hunting and fishing

opportunities and aesthetic enjoyment and may increase prop-

erty values.*' Degradation of headwater streams reduces bio-

logical diversity and threatens the survival and recovery of

endangered species.”

Water Supply Headwaters serve as a source of water for

downstream water bodies, helping to maintain base flow in

the larger streams and rivers in times of drought. They also

may be sources of high quality drinking water in some areas.”

Over 185 million people are served by over 14,000 public

water systems using streams, rivers, lakes, tributaries and

surface-water storage impoundments.” Discharge of agricul-

tural, industrial, sanitary or other waste into any surface water

poses a public health risk downstream: excessive upstream

discharge may overwhelm a public water system filtration

unit, allowing microbial pathogens into the drinking water

* Ohio EPA 2003.

*' Ohio EPA 2003.

® Meyer and Wallace 2001, at 310.

* Ohio EPA 2003.

* U.S. Environmental Protection Agency. 2005. FACTOIDS: Drinking

Water and Ground Water Statistics for 2004. Safe Drinking Water Infor-

mation System (SDWIS), at http://www.epa.gov/safewater/data/pdfs/data

_factoids_2004.pdf (accessed Jan. 5, 2006).

19

system.°*° Disease outbreaks attributed to drinking water treat-

ment plant failures have been documented.” EPA’s Science

Advisory Board cited drinking water contamination by patho-

gens as one of the most important environmental risks.*”

Drinking water treatment to address microbial pathogens has

little effect on many toxic chemicals, metals and pesticides

discharged into drainage ditches, canals or other surface

waters.

Flood Control WHeadwaters are closely connected with

groundwater, wetlands, and subsurface water flows, and are

important in regulating the flow of water into downstream

water bodies. A healthy network of headwater streams can

regulate baseflow of downstream water bodies, thereby re-

ducing local and downstream flooding, mitigating low flow

and high flow extremes, and preventing excess erosion caused

by flooding.*® The destruction of small streams, such as head-

waters and intermittent or ephemeral waters, can increase the

flood frequency in the watershed and change water flow pat-

terns.” Increases in flood frequency results in increases in

bank erosion, channel widening, and channel incision. *!

C. Over Forty Percent of the Wastewater Dis-

charges Authorized Under the Act, Excluding

Alaska, Are Located in Headwaters.

According to a recent EPA estimate, over forty percent of

the discharges authorized under section 402 of the Act, out-

*° Novotny, V. 2002. Water Quality: Diffuse Pollution and Watershed

Management (2nd Ed.). John Wiley & Sons, Inc., New York, NY.

*° Craun, G.F., F.S. Hauchman and D.E. Robinson (eds.). 2001. Micro-

bial Pathogens and Disinfection By-Products in Drinking Water: Health

Effects and Management of Risks. ILSI Press, Washington, DC.

*” 68 Fed. Reg. 47,646. (Aug. 11, 2003).

* Novotny 2002.

*® Ohio EPA 2003.

“ Meyer and Wallace 2001, at 307.

*" Id.

ee .

20

side of Alaska, are into headwater streams including intermit-

tent and ephemeral streams. See Appendix A, at 2." Of these

discharges, approximately 28% are from municipal sewage

treatment systems. The other 72% include an array of dis-

charges from over 500 industrial categories, ranging from ele-

mentary and secondary schools to petroleum refining to in-

dustrial organic chemical facilities. /d.

Limiting the jurisdiction of the Act to traditional navigable

waters and adjacent wetlands would exclude a substantial

number of discharges from its coverage.

D. Over Ninety Percemt of the Surface Water

Intakes for Public Drinking Water Systems Are

Located in Headwaters.

EPA also estimates that over ninety percent of the identi-

fied source water protection areas, where the surface water

intakes for public water supply systems are located, contain

intermittent, ephemeral, or headwater streams. See Appendix

A, at 2. EPA estimates that the public systems that use these

intakes (as well as other sources) provide drinking water to

over 110 million people. /d.

Limiting the jurisdiction of the Act to traditional navigable

waters and adjacent wetlands could jeopardize these vital

public drinking water supplies.

*? This is a conservative estimate that may actually understate the num-

ber of discharges to nonnavigable waters. According to one reputable

study, approximately 73% of the nation’s waters are nonnavigable.

Leopold, L.B., M.G. Wolman, and J.P. Miller, Fluvial Processes in Geo-

morphology. W.H. Freeman and Company, San Francisco (1964). The

EPA estimate uses data on intermittent and ephemeral streams as proxies

for nonnavigable tributaries. The EPA relies on such data because it can

be correlated with data on discharge permits and water intake structures,

resulting in a conservative approximation of the number of discharges and

intake structures that would be found in nonnavigable tributaries. See

http://aswm.org/swp/head waters. htm (accessed Jan. 10, 2006).

21

IV.LIMITING THE GEOGRAPHIC SCOPE OF

THE ACT TO TRADITIONAL NAVIGABLE

WATERS AND ADJACENT WETLANDS WILL

UNDERMINE EFFORTS AT ALL LEVELS OF

GOVERNMENT TO PROTECT AND RESTORE

AQUATIC ECOSYSTEMS OF NATIONAL

SIGNIFICANCE

Within the Act’s comprehensive framework, federal, state,

tribal and local governments have initiated a variety of coop-

erative, intergovernmental efforts to protect and restore eco-

systems of national significance. These include the Great

Lakes,*® Chesapeake Bay, and Long Island Sound.** While

states have played important roles in each of these efforts, the

regulatory jurisdiction of EPA and the Corps of Engineers

over tributaries and wetlands has been crucial to pollution

control and restoration efforts.

The phenomenon of the “dead zone” in the Gulf of Mexico

illustrates how the degradation of headwaters streams and

wetlands can have dramatic negative effects on navigable

waters hundreds or thousands of miles away. The “dead zone”

* 33 U.S.C. § 1268(a) (creating the Great Lakes program and directing

EPA to “take the lead” in the effort to meet water quality goals “working

with other Federal agencies and State and local authorities.”). A descrip-

tion of the Great Lakes Program is available at http://www.epa.gov/ginpo/

(accessed Jan. 5, 2006).

