Amicus Curiae Brief — Rapanos v. United States

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manmade ditches draining Bay watershed wetlands are

nonetheless tributaries subject to the CWA. See, United

States v. Deaton, 332 F.3d 698, 712 (4% Cir. 2003), cert.

denied, 541 U.S. 972 (2004) (Deaton); Treacy v. Newdunn,

344 F.3d 407, 417 cert. denied 124 S.Ct. 1874 (2004) (4%

Cir. 2003) (Newdunn) (“Whether manmade or natural,

the tributary [the I-64 ditch] flows into traditional,

navigable waters.”).

2. Most of the Bay watershed’s

wetlands are non-tidal wetlands

connected to tributaries.

Approximately 1.7 million wetland acres remain in

the Chesapeake Bay watershed.” Almost 90% (about 1.5

million acres) of these remaining wetlands are non-tidal,

freshwater “palustrine” wetlands, including freshwater

marshes, wet meadows, forested swamps, and bogs.?!

Forested palustrine wetlands comprise the bulk of these

freshwater wetlands. These are the freshwater wetlands

most likely to be considered “adjacent” for CWA purposes

because they are located next to but not within the banks

of freshwater lakes, streams, or rivers. Some might be

considered “isolated,” though most of these are connected

to surface waters by groundwater.” Over 36,000 of these

palustrine wetland acres were destroyed between 1982

and 1989 alone. *8

20 See, Timer, R.W., Trends in the Chesapeake Bay Watershed

Wetlands, U.S. Fish and Wildlife Service, Ecological Services, Hadley,

MA. at http://biology.usgs.gov/s+t/SNT/noframe/nel24.htm (last

visited January 9, 2006) (derived from Tiner’s estimate of 690,000

hectares remaining in 1989).

2! See, Freshwater “Palustrine” Wetland Photo, Appendix F.

22 See, Hershner, Carl et al., Wetlands of Virginia: total, isolated and

headwater, Virginia Institute of Marine Science (VIMS) Special Report

No. 03-1 (February 2003).

http://ccrm.vims.edu/pubs/WetlandsOtVA203 pdf (last visited January

11, 2006).

23 Trends in the Chesapeake Bay Watershed Wetlands, supra.

EPA Region III estimates that roughly 36% of its

remaining wetlands are headwater wetlands.2* About

12% of the Region’s remaining wetlands are headwater

wetlands that lack a perennial or intermittent surface

water connection to navigable-in-fact waters.*5 These

Bay area headwater wetiand habitats include bogs, fens,

Delmarva Bays, eastern vernal pools, and pocosins.”®

An estimated 35-39% of the wetland acreage in the

U.S. Fish and Wildlife Service’s Upper Delmarva

Potholes (or Bays) study area was designated “isolated,”

though many of these wetlands were likely to have

groundwater connections to streams.2’ In addition to

groundwater connections, many headwater wetlands on

the Delmarva Peninsula are connected to downstream

waters by drainage ditches.”8

EPA Region III field studies show that “fully 73%

of the assessed sites had groundwater pathways

24 EPA Region III ANPRM Response, at 9-11; see also, EPA Mid-

Atlantic Findings Presentation, supra, at 12-14.

25 Jd. These numbers likely underestimate the extent of headwater

wetlands because National Wetland Inventory (NWI) maps

underestimate wetland acreage by up to 50%, and small headwater

wetlands are the type most frequently missed by the NWI.

26 EPA Region III ANPRM Response, Appendix [: Threatened and

Endangered Species, at 1. The Delmarva bays are so named because

of their location on the Delmarva Peninsula, the peninsula on the

Eastern Shore of the Chesapeake Bay that includes all of Delaware as

well as parts of Maryland and Virginia.

27 Tiner, R.W., et al, Geographically Isolated Wetlands: A Preliminary -

Assessment of their Characteristics and Status in Selected Areas of

the United States (Geographically Isolated Wetlands), US.

Department of Interior, Fish and Wildlife Service, Northeast Region,

Hadley, MA. (June 2002), Section 2, Delmarva Potholes, Section 3,

Region 5 ey - Results at

http://wetlar ds. fws. sec

esults/Region Bir results. htm (last visited January 6, 2006).

28 Ator. Scott W., et al. Hydrologic and Geochemical Controls on

Pesticide and Nutrient Transport to Two Streams on the Delmarva

Peninsula. U.S. Geological Survey, Scientific Investigations Report

2004-5051. http://pubs.usgs gov/sir/2004/505 1/STR2004-5051 pdf (last

visited January 11, 2006).

connecting them to downstream water bodies.”

Groundwater was frequently one of several hydrological

sources linking downstream waters.”?

Importantly, EPA’s field studies also found that

the interrelationships between wetlands with linkages by

non-perennial surface and/or groundwater flows and their

surroundings require on-site inspections because these

complex linkages are not displayed on widely used

mapping and planning tools.*® Consequently, while the

great majority of Bay watershed headwater wetlands are

connected hydrologically to downstream navigable-in-fact

waters, identifying these complex connections with

precision in each case for regulatory purposes is often

very time and resource intensive. Petitioners’ suggestion

that regulators must definitively establish such a

connection in each case prior to asserting jurisdiction is

untenable.

C. Bay Watershed Adjacent Wetlands and

Non-navigable Streams Are Essential

to Restoring and Protecting the

Chesapeake Bay Region.

1. Bay watershed headwater

wetlands and streams filter

pollutants.

Extensive phosphorus and nitrogen pollution

causing eutrophication*! is the most significant threat to

Chesapeake Bay watershed restoration:**? In 2003, 350

million pounds of nitrogen pollution and 30 million

29 EPA Region III ANPRM Response, Section [V. Case Study, at 1, 4.

® Id.

3t The Chesapeake Bay Program website defines eutrophication as

“the—preeess of excess nutrients accelerating the growth of algae,

oftentimes ultimately depleting the water of oxygen.”

http://www.chesapeakebay net/glossary htm (last visited January 10,

2006).

“2 Chesapeake 2000 Agreement, Water Quality Protection and

Restoration, at 5. 4

pounds of phosphorus pollution entered the Bay through

its nine major tributaries.”

Chesapeake Bay's headwater wetlands and

streams are essential tools in combating this nutrient

enrichment because they absorb, filter, and recycle this

pollution, preventing eutrophication." Studies have

shown that non-tidal wetlands near the Chesapeake Bay

removed an estimated 89% of the nitrogen pollution and

80% of the phosphorus pollution that entered the

wetlands through upland runoff, groundwater, and bulk

precipitation.» In Eastern Maryland, concentrations of

nitrate pollution have been found to decrease in

watersheds with a prevalence of forested wetlands.*®

Wetlands restored in an agricultural area on the

33 Langland, M.J. et al, Changes in streamflow and water quality in

selected nontidal sites in the Chesapeake Bay Basin, 1985-2003:

U.S.Geological Survey Scientific Investigations Report 2004-5259

(2004), at 23-27 at http://pubs.usgs. 52 -§

(last visited January 6, 2006)) (2003 loads affected in part by high

2003 stream flow).

34 Wetlands of Virginia: total, isolated and headwater, citing, inter

alia, Peterjohn, W.T. and D.L. Correll, Nutrient dynamics in an

agricultural watershed: Observations on the role of a riparian forest.

Ecology 65(5): 1466-1475 (1984); see generally, David K. Mueller &

Dennis R. Helsel, U.S. Geological Survey Circular, No. 1136, Nutrients

in the Nation’s Waters - Too Much of a Good Thing? (1996) at

http://water_usgs. : i. | (last visited January 5,

2006).

35 EPA Region III ANPRM Response, at Appendix D, Literature

Review: Character and Function of “Isolated Wetlands,” U.S. EPA,

Philadelphia, PA (2003) at 13-14 citing Peterjohn, W.T. and D.L.

Correll (1984), supra); see also, Tiner, R.W. and D.G. Burke, Wetlands

of Maryland, U.S. Fish and Wildlife Service, Ecological Services,

Region 5, Hadley, MA and Maryland Department of Natural

Resources, Annapolis, MD (1995) at 146-147 (the “riparian forest” in

the 1984 Peterjohn and Correll study was later recognized to be part of

a wetland continuum).

% Phillips, PJ. et al, Effect of Forested Wetlands on Nitrate

Concentrations in Ground Water and Surface Water on the Delmarva

Peninsula, 13 Wetlands 75-83 (1993).

Delmarva Peninsula removed an average of 68% of

nitrate nitrogen.”

As the 4 Circuit explained in United States v.

Deaton, the filtering effect of wetlands is actually

reversed, releasing trapped pollutants back into surface

and groundwater, when wetlands are drained and

developed. Deaton, 209 F.3d at 336 (citing Office of

Technology Assessment, U.S. Congress, Wetlands: Their

Use and Regulation, 48-50, 124 (1984)). The Deaton Court

recognized that protecting and restoring the Chesapeake

Bay’s adjacent wetlands and non-navigable tributaries is

essential to reducing pollution downstream in the

Chesapeake Bay and its major tributaries.

2. Bay watershed headwater

wetlands and _ streams _ are

essential for pure drinking

water supplies.

Rieweee 148 and 526 surface drinking water

intakes, serving populations ranging from 535,000 to 3

million people, are located in non-navigable headwaters

in Chesapeake Bay states.** The headwaters of the

Potomac River and other Chesapeake Bay tributaries

serve as a natural filter for drinking water, much like “a

giant Brita.”*® Residents of the Delmarva Peninsula rely

on ground water aquifers for drinking water and other

water supplies, at least some of which are vulnerable to

contamination from pollutants discharged into headwater

wetlands, streams, and ditches.”

37 Jordan, T.E. et al., Restored Wetlands in Crop Fields Control

Nutrient Runoff in Nutrient Cycling and Retention in natural and

Constructed Wetlands, pp 49-60.

38 EPA Region III ANPRM comments at 7-8, Section II, GIS

Highlights; see, Drinking Water Intake Map, Appendix G; see also,

EPA Mid-Atlantic Findings Presentation, supra, at 8-11; EPA Letter,

supra..

39 Mary Battiata, Silent Streams, Washington Post (Sunday,

November 27, 2005; W 10).

Delmarva Potholes.

Removal of the source water protection measures

afforded by the CWA would increase risks to human

health, and will require additional infrastructure

expenditures by public utilities using surface water

intakes.*! For example, if CWA jurisdiction is removed

for first order streams, untreated or partially treated

municipal sewage or animal waste discharged upstream

of a drinking water intake could contaminate water

supplies with pathogens such as Cryptosporidium and

E.Coli that are hardy and resistant to treatment. Many

EPA Region III sewage treatment plants are located on

first or second order streams. Unless these plants are

closely regulated, these pathogens, routinely found in

human sewage, can show up in finished tap water.”

Removal of federal jurisdiction over such waters would

impair the ability of states and the federal government to

monitor and control the level of discharges to these

waters.*

3. Bay watershed headwater

wetlands and streams reduce

sediment loads downstream.

Chesapeake Bay watershed headwater streams

and wetlands slow and hold run-off and sediment

upstream, reducing channel erosion and sediment loads

downstream. Conversely, when headwater wetlands and

streams are altered, they retain less sediment and send

*! Region III ANPRM Response at 7.

42 Td. at 8, 27.

‘3 See, infra, at Part II (regarding the need for a federal umbrella for

downstream states like Maryland (the Susquehanna) and Virginia

(the Potomac).

more sediment downstream.“ Increased sediment loads

downstream reduce water clarity and habitat quality.”

Increased sediment loads from headwaters and

‘smaller streams also adversely affect the navigability of

downstream waters. Loss or lack of regulation of these

important filtering areas will result in the need for more

extensive and recurrent dredging.“© For example,

“keeping Baltimore Harbor navigable costs $10 to $11.5

million annually to dredge and dispose of sediment the

Patapsco River [a Bay tributary] deposits in the

harbor.”*”

4. Bay watershed headwater

wetlands and streams and

moderate flood flows.

Chesapeake Bay headwater wetlands and streams

provide for the graduated release of surface and

groundwater flows, holding back heavy surface water

4 See, Herman, J., Hupp, C., and Langland, M., Chapter 4. Watershed

Sediment Deposition and Storage in A Summary Report of Sediment

Processes in Chesapeake Bay and Watershed, U.S. Geological Survey

Water Resources Investigations Report 03-4123, New Cumberland, PA

(2003), at 43-45; EPA Region III ANPRM Response at 14-18, Appendix

E at 7-9.

5 See, Chesapeake Bay Program, Background: Sediment and the Bay

at J//www.che : net/ ent. (last visited January

7, 2006); U.S. EPA Region III, Ambient Water Quality Criteria for

Dissolved Oxygen, Water Clarity and Chrlorophyll a for the

Chesapeake Bay and Its Tidal Tributaries, EPA 903-R-03-002 (April

2003), Executive Summary at Xli-X1il.

ecutive Summary adf (last visited January 7, 2006); Kesunsel, Robert

et al., Setting and Allocating the Chesapeake Bay Basin Nutrient and

Sediment Loads: The collaborative process, technical tools, and

innovative approaches, EPA 903-R-03-007. U.S. EPA Region III

Chesapeake Bay Program Office, Annapolis, MD (December 2003) at

Executive Summary, xi. http://www chesapeakebay net/pubs/doc-

allocating-front.pdf (last visited January 7, 2006).

46 EPA Region III ANPRM Response, at 8.

*’ Where Rivers are Born, at 12.

flows during storm events, and releasing base flow

through groundwater during dry periods.

