Amicus Curiae Brief — Rapanos v. United States

4

For forested wetlands, evapotranspiration was

measured at 1.8 times open water evaporation in a New

Hampshire wetland.? An evapotranspiration/ lake

evaporation ratiosummary for typical wetland herbs was

published by Boyd* but note that his own measured ratios

require a correction from pan evaporation to lake

evaporation, so his own water loss ratios require a

significant revision upwards. Without returning to the

original references he quotes in the lower part of Boyd's

table 2, similar upwards adjustments may be required to

ratios if pan evaporation was used rather than lake

evaporation. The cattail environments referenced in Boyd's

table 2, had evapotranspiration rates that ranged from 1.75

to 2.5 times local lake evaporation, with an average ratio of

2.0. Thus while rates are variable depending on physical

settings, emergent wetlands from cattails to wooded

swamps are consistently reported as losing more water to

the atmosphere than open water lake evaporation. Note

also in this study, the statements that only plants that

cover water surfaces such as duckweed and water lilies

consistently reduce the water lost compared to open water

surfaces.

To relate these ratios to the state of Michigan where

the court sites are based, I used the precipitation and lake

evaporation from the Central Michigan area around

Lansing, Michigan.5 The results are presented on the next

page.

3 Hall, F.R. et al, The Influence of a New England Wetland on

Water Quantity and Quality; Research Report #4, Water Resource

Research Center, University of NH, Durham NH. 1972.

4 Boyd, C.E.; Evapotranspiration/ Evaporation Ratios for Aquatic

Plants; Journal of Aquatic Plant Management, Vol. 25, pp. 1-3.

January 1987.

S Climatic Atlas of the United States, U.S. Dept. of Commerce,

National Climatic Center, Ashville, NC, reprinted 1979.

)

Average annual precipitation = 31.5 inches per year

Average annual lake evaporation = 30.25 inches per year

- Cattail marshes range from = 30.25 x 1.75 = 52.94 in/yr

to 30.25 x 3.0 = 90.75 in/yr. inches per year.

- Wooded swamp water loss = 30.25 x 1.8 = 54.45 in/yr.

Thus all of these wetland types are net sinks for

water and cannot contribute to the value of navigable

waters because they lose more water to the atmosphere

than they receive as precipitation. Given their negative

impact on navigable waters, they should not be juris-

dictional or categorized as regulated “Waters of the United

States” for any transportation or commerce activities.

In terms of altering emergent vegetated wetlands

which abut open water bodies that serve as navigable

waters in some context, it is to be stressed that both filling

or excavation can enhance water release to downgradient

surface waters. Excavation into a permanent pond begins

to add water to the downgradient navigable waters, while

filling wetlands to create upland status actually increases

the available water for all downgradient surface waters even

more than excavation does. Note that mean annual runoff

for central Michigan is about 10 inches per year, and thus

conversion of an wooded wetland to an upland would add

about to 33 inches of new available water for all down-

gradient navigable waters due to 10 inches of new upland

runoff plus another 23 inches of elimination of excess

evapotranspiration.

As mentioned earlier, plants that cover the surface of

standing water reduce lake evaporation. However, those

areas are classed as shall~w marsh wetlands in standing

water, and do not functior as emergent wetlands which are

growing on unflooded saturated soils for most of the year.

Note that some ponded water wetlands, dominated by

mostly submerged aquatic weeds are also valuable as

navigable waters and water supply for downstream areas

depending on dominant plant types. Other open water

6

areas dominated by different aquatic plant types can be

uses as navigable waters in spite o: functioning as net sinks

for water.* The only other wetland type that does not offer

water losses at rates less than open water evaporation are

sphagnum moss type bogs with peat deposits. In these

bogs, water losses are at a ratio of about 0.9 times local

lake evaporation.

SECONDARY WETLAND FUNCTIONS

As a final matter, there may be some people who

might wish to suggest to the Court the idea that other

values of emergent vegetated wetlands somehow should

apply to the commerce clause or navigable waters. These

likely concepts are very briefly reviewed below.

