Amicus Curiae Brief — Rapanos v. United States

4

Corps concluded that the Carabell wetlands provide a

valuable water storage function, and that filling the

wetlands would likely result in “an increased risk of

erosion and degradation of water quality” in the tradition-

ally navigable waters of the Great Lakes. 391 F.3d at 706.

There is, in other words, a connection between the wet-

lands and the traditionally navigable waterway because

the wetlands slow the flow of the surface water by first

retaining it and then allowing it to slowly percolate as

ground water. This, in turn, reduces scouring and erosion,

which would increase pollution in traditionally navigable

waters connected to these wetlands. See generally U.S.

EPA, Functions and Values of Wetlands 1 (2001), http://

www.epa.gov/owow/wetlands/pdf/fun_val.pdf (“Wetlands

function like natural tubs or sponges, storing water and

slowly releasing it. This process slows the water’s momen-

tum and erosive potential, reduces flood heights, and

allows for ground water recharge, which contributes to

base flow to surface water systems during dry periods.”).

SUMMARY OF ARGUMENT

Because wetlands adjacent to traditionally navigable

waters, or adjacent to tributaries to those waters, have

significant impacts on traditionally navigable waters,

Congress intended for them to be subject to regulation

under the Clean Water Act. When Congress adopted the

Federal Water Pollution Control Act amendments in 1972,

it redefined the term “navigable waters” to mean “waters

of the United States” for the primary purpose of improving

water quality in the Nation. This definition of waters

applies broadly to the Act’s water pollution control pro-

grams, including those aimed at eliminating pollution

from industrial waste and raw sewage, preventing oil

spills, and regulating the discharge of dredge and fill

material.

Thus the EPA’s and the Corps’ inclusion of tributaries

and “adjacent wetlands” in their regulatory definitions of

“waters of the United States” and exercise of authority

5

over those waters is consistent with both the statute and

Congress’ intent. Moreover, the connection between tradi-

tionally navigable waters and these waters leaves no

doubt that these cases fail to “raise the sort of grave and

doubtful constitutional questions,” Rust v. Sullivan, 500

U.S. 173, 191 (1991), that might require the Court to

second-guess the Corps’ almost thirty-year-old regulation.

Indeed, this Court upheld the regulation of such waters

over twenty years ago in United States v. Riverside Bay-

view Homes, Inc., 474 U.S. 121 (1985), a case that is quite

similar to these. Because Congress intended for the Clean

Water Act to reach the wetlands at issue here and there is

no significant constitutional question raised by EPA and

the Corps exercising: authority over them, the Court

should affirm the judgment of the Court of Appeals for the

Sixth Circuit in both cases.

ARGUMENT

I. Congress Plainly Intended to Include All Tribu-

taries and Adjacent Wetlands in the Term “Wa-

ters of the United States” and Thereby Subject

Them to Regulation Under the Clean Water Act

The Clean Water Act’ (CWA) defines “navigable

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

territorial seas.” 33 U.S.C. § 1362(7). The question before

this Court is whether the “adjacent wetlands” at issue in

these cases are properly considered “waters of the United

States” and thus subject to regulation under the Clean

Water Act.

* The Federal Water Pollution Control Act is commonly referred to

as the Clean Water Act following the 1977 amendments to the FWPCA.

Pub. L. No. 95-217, 91 Stat. 1566 (1977) (“SEC. 518. This Act may be

cited as the ‘Federal Water Pollution Control Act’ commonly referred to

as the Clean Water Act.”).

6

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

Council, Inc., 467 U.S. 837, 842-43 (1984), this Court held

that when interpreting a statute that an agency is charged

with administering, “[iJf the intent of Congress is clear,

that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed

intent of Congress.” Where one can discern Congress’

intent by “employing traditional tools of statutory con-

struction,” id. at 843 n.9, that intent must be given effect.

In this case, the intent of Congress is clear: all tributaries

and adjacent wetlands like those at issue in these cases

fall under the CWA.

A. Congress Intended to Include Tributaries

and Adjacent Wetlands in the Term “Waters

of the United States.”

In passing the CWA, Congress intended to embrace

the broadest possible definition of “navigable waters”

when it defined that term as “waters of the United States.”

In particular, Congress intended that term to embrace

both tributaries as well as wetlands that are adjacent to

traditionally navigable waterways and wetlands that are

adjacent to any tributaries connected to those waterways.

i. Congress Intended Comprehensive Pro-

tections Through the 1972 Act

The 1972 adoption of the Federal Water Pollution

Control Act (FWPCA) reflected Congressional commitment

to comprehensively control water pollution, including

protection of tributaries and wetlands. Congress intended

in 1972 to replace the original FWPCA, passed in 1948.

Federal Water Pollution Control Act, Pub. L. No. 80-845,

62 Stat. 1155 (1948). That original act was limited to

providing technical assistance to states, partially financ-

ing municipal sewage treatment works, and providing

authority to bring public nuisance lawsuits to abate

interstate water pollution when all other means failed.

7

S. Rep. No. 92-414, at 95 (1971). The 1948 Act left states

on their own to establish treatment requirements for

pollution sources and to enforce them. Despite this law, by

the 1960s the deterioration of the nation’s waters was

alarmingly evident, and waters in many cities across the

country were reduced to sewage receptacles for industrial

and municipal waste. See Robert W. Adler, Jessica C.