The U.S. Fish and Wildlife Service study of the

Delmarva Potholes (Delmarva Bays) reports:

Given their abundance, Delmarva potholes aid

in temporary storage of

surface water and thereby help reduce local

flooding. They alternately

serve as ground-water discharge (wet season)

and recharge (dry season)

areas, with some recharge water eventually

discharging into coastal plain

streams and contributing to base flows vital for

sustaining aquatic biota.”

Conversely, destruction of these headwater

wetlands and streams will contribute to larger flood flows

downstream,” and decreased base flow to streams,

reducing water quality and harming aquatic flora and

fauna.*' Growth in storm sewers and paved surfaces

around Watts Branch, Maryland more than tripled the

* See eg, EPA Region III ANPRM Response at 14-18, Appendix D. at

10-13, and Appendix E at 7-9; Where Rivers Are Born at 10-11; Winter,

T. et al, Groundwater and Surface Water: A Single Resource, US.

Geologica Survey Curcular 1139, 67 (1998).

hitp://pubs usgs gov/cire/carc 1 139/ (last visited January 11, 2006).

*” Tiner, R.'W. Geographically Isolated Wetlands of the United States,

Wetlands, Vol. 23 (3), 494-516, at 505 (citations omitted); see also,

Hydrologic and Geochemical Controls on Pesticide and Nutnent

Transport to Two Streams on the Delmarva Peninsula, supra.

® See eg., EPA Region II] ANPRM at 8. 16-18, Appendix FE at 9 citing

Meyer and Wallace (2001); Where Rivers are Born, at 10-11.

5! See, EPA Region II1 ANPRM Response, at 16-17, Appendix D at 14.

Appendix E at 9; Where Riwwers Are Born at 11; Groundwater and

Surface Water: A Single Resource., supra, at 67.

number of floods and increased average annual flood size

by 23 percent.

5. Bay area non-navigable

tributaries and adjacent

wetlands support the Bay area’s

fisheries and shell-fisheries.

Non-tidal wetlands throughout the Bay watershed

provide essential services to finfish and shellfisheries in

the Chesapeake Bay. For example, Maryland's non-tidal

wetlands support numerous fish (menhaden and striped

bass) and shellfish (blue crabs and oysters) species, either

directly by providing habitat, or indirectly by regulating

freshwater flow and filtering pollutants. Approximately

200 fish species use Chesapeake Bay waters.™

Maryland's non-tidal seasonal and temporarily flooded

wetlands provide spawning, feeding, and nursery habitat

for some freshwater fish species during flooding periods,

and some also appear to be important in supporting the

invertebrate food base for Maryland's riverine fisheries.™

Bay watershed non-tidal wetlands and tributaries

support a healthy freshwater sport fishery. In 2001,

367,000 resident and non-resident anglers fished in

Maryland's fresh waters. Over 720,000 fished in

Virginia’s.™

The American eel is commercially important fish

species that relies on the upstream non-navigable

tributaries of the Chesapeake Bay watershed. The eel

Meyers, J.L. and J.B. Wallace, Lost Linkages and Lotic Ecology:

Small Streams. Pages 295-317, at 307. citing Leopold,

L.B., A View of the River. Cambridge, Mass: Harvard University Press.

in M.C. Press, N.J. Huntly and S. Levin, editors. Ecology: Achievement

and Challenge. Blackwell Science.

“3 Wetlands of Maryland, at 141.

* Id. at 141-142; see also, EPA Regwa Ill ANPRM Response,

Appendix E at 18.

% U.S. Fish and Wildlife Service. 2001 National Survey of Fishing,

Hunting, and Wildlife-Associated Recreation, 108 (2001), available at

http.//www census gov/prod/200jpub~thwsOl-us pdf (last visited

January 5, 2006).

lives most of its life in the inland reaches of these

upstream waters and then goes to sea to spawn. The Bay

area commercial harvest was about 700,000 pounds in

1981.” The Maryland commercial harvest was just over

192,000 pounds in 2002." Loss of headwater streams due

to unchecked development will eliminate essential eel

habitat and will result declining catch.

Bay headwaters and other non-navigable

tributaries and adjacent wetlands provide essential water

quality and quantity functions that support the

Chesapeake Bay’s striped bass, shad, and perch fisheries,

among others, by regulating freshwater flow and filtering

pollutants, helping protect critical spawning and nursery

habitat for these species. The upper reaches of

Chesapeake Bay tidal waters and the upper mainstem

are used as spawning and nursery grounds for striped

bass, shad, perch and other fish. The importance of this

use is reflected in state and federal water quality

standards that assign a “migratory fish spawning and

nursery” designated use to these waters.™

The major tributaries of the Chesapeake Bay

support 70-90% of the striped bass spawned on the East

Coast.” The 2002 commercial harvest in Maryland alone

% See, Chesapeake Bay Program. Fish: American Eel at

http //www chesapeakebay neUVbaybio htm (last visited January 10.

2006)

*’ Marviand’s Commercial Fisheries Annual Landings Data Set:

pene reyes EY 8, 31. EPA has pubhshed water quality

standards for the Bay and udal tnibutanes.

http://www chesapeakebay net/pubs/waterqualitycriteria/ 1 2022002/cov

er pdf.

® Chesapeake Bay Program, Animals and Plants: Striped Bass at

http //www.chesapeakebay netstnped_bass.htm (last visited January

7, 2006).

was over 1.8 million pounds. Another important

Chesapeake Bay commercial fishery is the menhaden

fishery. This fishery is highlighted for protection in the

Bay through the “open water and shellfish” designated

use.*! The village of Reedville, Virginia on the Bay was

reported as the second-largest port in the Nation in terms

of catch landed in 2004. Federal figures show 400.5

million pounds of fish were unloaded there that year,

trailing only Dutch Harbor, Alaska About 97% of the

Chesapeake Bay area fish harvest is estuarine

dependent. In 2004, the Chesapeake Bay area harvest

in Maryland and Virginia for all fish species was over 500

million pounds and was valued at over $209 million.

Bay watershed headwaters and other non-

navigable tributaries and adjacent wetlands support the

Bay's world renowned shellfishery by reducing nitrogen

and phosphorus pollution and sediment loads in

downstream waters, and thereby fostering growth of

submerged aquatic vegetation (“SAV”) with increased

water clarity and increases in dissolved oxygen from

*® Maryland's Commercial Fishenes Annual Landings Data Set:

Stnped Bass, at

Ub at -DeSapeankev:

visited January 10. 2006)

*! See, Chesapeake Bay Program Powerpoint Presentation, supra, at

shde 34.

*2 National Marine Fisheries Service, Fisheries of the United States

2004, Current Fisheries Statistics No 2004, Silver Spring, MD

(November 2005), at US. Commercial Landings, 2, 7.

http://www st.omfs gov/st 1/fus/fus04/02_commercial2004 pdf (last

visited January 10, 2006).

* See, Ambient Water Quality Criteria. supra; Chesapeake Bay

Program Powerpoint Presentation. supra, at slides 28, 31.

* National Marine Fisheries Service, Fisheries of the United States

2004, Current Fishenes Statistics No 2004. Silver Spring. MD

(November 2005). at US. Commercial Landings.

http://www st nmfs gov/st |/fus/fus04/02_commercial2004 pdf (last

visited January 10. 2006)

reductions in nitrogen and phosphorus pollution loads.”

SAV provides essential habitat for immature and molting

blue crabs.

Oyster and blue crab commercial harvests have

declined since the 1970s due to the combined effects of

several factors including pollution and the loss of SAV.

Still, the Chesapeake Bay remains one of the world’s

largest producers of blue crabs. The Chesapeake region

blue crab harvest in 2004 was 58.4 million pounds, worth

over $44 million. Currently, the combined value of the

Chesapeake’s shellfish and finfish harvests is estimated

around $1 billion annually The Chesapeake Bay

fisheries so central to the region's culture and economy

are clearly placed in harm's way by the removal of CWA

protections upstream.

6. Bay area adjacent wetlands and

non-navigable streams support

waterfowl and other migratory

bird populations.

The Chesapeake Bay watershed is home to 29

species of waterfowl and is a major resting ground along

the Atlantic Migratory Bird Flyway. At one time,

millions of waterfowl spent their winters in the Bay

region, supported by profuse SAV beds and supplemental

* See, Ambient Water Quality Criteria, supra; see also, Chesapeake

Bay Program Powerpoint Presentation, supra, at shdes 32, 36.

* Fisheries of the United States 2004. supra, at Renew.

http://www st omfs.gov/st 1/fus/fus04/01_intro2004 pdf (last visited

January 10, 2006).

* Northeast Midwest Institute, Large Scale Ecosystem Restoration

Initiatives — Protecting and Restoring the Chesapeake Bay, (2005) at

“Ecosystem Users”. www .nemw org/chesapeake htm (last visited

January 7, 2006).

* Wetlands of Maryland, supra, at 142 (One third of all waterfowl

using the Atlantic Flyway find winter habitat in the Chesapeake Bay

and its wetlands); see also, Chesapeake Bay Program. Waterfowl.

http//www_.chesapeakebay net/waterfowl htm (last visited January 7,

2006). Lurge Scale Ecosystem Restoration Initiatives - Protecting and

Restoring the Chesapeake Bay, supra, at “About the Ecosystem”

diets rich in invertebrates. Many of the bird and

waterfowl species identified in Maryland regularly use

vegetated non-tidal wetlands, and a significant number of

these depend on these habitats for survival.” The

destruction of wetlands, and dramatic declines in SAV

and waiter quality, among other things, have reduced the

number of waterfowl in the Bay area to about one million

birds.” Loss of SAV and non-tidal wetland habitat must

be reversed to protect and restore the waterfowl and

other migratory bird populations of the Chesapeake Bay

watershed — and the entire Atlantic Migratory Bird

Flyway.

Il. CWA JURISDICTION THROUGHOUT THE

WATERSHED ls ESSENTIAL TO

ACHIEVING THE COMMITMENTS OF THE

CHESAPEAKE BAY AGREEMENTS

A. Federal and State Partners Recognize

the Importance of Broad Clean Water

Act Jurisdiction to Bay Watershed

Restoration.

The argument that states alone can best protect

their non-navigable tributaries and adjacent wetlands

rings hollow in the Chesapeake Bay watershed. The

CWA requires the Bay states, like all others in the

Nation, to identify waters within their respective

boundaries that were impaired, 33 U.S.C. § 1313, and to

develop plans for removing those impairments. 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 their rivers, streams and-the-Chesapeake Bay

alone or in piecemeal fashion. Thus, they enter. d into an

historic compact, the Chesapeake Agreement of 1983.

That agreement was reaffirmed and strengthened in

similar agreements signed in 1987 and 2000. Congress

Wetlands of Maryland, supra, at 142-144.

8 Id.

recognized the need for these agreements and the

cooperative federalism principle *!' they embody by

passing legislation which created the Chesapeake Bay

Program, under the auspices of the EPA, and authorizing

the expenditure of a significant amount of federal funds

to support those agreements. 42 US.C. § 1267.”

Recognizing the importance of pollution reduction in the

headwaters of the Bay watershed, the “headwater states”

of Delaware, New York, and West Virginia have joined

the Chesapeake Bay partnership through a memorandum

of understanding.”

The state and federal signatories to the

Chesapeake Bay Agreements recognize that the fate of

the Chesapeake Bay ecosystem and watershed depend

upon the willingness and capability of the six watershed

states and the District of Columbia to significantly reduce

nitrogen, phosphorus, and sediment loads throughout the

Chesapeake Bay watershed. The Chesapeake Bay

partners recognize that they cannot achieve these

nutrient and sediment reductions without the federal

resources and uniform federal regulatory framework

supplied by the Clean Water Act.”

B. The Chesapeake Bay Partners Must

Apply the Clean Water Act Throughout

the Watershed to Restore’ the

Chesapeake Bay.

™ See, Wesser, J, Towards a Constitutional Architecture for

Cooperative Federalism, 79 N.C.L. Rev. 663 (2001); Comment: This

Dog Has Teeth .. . Cooperative Federalism and Environmental! Law.

16 Vill. Envtl. LJ. 109 (2005).

2 See, 33 USC. § 12674), P.L. 106-457, Title [I], §202-203 (Nov. 7,

2000).

™’ Chesapeake Bay Watershed Partners Agreement (2001), supra, and

Appendix H.

™ See, discussion of nitrogen and Poghens and sediment load

allocations, infra, at Part [1.C.2.

"5 See «.g., Chesapeake 2000 at 5.

1. The Bay partners need broad

Clean Water Act jurisdiction to

improve water quality.

The 2000 Chesapeake Bay Agreement states

unequivocally that “/i/mproving water quality is the most

critical element of the overall protection and restoration of

the Chesapeake Bay and its tributaries.” These water

quality improvements are necessary to, among other

things, protect and restore the Bay’s fisheries. 7°

The partners leave no doubt that’ the

implementation of the CWA water quality standards and

waste allocation provisions throughout the watershed is

essential to achieving the Agreement’s central water

quality restoration commitment:

Recent actions taken under the Clean Water

Act resulted in listing portions

of the Chesapeake Bay and its tidal rivers as

‘impaired waters.’ These

actions have emphasized the _ regulatory

framework of the Act along with the ongoing

cooperative efforts of the Chesapeake Bay Program

as the means to address the nutrient enrichment

problems of the Bay and its rivers .... We

have agreed to the goal of improving water

quality in the Bay and its

tributaries so that these waters may be

removed from the impaired waters

list prior to the time when _ regulatory

mechanisms under Section 303(d)

of the Clean Water Act would be applied.”