Water Quality. Based on my 30 years of sampling

water quality in New England, | have yet to find a wetland

that improved water quality. I measured the pH (acidity) of

water coming out of one wetland, and the water was so acid

it could kill fish. Once peat formation starts in forested

wetlands, the water coming out of the wetland is so brown it

is called New England tea. Note that this brown water

contains tannic acid which is a proven carcinogen. In

terms of actual function, clean naturally filtered

groundwater is what enters the wetlands from the

upgradient side, with colors typically of around10 color

units. However, even small wetlands releasing this water

after it passes through the wetland soil can produce colors

in excess of 100 color units. One moderate size wetland I

tested had a water color that was beyond the instrument's

scale of 500 color units.

As for heavy metal uptake by the plants in vegetated

wetlands, it can be of nominal value in case of a large

release. However, thereafter the plants keep recycling the

heavy metals, and to the extent that the picnts are eaten by

wildlife, the metals are returned to the ecosystem. Due to

this constant uptake by live plants and release at the soil

surface by dying plants, this explains why heavy metal

7

concentrations are maintained near the surface of wetland

soils and not buried at depth as some people postulate.

Wetlands Protecting Water Bodies from Upland

Sedimentation. Most people know that open water bodies

fill by accumulation of leaves from trees, and deposits from

water lilies, aquatic plants, and cattails. As an example,

when my grandfather was a teenager, he planted water lilies

for his mother in Carr's Cove on Cayuga Lake in New York.

He dove into the water that was almost six feet deep to

plant the water lilys. About 50 years later when I was about

12 years old, I found that it was very difficult to row across

the water lily portion of Carr's Cove because of the muck

generated by the water lilies was touching the bottom of the

small rowboat. In addition, cattails and the giant reed

Phragmites soon invaded the edge of the lake on the water-

lily muck, and the major portions of the cove edges lost any

ability to be used a navigable water. Thus direct deposition

of mineral soils is frequently less than organic muck

formation in most water bodies surrounded by wetlands.

Flood Control. Vegetated wetlands soon start

accumulating organic matter known as peat. The average

rate of peat accumulation formed outside of standing water

is 4 inches per 100 years. Thus, even in a drainage basin

with zero land use changes to increase flooding, the peat

accumulation process raises floodplains in areas dominated

by vegetated wetland by about 4 inches per 100 years.

Note also, that once peat formation starts, the

organic soils soon develop extremely low permeabilities.

Thus once the soils are impacted by rain, they tend to stay

full of water, and the void spaces in the soils are not

available forstorage of flood waters. Figure 1 on page 8

shows water flow monitoring conducted in two adjacent

wetlands.®

6 Heikurinen, L.; Comparison Between Runoff Conditions on a

Virgin Peatland and a Forest Drainage Area" Proceedings of the

5th International Peat Congress, Vol. 1, pp 76-86, Wydawnictwa

Czasopism Technicznych Not, Warsaw, Poland 1976.

9

Figure 1 shows that the virgin wetland (with flows

represented by circles) which had not been altered by man

in its recent history, released no water during dry periods,

and released a large peak flow which created significant

downstream flooding following a large rain storm. In

contrast, the adjacent wetland, managed by wide-spaced

ditching that kept the wetland intact as a wetland forest

(with flows represented by squares), allowed drainage

between rain fall events. The managed wetland had

continuous outflow even during dry periods, and the flood

peak from the same storm was 40% lower than the peak

' flood flows from the virgin wetland. This proves that mature

' unmanaged wetlands are not valuable for (1) for water

supply for downstream navigable waters, or (2) flood

control.

The message for all parties is that the Unites States

does not benefit from protection of emergent vegetated

wetlands, but can significantly benefit from science based

wetland stewardship.

CONCLUSION

Open waters are in and of themselves useful as

navigable waters for commerce. Shallow water wetlands

such as areas dominated by water lilies or duckweed are

also useful as water supplies for downgradient open waters.

Some areas dominated by other partially submerged

aquatic plants are functional navigable waters, but those

areas may have a negative downstream impact by becoming

a sink for water to downstream areas. These ponded water

bodies remain useful as navigable waters except if isolated

from all other surface waters.