Landman and Diane M. Cameron, The Clean Water Act 20

Years Later 5-7 (1993).

During the decades leading up to the 1972 Act, the

importance of wetlands to overall aquatic ecosystem

functioning was steadily becoming apparent in the scien-

tific community. The 1956 Fish and Wildlife Service's

publication of Samuel P. Shaw and C. Gordon Fredine’s

Wetlands of the United States* provided a new vocabulary

— using the generic term “wetlands” in place of terms such

as “swamp” or “bog” — that “conveyed positive symbolic

value born from trustworthy scientific expertise.” Ann

Vileisis, Discovering the Unknown Landscape: A History of

America’s Wetlands 209 (1997). Known as Circular 39, the

1956 report articulated a taxonomy of wetland types and

clearly explained the value of wetlands as habitat for fish

and wildlife. The authors urgently concluded that “[nlever

before in the Nation’s history has it been so necessary to

plan for the setting aside of land and water areas to serve

the future needs of fish and wildlife.” Shaw & Fredine,

supra, at 9. As was true for other water quality matters,

leaving wetlands and tributary protection in the control of

individual states was not working. Public outcry de-

manded a strong response. See, eg John and Mildred

Teal, Life and Death of the Salt Marsh 262 (1969) (“This

resource is much more extensive — the ribbon of green

marshes along the eastern coast of North America, which

* Samuel P. Shaw & C. Gordon Fredine, Wetlands of the United

States: Their Extent and Their Value to Waterfowl and Other Wildlife,

Fish and Wildlife Service Circular 39 (1956), available at http//www.

npwrce. usgs.gov/resource/1998/uswetlan/uswetlan. htm.

8

must be preserved almost in its entirety if its preservation

is to have any real meaning.”); Kim Diana Connolly,

Stephen M. Johnson and Douglas R. Williams, Wetlands

Law and Policy: Understanding Section 404 2-7 (2006).

ii. The Act’s Goals and Purposes and Other

Provisions Indicate Congressional In-

tent to Assert Broad Federal Authority

Over Concerns Other Than Navigation

In passing the 1972 FWPCA, Congress articulated one

of the broadest ecosystem restoration and protection

aspirations in all of environmental law: “to restore and

maintain the chemical, physical, and biological integrity of

the Nation’s waters.” 33 U.S.C. § 1251.° Courts routinely

refer to this objective as the “guiding star” of the statute,

see American Petroleum Institute v. EPA, 540 F.2d 1023,

1028 (10th Cir. 1976); Kennecott Copper Corp. v. EPA, 612

F.2d 1232, 1236 (10th Cir. 1979), or otherwise invoke the

language as the main starting point for any analysis, see,

e.g., PUD No. 1 of Jefferson County v. Washington Dept. of

Ecology, 511 U.S. 700, 703 (1994); Arkansas v. Oklahoma,

503 U.S. 91, 101, 105-06 (1992); United States v. Riverside

Bayview Homes, 474 U.S. at 132.

Congress’ 1972 objective was far removed from the

limited goal of protecting navigation as in earlier laws like

the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq.

(2000), which prohibited the discharge of refuse into

navigable waters “whereby navigation shall or may be

impeded or obstructed.” 33 U.S.C. § 407. In addition, it

broadened the law’s focus far beyond pollution in inter-

state waters as in the earlier iterations of the FWPCA.

* This statutory objective is reinforced in the statutory definition of

“pollution” as the “man-made or man-induced alteration of the chemi-

cal, physical, biological, and radiological integrity of water.” 33 U.S.C.

§ 1362(19).

9

Both the House and Senate reports evinced their intent to

restore aquatic ecosystems as closely as possible to their

natural state, which clearly extends beyond the earlier

traditional intent to provide only for navigation.°

“To achieve this objective,” 33 U.S.C. § 1251(a), Con-

gress listed seven goals, each of which indicates concern

for values other than navigability. Jd. § 1251(a)(1)-(6). The

goals of the law, including “protection and propagation of

fish, shellfish, and wildlife,” “recreation in and on the

water,” elimination of “the discharge of toxic pollutants in

toxic amounts,” and “programs for the control of nonpoint

source pollution,” are broad. Jd. § 1251(a).

Perhaps most notably, Congress required the states or

EPA to adopt water quality standards for all waters

covered by the Act “taking into consideration their use and

value for public water supplies, propagation of fish and

wildlife, recreational purposes, and agricultural, indus-

trial, and other purposes, and also taking into considera-

tion their use and value for navigation.” Id. § 1313(c)

(emphasis added). The fact that navigation was but one of

many values for which the waters of the United States

were provided statutory protection belies a narrow focus

on only traditionally navigable waters.

Members of Congress repeatedly emphasized the

sweeping purposes of the 1972 amendments. For example,

in the debates leading to Congress’ override of President

Nixon’s veto of the legislation, which the President viewed

as unconscionably expensive, Representative John D.

Dingell of Michigan said: “The protection of our natural

resources, particularly our waterways which serve our

health and wildlife needs and the recreational needs of

* S. Rep. No. 92-414, at 12 (1972), reprinted in 1972 U.S.C.C.AN.

at 3742; H.R. Rep. No. 92-911, at 76-77 (1972), both quoted infra; see

also Robert W. Adler, The Two Lost Books in the Water Quality Trilogy:

The Elusive Objectives of Physical and Biological Integrity, 33 ENVTL. L.