“ 33 U.S.C. § 1267(a) (establishing the Chesapeake Bay Program with

a goal of “restoring and protecting the Chesapeake Bay ecosystem and the

living resources.”). A description of the Chesapeake Bay Program is avail-

able at http://www.chesapeakebay.net/ (accessed Jan. 5, 2006).

“33 U.S.C. § 1369 (establishing the Management Conference of the

Long Island Sound Study). The Long Island Sound Study was formed in

1985 by EPA, New York, and Connecticut, as a bi-state partnership con-

sisting of federal and state agencies, user groups, concerned organizations,

and individuals dedicated to restoring and protecting the Sound. Infor-

mation available at http://www.epa.gov/regionO1/eco/lis/epane.html (ac-

cessed Jan. 5, 2006).

22

refers to a condition known as hypoxia where oxygen levels

are too low to support aquatic life. The source of the dead

zone is the polluted water of the Mississippi River. The dead

zone in the Gulf of Mexico is the world’s second largest

oxygen-depleted coastal water.“ It varies in size from year to

year but has covered an area equal to Massachusetts and New

Jersey. Scientists have linked this condition to wetland de-

struction throughout the Mississippi River watershed.”’

The Upper Mississippi River system includes the Upper

Mississippi, Illinois, Minnesota, St. Croix, Black and

Kaskaskia Rivers. These rivers drain an area of 190,000 square

miles in Minnesota, Wisconsin, Iowa, Illinois, lowa, and

Missouri and a small portion of Indiana and South Dakota.

Only about 1300 miles—less than 1% of the entire hydrologic

system—are navigable. The rest of the system consists of

nonnavigable tributaries, ditches and wetlands. These tribu-

taries, ditches, and wetlands contribute to the base flows of

the navigable portions of the system. The tributaries and

ditches carry large amounts of nutrients and sediment—

particularly nitrogen—into the navigable waters which create

the dead zone.

Wetlands and headwaters in the upper Mississippi water-

shed serve as nutrient “sinks.” The filling of these wetlands

therefore results in rapid transmission of agricultural fertiliz-

ers in storm runoff into the mainstem of the Mississippi sys-

tem: the loss of 80% of riparian wetlands in the Midwest has

increased the amount of nitrogen entering the Gulf by three-

“ Larsen, J. 2004. Dead Zones Increasing in World's Coastal Waters.

Eco-Economy Update (June 16, 2004), available at http://www.earth-

policy.org/Updates/Update4 | .htm (accessed Jan. 5, 2006).

” Mitsch, W.J., J.W. Day Jr., J.W. Gilliam, P. Groffman, D.L. Hey,

G.W. Randall and N. Wang. 2001. Reducing nitrogen loading to the Gulf

of Mexico from the Mississippi River basin: Strategies to counter a

persistent ecological problem. BioScience 51:373-388.

23

fold over the past 40 years.” Eight-five percent of nitrogen

arriving at the hypoxic zone in the Gulf Originates in the

upper Mississippi (north of Cairo, Illinois).“” At the mouth of

the Mississippi, pulses of nitrogen and phosphorus originating

in northern Minnesota, western Montana, and eastern Ohio

(from as far as 1,700 linear miles away) converge to feed

massive algal blooms which consume all available oxygen.””

This phenomenon has resulted in the devastation of commer-

cial and recreational fisheries in the northern Gulf of

Mexico.*"

Vv. THE AGENCIES’ INTERPRETATION OF

“WATERS OF THE UNITED STATES” AS

INCLUDING WETLANDS ADJACENT TO

TRIBUTARIES IS ENTITLED TO CHEVRON

DEFERENCE

A. The Interpretation Is Well Within the Limits of

the Commerce Clause

Regulation of these wetlands under the Act is clearly

authorized by the Commerce Clause, either as regulation of

the “channels of interstate commerce” or as regulation of a

class of activities that substantially affects interstate com-

“ Id.; Rabalais, N.N., R.E. Tumer and D. Scavia. 2002. Beyond science

into policy: Gulf of Mexico hypoxia and the Mississippi River. BioScience

$2(2): 129-142.

” Goolsby, D.A., W.A. Battaglin, G.B. Lawrence, R.S. Artz, B.T.

Aulenbach, R.P. Hooper, D.R. Keeney and G.J. Stensland. 1999. Flux and

Sources of Nutrients in the Mississippi—Atchafalaya River Basin: Topic 3

Report for the Integrated Assessment on Hypoxia in the Gulf of Mexico.

NOAA Coastal Ocean Program Decision Analysis Series No. 17. NOAA

Coastal Ocean Program, Silver Spring, MD, available at hitp://www.nos.

noaa.gov/Products/hypox_t3final.pdf (accessed Jan. 5, 2006).

* CENR. 2000. “Integrated Assessment of Hypoxia in the Northern

Gulf of Mexico.” National Science and Technology Council Committee

on Environment and Natural Resources, Washington, D.C.

*" Id.

24

merce. Gonzales v. Raich, 125 S.Ct. 2195, 2205 (2005)

(Gonzales); Wickard v. Filburn, 317 U.S. 111, 118-29 (1942).

The Court’s task in reviewing the petitioners’ Commerce

Clause challenge is modest, as federal legislation is accorded

a “presumption of constitutionality.” United States v. Morri-

son, 529 U.S. 598, 607 (2000). The Court “need not deter-

mine whether [petitioners’) activities, taken in the aggregate,

substantially affect interstate commerce, but only whether a

‘rational basis’ exists for so concluding.” Gonzales, 125 S.Ct.

at 2197 (citing United States v. Lopez, 514 U.S. 549, 557

(1995)). That test is easily «atisfied here.