The Bay partners have further agreed that a

regulatory TMDL covering the entire 64,000 square mile

6 Chesapeake 2000 at 2.

*? Id. (emphasis added).

Bay watershed will be put in place by 2011 if Bay water

quality is not restored by 2010.** However, without the

broad federal framework of the CWA upon which each of

the signatories to the Bay Agreements could base their

independent regulatory actions, the commitments made

in these agreements could not be achieved. Restricting

CWA jurisdiction to the largest Bay tributaries and their

adjacent wetlands will make it nearly impossible for the

Bay partners to meet the revised water quality standards

and waste allocations necessary to achieve their water

quality restoration commitments.”

2. The Bay partners need broad

Clean Water Act jurisdiction to

protect and_ restore vital

wetlands and SAV areas.

_The Chesapeake Bay partners recognize that to

restore the living resources of the Bay, they must protect

and restore the Bay’s “natural infrastructure”: its

“thousands of miles of river and stream habitat that

interconnect the land, water, living resources and human

communities of the Bay watershed.” The partners

recognize, in particular, the importance of protecting and

restoring SAV, wetlands, streams, and riparian forests

for their erosion reduction and water quality filtration

capabilities.*” SAV restoration will require more

-stringent water clarity standards and _ strategies.

Increasing water clarity requires decreasing nutrient and

sediment loads.*' Headwater wetlands and streams

contribute to improving water clarity in the Bay.

The Bay partners commit to “achieve a no-net loss

of existing wetlands acreage and function in the

™ See e.g., Chesapeake Bay Program, Water Quality Protection and

Restoration: The Comprehensive Approach to Restoring Bay Water

Quality at www.chesapeakebay_ net/info/wqcritenatech/index.cfm at 2

(last visited January 7, 2006).

” See, EPA Region III ANPRM Response at 23.

*! Jd. at 3-4.

signatories’ regulatory programs.”*? This commitment

cannot be honored without CWA jurisdiction that extends

to non-navigable tributaries and their adjacent wetlands.

The District of Columbia has no independent regulatory

program that can ensure no-net-loss of wetlands within

its boundaries. Neither does West Virginia. New York's

wetlands program does not regulate many non-tidal

wetlands under 12.4 acres in size.®

While Maryland, Virginia, and Pennsylvania do

have independent wetlands regulatory programs, their

success in ensuring no-net-loss of existing wetlands

depends to no small extent on the uniform federal “no-

net-loss” standard. The federal §404 program also

provides important support for these state programs,

sharing the burdens of wetland delineation, functional

assessment, permit review and enforcement. Narrowing

CWA jurisdiction will shift more of the economic burden

for regulating headwaters and other adjacent wetlands

and non-navigable tributaries to state and _ local

governments. **

C. Clean Water Act Jurisdiction

Throughout the Watershed is Essential

to Achieve the Stricter Water Quality

Standards and Load _ Allocations

~ Necessary to “Save the Bay.”

1. CWA jurisdiction drives the

stricter water quality standards

and waste load _ allocations

needed throughout the Bay

watershed.

82 Id. at 4-5.

83 See e.g., Association of State Wetlands Managers, State Wetland

Programs at http://aswm.org/swp/statemainpage9 htm (last visited

January 7, 2006).

84 See e.g., EPA Region III ANPRM Response at 20, Appendix K: State

Programs in Region III; see also, ASWM Br.and the Amicus Brief of

the States of New York and Michigan et al.

Clean Water Act-mandated water quality

standards are central to meeting the CWA mandate to-

“restore and maintain the chemical, physical, and

biological integrity of the Nation's waters.” 33 U.S.C. §

125l(a). EPA acts as an important federal backstop for

state promulgation and implementation of state water

quality standards, ensuring that state standards are

consistent with the CWA. If the CWA no longer extends

to non-navigable streams and adjacent wetlands, the

applicability of water quality standards to these waters is

open to question, and EPA's ability to ensure that state

water quality standards will achieve the requirements of

the CWA would be undermined.”

CWA §303(d) requires states to list as “impaired

waters” those waters that are not meeting state water

quality standards, and to develop and execute Total

Maximum Daily Loads (TMDLs) to bring those impaired

waters back into compliance with state water quality

standards. A TMDL defines the pollutant load that a

waterbody can assimilate without triggering violations of

water quality standards and then allocates the loading of

each pollutant of concern to specific contributing point

sources (e.g, industrial and municipal waste water

treatment plants) and ~=non-point sources (e.g.,

agricultural run-off). TMDLs for downstream impaired

waters will fail to meet water quality standards if the

TMDLs cannot limit pollutant loadings in upstream

tributaries and adjacent wetlands.*

CWA NPDES (§402) permitting ges hand-in-hand

with implementing TMDLs. The TN.DL waste load

allocations for point source discharges are implemented

through NPDES permits. If NPDES permits are no

longer required for facilities discharging into upstream

tributaries, then it will be difficult to assign and enforce

*5 EPA Region II] ANPRM Response, at 22.

%6 Td. at 22-25.

waste load allocations to such facilities.*7 Because

pollutant loadings are often in small streams, exclusion of

these smaller upstream tributaries from NPDES permits

and TMDL allocations would result in an inability to

control water quality in large mainstem waters.

Environmental Amici present a_ graphic

illustration of this pollution risk: photographs of two

District of Columbia sewer outfalls into two small

tributaries of Rock Creek and the Potomac River.

Presently, these sewer outfalls require NPDES permits

that limit pollution discharges, including raw sewage, to

downstream waters. Under Petitioner Rapanos’ theory of

this case, these outfalls would no longer require NPDES

permits and water quality in Rock Creek and

downstream would suffer.*?

Baywide, sewage treatment plants contribute 19%

of the nitrogen that flows into the Bay each year. The

Chesapeake Bay Program has reported that where Bay

watershed municipal wastewater treatment plants have

reduced nitrogen discharges to comply with a nitrogen

limit in an NPDES permit, it is because the limit has

been imposed through a local TMDL in one of the many

Bay sub-basins.*!' Without the NPDES and TMDL

87 See, Region III] ANPRM Response, Appendix. J at 2 and Table 1,

Sample of Current NPDES Permits on Small Streams.

%8§ Region III ANPRM Response at 23. See also, EPA Letter, supra

note 17 (EPA estimate that over 40% of NPDES permits are for

discharges of pollutants into non-navigable streams (excluding

Alaska). About 28% of these are from municipal sewage treatment

systems. The rest are from an array of over 500 industrial categories).

89 See, Amicus Brief of American Rivers, et al, at 12 and Appendix A.

% See, Chesapeake Bay Program Tributary Strategies Backgrounde

at 2:

ttp://www.che ebay.net/pubs/tribstrats_back r_final. pd

. (last visited January 7, 2006).

9%! Chesapeake Bay Program, What's the Status of Point Source

Nitrogen Reduction in the Chesapeake Bay Watershed? (January 2004).

http://www. chesapeakebay net/pubs/waterqualitycriteria/doc-

pointsource for tribtools.pdf. (last visited January 7, 2006).

requirements, nitrogen discharges into upstream

tributaries will be impossible to adequately control.

2. The Bay’ partners’ cannot

achieve the necessary pollution

reductions without CWA

jurisdiction over non-navigable

tributaries and adjacent

wetlands.

In order to achieve their restoration requirements,

particularly the stricter water quality standards

necessary to protect migratory fish spawning and nursery

use and shellfish use, the six Bay watershed states and

the District of Columbia recently agreed to substantially

reduce nutrient pollution below 2000 levels by 2010. The

new nitrogen reduction requirement is to reduce annual

loads to no more than 175 million pounds. The new

phosphorus reduction requirement is to reduce annual

loads to no more than 12.8 million pounds.” The

partners have also agreed to reduce annual loads of land-

based sediment to no more than 4.15 million tons in order

to reduce sediment loads enough to provide the water

clarity necessary for underwater grasses to thrive.”

To achieve these ambitious pollution reduction

commitments all six Bay watershed states and the

District of Columbia must “pull their weight’..* The

Chesapeake Bay Program ran simulation models to

determine the maximum load allocations for each of the

%2 Setting and allocating the Chesapeake Bay Basin Nutrient and

Sediment ‘oads, Executive Summary, supra; see also, Chesapeake

Bay Program Powerpoint Presentation, supra, slide 53

% Id. See also, Chesapeake 2000 Agreement at 4-6; Setting and

allocating the Chesapeake Bay Basin Nutrient and Sediment Loads,

Executive Summary, supra.

% See e.g., Maryland Water Quality Standards -COMAR 26.08.02;

Virginia Water Quality Standards, at 9 VAC 25—260.

nine major watershed basins, including the New York

headwaters of the Susquehanna.”

Tributary strategies to meet these maximum

nutrient and sediment load allocations are being

developed and implemented for each subwatershed

within the nine major Bay tributary basins. These

tributary strategies will include, among other actions,

facility-by-facility assessments of what additional

pollution reduction actions will be required for point

sources. The states are developing nutrient pollution-

related water quality standards. These standards,

together with the tributary strategies, will form the basis

of NPDES permit requirements for point source facilities.

For nitrogen reductions, the most important point source

facilities will be the 310 municipal wastewater treatment

plants in the Bay watershed.”

If the Court decides to remove from CWA

jurisdiction over half of the Bay watershed’s stream miles

and over one third of the watershed’s adjacent wetlands,

it will be virtually impossible for the Chesapeake Bay

watershed states and the District of Columbia to achieve

the nutrient and sediment requirements that must be

met to Save the Bay. The exercise in cooperative

federalism that is the Chesapeake Bay Program and

Agreements will have failed.

III. THE UNITED STATES PROPERLY ASSERTS

JURISDICTION OVER TRIBUTARIES AND

THEIR ADJACENT WETLANDS

“INSEPARABLY BOUND UP” WITH

NAVIGABLE WATERS.

: In United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 134-135 (1985) (Riverside Bayview), the

Court recognized that Congress intended to regulate

% Setting and aliocating the Chesapeake Bay Basin Nutrient and

Sediment Loads, Executive Summary, supra.

% See, What's the Status of Point Source Nitrogen Reduction in ue

Chesapeake Bay Watershed?, supra.

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, 167-168 (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. See, United States

v. Rapanos, 376 F. 3d 629, 642-43 (6 Cir. 2004); Carabell

v. U.S. Army Corps of Engineers, 391 F. 3d 704, 705-706,

708 (6" Cir. 2004); JA Vol. 3 at 639: 16-23 (testimony at

wetland application hearing). As in Riverside Bayview,

the Corps of Engineers properly asserted jurisdiction over

the wetlands at issue in these cases.

CONCLUSION

The Chesapeake Bay ecosystem and_ the

Chesapeake Bay Agreements demonstrate that the

extensive networks of non-navigable tributaries and

adjacent wetlands located upstream in watersheds are

inseparably bound up with downstream navigable waters,

and that the Clean Water Act goal of maintaining and

restoring the physical, chemical, and biological integrity

of the Nation's waters cannot be met unless these

upstream waters continue to be subject to the Act. For

the reasons set forth above, Amicus Curiae the

Chesapeake Bay Foundation respectfully requests that

the Court affirm the decisions of the Sixth Circuit.

RESPECTFULLY SUBMITTED,

Jan Goldman-Carter Jon A. Mueller

Attorney at Law Director of Litigation

4504 Casco Avenue The Chesapeake Bay

Edina, MN 55424 Foundation, Inc.

(952) 922-2003 6 Herndon Ave.

Annapolis, MD © i403

(443) 482-2162

Counsel of Record for Counsel of Record for

The Chesapeake Bay The Chesapeake Bay

Foundation, Inc. Foundation, Inc.

APPENDIX

APPENDIX TABLE OF CONTENTS

Appendix A

Chesapeake Bay Agreement

Appendix B

Chesapeake Bay Agreement

dated December 9, 1983 .............

Appendix C

Chesapeake Bay Program

Photograph of

Typical Perennial Headwater Stream

In Summer

dated June 14, 2001....................

Appendix F

Photograph of Wetlands

0 RE Es

Appendix Page

Appendix G

Map of Surface Drinking Water Intakes

IE: ncccititininsidlididbitienaialillatantuniibiltapinenstatiadpeedl

Appendix H

Memorandum of Understanding

a ie

A-l

CHESAPEAKE 2000

PREAMBLE

The Chesapeake Bay is North America's largest

and most biologically diverse estuary, home to more than

3,600 species of plants, fish and animals. For more than

300 years, the Bay and its tributaries have sustained the

region’s economy and defined its traditions and culture. It

is a resource of extraordinary productivity, worthy of the

highest levels of protection and restoration.

Accordingly, in 1983 and 1987, the states of

Virginia, Maryland, Pennsylvania, the District of

Columbia, the Chesapeake Bay Commission and the U.S.

Environmental Protection Agency, representing the

federal government, signed historic agreements that

established the Chesapeake Bay Program partnership to

protect and restore the Chesapeake Bay's ecosystem.

For almost two decades, we, the signatories to

these agreements, have worked together as stewards to

ensure the public's right to clean water and a healthy and

productive resource. We have sought to protect the health

of the public that uses the Bay and consumes its bounty.

The initiatives we have pursued have been deliberate and

have produced significant results in the health and

productivity of the Bay's main stem, the tributaries, and

the natural land and water ecosystems that compose the

Chesapeake Bay watershed.