29, 44-46 (2003).

10

urban and rural areas cannot in any sense whatsoever be

described as unconscionable.” 118 Cong. Rec. 37,058 (Oct.

18, 1972) (emphasis added). In short, Congress sought to

protect water quality for a wide range of natural resource

values, and not merely to preserve navigability of large

waterways.

iii. The Legislative History of the Term

“Navigable Waters” Indicates Congres-

sional Intent to Broadly Cover Waters

of the United States, Not Just Tradi-

tionally Navigable Waters

Both the House and Senate versions of the bills to

amend the FWPCA were written to expand federal author-

ity to control and ultimately eliminate discharges of all

types of water pollution across the country. H.R. 11,896,

92nd Cong. (1971); S. 2770 92nd Cong. (1971). They both

sought to restructure. the nation’s federal authority to

control water pollution while drawing upon much of the

structure and language of earlier statutes. Thus, in their

original bills, both bodies borrowed the term “navigable

waters” from existing laws, and originally included a

definition that itself used the term “navigable.” However,

in the reports discussing their respective versions of the

legislation, members of both chambers expressed concern

about potentially narrow interpretations of what waters

they intended the Act to cover.

" In the Senate, the definition read “the term navigable waters

means the navigable waters of the United States, portions thereof, and

the tributaries thereof, including the territorial seas and the Great

Lakes. S. 2770, 92nd Cong. 502(h) (1971). The House bill’s definition

read “|t)]he term ‘navigable waters’ means the navigable waters of the

United States, including the territorial seas.” H.R. 11,896 92nd Cong.

502(8) (1971).

11

The House Public Works Committee stated:

The Committee is reluctant to define the

term ‘navigable waters.’ This is based on the fear

that any interpretation would be read narrowly.

This is not the Committee's intent. The Commit-

tee fully intends the term ‘navigable waters’ be

given the broadest possible constitutional inter-

pretation unencumbered by agency determina-

tions which have been made or may be made for

administrative purposes.”

H.R. Rep. No. 92-911, at 76-77 (1972). The Senate Com-

mittee on Public Works likewise stated:

The control strategy of the Act extends to

navigable waters. The definition of this term

means the navigable waters of the United

States, portions thereof, tributaries thereof, and

includes the territorial seas and the Great

Lakes. Through a narrow interpretation of the

definition of interstate waters the implementa-

tion [of the] 1965 Act was severely limited. Water

moves in hydrologic cycles and it is essential that

discharges of pollutants be controlled at the

source. Therefore, reference to the control re-

quirements must be made to the navigable wa-

ters, portions thereof, and their tributaries.

S. Rep No. 92-414, at 77 (1971).

Although the House report focused on the need for a

broad constitutional interpretation of the Act’s scope while

the Senate report spoke to the scientific reality of waters

being interconnected, both bodies signaled their desire not

to constrain the reach of the Act to those waters previously

nature of pollution and how to control it at a federal level.

When the House and Senate met in ye

[The] conference bil] defines the term “navigable

waters” broadly for water quality purposes. It

means all “the waters of the United States” in a

sense. It does not mean “navigable

waters of the United States” in the technical

sense as we sometimes see in some laws. The

new and broader definition is in line with more

a ee

that limited view of navigability -

sted from the Denial Ball enno C77 03. O07, O00)

— to include waterways which would be “suscep-

tible of being used *** with reasonable im-

provement,” as well as those waterways which

include sections presently obstructed by falls,

rapids, sand bars, currents, floating debris, et -

(T}his new definition clearly encompasses all wa-

ter bodies, including main streams and their

SE ee ee ee

are the old, narrow definitions of navigability, as

118 Cong. Rec. 33,756-57 (Oct. 4, 1972).

Particular attention should be paid to Representative

Dingell’s pivotal opening sentence of the passage, which

set the context for the rest of the explanation. He said that

“the conference bill defines the term ‘navigable waters’

broadly for water quality purposes.” Jd. (emphasis added).

should be interpreted “broadly,” but more important is the

related reasoning. Representative Dingell signaled that

the purpose of the bill’s expanded jurisdictional definition

was to protect water quality as an independent value, and

not merely “navigation” or “navigability” as one of the

many possible impacts of water pollution on interstate

commerce.

The manner in which both the Senate and House

possibility that Congress intended to focus narrowly on

navigable waters, as opposed to all “waters of the United

States” that might affect the ecosystem integrity objective

of the law. The 1972 Senate Report, for example, confirms

the intent to restore entire aquatic ecosystems to as close

cal, chemical or biological change in a pristine

water body be of a temporary nature, such that

by natural processes, within a few hours, days or

weeks, the aquatic ecosystem will return to a

state in which the physical, deoniacd ont tie.

cal integrity of the water body can be said to ex-

ist . . an objective which minimizes the burden

to man in maintaining a healthy environment,

and which will provide for a stable biosphere that

is essential to the well-being of human society. :

S. Rep. No. 92-414, at 76 (1972) (emphasis added); see also

H.R. Rep. No. 92-911, at 76-77 (1972) (discussing the goal

of the legislation as preserving natural ecosystem struc-

ture and function).