In terms of emergent vegetated wetlands, starting

with cattail marshes which evolve into shrub and forest

swamps; the entire series of natural transitions are of no

value to abutting surface water bodies because they lose

more water than what arrives as precipitation. As such,

10

they are net sinks for water and clearly have a negative

impact on abutting or distant downgradient surface waters

in terms of navigation. Thus those emergent wetlands

should not be classed as waters of the Untied States and

they should not require a permit under any existing federal

legislation, including the Clean Waters Act.

Respectfully submitted,

Jerome B. Carr, Ph.D.

Telmatologist (Wetland Scientist) &

Certified Professicnal Hydrologist

Carr Research Laboratory, Inc. Technical Offices

17 Waban Street Suite D-36

Wellesley, Mass. 02482 251 West Central ST

phone 508-651-7027 Natick MA 01760

FAX 508-647-4737

e-mail carr(carr-research-lab.com

Dated: 15 December 2005

15

10

L FLOW IN LITERS PER MINUTE PER HECTARE

690% IWCREASE IM BASE FLOW

oe —

JUHE 1974 JULY 1974

VIRGIN WETLAND

4OZ DECREASE

IN PEAK FLOW

Figure 1. Comparison of Adjacent Managed Wetland with

an Adjacent Virgin Wetland.

@ @e5bed

IBEST AVAILABLE SOPY (7) —

Nos. 04-1034, 04-1

Gn O he

Supreme Court of the United States

+

JOHN A. RAPANOS, et al.,

Petitioners,

v.

UNITED STATES,

Saliedaibearereinsoret Respondent.

JUNE CARABELL, et al,

Petitioners,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, et al,

Respondents.

>

ON Waits OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

>

BRIEF FOR AMICI CURIAE

THE CHESAPEAKE BAY FOUNDATION

IN SUPPORT OF RESPONDENTS

e

Jan Goidman-Carter Jon A. Mueller

ATTORNEY AT LAW DIRECTOR OF LITIGATION

4504 Casco Avenue THE CHESAPEAKE BAY

Edina, Minnesota 55424 FOUNDATION, INC.

(952) 922-2003 6 Herndon Avenue

Annapolis, Maryland 21403

(443) 482-2162

Counsel of Record for Counsel of Record for

Amicus Curiae Amicus Curiae

Chesapeake Bay Foundation Chesapeake Bay Foundation

THE LEX GROUP®°C « 1750 K Street, NW ¢ Suite 75 ¢ Washington, DC 20006

TABLE OF CONTENTS

Page

TEE EE SET PE Re APT i

Te Oe Fe ees ic vcnsacccnsecicatpiisnensesicunsdanateness iv

INTEREST OF AMICUS CURIAE.............00.00000c eee. l

TE IEE UII einen ccs cus debbedabibacnisiiicndninmchies 2

FIRS ARRIETA RE! SYS RT a 4

I. THE ECOLOGICAL AND ECONOMIC

HEALTH OF THE CHESAPEAKE BAY [IS

“INSEPARABLY BOUND UP” WITH THE

WATERSHED’S NON-NAVIGABLE

TRIBUTARIES AND ADJACENT

ITIL, sdb sinicchccadccukididiendtosnpbeadiiaibiccmcesiaie Micedian sous) 4

A. The Chesapeake Bay is the largest

and most biologically diverse

estuary in North America. .......................--- 4

B. The Chesapeake Bay Watershed Is

Comprised Largely of Non-navigable

Streams and Adjacent Wetlands. ............... 5

1. Most of the Bay watershed’s

stream miles are. non-

navigable and many flow

IRENE ces destdihcsddscecttinaiindeticornteds 5

& Most of the Bay watershed’s

wetlands are non-tidal

wetlands connected to

REET 5 ee Re 8

c. Bay Watershed Adjacent Wetlands

and Non-navigable Streams Are

Essential to Restoring and

1. Bay watershed headwater

wetland and streams filter

SRR Sr GREE la A ae 11

Il.

Bay watershed headwater

wetlands and streams are

essential for pure drinking

I TIN, cicccintidintecienntiinicnttncess 12

Bay watershed headwater

wetlands and streams reduce

sediment loads downstream.......... 14

Bay watershed headwater

wetlands and streams

moderate flood flows. ..................... 15

Bay area non-navigable

tributaries and _ adjacent

wetlands support the

Bayarea’s fisheries and shell-

EEL a AS ROT 16

Bay area adjacent wetlands

and non-navigable streams

support waterfowl and other

migratory bird populations............ 19

CWA JURISDICTION THROUGHOUT

THE WATERSHED IS ESSENTIAL TO

ACHIEVING THE COMMITMENTS OF

THE CHESAPEAKE BAY AGREEMENTS ........ 20

A.