Although petitioners focus their constitutional argument on

section 404(a) of the Act, the appropriate question to ask is

whether the activities regulated by section 301 of the Act,”

point source discharges of pollutants into navigable waters,

substantially affect interstate commerce. While section 404(a)

authorizes the issuance of permits for discharges of dredged

and fill material into navigable waters, it is section 301 that

prohibits those discharges as well as discharges of pollutants

in general. When viewed in its proper context, the question is

an easy one.

This case does not involve the regulation of noneconomic,

criminal conduct, like the activities in Lopez, 514 U.S. at 561,

or Morrison, 529 U.S. at 613. The discharges of pollutants

into navigable waters are caused primarily by industrial and

commercial operations.“ Indeed, one of the policies that

motivated passage of the Act in 1972 was Congress’ desire to

end the use of the nation’s rivers, lakes, streams, and oceans

as “waste treatment systems.””°

* The “channels of interstate commerce” argument is addressed in the

Respondent's brief and will not be repeated here.

* 33 U.S.C. § 1311.

* Indeed, the activities of the petitioners were clearly economic activities.

> S$. Rep. No. 92-414 (Oct. 28, 1971), reprinted in 1972 U.S.C.C_AN.

3668, 3674.

25

Unlike the Lopez and Morrison cases, there is a clear and

direct connection between point source discharges of pollut-

ants into navigable waters and interstate commerce. Surface

waters ide drinking water for approximately half of the

country” and about 9 trillion gallons of fresh water are used

each year to manufacture goods.”’ Americans spend about 44

billion dollars each year on trips to coastal areas; the Ameri-

can fishing industry produces more than 10 billion pounds of

fish and shellfish each year; and farmers, who produce food

and fiber products worth 197 billion dollars per year, rely

heavily on irrigation. Point source discharges contribute to

surface water pollution and reduce opportunities to use those

waters as drinking water sources or for recreational purposes;

harm many plants and animals that may be articles of com-

merce; increase flooding, which impedes navigation and can

have other clear effects on interstate commerce; and destroy

the habitat of endangered and threatened plant and animal

a

species.

Although there may be individual instances in which dis-

charges of pollutants, including dredged material, into navi-

gable waters, do not substantially affect interstate commerce,

this Court has held that “[wjhere a general regulatory scheme

** U.S. EPA. 1996. Liquid Assets: A Summertime Perspective on the

Importance of Clean Water to the Nation's Economy. EPA-800-R-96-002.

Office of Water (4101), United States Environmental Protection Agency,

Washington, D.C., at 10. ;

* U.S. EPA. 2000. Liquid Assets 2000: America’s Water Resources at

a Turning Point. EPA-840-B-00-001. Office of Water (4101), United States

Environmental Protection Agency, Washington, D.C., at 2, available at

http://w ww.epa.gov/water/liquidassets/assets.pdf (accessed Jan. 5, 2006).

* id. at 6-7.

* See U.S. EPA, A Benefits Assessment of Water Pollution Control

Programs Since 1972: Part 1, The Benefits of Point Source Controls

for Conventional Pollutants in Rivers and Streams (January 2000), avail-

able at http://www.epa.gov/ost/economics/assessment.pdf (accessed Jan.

5, 2006).

26

bears a substantial relation to commerce, the de minimis char-

acter of individual instances arising under that statute is of no

consequence.” Lopez, 514 U.S. at 558 (citation omitted).

Regulation of those intrastate activities is appropriate when

the activity is “an essential part of a larger regulation of

economic activity, in which the regulatory scheme could be

undercut unless the intrastate activity were regulated.” /d. at. _

561; see also Hodel v. Indiana, 452 U.S. 314, 329 n.17

(1981).

As described in Section [I.B., supra, apnea 0

charges of dredged or fill material into wetlands that are

adjacent to nonnavigable tributaries of traditionally navigable

waters is an essential part of Clean Water Act section 301

regulation, as the wetlands provide irreplaceable ecosystem

services that support beneficial uses of navigable waters."

Furthermore, this case does not upset a balance between

the state and federal governments regarding the regulation of

land and water uses. As this Court has noted, the Act “in-

volves [a] complex statutory and regulatory scheme . . . that

implicates both federal and state administrative responsibili-

ties.” PUD No. | of Jefferson County v. Washington Dep’ t of

Ecology, 511 U.S. 700, 704 (1994). Further, this Court has

long recognized that “the power conferred by the Commerce

Clause [is] broad enough to permit congressional regulation

* While this Court has identified a “jurisdictional limit” as one factor

to consider in determining whether a statute falls within Congress’ Com-

merce Clause power, the Court has never required Congress to include

such a provision in a statute. Indeed, just last term, the Court upheld,

against a Commerce Clause challenge, the application of the federal Con-

trolled Substances Act (CSA), without identifying a jurisdictional limit in

the CSA. Gonzales, supra

*' Even if it were not an essential past of the section 301 program, regu-

lation of discharges of dredged or fill material into wetlands that are adja-

cent to nonnavigable tributaries of traditionally navigable waters could be

justified as regulation of a class of activities that, in the aggregate, sub-

27

of activities causing air or water pollution, or other environ-

mental hazard.” Hodel v. Virginia Surface Mining & Recla-

mation Ass’ n, Inc., 452 U.S. 264, 282 (1981).

Since point source discharges of pollutants into navigable

waters have a substantial effect on interstate commerce and

regulation of the wetlands in these cases is an essential part of

the regulation of that class of activities, the regulation is

clearly authorized under the Commerce Clause.

B. The Weight of Authority Supports the Agen-

cies’ Interpretation

From the earliest cases interpreting the Act, courts have

recognized the logic of including tributaries within its geo-

graphic scope. As the Sixth Circuit stated in one of the first

enforcement cases:

It would, of course, make a mockery of those powers if

its authority to control pollution was limited to the bed

of the navigable stream itself. The tributaries which join

to form the river could then be used as open sewers as

far as federal regulation was concerned. The navigable

part of the river could become a mere conduit for up-

stream waste.

