# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A17

## Record

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

## Text

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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 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A17. Public record. Not legal advice.