While the individual and collective

accomplishments of our efforts have been significant,

even greater effort will be required to address the

enormous challenges that lie ahead. Increased population

and development within the watershed have created ever-

greater challenges for us in the Bay's restoration. These

challenges are further complicated by the dynamic nature

A-2

of the Bay and the ever-changing global ecosystem with

which it interacts.

In order to achieve our existing goals and meet the

challenges that lie ahead, we must reaffirm our

partnership and recommit to fulfilling the public

responsibility we undertook almost two decades ago. We

must manage for the future. We must have a vision for

our desired destiny and put programs into place that will

secure it.

To do this, there can be no greater goal in this

recommitment than to engage everyone — individuals,

businesses, schools and universities, communities and

governments — in our effort. We must encourage all

citizens of the Chesapeake Bay watershed to work toward

a shared vision — a system with abundant, diverse

populations of living resources, fed by healthy streams

and rivers, sustaining strong local and _ regional

economies, and our unique quality of life.

In affirming our recommitment through this new

Chesapeake 2000, we recognize the importance of viewing

this document in its entirety with no single part taken in

isolation of the others. This Agreement reflects the Bay's

complexity in that each action we take, like the elements

of the Bay itself, is connected to all the others. This

Agreement responds to the problems facing this

magnificent ecosystem in a comprehensive, multifaceted

way.

BY THIS AGREEMENT, we commit ourselves to

nurture and sustain a Chesapeake Bay Watershed

Partnership and to achieve the goals set forth in the

subsequent sections. Without such a partnership, future

challenges will not be met. With it, the restoration and

protection of the Chesapeake Bay will be ensured for

generations to come.

WE COMMIT TO:

LIVING RESOURCE PROTECTION AND

RESTORATION

The health and vitality of the Chesapeake Bay's

living resources provide the ultimate indicator of our

success in the restoration and protection effort. The Bay's

fisheries and the other living resources that sustain them

and provide habitat for them are central to the initiatives

we undertake in this Agreement.

We recognize the interconnectedness of the Bay's

living resources and the importance of protecting the

entire natural system. Therefore, we commit to identify

the essential elements of habitat and environmental

quality necessary to support the living resources of the

Bay, In protecting commercially valuable species, we will

manage harvest levels with precaution to maintain their

health and stability and protect the ecosystem as a whole.

We will restore passage for migratory fish and work to

ensure that suitable water quality conditions exist in the

upstream spawning habitats upon which they depend.

Our actions must be conducted in an integrated

and coordinated manner. They must be continually

monitored, evaluated and revised to adjust to the

dynamic nature and complexities of the Chesapeake Bay

and changes in global ecosystems. To advance this

ecosystem approach, we will broaden our management

perspective from single-system to ecosystem functions

and will expand our protection efforts by shifting from

single-species to multi-species management. We will also

undertake efforts to determine how future conditions and

changes in the chemical, physical and _ biological

attributes of the Bay will affect living resources over

time.

A-4

GOAL

Restore, enhance and protect the finfish, shellfish and

other living resources, their habitats and ecological

relationships to sustain all fisheries and provide for a

balanced ecosystem.

Oysters

By 2010, achieve, at a minimum, a tenfold increase in

native oysters in the Chesapeake Bay, based upon a

1994 baseline. By 2002, develop and implement a

strategy to achieve this increase by using sanctuaries

sufficient in size and distribution, aquaculture,

continued disease research and disease-resistant

Management strategies, and other management

approaches.

Exotic Species

In 2000, establish a Chesapeake Bay Program

Task Force to:

1. Work cooperatively with the U.S. Coast

Guard, the ports, the shipping industry,

environmental interests and others at the

national level to help establish and

implement a national program designed to

substantially reduce and, where possible,

eliminate the introduction of non-native

species carried in ballast water; and

2. By 2002, develop and implement an interim

voluntary ballast water management

program for the waters of the Bay and its

tributaries.

By 2001, identify and rank non-native, invasive

aquatic and terrestrial species which are causing

A-5

or have the potential to cause significant negative

impacts to the Bay's aquatic ecosystem. By 2003,

develop and implement management plans for

those species deemed problematic to _ the

restoration and integrity of the Bay's ecosystem.

Fish Passage and Migratory and Resident Fish

By June 2002, identify the final initiatives

necessary to achieve our existing goal of restoring

fish passage for migratory fish to more than 1,357

miles of currently blocked river habitat by 2003

and establish a monitoring program to assess

outcomes.

By 2002, set anew goal with implementation

schedules for additional migratory and resident

fish passages that addresses the removal of

physical blockages. In addition, the goal will

address the removal of chemical blockages caused

by acid mine drainage. Projects should be selected

for maximum habitat and stock benefit

By 2002, assess trends in populations for priority

migratory fish species. Determine tributary-

specific target population sizes based upon

projected fish passage, and current and projected

habitat available, and provide recommendations to

achieve those targets.

By 2003, revise fish management plans to include

strategies to achieve target population sizes of

tributary-specific migratory fish.

Multi-species Management

By 2004, assess the effects of different population

levels of filter feeders such as menhaden, oysters

and clams on Bay water quality and habitat.

A-6 -

« By 2005, develop ecosystem-based multi-species

management plans for targeted species.

° By 2007, revise and implement existing fisheries

management plans to incorporate ecological, social

and economic’ considerations, multi-species

fisheries management and ecosystem approaches.

Crabs

* By 2001, establish harvest targets for the blue

crab ffishery and begin’ implementing

complementary state fisheries management

strategies Baywide. Manage the blue crab fishery

to restore a healthy spawning biomass, size and

age structure.

VITAL HABITAT PROTECTION AND RESTORATION

The Chesapeake Bay's natural infrastructure is an

intricate system of terrestrial and aquatic habitats,

linked to the landscapes and the environmental quality of

the watershed. It is composed of the thousands of miles of

river and stream habitat that interconnect the land,

water, living resources and human communities of the

Bay watershed. These vital habitats—including open

water, underwater grasses, marshes, wetlands, streams

and forests—support living resource abundance by

providing key food and habitat for a variety of species.

Submerged aquatic vegetation reduces shoreline erosion

while forests and wetlands protect water quality by

naturally processing the pollutants before they enter the

water. Long-term protection of this natural infrastructure

is essential.

In managing the Bay ecosystem as a whole, we

recognize the need to focus on the individuality of each

river, stream and creek, and to secure their protection in

concert with the communities and individuals that reside

A-7

within these small watersheds. We also recognize that we

must continue to refine and share information regarding

the importance of these vital habitats to the Bay's fish,

shellfish and waterfowl. Our efforts to preserve the

integrity of this natural infrastructure will protect the

Bay's waters and living resources and will ensure the

viability of human economies and communities that are

dependent upon those resources for sustenance, reverence

and posterity.

GOAL

Preserve, protect and restore those habitats and natural

areas that are vital to the survival and diversity of the

living resources of the Bay and its rivers.

Submerged Aquatic Vegetation

+ Recommit to the existing goal of protecting and

restoring 114,000 acres of submerged aquatic

vegetation (SAV).

. By 2002, revise SAV restoration goals and

strategies to reflect historic abundance, measured

as acreage and density from the 1930s to the

present. The revised goals will include specific

levels of water clarity which are to be met in 2010.

Strategies to achieve these goals will address

water clarity, water quality and bottom

disturbance.

. By 2002, implement a strategy to accelerate

protection and restoration of SAV beds in areas of

critical importance to the Bay's living resources.

Watersheds

° By 2010, work with local governments, community

groups and watershed organizations to develop

A-8

and implement locally’ supported watershed

management plans in two-thirds of the Bay

watershed covered by this Agreement. These plans

would address the protection, conservation and

restoration of stream corridors, riparian forest

buffers and wetlands for the purposes of

improving habitat and water quality, with

collateral benefits for optimizing stream flow and

water supply.

By 2001, each jurisdiction will develop guidelines

to ensure the aquatic health of stream corridors.

Guidelines should consider optimal surface and

groundwater flows.

By 2002, each jurisdiction will work with local

governments and communities that have

watershed management plans to select pilot

projects that promote stream corridor protection

and restoration.

By 2003, include in the "State of the Bay Report,"

and make available to the _ public, local

governments and others, information concerning

the aquatic health of stream corridors based on

adopted regional guidelines.

By 2004, each jurisdiction, working with local

governments, community groups and watershed

organizations, will develop stream _ corridor

restoration goals based on local watershed

management planning.

Wetlands

Achieve a no-net loss of existing wetlands acreage

and function in the signatories’ regulatory

programs.

A-9

+ By 2010, achieve a net resource gain by restoring

25,000 acres of tidal and non-tidal wetlands. To do

this, we commit to achieve and maintain an

average restoration rate of 2,500 acres per year

basin wide by 2005 and beyond. We will evaluate

our success in 2005.

° Provide information and assistance to local

governments and community groups for the

development and implementation of wetlands

preservation plans as a component of a locally

based integrated watershed management plan.

Establish a goal of implementing the wetlands

plan component in 25 percent of the land area of

each state's Bay watershed by 2010. The plans

would preserve key wetlands while addressing

surrounding land use so as to preserve wetland

functions.

+ Evaluate the potential impact of climate change on

the Chesapeake Bay watershed, particularly with

respect to its wetlands, and consider potential

management options.

Forests

+ By 2002, ensure that measures are in place to

meet our riparian forest buffer restoration goal of

2,010 miles by 2010. By 2003, establish a new goal

to expand buffer mileage.

° Conserve existing forests along all streams and

shorelines.

. Promote the expansion and _ connection of

contiguous forests through conservation

easements, green-ways, purchase and other land

conservation mechanisms.

A-10

WATER QUALITY PROTECTION AND RESTORATION

Improving water quality is the most critical

element in the overall protection and restoration of the

Chesapeake Bay and its tributaries. In 1987, we

committed to achieving a 40 percent reduction in

controllable nutrient loads to the Bay. In i992, we

committed to tributary-specific reduction strategies to

achieve this reduction and agreed to stay at or below

these nutrient loads once attained. We have made

measurable reductions in pollution loading despite

continuing growth and development. Still, we must do

more.

Recent actions taken under the Clean Water Act

resulted in listing portions of the Chesapeake Bay and its

tidal rivers as “impaired waters." These actions have

emphasized the regulatory framework of the Act along

with the ongoing cooperative efforts of the Chesapeake

Bay Program as the means to address the nutrient

enrichment problems within the Bay and its rivers. In

response, we have developed, and are implementing, a

process for integrating the cooperative and statutory

programs of the Chesapeake Bay and its tributaries. We

have agreed to the goal of improving water quality in the

Bay and its tributaries so that these waters may be

removed from the impaired waters list prior to the time

when regulatory mechanisms under Section 303(d) of the

Clean Water Act would be applied.

We commit to achieve and maintain water quality

conditions necessary to support living resources

throughout the Chesapeake Bay ecosystem. Where we

have failed to achieve established water quality goals, we

will take actions necessary to reach and maintain those

goals. We will make pollution prevention a central theme

in the protection of water quality. And we will take

actions that protect freshwater flow regimes for riverine

and estuarine habitats. In pursuing the restoration of

A-11

vital habitats throughout the watershed, we will continue

efforts to improve water clarity in order to meet light

requirements necessary to support SAY We will expand

our efforts to reduce sediments and airborne pollution,

and ensure that the Bay is free from toxic effects on living

resources and human health. We will continue our

cooperative intergovernmental approach to achieve and

maintain water quality goals through cost-effective and —

equitable means within the framework of federal and

state law. We will evaluate the potential impacts of

emerging issues, including, among others, airborne

ammonia and nonpoint sources of chemical contaminants.

Finally, we will continue to monitor water quality

conditions and adjust our strategies accordingly.

GOAL

Achieve and maintain the water quality necessary to

support the aquatic living resources of the Bay and its

tributaries and to protect human health.

Nutrients and Sediments

+ Continue efforts to achieve and maintain the 40

percent nutrient reduction goal agreed to in 1987,

as well as the goals being adopted for the

tributaries south of the Potomac River.

+ By 2010, correct the nutrient- and sediment-

related problems in the Chesapeake Bay and its

tidal tributaries sufficiently to remove the Bay and

the tidal portions of its tributaries from the lis. of

impaired waters under the Clean Water Act. In

order to achieve this:

1. By 2001, define the water quality

conditions necessary to protect aquatic

living resources and then assign load

A-12

reductions for nitrogen and phosphorus to

each major tributary;

2. Using a process parallel to that established

for nutrients, determine the sediment load

reductions necessary to achieve the water

quality conditions that protect aquatic

living resources, and assign load reductions

for sediment to each major tributary by

2001;

3. By 2002, complete a public process to

develop and begin implementation of

revised Tributary Strategies to achieve and

maintain the assigned loading goals;

4. By 2003, the jurisdictions with tidal waters

will use their best efforts to adopt new or

revised water quality standards consistent

with the defined water quality conditions.

Once adopted by the jurisdictions, the

Environmental! Protection Agency will work

expeditiously to review the new or revised

standards, which will then be used as the

basis for removing the Bay and its tidal

rivers from the list of impaired waters; and

5. By 2003, work with the Susquehanna River

Basin Commission and others to adopt and

begin implementing strategies that prevent

the loss of the sediment retention

capabilities of the lower Susquehanna

River dams.

Chemical Contaminants

. We commit to fulfilling the 1994 goal of a

Chesapeake Bay free of toxics by reducing or

eliminating the input of chemical contaminants

A-13

from all controllable sources to levels that result in

no toxic or bioaccumulative impact on the living

resources that inhabit the Bay or on human

health.