United States v. Ashland Oil & Transp. Co., 504 F.2d 1317,

1326 (6th Cir. 1974).

The courts have also consistently rejected petitioners’ argu-

ment that ditches, many of which were once natural streams,

should not be treated as tributaries. As the Eleventh Circuit

noted:

There is no reason to suspect that Congress intended to

regulate only the natural tributaries of navigable waters.

Pollutants are equally harmful to this country’s water

quality whether they travel along man-made or natural

* See also Minnesota v. Mille Lacs Band of Chippewa Indians, 526

U.S. 172, 204 (1999) (State authority over land use control “is shared with

the federal government when [it] exercises one of its enumerated powers.”’).

28

routes. The fact that bodies of water are man-made

makes no difference. . . That the defendants used them to

convey the pollutants without a permit is the matter of

importance.

United States v. Eidson, 108 F.3d 1336, 1342 (11th Cir. 1997),

cert. denied, 522 U.S. 899 (1997) (citation omitted).

This trend has continued since the SWANCC decision. Five

Circuit Courts have ruled on jurisdictional questions similar

to those presented here. With the exception of the Fifth Cir-

cuit,” all have conclud_d that the Act reaches the kinds of

tributaries and adjacent wetlands at issue. The Deaton and

Gerke decisions are particularly informative.

In Deaton, the Fourth Circuit held that a wetland adjacent

to a roadside ditch that followed a “winding, thirty-two-mile

path to the Chesapeake Bay” was subject to the Corps’ juris-

diction. The court rejected Deaton’s claim that the Corps’ in-

terpretation was not entitled to deference because it overran

the limits of the Commerce Clause:

Congress passed the Clean Water Act ‘to restore and

maintain the chemical, physical, and biological integrity

of the Nation’s waters and gave the Corps, along with

the Environmental Protection Agency, the job of getting

this done. The Corps has pursued this goal by regulating

nonnavigable tributaries and their adjacent wetlands.

This use of delegated authority is well within Congress's

traditional power over navigable waters.

Deaton, 332 F.3d at 707 (citation omitted).

In Gerke, the Seventh Circuit held that the Corps had juris-

diction over “wetlands . . . drained by a ditch that runs into a

® Rice v. Harken Exploration Co., 250 F.3d 264 (Sth Cir. 2001); In re

Needham, 354 F.3d 340 (Sth Cir. 2003). As explained in Respondent's

™ In addition to the Fourth Circuit (Deaton) and the Seventh Circuit

(Gerke), the Ninth Circuit (Headwaters) is in agreement with the Sixth

Circuit decisions involved here.

29

nonnavigable creek that runs into the nonnavigable Lemon-

weir River, which in tum runs into the Wisconsin River,

which is navigable.” 412 F.3d at 805. In response to Gerke’s

argument that a ditch is not tributary, the court observed:

A stream can be a tributary; why not a ditch? A ditch can

Carry as much water as a stream, or more; many streams

are tiny. It wouldn’t make much sense to interpret the

regulation as distinguishing between a stream and its

man-made counterpart.

Id. at 805-06.

Like petitioners, Gerke tried to argue that SWANCC pro-

hibits regulation of wetlands that do not physically abut navi-

gable water. The Seventh Circuit disagreed:

Gerke fastens on the sentence in the [SWANCC] opinion

that states that the Clean Water Act does not extend ‘to

ponds that are not adjacent to open water.’ It is dan-

gerous, however, to take judicial language out of con-

text; the case was about a pond that was completely

isolated from any navigable waterway, tributary, etc. . . .

*‘[A]djacent’ can just mean ‘connected,’ and ‘open

water’ can just mean water that is part of the waters of

the United States because it flows into navigable water-

ways.

Id. at 808 (emphasis in original) (citations omitted).

Judge Posner also made short work of the claim that the

Corps’ interpretation raised serious constitutional issues:

Nothing in the Constitution forbids interpreting the Clean

Water Act to cover any wetlands that are connected to

navigable waters. Whether the wetlands are 100 miles

from a navigable waterway or 6 feet, if water from the

wetlands enters a stream that flows into the navigable

waterway, the wetlands are ‘waters of the United States’

within the meaning of the Act. /d. at 807.

The logic of Deaton and Gerke applies here as well. Peti-

tioners’ wetlands are adjacent to streams and ditches that are

30

tributaries of traditional navigable waters. The wetlands are

integral components of aquatic ecosystems. The fact that

these systems have been significantly modified by ditches and

berms does not mean that they are no longer “waters of the

United Siates.” Indeed, nearly all of the waterways in this

country have undergone substantial alterations. If the national

goal of restoring these systems is to be realized, it must start

by saving the pieces that remain.

CONCLUSION

For the foregoing reasons, and in the interests of continuing

the progress the nation has made in restoring and maintaining

the integrity of its priceless aquatic ecosystems, Amici re-

spectfully request that the decisions of the Sixth Circuit be

affirmed.

Respectfully Submitted,

STEPHEN M. JOHNSON PATRICK PARENTEAU

MERCER UNIVERSITY ENVIRONMENTAL AND NATURAL

SCHOOL OF LAW RESOURCES LAW CLINIC

1021 Georgia Avenue VERMONT LAW SCHOOL

Macon, Georgia 31207 PO Box 300

(478) 301-2192 South Royalton, Vermont 05068

Counsel for Amici Curiae (802) 831-1305

Association of State Counsel of Record for Amici

Wetland Managers, et al. Curiae Association of State

Wetland Managers, et al.