Because aquatic ecosystems are comprised of intri-

wy by ty pterny Sbl es

water quality purposes”); 118 Cong. Rec. 40,192 (Repre-

sentative Dingell’s statement regarding the need to pre-

serve wetlands); S. Rep. No. 92-414, supra, at 77 (coverage

15

of “navigable waters, portions thereof, and their tributar-

ies”).

In order to accomplish the above-described jurisdic-

tional expansion, Congress deliberately deleted the term

“navigable” from its statutory definition of “navigable

waters” in the text of the Act. As one scholar has noted,

“after 1972, federal courts and legal commentators began

to call ‘the navigable waters of the United States’ the

‘traditional navigable waters of the United States’ to

clearly distinguish that term from the much more exten-

sive geographic jurisdiction of the FWPCA of 1972.” Lance

D. Wood, Don’t Be Misled: CWA Jurisdiction Extends to All

Non-Navigable Tributaries of the Traditional Navigable

Waters and to Their Adjacent Wetlands (A Response to the

Virginia Albrecht/Stephen Nickelsburg ELR Article, the

Fifth Circuit’s Decision In re Needham, and to the Supreme

Court’s Dicta in SWANCC), 34 ENVTL. L. Rprr. 10,187

(2004); see, e.g., Hanson v. United States, 710 F. Supp.

1105, 1108 (E.D. Tex. 1989); Bayou Des Familles Develop-

ment Corp. v. U.S. Corps of Engineers, 541 F. Supp. 1025,

1036 (E.D. La. 1982); American Dredging Co. v. Dutchy-

shyn, 480 F. Supp. 957, 960 (E.D. Pa. 1979); NRDC uv.

Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975).

B. To Meet the Law’s Broad Pollution Pre-

vention and Water Quality Goals, Con-

gress Adopted One Definition of “Waters

of the United States” To Govern All of the

Act’s Programs

Petitioners’ suggestion that wetlands such as theirs

fall outside of the term “navigable waters” is not only

contrary to the letter and history of the CWA, it would

frustrate Congress’ goals in enacting this comprehensive

law by excluding from CWA jurisdiction vast amounts of

ecologically valuable wetlands adjacent to the innumerable

tributaries not considered traditionally navigable waters.

This omission would adversely affect water quality, flood

control, and habitat for the traditionally navigable water

16

bodies lying downstream. It would also improperly narrow

other CWA provisions designed to address the full range of

water pollution problems identified by Congress, as these

other provisions of the law all rely on the same definition

waters in CWA § 502(7). These include CWA § 301, the

broad prohibition on discharging into waters without a

permit, the CWA § 402 permit program, which covers all

polluting discharges other than dredged or fill material,

and CWA provisions relating to water quality standards

(including CWA § 401), oil pollution prevention and

cleanup (CWA §311), and toxic effluent standards and

prohibitions (such as CWA § 307). These regulatory pro-

grams administered by EPA all use what is essentially the

same definition of “waters of the United States” that the

Corps has relied on to implement the § 404 dredge and fill

permit program. Opinion of Attorney General Benjamin

Civiletti, 43 Op. Att’y Gen. 15."

Tying EPA’s and Corps’ hands so the agencies cannot

effectively protect water quality or eliminate discharges at

their source is not what Congress intended in 1972 when

it enacted its comprehensive, interstate solution for

a@ perceived national crisis concerning water pollution.

Indeed, petitioners’ narrow interpretation is directly contrary

to Congress’ express intent that the term “navigable waters”

* “The term ‘navigable waters’ ... is a linchpin of the Act... ,

critica] not only to the coverage of 404, but also to the coverage of the

other pollution control mechanisms established under the Act... . Its

definition is not specific to 404, but is included among the Act’s general

provisions. It is, therefore, logical to conclude that Congress intended

that there be only a single judgment as to whether — and to what extent

— any particular water body comes within the jurisdictional reach of the

federal government's pollution control authority. We find no support

either in the statute or its legislative history for a conclusion that a

water body would have one set of boundaries for purposes of dredged or

fill permits under 404 and a different set for purposes of the other

pollution control measures in the Act.” 43 Op. Att'y Gen. No. 15, at 5

(Sept. 5, 1979).

17

be given the “broadest possible constitutional interpreta-

tion.”

C. The Court Should Not Disregard the

Agencies’ Definition.

Despite the clear intent of Congress to include adja-

cent wetlands within the definition of “waters of the

United States,” Petitidners assert that EPA’s and Corps’

interpretation raises constitutional concerns and therefore

the Court should interpret the statute without reference to

the agency’s regulation. See Solid Waste Agency of North-

ern Cook County v. United States Army Corps of Engineers

(SWANCC), 531 U.S. 159, 172-73 (2001) (“Where an

administrative interpretation of a statute invokes the

outer limits of Congress’ power, we expect a clear indica-

tion that Congress intended that result. This requirement

stems from our prudential desire not to needlessly reach

constitutional issues and our assumption that Congress

does not casually authorize administrative agencies to

interpret a statute to push the limit of congressional

authority.” (citation omitted)).

The agency regulations at issue in thie case, however,

which are faithful to Congress’ intent to protect all navi-

gable waters and all of their tributaries, do not even

remotely invoke the outer edge of Congress’ power. The

agencies argued, and the reviewing courts in these cases

agreed, that the waters at issue here are all “adjacent” to

traditionally navigable waters or tributaries thereto.