By Fall of 2000, reevaluate and revise, as

necessary, the "Chesapeake Bay Basinwide Toxics

Reduction and Prevention Strategy” focusing on:

l. Complementing state and federal

regulatory programs to go _ beyond

traditional point source controls, including

nonpoint sources such as groundwater

discharge and atmospheric deposition, by

using a watershed-based approach; and

2. Understanding the effects and impacts of

chemical contaminants to increase the

effectiveness of management actions.

Through continual improvement of pollution

prevention measures and other voluntary means,

strive for zero release of chemical contaminants

from point sources, including air _ sources.

Particular emphasis shall be placed on achieving,

by 2010, elimination of mixing zones for persistent

or bioaccumulative toxics.

Reduce the potential risk of pesticides to the Bay

by targeting education, outreach and

implementation of Integrated Pest Management

and specific Best Management Practices on those

lands that have higher potential for contributing

pesticide loads to the Bay.

Priority Urban Waters

Support the restoration of the Anacostia River, -

Baltimore Harbor, and Elizabeth River and their

A-14

watersheds as models for urban river restoration

in the Bay basin.

By 2010, the District of Columbia, working with

its watershed partners, will reduce pollution loads

to the Anacostia River in order to eliminate public

health concerns and achieve the living resource,

water quality and habitat goals of this and past

Agreements.

Air Pollution

By 2003, assess the effects of airborne nitrogen

compounds and chemical contaminants on the Bay

ecosystem and help establish reduction goals for

these contaminants.

Boat Discharge

By 2003, establish appropriate areas within the

Chesapeake Bay and its tributaries as “no

discharge zones" for human waste from boats. By

2010, expand by 50 percent the number and

availability of waste pump-out facilities.

By 2006, reassess our progress in reducing the

impact of boat waste on the Bay and its

tributaries. This assessment will include

evaluating the benefits of further expanding no

discharge zones, as well as increasing the number

of pump-out facilities.

SOUND LAND USE

In 1987, the signatories agreed that “there is a

clear correlation between population growth and asso-

ciated development and environmental degradation in

the Chesapeake Bay system." This Agreement reaffirms

that concept and recognizes that more must be dene.

A-15

An additional three million people are expected to

settle in the watershed by 2020. This growth could

potentially eclipse the nutrient reduction and habitat

protection gains of the past. Therefore it is critical that

we consider our approaches to land use in order to ensure

progress in protecting the Bay and its local watersheds.

Enhancing, or even maintaining, the quality of the

Bay while accommodating growth will frequently involve

difficult choices. It will require a renewed commitment to

appropriate development standards. The signatories will

assert the full measure of their authority to limit and

mitigate the potential adverse effects of continued

growth; each however, will pursue this objective within

the framework of its own historic, existing or future land

use practices or processes. Local jurisdictions have been

delegated authority over many decisions regarding

growth and development which have both direct and

indirect effects on the Chesapeake Bay system and its

living resources. The role of local governments in the

Bay's restoration and protection effort will be given

proper recognition and support through state and federal

resources. States will also engage in active partnerships

with local governments in managing growth and

development in ways that support the following goal.

We acknowledge that future development will be

sustainable only if we protect our natural and rural

resource land, limit impervious surfaces and concentrate

new growth in existing population centers or suitable

areas served by appropriate infrastructure. We will work

to integrate environmental, community and economic

goals by promoting more environmentally sensitive forms

of development. We will also strive to coordinate land-

use, transportation, water and sewer and other

infrastructure planning so that funding and policies at all

levels of government do not contribute to poorly planned

growth and development or degrade local water quality

and habitat. We will advance these policies by creating

A-16

partnerships with local governments to protect our

communities and to discharge our duties as trustees in

the stewardship of the Chesapeake Bay. Finally, we will

report every two years on our progress in achieving our

commitments to promote sound land use.

GOAL

Develop, promote and achieve sound land use practices

which protect and restore watershed resources and water

quality, maintain reduced pollutant loadings for the Bay

and its tributaries, and restore and preserve aquatic

living resources.

Land Conservation

+ By 2001, complete an assessment of the Bay's

resource lands including forests and farms,

emphasizing their role in the protection of water

quality and critical habitats, as well as cultural

and economic viability.

+ Provide financial assistance or new revenue

sources to expand the use of voluntary and

market-based mechanisms such as easements,

purchase or transfer of development rights and

other approaches to protect and preserve natural

resource lands.

¢ Strengthen programs for land acquisition and

preservation within each state that are supported

by funding and target the most valued lands for

protection. Permanently preserve from

development 20 percent of the land area in the

watershed by 2010.

+ Provide technical and financial assistance to local

governments to plan for or revise. plans,

ordinances and subdivision regulations to provide

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for the conservation and sustainable use of the

forest and agricultural lands.

In cooperation with local governments, develop

and maintain in each jurisdiction a strong GIS

system to track the preservation of resource lands

and support the implementation of sound land use

practices.

Development, Redevelopment and Revitalization

By 2012, reduce the rate of harmful sprawl

development of forest and agricultural land in the

Chesapeake Bay’ watershed by 30 percent

measured as an average over five years from the

baseline of 1992-1997, with measures and progress

reported regularly to the Chesapeake Executive

Council.

By 2005, in cooperation with local government,

identify and remove state and local impediments

to low impact development designs to encourage

the use of such approaches and minimize water

quality impacts.

Work with communities and local governments to

encourage sound land use planning and practices

that address the impacts of growth, development

and transportation on the watershed.

By 2002, review tax policies to identify elements

which discourage sustainable development

practices or encourage undesirable growth

patterns. Promote the modification of such policies

and the creation of tax incentives which promote

the conservation of resource lands and encourage

investments consistent with sound growth

management principles.

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The jurisdictions will promote redevelopment and

remove barriers to investment in underutilized

urban, suburban and rural communities by

working with localities and development interests.

By 2002, develop analytical tools that will allow

local governments and communities to conduct

watershed-based assessment of the impacts of

growth, development and transportation decisions.

By 2002, compile information and guidelines to

assist local governments and communities to

promote ecologically-based designs in order to

limit impervious cover in undeveloped and

moderately developed watersheds and reduce the

impact of impervious cover in highly developed

watersheds.

Provide information to the development

community and others so they may champion the

application of sound land use practices.

By 2003, work with local governments and

communities to develop land-use management and

water resource protection approaches. that

encourage the concentration of new residential

development in areas supported by adequate

water resources and infrastructure to minimize

impacts on water quality.

By 2004, the jurisdictions will evaluate local

implementation of storm water, erosion control

and other locally-implemented water quality

protection programs that affect the Bay system

and ensure that these programs are being

coordinated and applied effectively in order to

minimize the impacts of development.

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Working with local governments and others,

develop and promote wastewater treatment

options, such as nutrient reducing septic systems,

which protect public health and minimize impacts

to the Bay's resources.

Strengthen brownfield redevelopment. By 2010,

rehabilitate and restore 1,050 brownfield sites to

productive use.

Working with local governments, encourage the

development and implementation of emerging

urban storm water retrofit practices to improve

their water quantity and quality function.

Transportation

By 2002, the signatory jurisdictions will promote

coordination of transportation and land use

planning to encourage compact, mixed use

development patterns, revitalization in existing

communities and transportation strategies that

minimize adverse effects on the Bay and its

tributaries.

By 2002, each state will coordinate its

transportation policies and programs to reduce the

dependence on automobiles by incorporating travel

alternatives such as telework, pedestrian, bicycle

and transit options, as appropriate, in the design

of projects so as to increase the availability of

alternative modes of travel as measured by

increased use of those alternatives.

Consider the _ provisions of the federal

transportation statutes for opportunities to

purchase easements to preserve resource lands

adjacent to rights of way and special efforts for

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stormwater management on both new and

rehabilitation projects.

Establish policies and incentives which encourage

the use of clean vehicle and other transportation

technologies that reduce emissions.

Public Access

By 2010, expand by 30 percent the system of

public access points to the Bay, its tributaries and

related resource sites in an environmentally

sensitive manner by working with state and

federal agencies, local governments § and

stakeholder organizations.

By 2005, increase the number of designated water

trails in the Chesapeake Bay region by 500 miles.

Enhance interpretation materials that promote

stewardship at natural, recreational, historical

and cultural public access points within the

Chesapeake Bay watershed.

By 2003, develop partnerships with at least 30

sites to enhance place-based interpretation of Bay-

related resources and themes and stimulate

volunteer involvement in resource restoration and |

conservation.

STEWARDSHIP AND COMMUNITY ENGAGEMENT

The Chesapeake Bay is dependent upon the

actions of every citizen in the watershed, both today and

in the future. We recognize that the cumulative benefit

derived from community-based watershed programs is

essential for continued progress toward a healthier

Chesapeake Bay. Therefore, we commit ourselves to

engage our citizens by promoting a broad conservation

ethic throughout the fabric of community life, and foster

A-21

within all citizens a deeper understanding of their roles

as trustees of their own local environments. Through

their actions, each individual can contribute to the health

and well-being of their neighborhood streams, rivers and

the land that surrounds them, not only as ecological

stewards of the Bay but also as members of watershed-

wide communities. By focusing individuals on local

resources, we will advance Baywide restoration as well.

We recognize that the future of the Bay also

depends on the actions of generations to follow.

Therefore, we commit to provide opportunities for

cooperative learning and action so that communities can

promote local environmental quality for the benefit and

enjoyment of residents and visitors. We will assist

communities throughout the watershed in improving

quality of life, thereby strengthening local economies and

connecting individuals to the Bay through their shared

sense of responsibility. We will seek to increase the

financial and human resources available to localities to

meet the challenges of restoring the Chesapeake Bay.

GOAL

Promote individual stewardship and assist individuals,

community-based organizations, businesses, local

governments and schools to undertake initiatives to

achieve the goals and commitments of this agreement.

Education and Outreach

° Make education and outreach a priority in order to

achieve public awareness and _ personal

involvement on behalf of the Bay and local

watersheds.

+ Provide information to enhance the ability of

citizen and community groups to participate in

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Bay restoration activities on their property and in

their local watershed. -

Expand the use - of new communications

technologies to provide a comprehensive and

interactive source of information on _ the

Chesapeake Bay and its watershed for use by

public and technical audiences. By 2001, develop

and maintain a web-based clearing house of this

information specifically for use by educators.

Beginning with the class of 2005, provide a

meaningful Bay or stream outdoor experience for

every school student in the watershed before

graduation from high school.

Continue to forge partnerships with the

Departments of Education and institutions of

higher learning in each jurisdiction to integrate

information about the Chesapeake Bay and its

watershed into school curricula and university

programs.

Provide students and teachers alike with

opportunities to directly participate -in local

restoration and protection projects, and to support

stewardship efforts in schools and on _ school

property.

By 2002, expand citizen outreach efforts to more

specifically include minority populations by, for

example, highlighting cultural and historical ties

to the Bay, and providing multi-cultural and

multilingual educational materials on stewardship

activities and Bay information.

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Community Engagement

Jurisdictions will work with local governments to

identify small watersheds where community-based

actions are essential to meeting Bay restoration

goals—in particular wetlands, forested buffers,

stream corridors and public access and work with

local governments and community organizations

to bring an appropriate range of Bay program

resources to these communities.

Enhance funding for locally-based programs that

pursue restoration and protection projects that

will assist in the achievement of the goals of this

and past agreements.

By 2001, develop and maintain a clearing house

for information on local watershed restoration

efforts, including financial and _ technical

assistance.

By 2002, each signatory jurisdiction will offer

easily-accessible information suitable for

analyzing environmental conditions at a small

watershed scale.

Strengthen the Chesapeake Bay Program's ability

to incorporate local governments into the policy

decision making process. By 2001, complete a

revaluation of the Local Government Participation

Action Plan and make necessary changes in Bay

program and jurisdictional functions based upon

the reevaluation.

Improve methods of communication with and

among local governments on Bay issues and

provide adequate opportunities for discussion of

key issues.

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By 2001, identify community watershed

organizations and partnerships. Assist in

establishing new organizations and partnerships

where interest exists. These partners will be

important to successful watershed management

efforts in distributing information to the public,

and engaging the public in the Bay restoration

and preservation effort.

By 2005, identify specific actions to address the

challenges of communities where historically poor

water quality and environmental conditions have

contributed to disproportional health, economic or

social impacts.

Government by Example

By 2002, each signatory will put in place processes

to:

l. Ensure that all properties owned, managed

or leased by the signatories are developed,

redeveloped and used in a manner

consistent with all relevant goals,

commitments and _ guidance of this

Agreement.

2. Ensure that the design and construction of

signatory-funded development and

redevelopment projects are consistent with

all relevant goals, commitments and

guidance of this Agreement.

Expand the use of clean vehicle technologies and

fuels on the basis of emission reductions, so that a

significantly greater percentage of each signatory

government's fleet of vehicles use some form of

clean technology.

A-25

By 2001, develop an Executive Council Directive to

address stormwater management to _ control

nutrient, sediment and chemical contaminant

runoff from state, federal and District owned land.

Partnerships

Strengthen partnerships with Delaware, New

York and West Virginia by promoting

communication and by seeking agreements on

issues of mutual concern.

Work with non-signatory Bay states to establish

links with community-based organizations

through out the Bay watershed.

BY THIS AGREEMENT, we rededicate ourselves

to the restoration and protection of the ecological

integrity, productivity and beneficial uses of the

Chesapeake Bay system. We reaffirm our commitment to

previously-adopted Chesapeake Bay Agreements and

their supporting policies. We agree to report annually to

the citizens on the state of the Bay and consider any

additional actions necessary.