Federal and _ State Partners

Recognize the Importance of Broad

Clean Water Act Jurisdiction to Bay

Watershed Restoration. .:.....................0006 20

The Chesapeake Bay Partners Must

the Clean Water’ Act

Throughout the Watershed to

Restore Chesapeake Bay........................... 21

The Bay partners need broad

Clean Water Act jurisdiction

to improve water quality. ..............22

2. The Bay partners need broad

Clean Water Act jurisdiction

to protect and restore vital

wetlands and SAV areas. .............. 23

C. Clean Water Act Jurisdiction

Throughout the Watershed is

Essential to Achieve the Stricter

Water Quality Standards and Load

Allocations Necessary to “Save the

a BREESE RI AERA NEO SR 24

1. CWA jurisdiction drives the

stricter water quality

standards and waste load

allocations needed

throughout the Bay

NERS Ee? EES Ree 2 24

2. The Bay Partners cannot

achieve the necessary

pollution reductions without

CWA jurisdiction over non-

navigable tributaries and

adjacent wetlands.......................... 27

Il. THE UNITED STATES PROPERLY

ASSERTS JURISDICTION OVER

TRIBUTARIES AND THEIR ADJACENT

WETLANDS “INSEPARABLY BOUND

UP” WITH DOWNSTREAM NAVIGABLE

Ee icssissniowedcincassaeiannatle dame tiiaicantiasdidueilaniiien 28

OA ON oes cvecsssseserensesccsvesconrenanernsenssenessesicostnuvresese 29

APPENDIX

iV

TABLE OF AUTHORITIES

Page(s)

CASES

Carabell vu. U.S. Army Corps of Engineers,

301 F.3d 704 (Gtis Cie. BOO4)..........ccccecsccvesccscssseees 29

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers,

Be as Te I ccisie cacinsiceoccnishiteseeiiiaiedsandacacs 3, 29

Treacy v. Newdunn,

344 F.3d 407 (4th Cir. 2003), cert. denied,

Se Bae, Cas. Se ncceceecnecvbinbinccitenicteneciaicasiael 8

United States v. Deaton,

332 F.3d 698 (4th Cir. 2003), cert. denied,

SR, Ge Be asks th esccavenlietncisacccneetentas 8, 12

United States v. Rapanos,

376 F.3d 629 (6th Cir. 2004)....................cccccesceseee 29

United States v. Riverside Bayview Homes, Inc.,

oP Sc) ee 3, 28, 29

STATUTES

A Tees Be Ie ie sidhceicacepicciinian tabesstta coseinitnainatiebs 25.

nd! Ee RBC trichibanatesi marr taer at BATA 21

OO A ii gs ad 20

GE UF a oinccitiatiiniiinisttininctinsidestilnniaibabisnadieebia 21

P.L. 106-457, Title [I], §202-203 (Nov. 7, 2000)................ 21

RULES

SR SI Te SO ID vvcnstninnctirsenitatisibeivaieetbidedaptesiainietibimiesbiaied l

NE TT Ge ei sevscsinsbstsiaciens nodsctilindandiscliahaicabeaiotianeseceiamhadialmasieamaaide l

REGULATIONS

Maryland Water Quality Standards: :

Ce I scccenieics biiccciccenidinccccedibeaseistettientivantiandee 27

Virginia Water Quality Standards:

OP VRE Gi ER, vcicesccicnsisacnsoscsciitipsiicnvecnitinaecitebiadeeetahdiiinas 27

INTEREST OF AMICUS CURIAE'!

The Chesapeake Bay Foundation (CBF) is the only

independent 501(c)(3) organization dedicated solely to

restoring and protecting the Bay and its tributary rivers.

Since 1967, our goal has been to improve water quality by

reducing pollution. Our motto is Save the Bay.