Therefore, they are governed by 33 C.F.R. § 328.3(a)(7),

which applies to “[wjetlands adjacent to” waters such as

tributaries, id. § 328.3(a)(5), to “waters which are cur-

rently used, or were used in the past, or may be suscepti-

ble to use in interstate or foreign commerce,” id.

§ 328.3(aX1).

Notably, this case does not rely on the regulation at

issue in SWANCC, 33 C.F.R. § 328.3(aX3), which governs

“lajll other waters ... the use, degradation or destruction

18

of which could affect interstate or foreign commerce ... ,”

i.e., waters which are not navigable themselves, tributary

to navigable waters, or wetlands adjacent to such waters.

While amici do not agree with the treatment of this

regulation in SWANCC, that regulation is not before the

Court under the facts of these cases, and its scope and

constitutionality is not at issue here.

Instead, because there is a direct connection between

adjacent wetlands and traditionally navigable waters

evident in both situations, these cases fall within the first

category of Congress’ authority under the Commerce

Clause to “regulate the use of the channels of interstate

commerce.” United States v. Lopez, 514 U.S. 549, 558

(1995). This power generally “allows Congress to make

laws that protect tne flow of commerce.” United States v.

Deaton, 332 F.3d 698, 706 (citing Heart of Atlanta Motel,

Inc. v. United States, 379 U.S. 241, 257 (1964) (upholding

congressional power to bar racial discrimination in hotels

because this discrimination had a “disruptive effect ... on

commercial intercourse”) and United States v. Darby, 312

U.S. 100, 114-15 (1941) (upholding congressional power to

forbid interstate commerce in goods made by child labor

because traffic in such goods encourages “competition ...

injurious to the commerce”)).

This Court has repeatedly confirmed Congress’ power

over waters such as those at issue here without limit to

waters that are themselves navigable:

{I]t cannot properly be said that the constitu-

tional power of the United States over its waters

is limited to control for navigation. ... In truth

the authority of the United States is the regula-

tion of commerce on its waters. Navigability. .. .

is but part of this whole. Flood protection, water-

shed development, recovery of the costs of im-

provements through utilization of power are

likewise parts of commerce control... . [The] au-

thority is as broad as the needs of commerce.

19

United States v. Appalachian Electric Power Co., 311 U.S.

377, 426-27 (1940); see also Kaiser Aetna v. United States,

444 U.S. 164, 173 (1979) (“Reference to the navigability of

a waterway adds little if anything to the breadth of Con-

gress’ regulatory power over interstate commerce.”)

(Rehnquist, J.).

As discussed above, Congress intended that the CWA

protect water resources broadly. At a minimum, however,

by reducing the input of pollutants into waterways, the

Act prevents major blockages or other hazards in or

impairments to these waters, such as keeping the Cuya-

hoga River from catching fire, as it did in 1969, due to “a

slick of industrial waste.” SWANCC, 531 U.S. at 174

(2001) (Stevens, J., dissenting); see also Kernan v. Ameri-

can Dredging Co., 355 U.S. 426, 427 (1958) (detailing the

death of a seaman due to the ignition of petroleum pollut-

ants floating on the surface of the Schuylkill River in

Philadelphia).

Congress’ power to ensure that traditionally navigable

waters are free of such hazards cannot mean that it may

only restrict discharges of pollutants directly into those

waters. Discharges into the tributaries and wetlands

adjacent to those tributaries can be just as detrimental. As

the Sixth Circuit explained:

It would, of course, make a mockery of [Con-

gress] powers if ‘ts authority to control pollution

was limited to the bed of the navigable stream it-

self. The tributaries which join to form the river

could then be used as open sewers as far as fed-

eral regulation was concerned. The navigable

part of the river could become a mere conduit for

upstream waste.

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

1326 (6th Cir. 1974); see also Oklahoma ex rel. Phillips v.

Atkinson Co., 313 U.S. 508, 523 (1941) (“It is clear that

Congress may exercise its control over the non-navigable

stretches of a river in order to preserve or promote commerce

on the navigable portions.”). Accordingly, the regulatory

20

definition of tributary is broad, as Congress intended, and

includes all waterbodies that flow into navigable waters.

Cf. United States v. Gerke, 412 F.3d 804, 805-06 (7th Cir.

2005) (“A stream can be a tributary; why not a ditch? A

ditch can carry a8 much water as a stream, or more; many

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

the regulation as distinguishing between a stream and its

manmade counterpart.”).

With respect to adjacent wetlands in particular, the

Corps explained in 1977 that if adjacent wetlands are

polluted or otherwise filled so that they are unable to

function, that directly impacts the water quality in the

entire aquatic system:

The regulation of activities that cause water

pollution cannot rely on ... artificial lines [such

as the mean tide line and the ordinary high wa-

ter mark] ... but must focus on all waters that

together form the entire aquatic system. Water

moves in hydrological cycles, and the pollution of

this part of the aquatic system, regardless of

whether it is above or below an ordinary high

water mark or mean high tide line, will affect the

water quality of the other waters within the

aquatic system.