DATE _ June 28, 2000

FOR THE COMMONWEALTH

OF VIRGINIA /s/

FOR THE STATE OF MARYLAND /s/

FOR THE COMMONWEALTH OF

PENNSYLVANIA /s/

FOR THE DISTRICT OF COLUMBIA /s/

A-26

FOR THE UNITED STATES

OF AMERICA

FOR THE CHESAPEAKE BAY

COMMISSION

/s/_

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Chesapeake Bay Program

1983 Chesapeake Bay Agreement

We recognize that the findings of the Chesapeake

Bay Program have shown an historical decline in the

living resources of the Chesapeake Bay and that a

cooperative approach is needed among the Environmental

Protection Agency (EPA), the State of Maryland, the

Commonwealths of Pennsylvania and Virginia, and the

District of Columbia (the States) to fully address the

extent, complexity, and sources of pollutants entering the

Bay. We further recognize that EPA and the States share

the responsibility for management decisions and

resources regarding the high priority issues of the

Chesapeake Bay.

Accordingly, the States and EPA agree to the

following actions:

l. A Chesapeake Executive Council will be

established which will meet at least twice

yearly to assess and oversee’ the

implementation of coordinated plans to

improve and protect the water quality and

living resources of the Chesapeake Bay

estuarine systems. The Council will consist

of the appropriate Cabinet designees of the

Governors and the Mayor of the District of

Columbia and the Regional Administrator

of EPA. The Council will be initially

chaired by EPA and will report annually to

signatories of this Agreement

The Chesapeake Executive Council will

establish an implementation committee of

agency representatives who will meet as

needed to coordinate technical matters and

to coordinate the development and

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evaluation of management plans. The

Council may appoint such ex officio

nonvoting members as deemed appropriate.

3. A liaison office for Chesapeake Bay

activities will be established at EPA's

Central Regional Laboratory in Annapolis,

Maryland, to advise and support the

Council and committee.

DATE: December 9, 1983

SIGNERS:

For the Commonwealth Charles S. Robb,

of Virginia Governor

For the State Harry Hughes,

of Maryland Governor

For the Commonwealth Richard Thornburgh,

of Pennsylvania Governor

For the District Marion Barry,

of Columbia Mayor

For the United States William Ruckleshaus,

of America Administrator,

Environmental Protection

Agency

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1987 CHESAPEAKE BAY AGREEMENT

THE CHESAPEAKE BAY IS A NATIONAL TREASURE

and a resource of worldwide significance. Its ecological,

economic, and cultural importance are felt far beyond its

waters and the communities that line its shores. Man's

use and abuse of its bounty, however, together with the

continued growth and development of population in its

watershed, have taken a toll on the Bay system. In recent

decades, the Bay has suffered serious declines in quality

and productivity. © REPRESENTING the Federal

government and the States which surround the

Chesapeake Bay, we acknowledge our stake in the

resources of the Bay and accept our share of

responsibility for its current condition. We are

determined that this decline will be reversed. In

response, all of our jurisdictions have embarked on

ambitious programs to protect our shared resource and

restore it to a more productive state. 0 JN 1980, the

legislatures of Virginia and Maryland established the

Chesapeake Bay Commission to coordinate interstate

planning and programs from a legislative perspective. In

1985, Pennsylvania joined the Commission. And, in 1983,

Virginia, Maryland, Pennsylvania, the District of.

Columbia, the U.S. Environmental Protection Agency and

the Chesapeake Bay Commission formally agreed to a

cooperative approach to this undertaking and established

specific mechanisms for its coordination. Since 1983, our

joint commitment has carried us to new levels of

governmental cooperation and scientific understanding.

It has formed a firm base for the future success of this

long-term program. The extent and complexity of our task

now cal] for an expanded and refined agreement to guide

our efforts toward the twenty-first century.

0 RECOGNIZING that the Chesapeake Bay's importance

transcends regional boundaries, we commit to managing

the Chesapeake Bay as an integrated ecosystem and

pledge our best efforts to achieve the goals in this

Agreement. We propose a series of objectives that will

C-2

establish a policy and institutional framework for

continued cooperative efforts to restore and protect

Chesapeake Bay. We further commit to specific actions to

achieve those objectives. The implementation of these

commitments will be reviewed annually and additional

commitments developed as needed.

GOALS AND PRIORITY COMMITMENTS

THIS NEW AGREEMENT CONTAINS Goals and

Priority Commitments for Living Resources; Water

Quality; Population Growth and Development; Public

Information, Education and Participation; Public Access;

and Governance. 0 The parties to this 1987 Agreement

are the U.S. Environmental Protection Agency

representing the Federal government, the District of

Columbia, the State of Maryland and the

Commonwealths of Pennsylvania and _ Virginia

(hereinafter the "States") and the Chesapeake Bay

Commission. This Agreement may be amended and

attachments added in the future by unanimous action of

the Chesapeake Executive Council.

LIVING RESOURCES

GOAL: PROVIDE FOR THE RESTORATION AND

PROTECTION OF THE LIVING RESOURCES, THEIR

HABITATS AND ECOLOGICAL RELATIONSHIPS. The

productivity, diversity and abundance of living resources

are the best ultimate measures of the Chesapeake Bay's

condition. These living resources are the main focus of the

restoration and protection effort. Some species of shellfish

and finfish are of immense commercial and recreational

value to man. Others are valuable because they are part

of the vast array of plant and animal life that make up

the Chesapeake Bay ecosystem on which all species

depend. We recognize that the entire natural system

must be healthy and productive. We will determine the

essential elements of habitat and environmental quality

C-3

necessary to support living resources and will see that

these conditions are attained and maintained. We will

also manage the harvest of and monitor populations of

commercially, recreationally and ecologically valuable

species to ensure sustained, viable stocks. We recognize

that to be successful, these actions must be carried out in

an integrated and coordinated manner across the whole

Bay system.

OBJECTIVES:

Restore, enhance, protect and manage submerged

aquatic vegetation.

Protect, enhance and restore wetlands, coastal

sand dunes, forest buffers and other shoreline and

riverline systems important to water quality and

habitat.

Conserve soil resources and reduce erosion and

sedimentation to protect Bay habitat.

_ Maintain freshwater flow regimes necessary to

sustain estuarine habitats, including, where

appropriate, establishing minimum in-stream

flows.

Develop compatible Bay-wide stock assessment

programs.

Develop Bay-wide fisheries management

strategies and develop complementary state

programs and plans to protect and restore the

finfish and shellfish stocks of the Bay, especially

the freshwater and estuarine spawners.

Provide for the restoration of shellfish stocks in

the Bay, especially the abundance of commercially

important species.

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) Restore, enhance and protect waterfowl and

wildlife.

COMMITMENT:

TO ACHIEVE THIS GOAL WE AGREE:

)

by January 1988, to develop and adopt guidelines

for the protection of water quality and habitat

conditions necessary to support the living

resources found in the Chesapeake Bay system,

and to use these guidelines in the implementation

of water quality and habitat protection programs.

by July 1988, to develop, adopt and begin to

implement a Bay-wide plan for the assessment of

commercially, recreationally and __ selected

ecologically valuable species.

by July 1988, to adopt a schedule for the

development of Bay-wide resource management

strategies for commercially, recreationally and

selected ecologically valuable species.

by July 1989, to develop, adopt and begin to

implement Bay-wide management plans for

oysters, blue crabs and American Shad. Plans for

other major commercially, recreationally and

ecologically valuable species should be initiated by

1990.

by December 1988, to develop a Bay-wide policy for

the protection of tidal and non-tidal wetlands.

Provide for fish passage at dams, and remove

stream blockages wherever necessary to restore

natural passage for migratory fish.

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WATER QUALITY

GOAL: REDUCE AND CONTROL POINT AND NON-

POINT SOURCES OF POLLUTION TO ATTAIN THE

WATER QUALITY CONDITION NECESSARY TO

SUPPORT THE LIVING RESOURCES OF THE BAY.

The improvement and maintenance of water quality are

the single most critical elements in the over-all

jon-and protection of the Chesapeake Bay. Water

is the medium in which all living resources of the bay

live, and their ability to survive and flourish is directly

dependent on it. 0 To ensure the productivity of the living

resources of the Bay, we must clearly establish the water

quality conditions they require and must then attain and

maintain those conditions. Foremost, we must improve or

maintain dissolved oxygen concentrations in the Bay and

its tributaries through a continued and expanded

commitment to the reduction of nutrients from both point

and nonpoint sources. We must do the same for toxics and

conventional pollutants. To be effective, we will develop

basin-wide implementation plans for the control and

reduction of pollutants which are based on our best

understanding (including that derived from modeling) of

the Bay and its tributaries as an integrated system.

OBJECTIVES:

Provide timely construction and maintenance of

public and private sewerage facilities to assure

control of pollutant discharges.

Reduce the discharge of untreated or inadequately

treated sewage into Bay waters from such sources

as combined sewer overflows, leaking sewage

systems, and failing septic systems.

Evaluate and _ institute, where appropriate,

alternative technologies for point source pollution

control, such as biological nutrient removal and

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land application of effluent to reduce pollution

loads in a cost-effective manner.

Establish and enforce pollutant limitations to

ensure compliance with water quality laws.

Reduce the levels of nonpoint sources of pollution.

Reduce sedimentation by strengthening

enforcement of existing control regulations.

Eliminate pollutant discharges from recreational

boats.

Identify and control toxic discharges to the Bay

system, including metals and toxic organics, to

protect water quality, aquatic resources and

human health through implementation and

enforcement of the states’ National Pollutant

Discharge Elimination System permit programs

and other programs.

Reduce chlorine discharges in critical finfish and

shellfish areas. Minimize water pollution incidents

and provide adequate response to pollutant spills.

Manage sewage sludge, dredged spoil and

hazardous wastes to protect the Bay system.

Manage groundwater to protect the water quality

of the Bay.

Quantify the impacts and identify the sources of

atmospheric inputs on the Bay system.

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COMMITMENT:

- ‘TO ACHIEVE THIS GCAL WE AGREE:

by July 1988, to develop, adopt and begin

implementation of a _ basin-wide strategy to

equitably achieve by the year 2000 at least a 40

percent reduction of nitrogen and phosphorus

entering the main stem of the Chesapeake Bay.

The strategy should b« based on agreed upon 1985

point source loads and on nonpoint loads in an

average rainfall year.

by December 1991, to re-evaluate the 40 percent

reduction target based on the results of modeling,

research, monitoring and other information

available at that time.

by December 1988, to develop, adopt and begin

implementation of a _ basin-wide strategy to

achieve a reduction of toxics consistent with the

Water Quality Act of 1987 which will ensure

protection of human health and living resources.

The strategy will cover both point and nonpoint

sources, monitoring protocols, enforcement of

pretreatment regulations and methods for dealing

with in-place toxic sediments where necessary.

by July 1988, to develop and adopt, as required by

the Water Quality Act of 1987, a basin-wide

implementation strategy for the management and

control of conventional pollutants entering the

Chesapeake Bay system from point and nonpoint

sources.

by July 1988, the Environmental Protection

Agency, acting for the federal government, will

develop, adopt and begin implementation of a

strategy for the control and reduction of point and

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nonpoint sources of nutrient, toxic and

conventional pollution from all federal facilities.

POPULATION GROWTH AND DEVELOPMENT

GOAL: PLAN FOR AND MANAGE THE ADVERSE

ENVIRONMENTAL EFFECTS OF HUMAN

POPULATION GROWTH AND LAND DEVELOPMENT

IN THE CHESAPEAKE BAY WATERSHED. There is a

clear correlation between population growth and

associated development and environmental degradation

in the Chesapeake Bay system. Enhancing, or even

maintaining, the quality of the Bay while accommodating

growth will fre-quently involve difficult decisions and

restrictions and will require continued and enhanced

commitment to proper development standards. The states

and the federal government will assert the full measure

of their authority to mitigate the potential adverse effects

delegated authority over many decisions regarding

growth and development which have both direct and

indirect effects on the Chesapeake Bay system and its

living resources. The role of local governments in the

restoration and protection effort will be given proper

recognition and support through state and federal

resources. > States will engage in an active partnership

with local governments to establish policy guidelines to

manage growth and development.

OBJECTIVES:

> Designate a_ state-level office responsible for

ensuring consistency with this Agreement among

the agencies responsible for comprehensive

oversight of development activity, including

infrastructure planning, capital budgets, land

preservation and waste management activities.

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Provide local governments with financial and

technical assistance to continue and expand their

management efforts.

Consult with local government representatives in

the development of Chesapeake Bay restoration

and protection plans and programs.

Identify and give public recognition to innovative

and otherwise noteworthy examples of local

government restoration and protection-related

programs.

Assure that government development projects

meet all environmental requirements.

Promote, among local, state and_ federal

governments, and the private sector, the use of

innovative techniques to avoid and, where

necessary, mitigate the adverse impacts of growth.

COMMITMENT:

TO ACHIEVE THIS GOAL WE AGREE:

*» commission a panel of experts to report, by

Jecember 1988, on anticipated population growth

and land development patterns in the Bay region

through the year 2020, the infrastructure

requirements necessary to serve growth and

development, environmental programs needed to

improve Bay resources while accommodating

growth, alternative means of managing and

directing growth and alternative mechanisms for

financing governmental services and

environmental controls. The panel of experts will

consist of twelve members: three each from

Virginia, Maryland and Pennsylvania, and one

each from the District of Columbia, Environmental

C-10

Protection Agency and the Chesapeake Bay

Commission.