Pollution is choking the Bay and many of its

tributary rivers. In the summer of 2005, 41 percent of the

volume of the Bay was considered a “dead zone,” an area

with insufficient oxygen to support marine life. The

Chesapeake Bay Program, an arm of the US.

Environmental Protection Agency (EPA), recently

declared that the size of this area is the largest on record.

This anoxic zone is caused in large part by excessive

nitrogen and phosphorous discharges to the Bay and its

tributaries. CBF strives to reduce this pollution from,

among other sources, sewage treatment facilities, other

industrial sources, agricultural runoff, and urban and

suburban stormwater.

CBF's efforts are supported by its 140,000

members, volunteers, concerned citizens, advocates and

staff. CBF's staff of 170 includes scientists, policy

experts, attorneys, educators, and grassroots organizers

pursues our goal through environmental advocacy,

litigation, environmental education, strategic

communications, and habitat restoration throughout the

Bay watershed. We inform and engage the public, the

private sector, and government officials to request that

the necessary legislative and regulatory decisions and

adequate public and private investments be made to save

the Bay.

' Pursuant to S. Ct. R. 37.3(a) and 37.6, the undersigned represents

that (1) all parties consented to the filing of this bref. (2) no counsel

for any party authored this bref in whole or in part, and (3) no person

or entity other than the above-named amicus curiae and its counsel

made a monetary contribution to the preparation or submission of this

bref.

SUMMARY OF ARGUMENT

The purpose of this brief is to impress upon the

Court that a decision to strip Clean Water Act (“CWA”)

safeguards from non-navigable tributaries and their

adjacent wetlands will cause great harm to the

Chesapeake Bay, its watershed, its aquatic ecosystem,

and its people. The Chesapeake Bay is North America’s

largest and most biologically diverse estuary. “For more

than 300 years, the Bay and its tributaries have

sustained the region’s economy and defined its traditions

and culture.”*

The Chesapeake Bay receives fully half of its

water from an intricate network of 110,000 streams and

1.7 million wetlands most of which are non-navigable

tributaries and non-tidal wetlands that drain or “tend to

drain” to those tributaries, very much like the wetlands

and tributaries at issue in these cases. This brief will

demonstrate that the headwater streams and wetlands,

and other non-navigable tributaries and associated

wetlands, of the 64,000 square mile Chesapeake Bay

watershed are indeed “inseparably bound up” with the

Susquehanna, the Potomac, the James, and the other

large navigable rivers that flow to the Bay. This intricate

hydrological network cleanses the surface water,

recharges the groundwater, moderates the flood flows,

and provides the aquatic habitat on which the ecological

and economic life of the Chesapeake Bay and its

watershed depends. The health of the Chesapeake Bay

truly does begin at its source.

The states of Maryland, Pennsylvania, and

Virginia, the District of Columbia and the United States

recognized in the 1970s that they could not solve the dire

problems facing the Chesapeake Bay alone or in

* Chesapeake 2000 Agreement, Preamble. at Appendix A. The

signatories to the Chesapeake 2000 Agreement are Maryland.

Virgima. Pennsylvania, the District of Columbia, the Chesapeake Bay

Commission (representing the Maryland. Pennsylvama. and Virgima

state legislatures), and the EPA, representing the United States.

piecemeal fashion. They ‘entered into an_ historic

compact, the Chesapeake Agreement of 1983, and an

expanded agreement in 1987.‘ In 2000, Congress and the

state and federal Chesapeake Bay partners strengthened

their commitment to restoring the Bay ecosystem with

congressional action and execution of the Chesapeake

2000 Agreement. 2

The Chesapeake Bay partnership exemplifies the

concept of cooperative federalism — a cornerstone of the

CWA. The Bay partners, through the Chesapeake Bay

Agreements, have set ambitious requirements to improve

the water quality and restore the living resources of the

Chesapeake Bay and its watershed. They recognize,

however, that without CWA jurisdiction over non-

navigable tributaries and adjacent wetlands, the Bay

partners cannot achieve the stricter water quality

standards and waste load allocations necessary to “save

the Bay.”