* Counsel wish to acknowledge the contributions of Jason Klotz,

third year student clinician, and Justin Kolber, Clinic Fellow, to

this brief.

la

APPENDIX

@)

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

WASHINGTON, D.C. 20460

January 9, 2005

Ms. Jeanne Christie

Executive Director

Association of State Wetland Managers

2 Basin Road

Wjndham, Maine 04062

Dear Ms. Christie:

Thank you for your letter of Decomber 19, 2005, indicating

that the Association of State Wetland Managers (ASWM) is

developing an amicus brief in support of the federal govern-

ment in the two cases currently before the U.S. Supreme

Court, Rapanes v. United States and Carabell v. U.S, Army

Corps of Engineers. 1 appreciate ASWM’s interest in these

important cases.

Your letter requests information on a nationwide scale re-

garding the extent of nun-navigable tributaries and adjacent

wetlands, as well as on the number of drinking water intakes

and Clean Water Act (CWA) National Pollutant Discharge

Elimination System (NPDES) permits on such waters. The

Environmental Protection Agency (EPA) has received infor-

mation from the public and conducted its own data search on

these and related issues. Much of the data, for example, are

extracted from national data sets and compared to information

provided to EPA in public responses to the 2003 Advance

Notice of Proposed Rulemaking (ANPRM) for the Clean

Water Act Regulatory Definition of “Waters of the United

States." Most of the data used to conduct these analyses is

publicly available. While thcse data represent a factual sum-

mary of information obtained from the public and from gov-

2a

ernment data sets, we have included any appropriate caveats

where assumptions have been necessary in order to respond

to your specific questions.

Some of the analyses and data are identified below as pre-

liminary because they are still being peer reviewed. Data and

analyses reviewed and approved through an outside peer re-

view process include the NHD methodology and analysis

using start reaches and intermittent/ephemeral waters as a

conservative approximation for “non-navigable” waters, and

the location of NPDES dischargers into such waters

The extent of non-navigable tributaries is difficult to esti-

mate nationwide because navigability is not a parameter in-

cluded in national databases. For example, the publicly avail-

able National Hydrology Dataset (NHD) maintained by the

U.S. Geological Survey docs not distinguish between naviga-

ble and non-navigable waters. Instead, the NHD characterizes

stream reaches based on flow characteristics such as perennial

and intermittent/ephemeral. We are providing data on the

linear extent of intermittent/ephemeral streams and “start

reaches,” stream segments in the NHD that lie at the head of

the tributary system and have no other streams flowing into

them, because streams with these characteristics arc likely to

be non-navigable waters. We believe that the length of streams

in these two categories provides a conservative range of the

extent of non-navigable waters in the U.S.

Based on available 1:100,000 scale data from the NHD, we

estimate that 53% of stream kilometers (2,915,824 km) in the

U.S. outside Alaska are start reaches. Similarly, queries to

the NHD indicate that 59% (3,214,641 km) of the total kilo-

meters of streams in the U.S., excluding Alaska, are intermit-

tent/ephemeral. This information suggests that the linear ex-

tent of non-navigable waters ranges from between 53%-59%

of the total length of streams in the U.S., excluding Alaska.

These estimates appear consistent with those submitted by

states commenting in response to the ANPRM.

3a

EPA has conducted a preliminary analysis to estimate the

number of wastewater sources authorized under the Clean

Water Act’s Section 402 permits program to discharge into

either start reaches or intermittent/ephemeral streams nation-

wide based on data from the NHD and EPA’s national data-

base for the NPDES program, the Permit Compliance System

(PCS), excluding Alaska. An analysis of PCS data from June

2004 shows that approximately 85% of the individual permits

(approximately 37,000 out or 43,000 permits in PCS at that

time) have data necessary for determining the location of

discharges with respect to intermittent/ephemeral streams and

start reaches. As noted above, these water features from NHD

have characteristics of non-navigable waters. EPA estimates

that over 40% of the 37,000 permits with locational data

discharge into either start reaches or intermittent/ephemeral

Streams, excluding Alaska. Approximately 28% of these dis-

charges are from municipal sewage treatment systems, sys-

tems that treat domestic sewage as well as wastewater from

commercial and industrial users. The other 72% include an

array of discharges from over 500 industrial categories, rang-

ing from elementary and secondary schools to petroleum re-

fining to industrial organic chemical facilities. The discharges

covered by this estimate represent most of the individual dis-

charges but do not include the much larger number of dis-

charges covered by storm water and non-storm water general

permits (permits that cover multiple, typically smaller, dis-

charges, for which EPA lacks sufficient locational data).

These data also are consistent with datz submitted by states

commenting in response to the ANPRM.

We have also developed a preliminary estimate of public

drinking water system intakes receiving water from start

reaches or ephemeral/intermittent streams, based on NHD

data and information regarding source water protection areas

(SWPAs). Preliminary estimates indicate that over 85% of

identified SWPAs (for surface water intakes used us a drink-

ing water source) included start reaches, and approximately

4a

60% contain intermittent/ephemeral streams. In total, over

90% of surface water protection areas contain start reaches or

intermittent/ephemeral streams. Public drinking water sys-

tems which use these intakes (as well as other sources) are

estimated to provide drinking water to over 110 million people.

Of the over 14,000 public water supply systems using surface

waters, RPA has located (on the NHD) and mapped SWPAs

for over 7,400 intakes (excluding Alaska but including Puerto

Rico) serving 5,646 public water supply systems. For the pur-

poses of this analysis, SWPAs encompass the drainage area

of up to 15 miles upstream from a drinking water intake, and

any SWPA that contains at least one start. reach or intermit-

tent/ephemeral stream is included in the count. Please note

that this analysis is preliminary, but nonetheless illustrates the

important relationship between public health and the water

quality of headwater, intermittent, and ephemeral streams.

EPA remains committed to the protection of aquatic re-

sources under the CWA. AS you know, President Bush an-

nounced an aggressive new national goal to move beyond no

net loss of wetlands in America to achieve an overall increase

of the Nation’s wetlands. The President's challenge is to re-

store, improve and protect at least three million additional

acres of wetlands over the next five years. For the President’s

Initiative, EPA committed to restore 6,000 acres of wetlands

by 2009 and to improve 6,000 acres of wetlands by 2009. We

are currently putting together a tracking and reporting system

to measure progress towards these goals.