42 Fed. Reg. 37,121, 37,128 (July 19, 1977).

Specifically, water quality in traditionally navigable

waters is potentially affected by filling or otherwise

polluting adjacent wetlands in three possible ways: (1)

pollutants enter a wetland and thus the hydrological

system and eventually make their way to traditionally

navigable waters, polluting them; (2) a filled or polluted

wetland is no longer able to remove pollutants from the

water that runs through it as it would normally do, which

leads to increased pollution in traditionally navigable

waters; and (3) a filled wetland no longer slows and retains

water and thus scouring occurs leading to increased

erosion and pollution in the traditionally navigable wa-

terways. See U.S. EPA, Functions and Values of Wetlands

21

1 (2001), at http://www.epa.gov/owow/wetlands/pdf/fun_val.

pdf (describing the primary functions of wetlands as water

storage and water filtration); United States v. Riverside

Bayview Homes, No. 84-701, Brief for the United States at 3

(“many wetlands purify water by holding nutrients and

recycling pollutants”); id. at 39 n.29 (providing an extensive

explanation of pollutant removal potential of wetlands).

As the record makes clear, the three wetlands at issue

in the Rapanos case have a demonstrated hydrological

connection to the navigable waters and could have any of

the three impacts on those waters discussed above were

they polluted or filled. Accordingly, they clearly fall within

Congress’ authority under the Commerce Clause.

With respect to the wetlands at issue in Carabell,

even if one assumes that there is no surface water connec-

tion between the wetlands and the ditch they directly

abut, that case too raises no significant constitutional

questions. The Carabell case is, at a minimum, an exam-

ple of the third category of water quality impacts resulting

from filling or otherwise polluting wetlands. The connec-

tion identified by the Corps was that if the Carabell

wetlands were filled, there would be a significant reduc-

tion in the retention of the surface water. This in turn

would mean increased scouring and erosion and thus

eventually increased pollution in the Great Lakes system.

Congress’ power under the Commerce Clause surely allows

it to prevent significant harms of this sort to traditionally

navigable waters.

In sum, the regulations at issue do not raise a “close”

constitutional question because they cover only wetlands

that are connected to traditionally navigable waters. This

Court should therefore follow its usual practice under

Chevron and conclude that, as Congress intended, the

statute unambiguously embraces adjacent wetlands

within the definition of “waters of the United States.”

In the alternative, if the Court finds that the intent of

Congress is not clear, it should afford deference to the

Corps’ inclusion of adjacent wetlands because it is a

22

reasonable interpretation of the statute, as it did in

Riverside Bayview Homes. See 474 U.S. at 131-34. Defer-

ence to an agency’s determination is particularly appro-

priate when the agency, such as EPA and the Corps here,

administers a complex, technical statute. See, e.g., Pauley

v. BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991). These

regulations are particularly reasonable in that they do not

define the term “waters of the United States” to include

each and every possible waterbody of the United States

but rather, consistent with the extensive legislative

history discussed above, only those waters with an impact

on traditionally navigable waters.

Moreover, the inclusion of adjacent wetlands that are

separated by barriers from traditionally navigable waters

or tributaries to those waters is reasonable in that those

wetlands are likely to have at least a groundwater connec-

tion to the adjacent waterbody. See National Research

Council, Wetlands, Characteristics and Boundaries 156

(1995) (“Even water quality functions might not be sepa-

rate for isolated and other wetlands because of the ground

water connections between isolated wetlands and surface

waters.”); R.W. Tiner, H.C. Bergquist, G.P. DeAlessio and

M.J. Starr, Geographically Isolated Wetlands: A Prelimi-

nary Assessment of Their Characteristics and Status in

Selected Areas of the United States § 2 (2002), at http:/

wetlands.fws.gov/Pubs_Reports/isolated/report.htm (even

geographically-isolated wetlands can be “connected hy-

drologically via groundwater connections to other wet-

lands and to rivers and streams.”). In addition, including

adjacent wetlands separated by human-made barriers

prevents individuals and entities who have constructed or

who are tempted to construct barriers or the like between

their wetlands and a traditionally navigable water (or a

tributary thereto) from evading the Act’s requirements. Cf.

Motor Vehicle Manufacturer’s Ass’n v. State Farm Mutual

Automobile Ins. Co., 463 U.S. 29, 42 (1983) (“[A] reviewing

court may not set aside an agency rule that is rational, based

on consideration of the relevant factors and within the

23

scope of the authority delegated to the agency by the

statute.”).

IL Under the Facts of Both Cases, Affirmance is

Warranted Under United States v. Riverside

Bayview Homes.

A. Both Cases Are on All Fours With River-

side Bayview.

In Riverside Bayview, this Court upheld the authority

of EPA and the Corps to exercise regulatory jurisdiction

under the federal CWA over wetlands, like those at issue

here, that are “adjacent to” navigable bodies of water, but

that are “not regularly flooded by rivers, streams, and

other hydrographic features more conventionally identifi-

able as ‘waters.’” 474 U.S. at 131. The Court also held as a

matter of regulatory interpretation that adjacent wetlands

do not have to be flooded by surface waters to be included

in the regulatory definition of wetlands. Jd. at 129-31.

Although these areas were not connected to traditionally

navigable waters via surface hydrology, the District Court

found that the soils supported wetland “vegetation that

requires saturated soils for growth and reproduction,” that

the soils were saturated due to ground water, and that

“the wetland was adjacent to a body of navigable water,

since the area characterized by saturated soil conditions

and wetland vegetation extended beyond the boundary of

[the] property to Black Creek, a navigable waterway.” Id.

at 130-31. Notably, the District Court did not expressly

find a hydrological connection between the waters of either

Black Creek or Lake St. Clair and the ground water

responsible for soil saturation on the property in question.