In United States v. Riéerside Bayview Homes, Inc.,

474 U.S. 121 (1985) (Riverside Bayview), the Court

recognized that Congress intended to regulate wetlands

“inseparably bound up with the waters of the United

States,” and upheld the Army Corps of Engineers

exercise of CWA jurisdiction over adjacent wetlands on

that basis. The Court approved this Riverside Bayview

adjacency holding in Solid Waste Agency of Northern

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

159 (2001) (SWANCC), while narrowly holding that CWA

jurisdiction did not extend to certain truly isolated

intrastate ponds. The Riverside Bayview holding applies

with equal force in this case, where the wetlands at issue

drain or “tend to drain” to non-navigable tributaries that

are hydrologically and ecologically bound up with

downstream navigable waters. As in Riverside Bayview,

} 1983 Chesapeake Bay Agreement, Appendix B.

‘Chesapeake Bay Agreement of 1987. Appendix C;

df (last visited January 12, 2006).

t

the Corps of Engineers properly asserted jurisdiction over

the wetlands at issue in these cases.

The Chesapeake Bay ecosystem and _ the

Chesapeake Bay Agreement demonstrate that the

extensive networks of non-navigable tributaries and the

wetlands that drain to them located upstream in

watersheds are inseparably bound up with downstream

navigable waters, and that the CWA goal of maintaining

and restoring the physical, chemical, and biological

integrity of the Nation’s waters cannot be met unless

these waters remain subject to the Act. For these reasons,

Amicus Curiae the Chesapeake Bay Foundation

respectfully requests that the Court affirm each of the

decisions of the Sixth Circuit.

ARGUMENT

L. THE ECOLOGICAL AND ECONOMIC

HEALTH OF THE CHESAPEAKE BAY IS

“INSEPARABLY BOUND UP” WITH THE

WATERSHED’S NON-NAVIGABLE

TRIBUTARIES AND ADJACENT

WETLANDS

A. The Chesapeake Bay is the largest and

most biologically diverse estuary in

North Amer‘ca.

The Chesapeake Bay, a national treasure, is the

largest and most biologically diverse estuary in North

America.’ It is home to more than 3,600 species of unique

animals, fish, and plants including bald eagles, blue

crabs, menhaden, striped bass (rockfish), osprey, oysters,

and the American lotus. For more than three centuries,

“the Bay and its tributaries have sustained the region's

economy and defined its traditions and culture.”*

The Bay proper is approximately 200 miles long,

stretching from Havre de Grace, Maryland to Norfolk,

5 Chesapeake 2000 Agreement, Preamble, at Appendix A.

* Id.

Virginia. Including its tidal tributaries, the Bay has

approximately 11,684 miles of shoreline. The Chesapeake

Bay watershed encompasses 64,000 square miles and

some or all of six states and the District of Columbia.

Fifty major tributaries traverse the Appalachian,

Piedmont and Atlantic Coastal Plain before flowing into

the Chesapeake Bay.’

B. The Chesapeake Bay Watershed Is

Comprised Largely of Non-navigable

Streams and Adjacent Wetlands.

1. Most of the Bay watershed’s

stream miles are non-navigable

and many flow intermittently.

One hundred and eleven thousand (111,000) miles

creeks, streams, and rivers throughout the Bay

watershed converge into fifty major tributaries that send

water to the Chesapeake Bay.* The Bay's nine largest

tributaries contribute 93% of the total fresh water to

Chesapeake Bay,’ about half of the Bay’s total water

volume." The Susquehanna River is the Bay's largest

tributary and contributes more than one half of the

freshwater that enters the Bay.'' The Susquehanna and

its tributaries originate as small headwater streams and

wetlands in New York, drain Central Pennsylvania, and

* US. Environmental Protection Agency (EPA), Chesapeake Bay:

Introduction to an Ecosystem, EPA 903-R-04-003 (July 2004)

pasion to an —~ seed at

ty (last visited 1/9/06);

see, Ghesspeahe Bay Watershed iy ot Agpendia D.

* Chesapeake a aan a Sapenanes (2001) at

nasal Gas visieed ar 2006), ——— D: see - =

Introduction to an Ecosystem at 1. 5.

* US. Geological Survey, Chesapeake Bay: Measuring Pollution

Reduction, Fact Sheet FS-055-95. at

http.//water.usgs gov/wid/html/chesbay htm! (last visited January 6.

2006).