Thank you again for your interest in these cases. If you

have further questions, please feel free to contact me or call

Dave Evans, Director of the Wetlands Division, at (202) 566-

0535.

Sincerely

/s/ BENJAMIN H. GRUMBLES

Benjamin H, Grumbles

Assistant Administrator

No. 04-1634 and 04-1384

3n the

Supreme Court of the United States

JOHN A. RAPANOS; JUDITH A. NELKIE RAPANOS;

PRODO, INC.; ROLLING MEADOWS HUNT CLUB;

and PINE RIVER BLUFF ESTATES, INC.,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE

ATTAINABLE HOUSING ALLIANCE

IN SUPPORT OF PETITIONERS

SEBASTIAN RUCCI

3058 Chardonnay Lane

Poland, OH 44514

(330) 707-1182

Counsel of Record for Amicus Curiae

Attainable Housing Alliance

Becker Gallagher Legal Publishing, Inc., 800.890.5001

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE .......... 1

SUMMARY OF ARGUMENT ................ 1

ARGUMENT ........ 22.6... eee e eee ee eens +

I. THE PROPER JURISDICTIONAL ANALYSIS

UNDER THE CLEAN WATER ACT

REQUIRES A SIGNIFICANT NEXUS WELL

BEYOND THE MOST MINIMAL

HYDROLOGICAL CONNECTION. ...... 4

is: ; :-- QR I os ov ise Hine 4

B. SWANCC Requires a Substantial Nexus

Beyond a Mere Hydrological Connection.

Adjacent Wetlands Must Require a

Significant Measure of Proximity to

Navigable Waters to Confer Clean Water

PIES S06 s owe nde oki Res 8

Twenty Miles Is Not a Significant

Measure of Proximity between the

Wetlands on the Rapanos Property and

the Navigable Waters to confer Clean

Water Act Jurisdiction. ........... 12

(i)

II.

IIT.

THE PROPER JURISDICTIONAL ANALYSIS

UNDER THE CLEAN WATER ACT DOES

NOT CONFER JURISDICTION IF THE

WETLANDS LACK ANY CONNECTION TO

NAVIGABLE WATERS. .............. 14

A.

The Clean.Water Act Does Not Extend to

Wetlands Adjacent to Nonnavigable

Tributaries Where the Runoff Does Not

Enter The Nonnavigable Tributaries.

The Drainage Ditch Along Carabell’s

Property Is Not Adjacent to Navigable

WS Se acheocdan<sétonainesaa 15

Federal Jurisdiction over Adjacent

Wetlands must Be Scrutinized Carefully

Because Land Use is an Area of

Traditional Local: ontrol. ........ 18

CRAIN seh cveeereec eeu ney 20

(in!)

TABLE OF AUTHORITIES

ASES: PAGE:

Carabell v. U.S. Army Corps, 391 F.3d 704 (6th Cir 2004) 15

Hoffman Homes v. EPA, 961 F.2d 1310 (7th Cir. 1992) ... 3

Rice v. Harken Exploration Co., 250 F.3d 264 (Sth Cir. 2001)

Skin eeu da sled Oe ge hive Wice Sweden 6 eee 1,9, 11, 12

Solid Waste Agency of Northern Cook County v. U.S. Corps of

Engineers, 531 U.S. 159 (2001) ............... 1, 5-15, 17

U.S. v. Needham, 354 F.3d 340 (Sth Cir. 2003) .... 1, 10-12

U.S. v. Rapanos, 190 F. Supp. 2d 1011 (ED MI 2002) ... 12

U.S. v. Rapanos, 376 F.3d 629 (6th Cir. 2004) ........... 8

U.S. v. Riverside Bayview, 474 U.S. 121(1985) 6, 7, 14-16, 19

FEDERAL STATUTES: PAGE:

Be et RI oi ois cide kc wack oes 4

Re ROR ae ie ee 4,5

SOI Be TROT Sakis is eR RRS 4

FEDERAL RULES: PAGE:

33 C.F.R. 209.120(d)(2)(ii)(e). . 22. eee eee 13

BS ook oon ek akc iva 4,7, 11, 16

33 C.F.R: Parts 320-29 (2004) .............05- 4

S5 CPE. OF TID so cocc oe ens ceee stan 15

SECIS Oh Fe) os cnc ccceesvieds 15

BOOKS AND ARTICLES:

V. Albrecht & B. Goode, Wetland Reg. in the Real World 21 (1994). . 5

(iv)

INTEREST OF THE AMICI CURIAE

The Attainable Housing Alliance has received the parties

written consent to file this brief as amicus curiae in support of

the petitioners. Letters of consent have been filed with the Clerk

of the Court. Counsel for amicus curiae authored this brief in

whole and no other person or entity other than amicus, its

members or counsel have made a monetary contribution to the

preparation or submission of this brief.

The Attainable Housing Alliance is an association of over

800 members of the Northern Illinois Home Builders

Association, the Home Builders Association of the Greater Fox

Valley and the Home Builders Association of Greater Chicago.

The Attainable Housing Alliance represents a unified voice of

the home building industry of northeastern Illinois on issues that

affect the attainability and ownership of housing. The instant

case could have a profound impact on the regulation of property

in Northern Illinois where much of the land is low lying, and

therefore, directly concerns all the members of the Alliance.

SUMMARY OF ARGUMENT

Amici submit that SWANCC replaced the “hydrological

connection” test with the“significant nexus” test, and submit that

the a proper reading of what comprises a substantial nexus under

SWANCC is found in Rice v. Harken Exploration Co., 250 F.3d

264 (Sth Cir. 2001) and United States v. Needham, 354 F.3d 340

(Sth Cir. 2003) both of which limit hold that a minimal

hydrological connection is not sufficient to confer jurisdiction.