The Court in Riverside Bayview declined to address,

as unnecessary to its decision in the case, whether the Act

covers “isolated” as well as adjacent wetlands. Jd. at 131

n.8. That distinction set the stage for the decision in

SWANCC, which answered the question in the negative as

24

regards intrastate, isolated ponds connected only by

migratory bird use. In SWANCC, however, this Court did

not disturb the fundamental holding in Riverside Bayview

that any waters that are adjacent to navigable waters

remain subject to CWA jurisdiction. See SWANCC, 531

U.S. at 167 (reiterating holding of Riverside Bayview as

“the Corps had § 404(a) jurisdiction over wetlands that

actually abutted on a navigable waterway’).

The wetlands at issue in both Rapanos and Carabell

are not like the “isolated” ponds in SWANCC but rather

are almost identical to the wetlands at issue in Riverside

Bayview. They all directly abut a tributary that feeds into

navigable waters and as such, have direct and tremendous

impacts on those waters. Because this Court upheld the

regulations in circumstances very similar to these, there is

no reason to change course.

B. The History of the 1977 Amendments Re-

lied on in Riverside Bayview Further Sup-

ports Affirmance.

When drawing a parallel to Riverside Bayview in

these cases, it is important that the Court acknowledge, as

it did in Riverside Bayview, Congress’ actions and state-

ments indicating that it clearly intended the phrase

“navigable waters” to include wetlands, without regard to

artificial geographic limitations, when passing the 1977

amendments. See Riverside Bayview, 474 U.S. at 137

(“Although we are chary of attributing significance to

Congress’ failure to act a refusal by Congress to overrule

an agency's construction of legislation is at least some

evidence of the reasonableness of that construction,

particularly where the administrative construction has

been brought to Congress’ attention through legislation

specifically designed to supplant it.”); cf. Minnehaha Creek

Watershed Dist. v. Hoffman, 597 F.2d 617, 626 (8th Cir.

1979) (relying on 1977 legislative history to determine

regulatory scope of Section 404 as originally passed).

25

In 1977, the regulatory battle over the jurisdiction of

the Act’ was reflected by two competing approaches to

amending the 404 program considered by Congress. As it

had in 1972, the broader approach won out.

The first approach was that taken in the bill reported

out of the Senate Environment and Public Works Commit-

tee, which sought to address various concerns regarding

the implementation of the 404 program, especially work-

load issues. Most importantly the Committee made clear

that “{t]he committee amendment is designed to reaffirm

this intent and dispel the widespread fears that the

program is regulating activities that were not intended to

be regulated.” S. Rep. No. 95-370, 95th Cong., 1st Sess.

(1977), at 74-75.

In response, during the Senate’s floor debate on the

1977 amendments, Senator Lloyd Bentsen of Texas offered

an amendment to the Environment and Public Works

Committee’s bill that would have amended the Act to limit

the scope of § 404 to only traditionally navigable waters

and their adjacent wetlands. The Congressional Record

contains a long debate held before the full Senate voted on

the Bentsen plan to narrow the scope of the CWA protec-

tions for wetlands and other waters from discharges of

dredge and fill material. It is clear from the debate that all

agreed that the scope of the Act since 1972 had reached all

waters of the United States, and that bill as proposed

would not reduce that scope of protection.

As Senator Bentsen himself stated: “The committee

has failed to recommend any reduction in the scope of the

§ 404 permit program. ... The program would still cover all

waters of the United States, including small streams, ponds,

isolated marshes, and intermittently flowing gullies.”

123 Cong. Rec. 26,711 (Aug. 4, 1977). In supporting this

* See generally Sam Kalen, Commerce to Conservation: The Call for

a National Water Policy and the Evolution of Federal Jurisdiction Over

Wetlands, 69 N. D. L. Rev. 873, 886-905 (1993).

amendment, Senator John Tower of Texas referred to

NRDC ov. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975) -

in which NRDC argued and the district court agreed that

the Corps’ cramped reading of “navigable waters” was a

failure to implement the full statutory mandate of the

CWA — when he stated: “A court decision, coupled with an

administrative decision, is causing us to be faced with a

regulatory scheme which covers not just the rivers of the

Nation but all surface waters and wetlands of the United

States.” 123 Cong. Rec. 26,721-22 (Aug. 4, 1977).

Opponents of Senator Bentsen’s amendment readily

acknowledged that the Environment and Public Works

Committee’s bill maintained the broad jurisdiction enacted

in 1972, and argued why Senator Bentsen’s amendment to

reduce jurisdiction of the Act should be rejected. In par-

ticular, Senator Gary Hart of Colorado spoke at length on

the shortcomings of the approach advocated by Senator

Bentsen:

The Congress can capitulate. The Congress can

abandon the national interest. The Congress can

permit activities of a dredge-and-fill nature to go

forward on those small streams, marshes, wet-

lands, and swamps which will make their way

into the bigger waterways of this country and

have a tremendous adverse effect on the people

of this country and on their welfare, on their

crops, on many of their activities. Or we can es-

tablish a program of the sort the committee has

established, which will protect all of those water

systems; which will protect all of the elements of

those systems, which will not permit dredge and

fill activities to deposit very toxic materials into

those waterways.