‘© Introduction to an Ecosystem at 5.

"Id

empty into the Bay in Maryland. The Potomac and

James Rivers are the next two largest tributary systems

flowing to the Chesapeake Bay."

Each of these major Bay tributaries begins at their

headwaters, far upstream of the navigable-in-fact rivers

they will become. Headwaters are “the dendritic system

of wetlands, swales and small streams that make up the

beginnings of most watersheds." Headwater streams!'!

comprise the majority of streams and waters in a

watershed, and they play the most important role within

the watershed in improving water quality by filtering

runoff, sediment, nutrients, and contaminants before

they move further downstream."

EPA estimates that first-order headwater streams,

alone, comprise over 50% of the over 200,000 miles of

'2 Jd.; See, Chesapeake Bay Watershed Map, Appendix D. See also,

Chesapeake Bay Program Powerpoint Presentation at

www .chesapeakebay net/pubs/waterqualitycnteria/DOC-

nspresentation ppt at slides 54, 55.

‘3 Consolidated EPA Region III Response to the Advanced Notice of

Proposed Rulemaking on the Clean Water Act Regulatory Definition of

“Waters of the United States” (2003) (EPA Region II] ANPRM

Response) at 3.

'* Headwater streams are typically defined as first and second order

streams. Higher order streams are formed by the confluence of lower

order tributary streams. See, Meyer, J. L. et al. Where Rivers Are

Born: The Scientific Imperative for Defending Small. Streams and

Wetlands, American Rivers and Sierra Club, publishers (September

—, poss a Are Born) at 10-11.

pdfdocID=182 (last visited January 8. 2006). —y yy 3

stream photo.

'S EPA Region II] ANPRM Response at Appendix E, Literature

Review: Extent and Function of Headwater Streams, EPA, Wheeling

West Virginia (February 2003) at 3-9: see also, EPA letter to Jeanne

Christie, dated January 9, 2005 (sent January 9, 2006) (EPA letter) in

Amicus Curiae Brief of Association of State Wetland Managers, et al

(ASWM Br.), Appendix; see also, MM. Brinson, Changes in the

Functioning of Wetlands Along Environmental Gradients, 13 (2)

Wetlands 65 (June 1993): Bruce J. Peterson et al., Control of Nitrogen

Export from Watersheds by Headwater Streams. 292 Science 86-90

(April 6, 2001).

~)

streams in EPA Region III, which encompasses most of

the Chesapeake Bay watershed." The Bay watershed’s

extensive headwater streams are important tributaries to

downstream navigable waters, but they do not always

flow year round; nor do they always flow above ground.

Many EPA Region III first-order streams have

intermittent flow periods during the summer months or

during dry years."’

Headwater streams in the limestone or karst

regions of the Bay watershed flow underground for some

length before they re-emerge as a surface stream some

distance downstream. These types of streams have a

definite hydrological connection to downstream

navigable-in-fact rivers, though the connection is not

apparent by observing surface water flows exclusively."*

However, under Petitioners’ view, these tributaries would

not be subject to CWA jurisdiction and would be subject

to development and contamination.

Many Bay watershed headwater streams, as well

as higher order non-navigable tributaries, have been

channelized over time and incorporated into ditch and

stormwater systems that connect non-navigable streams

and adjacent wetlands to downstream waters."’ In two

recent cases, the Fourth Circuit recognized that

EPA Region III ANPRM Response, at 10, Appendix E at 3; see also,

Rhodes, CA., EPA Region III, Findings in the Mid-Atlantic Region

Concerning Implications for Clean Water Act Jurisdiction for Various

Interpretations of SWANCC, Presented to the ASWM Legal Workshop.

Albuquerque New Mexico, October 18, 2005 (EPA Mid-Atlantic

Findings Presentation), at 16, 20.

http .//www_aswm org/calendar/le nodes pdf (last visited January

'? Id. See also, EPA Letter (EPA NHD analysis indicates that 59% of

the U.S. (except Alaska) stream miles have intermittent or ephemeral

flow.

8 Id. at 4.

' See, Council on Environmental Quality, Environmental Trends

(1989) at 35 (estimating that 10% of perennial streams in the United

States have been channelized); Where Rivers Are Born, at 11.

’