) by January 1989, to adopt development policies

and guidelines designed to reduce adverse impacts

on the water quality and living resources of the

Bay, including minimum best management

practices for development and to cooperatively

assist local governments in evaluating land-use

and development decisions within their purview,

consistent with the policies and guidelines.

) to evaluate state and federal development projects

in light of their potential impacts on the water

quality and living resources of the Chesapeake

Bay, and design and carry out each state and

federal development project so as to serve as a

model for the private sector in terms of land-use

practices.

) by December 1988, to develop a strategy to provide

incentives, technical assistance and guidance to

local governments to actively encourage them to

incorporate protection of tidal and non-tidal wet-

lands and fragile natural areas in their land-use

planning, water and sewer planning, construction

and other growth-related management processes.

GOAL: PROMOTE GREATER UNDERSTANDING

AMONG CITIZENS ABOUT THE CHESAPEAKE BAY

SYSTEM, THE PROBLEMS FACING IT AND

POLICIES AND PROGRAMS DESIGNED TO HELP IT,

AND TO FOSTER INDIVIDUAL RESPONSIBILITY

AND STEWARDSHIP OF THE BAY'S RESOURCES.

GOAL: PROVIDE INCREASED OPPORTUNITIES FOR

CITIZENS TO PARTICIPATE IN DECISIONS AND

PROGRAMS AFFECTING THE BAY. The understanding

and support of the general public and interest groups are

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essential to sustaining the long-term commitment to the

restoration and protection of the Chesapeake Bay system

and its living resources. Citizens must have opportunities

to learn about that system and associated management

policies and programs and must be given opportunities to

contribute ideas about how best to manage that natural

system.

OBJECTIVES:

<->

Provide timely information on the progress of the

restoration program.

Assure a continuing process of public input and

participation in policy decisions affecting the Bay.

Enhance Bay-oriented education opportunities to

increase public awareness and understanding of

the Bay system.

0 Provide curricula and field experiences for

students.

) Promote opportunities to involve citizens directly

in Bay restoration efforts.

> Coordinate the production and distribution of Bay

information and education materials.

COMMITMENT:

TO ACHIEVE THESE COALS WE AGREE:

to conduct coordinated education and information

programs to inform the general public, local

governments, business, students, community

associations and others of their _ roles,

responsibilities and opportunities in_ the

restoration and protection effort, and to promote

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public involvement in the management and

decision-making process.

to provide for public review and comment on all

implementation plans developed pursuant to this

agreement.

by March 1988, to develop state and federal

communication plans for public information,

education and participation, and by May 1988, to

develop a unified, Bay-wide communication plan.

to promote Chesapeake Bay restoration efforts by

establishing an annual Bay-wide series of

Chesapeake Bay Watershed Awareness events, to

include a Governor's Cup Fishing Tournament.

PUBLIC ACCESS

GOAL: PROMOTE INCREASED OPPORTUNITIES

FOR PUBLIC APPRECIATION AND ENJOYMENT OF

THE BAY AND ITS TRIBUTARIES. Interest in and

commitment to the Chesapeake Bay and its tributaries

are greatly affected by personal contact with that natural

system. Consequently, improved opportunities for access

to the shores and waters of the system are essential if

public awareness and support are to be maintained and

increased.

OBJECTIVES:

_—Y

Improve and maintain access to the Bay including

public beaches, parks and forested lands.

Improve opportunities for recreational and

commercial fishing.

Secure shoreline acreage to maintain open space

and provide opportunities for passive recreation.

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> Secure necessary acreage to protect unique habitat

and environmentally sensitive areas.

COMMITMENT:

TO ACHIEVE THIS GOAL WE AGREE:

0 to intensify our efforts to improve and expand

public access opportunities being made available

by the federal government, the states, and local

governments, by developing a strategy, which -

includes an inventory of current access

opportunities by July 1988, which targets state

and federal actions to secure additional tidal

shorefront acres by December 1990 along the Bay

and its tributaries.

> by December 1988, to prepare a comprehensive

guide to access facilities and the natural resource

system for the tidal Chesapeake Bay.

GOVERNANCE

GOAL: SUPPORT AND ENHANCE THE PRESENT

COMPREHENSIVE, COOPERATIVE AND

COORDINATED APPROACH TOWARD

MANAGEMENT OF THE CHESAPEAKE BAY

SYSTEM.

GOAL: PROVIDE FOR CONTINUITY OF

MANAGEMENT EFFORTS AND PERPETUATION OF

COMMITMENTS NECESSARY 10 ENSURE LONG-

TERM RESULTS. The cooperation necessary to sustain

an effective Chesapeake Bay restoration and protection

effort requires a formal working arrangement involving

the states and the federal government. That institutional

arrangement must allow for and promote voluntary

individual actions coordinated within a_ well-defined

context of the individual responsibilities and authorities

of each state and the federal government. It must also

C-14

ensure that actions which require a concerted, Bay-wide

approach be addressed in common and_ without

duplication. One of the principal functions of the

coordinating institution is to develop strategic plans and

oversee their implementation, based on advice from the

public, from the scientific community and from user

leadership to marshal public support, and it must be

accountable for progress made under the terms of this

agreement. The coordinating body will continue to be

called the Chesapeake Executive Council. The

Chesapeake Executive Council shall be comprised of the

Governors, the Mayor of the District of Columbia, the

Administrator of the Environmental Protection Agency

and the Chairman of the Chesapeake Bay Commission.

The chairmanship of the Council shall rotate annually as

determined by the Council. The term of the Chairman

shall be one year. The Administrator of the

Environmental Protection Agency shall represent the

federal government and the Chairman of the Chesapeake

Bay Commission shall represent its members.

OBJECTIVES:

> Continue to demonstrate strong, regional

leadership by convening an annual public meeting

of the Chesapeake Executive Council.

0 Continue to support the Chesapeake Executive

Council and provide for technical and public policy

advice by maintaining strong advisory committees.

Coordinate Bay management activities and

develop and maintain effective mechanisms for

accountability.

0 The Chesapeake Bay Liaison Office shall provide

staff support to the Chesapeake Executive Council

by providing analyses and data management, and

by generating reports related to the overall

C-15

program. The Implementation Committee shall

provide guidance to the CBLO Director in all

matters relating to support for the Council and

their supporting committees, subcommittees and

work groups including the development of all

plans and other documents associated with the

Council.

Examine the feasibility of joint funding support of

the Chesapeake Bay Liaison Office.

Track and evaluate activities which may affect

estuarine water quality and resources and report

at least annually.

Develop and maintain a coordinated Chesapeake

Bay data management system.

Continue to implement a coordinated Bay-wide

monitoring system and to develop a Bay-wide

living resources monitoring system.

Develop and implement a coordinated Bay-wide

research program.

COMMITMENT:

TO ACHIEVE THESE GOALS WE AGREE:

)

to develop an annual Chesapeake Bay work plan

endorsed by the Chesapeake Executive Council.

to continue to support Bay-wide environmental]

monitoring and research to provide the technical

and scientific information necessary to support

management decisions.

to strengthen the Chesapeake Bay Liaison Office

by assigning, as appropriate, staff persons from

C-16

each jurisdiction and from participating federal

agencies to assist with the technical support

functions of that office.

> by July 1988, to develop and adopt a

comprehensive research plan to be evaluated and

updated annually to address the technical needs of

the Chesapeake Bay Program.

0 by July 1988, develop a Bay-wide monitoring plan

for selected commercially, recreationally and

ecologically valuable species.

> by March 1988, to establish a local government

advisory committee to the Chesapeake Executive

Council and charge that committee to develop a

strategy for local government participation in the

Bay program.

> to consider and review the feasibility of

establishing an independent Chesapeake Bay

Executive Board.

> by July 1988, the Environmental Protection

Agency, acting for the federal government, will

develop, a coordinated, federal agency workplan

which identifies specific federal programs to be

integrated into a coordinated federal effort to

support the restoration of the Chesapeake Bay.

By THIS AGREEMENT, we reaffirm our commitment to

restore and protect the ecological integrity, productivity

and beneficial uses of the Chesapeake Bay system. We

agree to report in January 1989 on progress made in

fulfilling the commitments in this agreement, and to

consider at that time additional commitments. The

implementation strategies which will be developed

pursuant to this agreement will be appended as annexes,

C-17

and annual reports will include an accounting of progress

made on each strategy.

December 15, 1987

(Date)

FOR THE COMMONWEALTH

OF VIRGINIA /s/

FOR THE STATE OF MARYLAND /s/

FOR THE COMMONWEALTH OF

PENNSYLVANIA /s/

FOR THE UNITED STATES

OF AMERICA /s/

FOR THE DISTRICT OF COLUMBIA /s/

FOR THE CHESAPEAKE BAY

COMMISSION _/s/

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G-1

H-1

MEMORANDUM OF UNDERSTANDING

AMONG

the State of Delaware,

the District of Columbia,

the State of Maryland,

the State of New York,

the Commonwealth of Pennsylvania,

the Commonwealth of Virginia,

the State of West Virginia,

and the United States

Environmental Protection Agency

REGARDING

Cooperative Efforts for the Protection of the

Chesapeake Bay and Its Rivers

WHEREAS, the Chesapeake Bay is a National

Treasure for which we are responsible, due to our

stewardship of the 64,000 square miles of land in its

watershed, and the 111,000 miles of creeks, streams and

rivers which run through our jurisdictions and ultimately

into its waters; and,

WHEREAS, over the years the Chesapeake Bay's

remarkable ecosystem has been impaired by the excess of

nutrients and sediments flowing into it through its

tributaries; and,

WHEREAS, the Chesapeake Bay Program, an

internationally-recognized intergovernmental effort has

made measurable strides toward the restoration of the

Bay and its living resources; and

WHEREAS, that effort has been notable for its

reliance on cooperative and consensus-based approaches

for its greatest successes; and

H-2

WHEREAS, despite efforts to date, the tidal rivers

and the Bay remain on the Clean Water Act list of

impaired waters thereby requiring establishment of a

total maximum daily load by May 2011 unless those

waters meet applicable water quality standards by 2010;

and

WHEREAS, we have developed a process, based

on advanced science and data acquisition, which

integrates the cooperative and statutory water quality

programs applicable to the Chesapeake Bay and its tidal

tributaries, and enhances through watershed-wide

partnership the ability to restore the Bay's living

resources and meet the necessary water quality

standards;

NOW, THEREFORE, we, the undersigned

executives representing the District, state and Federal

entities with responsibility for the quality of the waters

flowing into the Chesapeake Bay agree that we will:

. Work cooperatively to achieve the nutrient

and sediment reduction targets that we

agree are necessary to achieve the goals of

a clean Chesapeake Bay by 2010, thereby

allowing the Chesapeake and its tidal

tributaries to be removed from the list of

impaired waters.

° Provide for an _ inclusive, open and

comprehensive public participation process.

. Collaborate on the development and use of

innovative measures such as effluent

trading, cooperative implementation

mechanisms, and expanded interstate

agreements to achieve the necessary

reductions.

H-3

By this Agreement, we will work toward our goals

in a spirit open to others, welcome new ideas, pursue

fairness and equity, seek the most cost effective solutions,

encourage collaborative approaches, and always be

committed to the common goal of a healthy and

productive Chesapeake Bay and its rivers. We agree to

report annually to the citizens on the progress toward

achieving the goals of this agreement.

FOR THE STATE OF DELAWARE isi

FOR THE DISTRICT OF COLUMBIA isi

FOR THE STATE OF MARYLAND af

FOR THE STATE OF NEW YORK /s/

FOR THE COMMONWEALTH OF

PENNSYLVANIA isi __

FOR THE COMMONWEALTH OF

VIRGINIA _isi/

FOR THE STATE OF

WEST VIRGINIA Is/

FOR THE UNITED STATES

ENVIRONMENTAL PROTECTION

AGENCY =

—_—_—_——

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FT tweed

‘to

Nos. 04-1034, 04-1384——=

In The

Supreme Court of the United States

RAPANOS, ef al., Petitioners,

Vv.

UNITED STATES, Respondent.

CARABELL, ef al., Petitioners,

Vv.

U. S. Army Corps of Engineers, et al., Respondents.

On Writ of Certiorari

to the United States Court of Appeals

For the Sixth Circuit

Brief of Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

In Support of Petitioners

Edwin Meese ITI John C. Eastman

214 Massachusetts Ave. N.E Counsel of Record

Washington D.C. 20002 The Claremont Institute Center

for Constitutional Jurisprudence

c/o Chapman Univ. School of Law

One University Dr.

Orange, CA 92866

(714) 628-2500

Counsel for Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

QUESTIONS PRESENTED

Does extension of Clean Water Act jurisdiction to every

intrastate wetland with any sort of hydrological connec-

tion to navigable waters, no matter how tenuous or re-

mote the connection, exceed Congress’ constitutional

power to regulate commerce among the states?