To reach Clean Water Act jurisdiction over the wetlands over the

Rapano’s property, the Corps must claim jurisdiction over all

tributaries, however trivial or intermittent. The Corps would in

effect, regulate all water in every state, because everything above

sea level eventually drains into a navigable waterway. This

reaches well beyond the significant nexus between the wetlands

and ‘navigable waters, and substantially altered the meaning of

navigable waters as found in the Clean Water Act.

2

The Clean Water Act is not so broad as to permit the

Corps to impose regulations over tributaries that are neither

themselves navigable nor truly adjacent to navigable waters. It is

doubtful that Congress authorized the Corps to assert its

jurisdiction in such a sweeping and constitutionally troubling

manner. Even if that traditional meaning may be stretched, in

combination with a broad understanding of “navigable waters,”

to reach most rivers, streams, and lakes, and waters and wetlands

closely related to them, it cannot conceivably apply to a drainage

ditch twenty miles removed from a navigable river. This would

have far-reaching consequences, and impose severe limitations

on a landowner’s use of their land.

The term adjacent wetlands as defined by the Corps

cannot include every possible source of water that eventually

flows into a navigable-in-fact waterway. Rather, adjacency

necessarily implicates a “significant nexus”’ between the water in

question and the navigable-in-fact waterway. This requires the

adjacent body of water be “sufficiently linked” to the navigable-

in-fact water. The Carabell property is separated by a man-made )

berm and is far too attenuated to become waters of the United

States within the meaning of the Clean Water Act.

Since the ditch running along the Carabells’ property is

separated from wetlands only by a man-made berm or barrier. It

is logical that this would limit the entrance of any pollution on

the property from entering the downstream waters. This would

also limit sediment transport from the property to downstream

navigable waters. By berming the property a landowner should

be able to remove the property from the Corps jurisdiction as this

would limit any substantial nexus to the navigable waters.

However, the Corps would assert that the manmade berm is

jurisdictional. In effect, a landowner is not permitted to enclose

the wetlands or creeks on its property. However, if the purpose

of the Clean Water Act is to restore and maintain clean water,

then this enclosure should be encouraged. Unless the Corps has

3

converted the Clean Water Act into a wildlife conservation act.

If so, this should change should be spelled out by Congress, and

not the Corps.

When Congress enacted the Clean Water Act, it

attempted to preserve the authority of the States to regulate land

use. The Corps regulation prohibit a property owner by enclosing

its property from navigable waters which prevents the discharge

of pollutants to be controlled at the source by preventing their

entry into navigable waters. The severe federal intrusion into

areas of traditional state and local control by the Corps is not

consistent with Congress’ effort to preserve the State land use

authority. The Corps usurpation of local land use, can only be

justified by a clear statement of congressional intent. Not only is

such a statement lacking in the Clean Water Act, but Congress

made explicit in the Act its intention to preserve state and local

land use regulation.

The Corps limitless jurisdiction intrudes upon traditional

local authority to control the use, development, and preservation

of land and water resources that Congress expressly recognized

in the Clean Water Act. The Corps regulatory authority under §

404 of the Clean Water Act has limits, and those limits forbid its

regulatory authority over the enclosure of small intrastate

ditches, miles from navigable waters. The Corps also does not

have regulatory authority to regulate the enclosure of property

where the runoff does not reach navigable waters.

4

ARGUMENT

L. THE PROPER JURISDICTIONAL ANALYSIS

UNDER THE CLEAN WATER ACT REQUIRES A

SIGNIFICANT NEXUS WELL BEYOND THE

MOST MINIMAL HYDROLOGICAL

CONNECTION.

A. Clean Water Act.

In 1969, the Cuyahoga River in Cleveland, Ohio, coated

with a slick of industrial waste, caught fire. Congress responded

to that dramatic event by enacting the Clean Water Act, 33

U.S.C. §§ 1251-1387 (“Clean Water Act”). Section 404(a) of the

Clean Water Act, 33 U.S.C. § 1344(a), prohibits “any person”

from discharging “any pollutant,” including “dredged or fill

material,” into “navigable waters” without obtaining a permit

from the Corps. The Clean Water Act defines “navigable waters”

as “the waters of the United States.” 33 U.S.C. § 1362(7).

However, “the waters of the United States” is not defined.

The Clean Water Act directs the EPA to adopt guidelines,

in conjunction with the Corps, for administering § 404 dredge

and fill permits. 33 U.S.C. § 1344(b)(1). The Corps guidelines

are codified at 33 C.F.R. Parts 320-29 (2004).” The Corps

defines the term “waters of the United States” in 33 C.F.R.

328.3(a). The relevant definition include: “all waters which are

currently used, or were used in the past, or may be susceptible to

use in interstate or foreign commerce,” § 328.3(a)( 1); “tributaries

of [these] waters,” § 328.3(a)(5); and “wetlands adjacent to

[these] waters [or their tributaries],” § 328.3(a)(7).

> The EPA's guidelines under the Clean Water Act are codified at 40

C.F.R. Part 230. Since the EPA and the Corps have identical provisions,

citation is only provided to the Corps regulations. Also, all statutory

references to C.F.R. are to (2004) unless noted otherwise.

5

The Clean Water Act defines “navigable waters” as “the

waters of the United States.” 33 U.S.C. § 1362(7). The phrase

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

closely intertwined, and the tributary of a navigable water is also

intertwined with the word navigable waters. The word navigable

does not get subsumed by the word tributary. In indicating the

reach of the Clean Water Act, Congress used the words “the

waters of the United States” as opposed to “all water within the

United States.” The statutory language carves out a subset of

federally regulated waters “the waters of the United States” from

the larger set of “all water” within the nation’s borders. Though

the Clean Water Act uses the phrase “waters of the United

States” rather than “navigable waters of the United States,” that

phrase is used to define the term “navigable waters.”

Nonetheless, the Corps has wrenched the word of its

plain meaning and stepped outside its statutory boundaries, and

has steadfastly expanded its authority under the Act into a

mandate to regulate every drop of water in the country.‘

B. SWANCC Requires a Substantial Nexus

Beyond a Mere Hydrological Connection.

The Corps jurisdictional expansion was limited to some

extent when this Court construed the phrase “the waters of the

United States” under the Clean Water Act in Solid Waste Agency

of Northern Cook County v. U.S. Corps of Engineers, 531 U.S.

159 (2001) (“SWANCC’). SWANCC created a split among the

federal courts as to how the ruling should be interpreted. Some

courts have adopted an overly narrow reading allowing the Corps

to regulate every drop, while others have properly read SWANCC

broadly consistent with this Courts opinion.

* Permit applications have involved wetlands as small as 26 square feet,

about the size of an office desk. V. Albrecht & B. Goode, Wetland Regulation

in the Real World 21 (1994).

6

In SWANCC a consortium of municipalities surrounding

Chicago sought to build a landfill in land that had been used

decades earlier for sand and gravel mining. /d. at 163. Once the

mining ceased the excavation areas filled with water and became

permanent and seasonal ponds. /d. The municipalities sought a

permit to fill the ponds. /d. The Corps denied the permit because

the non-navigable and isolated ponds had become the home of

migratory birds, and under the Corps “Migratory Bird Rule” the

ponds were “waters of the United States” and fell within the

Corps jurisdiction. /d. at 164-65. This Court explained that a

significant nexus must exist between the regulated wetlands and

navigable waters:

It was the significant nexus between the wetlands and

“navigable waters” that informed our reading of the

{Clean Water Act] in Riverside Bayview Homes. . . . In

order to rule for [the Corps] here, we would have to hold

that the jurisdiction of the Corps extends to ponds that

are not adjacent to open water. But we conclude that

the text of the statute will not allow this.

Indeed, the Corps’ original interpretation of the [Clean

Water Act], promulgated two years after its enactment, is

inconsistent with that which it espouses here. Its 1974

regulations . . . emphasized that it is the water body’s

capability of use by the public for purposes of

transportation or commerce which is the determinative

factor... .

SWANCC, 531 U.S. at 167-68 (emphasis added).

The SWANCC Court also noted that the “Corps’ original

interpretation” of the Clean Water Act “promulgated two years

after its enactment” is much different than the Corps “new

regulations.” /d. at 168. The Court concluded that neither the text

of the statute nor its legislative history supported the Corps’

J

assertion of jurisdiction over the non-navigable ponds. /d. at 170-

171. The Court also declined to extend the ruling in United

States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) to

isolated ponds:

We thus decline [the Corps] invitation to take what they

see as the next ineluctable step after Riverside Bayview

Homes: holding that isolated ponds, some only seasonal,

wholly located within two Illinois counties, fall under §

404(a)’s definition of “navigable waters” because they

serve as habitat for migratory birds. ... We cannot agree

that Congress’ separate definitional use of the phrase

“waters of the United States” constitutes a basis for

reading the term “navigable waters” out of the statute.

We said in Riverside-Bayview Homes that the word

“navigable” in the statute was of “limited import” and

went on to hold that § 404(a) extended to non-navigable

wetlands adjacent to open waters. But it is one thing to

give a word limited effect and quite another to give it no

effect whatever. The teria “navigable” has at least the

import of showing us what Congress had in mind as its

authority for enacting the [Clean Water Act]: its

traditional jurisdiction over waters that were or had

been navigable in fact or which could reasonably be so

made.

SWANCC, 531 U.S. at 171-72 (emphasis added).

The SWANCC majority noted that “where an

administrative interpretation of a statute invokes the outer limits

of Congress’ power, we expect a clear indication that Congress

intended that result.” /d. at 172. The Court found “nothing

approaching a clear statement from Congress” that it intended to

reach non-navigable isolated ponds. /d. at 174. The Court

concluded that 33 C.F.R. § 328.3(a)(3) (1999), as applied to the

property pursuant to the migratory bird rule “exceeds the

authority granted to [the Corps] under § 404(a) of the [Clean

Water Act].” /d. at 174. Since the ponds were not “waters of the

United States” the development was allowed to proceed without

federal interference. /d.

The SWANCC dissent points out, that even the most

seemingly isolated wetlands are in fact both hydrologically and

ecologically connected to navigable waters. SWANCC, 531 U.S.

at 176 n.2 (Stevens J., dissenting). Nonetheless, the majority still

refers to the wetlands as isolated. This leads the majority to

conclude that the Corps jurisdiction does not extend to “ponds

that are not adjacent to open water.” SWANCC, 531 U.S. at 167-

68. The dissent cogently, if disapprovingly, described the effect

of SWANCC in its dissent as follows: “the Court draws a new

jurisdictional line, one that invalidates the 1986 migratory bird

regulation as well as the Corps assertion of jurisdiction over all

waters except for actually navigable waters, their tributaries

and wetlands adjacent to each.” SWANCC, 531 U.S. at 176-77

(Stevens J., dissenting). The dissent also noted that after

SWANCC “intermittent rivers, streams, tributaries” that “are not

contiguous or adjacent to navigable waters” are outside the scope

of the Clean Water Act. /d. at 189.

C. Adjacent Wetlands Must Require a

Significant Measure of Proximity to Navigable

Waters to Confer Clean Water Act

Jurisdiction. |

Amici submit that SWANCC replaced the “hydrological

connection” test with the“significant nexus” test. The Sixth

Circuit appears to give this lip service. The Sixth Circuit

explained in United States v. Rapanos, 376 F.3d 629, 639 (6th

Cir. 2004) that Clean Water Act jurisdiction over “adjacent

wetlands” requires a significant nexus between the wetlands and

navigable waters, “which can be satisfied by the presence of a

hydrological connection.” However, Rapanos Court finds that