(i)

TABLE OF CONTENTS

ee i

Ce Ee FD crtrrtetercensinigineimennasiarticncmmmmenes iil

INTEREST OF AMICUS CURIAE..............0ssssssesesessssesesseeeees ]

SUMMARY OF ARGUMENT ............:ccccsccsssssssesessseseseeseees 3

FEUEEIGS ccctsinenecnatnneioranianinninesinemmnesisgegecialincen 5

I. By Interpreting the Clean Water Act to Cover

Isolated Wetlands, the Corps Has Ignored the

Princirse of Enumerated Powers, a Principle

Which the Founders Believed to Be Essential to

ii isscciaesepehinsactieilbhdinbanninncsiduesiitbissiiabichieesniigiibeivasiuuneteietitin 5

II. The Expansive Application of the Clean Water

Act to Isolated Wetlands Is Neither a Regulation

of Commerce Nor a Necessary and Proper Means

of Giving Effect to a Regulation of Commerce. ......... 11

III. Even under the expanded view of the Commerce

Clause taken in this Court’s modern-era

precedents, the Corps’ expansive claims of

jurisdiction exceed the outer limits of the power

i rE since ccctapschinctinnveiesntenciantinninriiaiain 17

IV.The Department of Justice Should Have

Confessed Error Once This Court Issued Its

Se NUE: aitnscnscctsinassicaganscpemiectatahidanianiemnpiitens 24

ee ccccnpsnnnynspntasnpnncesanetenenninianmvesnemnsenntanttonmavunpel 26

iii

TABLE OF AUTHORITIES

‘CASES

A.L.A. Schecter Poultry Corp. v. United States,

Sa: SUI IIIT ccccisncsetppaciteaceatidimiantnionindeiabeiiesiitnsmenadatiahiiin 13

Alden v. Maine,

SE, SII iors crnsnscicetaicnasienainiearentinnineoebioial 3, 22

Arizona v. Evans,

eee Be cicerirenscnisientntteniintaiaicinniensitebinatiinabinditig 9

Atascadero State Hospital v. Scanlin,

ee Be intcecicntcinevitiiiinhnsidlanicniitiesinninnsepnnual 9

Baldwin v. Fish and Game Comm'n of Mont.,

ee Se ee scincietnsthintsinisicienstinndiniiienasiibiniinisemasiicns 13

Bartkus v. People of State of Illinois,

es Te cceermnnninscdinnnnimvienniinéliemmnetia 5

Bowman v. Railway Co., .

Se ee eriisenssesinctniniibiiidindastpreneninneiiasaihhinnpnanta 13

Brown v. Maryland,

25 U.S. (12 Wheat.) 419 (1827) ........ccccrcscrcsccesseveresseeseess 13

Brzonkala v. Virginia Polytechnic Institute and State

University, 169 F.3d 820 (CA4 1999), aff'd sub nom,

United States v. Morrison, 529 U.S. 598 (2000)............. 23

Camps Newfound/Owatonna v. Town of Harrison,

BE: Fae es FO CGE erirrtnicctninnincninnennvimminees 15

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

ee ee Fe i cictnrenssicinenemnnnnintnnpinnininin 18

Carter v. Carter Coal Co.,

ee ee cctncnernietseineiciisniinssiniattininianiniis 10, 14

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984).........cccccceeseeseeeeres 18, 19

College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666 (1999).........cceccssesees 3, 22

Corfield v. Coryell,

6 F. Cas. 546 (C.C.E.D.Pa. 1823)............ccc0005 jonncitbiiian ll

Escanaba & Lake Michigan Transp. Co. v. City of

Chicago, 107 U.S. 678 (1883) .............csscscessesseecesserecseees 22

FERC v. Mississippi,

SED Ces PD I ccniesictscsnnwiahitiinitiiaiaialibiditdaitiaancistiat dared 9

Florida Prepaid Postsecondary Educ. Expense Bd. y.

College Sav. Bank, 527 U.S. 627 (1999) ........ccccseseeees 3, 22

Garcia v. San Antonia Metropolitan Transportation

Authority, 469 U.S. 528 (1985) ........ccccccsccessesseeeeeeees 6, 9, 14

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) .......sccrcercscossssssseerervores passim

Gregory v. Ashcroft,

Fe Cs Ie COE icinctsniesccecitnstnteitnistnnitipitiaaiainiinasaeaaal 4,8,9

In re Rahrer,

Pe ee: Pe a wcseucinssencerieteniarapsitntaiiahdainiateainiaiiiai 13

Kidd v. Pearson,

Se ee 0 Cee icrenresercuunnseictinisngnbcniiaiiiaiiaibidasmiiiimaninia 13

Leisy v. Hardin,

Se See A ee icrcvensinsinisensnsececeenscceniiiesinsitienidaatiaieaiuaiad 13

M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) oo... cceceeceeeneeeeees 8, 10, 16

Metro Broadcasting, Inc. v. Federal Communications

Cammission, 497 U.S. 547 (1990).......ccccccesceseeersesseeerenees 25

Miller v. City of New York,

SE Cs DEP Ce cre sesnccincrnssmssscentonsaetigabiinentinemipsebicipin 21

Mobile Co. v. Kimball,

BE TA Ge Ge evesericctncssvsenpinnsecneaitiiitcsitaiiliniiainimasiiiaanas 13

N.L.R.B. v. Jones & Laughlin Steel Corp.,

SS ae 17

New York v. United States,

TT TC Tee 3,4,5

Printz v. United States,

EN aaa 3, 22

Seminole Tribe of Florida v. Florida,

TTT crrssiiatitentiiesnegnsnnetntammaneneansncesia 3, 4, 22

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

Army Corps of Engineers,

Pe ee 2,19

South Carolina v. Georgia,

EE 21

South Covington & C. St. R. Co. v. City of Covington,

eee 22

The Daniel Ball,

cg gk Ee 21

The License Cases,

46 U.S. (S How.) 504 (1847) .....c-ccccsccereccesrecseserrsorensesseres 13

United States v. Chicago, M.,, St. P. & P. R. Co.,

ee 21

United States v. E. C. Knight Co.,

sit eeerierterceeentncninabecnmnbmnettl 10, 12, 13, 14

United States v. Lopez,

a passim

United States v. Morrison,

ce passim

United States v. Rapanos,

Ee 16, 18

United States v. Riverside Bayview Homes, Inc.,

18,21

Virginia Dep't of Ed. v. Riley,

IES Ee ae ee, 25

Virginia v. Tennessee,

8 EE A a CD 23

West Virginia ex rel. Dyer v. Sims,

ee aiiciiedinieetiitindeinincinatinaltainasitiertnienit tintin 23

CONSTITUTIONAL PROVISIONS,

STATUTES, AND REGULATIONS

Re ee 16

EE wre SOC ee eae 20, 22

en OU dnterceteretiicennitenriinicancierinateinentiasibabita lates 21

a 20

Se ricnrrtientcrtitinsininnsmnsettilitiatanintneninetetiiines .22

Declaration of Independence, | 2..............-.-.--cessesesevseeeeeeneees 6

ey A reticence s

BE ne ere x

ee x

U.S. CONST. ART. I, sec. 8, cl. 3

TE a a passim

U.S. CONST. ART. IL, sec. 8, cl. 18

(Necessary and Proper Clause) ...............c..ccccceeseeeseees 16, 21

OTHER AUTHORITIES

Coxe, Tench, Letter to the Virginia Commissioners at

Annapolis (Sept. 13, 1786), reprinted in 3 THE

FOUNDERS’ CONSTITUTION 473-74 (P. Kurland & R.

ee ae 5

Eastman, John C.,“A Fistful of Denial: The Supreme

Court Takes a Pass on Commerce Clause Challenges

to Environmental Laws,” 2004 CATO SUPREME

COURT REVIEW 469 (2004) ..00.......cccccsecceeseceseerenceeeneeseeeneee 2

FEDERALIST No. 22 (Hamilton) (C. Rossiter, ed., 1961)........ 5

FEDERALIST NO. 33 (Hamilton)...............cs-r-ecsecereenersensnereneees 9

FEDERALIST NO. 39 (Madison) ...................0csessseseesseesneceeneeeees 7

FEDERALIST NO. 42 (Madison)................-cc-cseeseeserereesseneneeenees 5

FEDERALIST NO. 45 (Madison)................000sseesereesseeeevees 7, 10

RE 6

FEDERALIST NO. 5] (Madison)....................-.c--eceeeeseeneneeees 6,9

Jones, Gordon, and Marini, John, THE IMPERIAL

CONGRESS: CRISIS IN THE SEPARATION OF POWERS............ 2

Olson, Theodore, Confirmation Hearing on the

Nominations of Larry D. Thompson to be Deputy

Attorney General and Theodore B. Olson to be

Solicitor General of the United States, Hearing

Before the S. Comm. on the Judiciary, 107th Cong.

127 (2001) (statement of Theodore Olson) (Sup. Doc.

No. ¥4.J89/2:S.HIRG. 107-250) 2..........ccceececseceeserseseeseneeeee 25

Presidential Authority to Decline to Execute

Unconstitutional Statutes, 18 Op. OFFICE OF LEGAL

EE 25

Wilson, James, Pennsylvania Ratifying Convention,

(Dec. 4, 1787), reprinted in | THE FOUNDERS’

oe cncenincttinititimnnmenmingennes 7

Wilson, James, Speech at the Pennsylvania Ratifying

Convention (Nov. 26, 1787), reprinted in 2 J.

WILSON, THE WORKS OF JAMES WILSON 770 (R.

Nos. 04-1034, 04-1384

In The

Supreme Court of the Anited States

RAPANOS, ef al., Petitioners,

UNITED STATES, Respondent.

CARABELL, ef al., Petitioners,

U. S. Army Corps of Engineers, et al., Respondents.

On Writ of Certiorari

to the United States Court of Appeals

For the Sixth Circuit

Brief of Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

In Support of Petitioners

INTEREST OF AMICUS CURIAE'

The Claremont Institute for the Study of Statesmanship

and Political Philosophy is a non-profit educational founda-

tion whose stated mission is to “restore the principles of the

' The Claremont Institute Center for Constitutional Jurisprudence files

this brief with the consent of all parties. The letters granting consent have

been previously filed. Counsel for a party did not author this brief in

whole or in part. No person or entity, other than amicus curiae, its mem-

bers, or its counsel made a monetary contribution specifically for the

preparation or submission of this brief.

American Founding to their rightful and preeminent author-

ity in our national life,” including the principle, at issue in

this case, that We the People delegated to the national gov-

ernment only certain, specifically enumerated powers and

that the bulk of sovereign power, including the police power

at issue here, was reserved to the States or to the people. The

Institute pursues its mission through academic research, pub-

lications, scholarly conferences and, via its Center for Con-

stitutional Jurisprudence, the selective appearance as amicus

curiae in cases of constitutional significance. Of particular

relevance here, the Institute has a Center for Local Govern-

ment, which promotes the theory and practice of self-

government, emphasizing the themes of limited, constitu-

tional government, federalism, property rights, and energetic

citizenship. In addition, the Institute has published exten-

sively about the constitutional limitations on the powers

delegated to the national government, including John C.

Eastman, “A Fistful of Denial: The Supreme Court Takes a

Pass on Commerce Clause Challenges to Environmental

Laws,” 2004 CATO SUPREME COURT REViEW 469 (2004), and

a book edited by Gordon Jones and Institute Senior Fellow

John Marini entitled THE IMPERIAL CONGRESS: CRISIS IN THE

SEPARATION OF POWERS.

The Claremont Institute Center for Constitutional Juris-

prudence has participated as amicus curiae before this Court

in several other cases of constitutional import, including

Kelo v. City of New London, Connecticut, 125 $.Ct. 2655

(2005); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Zelman v.

Simmons-Harris, 536 U.S. 639 (2002), Solid Waste Agency

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

531 U.S. 159.2001) (“SWANCC”), Boy Scouts of America v.

Dale, 530 U.S. 640 (2000); and United States v. Morrison,

529 U.S. 598 (2000). It seeks to elaborate on the arguments

that have been made by Petitioners regarding the scope of

the power delegated to Congress under the Commerce

Clause. The Claremont Institute believes that its scholarly

expertise about the theoretical and historical origins of the

American constitutional system of government will aid this

Court in evaluating whether the assertion of jurisdiction

made by the Army Corps of Engineers over wetlands with

only a tenuous hydrological connection to any navigable wa-

ter of the United States exceeds Congress’s authority to regu-

late commerce among the states.

SUMMARY OF ARGUMENT

Over the past decade and a half, this Court has reinvigo-

rated the Founders’ vision of a constitutional system based

on a division of the people’s sovereign powers between the

national and state governments. In New York v. United

States, 505 U.S. 144, 156-57 (1992), for example, the Court

recognized that the principle of reserved powers underlying

the Tenth Amendment serves as a barrier to the exercise of

power by Congress. In Printz v. United States, 521 U.S.

898, 923-24 (1997), the Court recognized that the principle

was grounded not so much in the text of the Tenth Amend-

ment but in the word “proper” of the Necessary and Proper

clause, as informed by the overall structure of the Constitu-

tion and the numerous clauses that recognize the retention of

sovereign powers by the States. This same idea of state sov-

ereignty has been given voice in the parallel cases arising

under the Eleventh Amendment: Seminole Tribe of Florida

v. Florida, 517 U.S. 44 (1996); Alden v. Maine, 527 U.S.

706 (1999); College Sav. Bank v. Florida Prepaid Postsec-

ondary Educ. Expense Bd., 527 U.S. 666 (1999); Florida

Prepaid Postsecondary Educ. Expense Bd. v. College Sav.

Bank, 527 U.S. 627 (1999).

Yet for the Founders, the division of sovereign powers

was not designed simply or even primarily to insulate the

states from federal power. It was designed so that the states

might serve as an independent check on the federal govern-

ment, preventing it from expanding its powers against ordi-

nary citizens. United States v. Morrison, 529 U.S. 598, 616

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.