123 Cong. Rec. 26,713 (Aug. 4, 1977). Likewise, Senator

John H. Chafee of Rhode Island spoke passionately about

the value of wetlands for the whole country and why

Senator Bentsen’s proposal for eliminating broad federal

protection for intrastate waters should be rejected:

pera nadie etn agrgh re man Heed

set; they are a national asset. They are not just

confined within boundaries which happen to ex-

ist for any one of our States. The wetlands per-

form a vital part of the food chain for our

wildlife. .. . | should like to stress that these wet-

lands are not something that belong to Louisiana

or Rhode Island or Michigan or Minnesota. They

belong to all the citizens. They are much too

valuable to be abandoned to some unstable,

fragmentary kind of protection. We must bear in

mind that these wetlands are part of this larger

system. They are not independent. They do not

belong only to Minnesota, so that if Minnesota

wants to fill them in, it is too bad for the Nation.

We have to remember that it affects everything

else downstream. There is a linkage between

wetlands and streams and estuaries and rivers,

and they all must live in harmony, through wise

management.

123 Cong. Rec. 26,716-17 (Aug. 4, 1977). Finally, Senator

Howard Baker of Tennessee argued that both the Envi-

ronment and Public Works Committee and courts recog-

nized and were effectuating the common scientific

understanding of hydrological linkage between all types of

waters:

Unless Federal jurisdiction is uniformly imple-

mented for all waters, dischargers located on

nonnavigable tributaries upstream from the lar-

ger rivers and estuaries would not be required to

comply with the same procedural and substan-

tive standards imposed upon their downstream

competitors. Thus, artificially limiting the jurisdic-

tion can create a considerable competitive disad-

vantage for certain discharges. ... It is important

to understand that toxic substances threaten the

aquatic environment when discharged into small

28

streams or into major waterways. Similarly,

pollutants are available to degrade water and at-

tendant biota when discharged in marshes and

swamps, both below and above the mean and or-

dinary high water marks. . . . Continuation of the

comprehensive coverage of this program is essen-

tial for the protection for the aquatic environ-

ment. The once seemingly separable types of

aquatic systems are, we now know, interrelated

and interdependent. We cannot expect to pre-

serve the remaining qualities of our water re-

sources without providing appropriate protection

for the entire resource.

123 Cong. Rec. 26,718 (Aug. 4, 1977) (emphasis added).

Senator Bentsen’s amendment was ultimately defeated by

a vote of the full Senate.

The fact that a later Congress debated the value of

wetiands when determining the scope of its jurisdiction

with respect to an earlier enactment should be afforded

“persuasive value” because “[h]ere we have Congress at its

most authoritative, adding complex and sophisticated

amendments to an already complex and sophisticated act.

Congress is not merely expressing an opinion ... but is

acting on what it understands its own prior acts to mean.”

Bell v. New Jersey, 461 U.S. 773, 784-785 & n.12 (1983)

(quoting Mount Sinai Hosp. v. Weinberger, 517 F.2d 329,

343 (5th Cir. 1975)). Various Members’ remarks praising -

the valuable biological and hydrologic contributions of

wetlands, particularly when made during debate over

geographic jurisdiction, thus cannot be squared with

artificial geographic limits suggested by Petitioners.

In addition to the clear statements of Congress de-

scribing the broad jurisdiction of the Act, Representative

Don H. Clausen of California referred in his comments to a

Library of Congress publication entitled “Case Law Under

the Federal Water Pollution Control Act Amendments of

29

1972.” 123 Cong. Rec. 38,976 (Dec. 15, 1977). This docu-

ment discusses NRDC v. Callaway and other cases reach-

ing similar conclusions on the scope of Section 404. As this

Court has recognized when considering a different section

of the CWA, Representative Clausen’s statement and the

Library of Congress litigation summary to which he

referred demonstrate Congressional awareness that it was

rejecting an effort to legislatively overrule that case law

interpreting Congressional intent reflecting a very broad

jurisdiction of the CWA. See Chemical Manufacturers

Ass’n v. NRDC, 470 U.S. 116, 128 & n.17 (1985).

Finally, Congressional support for broad geographic

jurisdiction is reflected in one of the amendments to

Section 404 that Congress did pass in 1977. The addition

of subsection (g) to Section 404 thoroughly repudiates any

limitation of the Section to traditionally navigable waters

as the Petitioners would assert. Section 404(g) provides for

state assumption of the Section 404 program under certain

conditions. However, Section 404(g)(1) expressly excludes

state assumption of jurisdiction over traditionally naviga-

ble and tidal waters, “including wetlands adjacent

thereto.” 33 U.S.C. § 1344(g)(1). Had Congress intended to

limit Section 404 to traditionally navigable waters in the

first place, this later addition of an option for state as-

sumption of regulation over all other areas would be

meaningless because there would be nothing to assume.

Section 404’s geographic scope therefore must be con-

strued to avoid rendering Section 404(g) meaningless or

superfluous.

30

CONCLUSION

The judgment of the Court of Appeals in both cases

should be affirmed.

Respectfully submitted,

Kim DIANA CONNOLLY ROBERT W. ADLER

UNIVERSITY OF SOUTH Amy J. WILDERMUTH*

CAROLINA SCHOOL OF LAW UNIVERSITY OF UTAH

Main & Greene Streets S.J. QUINNEY COLLEGE OF LAW

Coumbia, SC 29208 332 S. 1400 East, Room 101

(803) 777-6880 Salt Lake City, UT 84112

(801) 581-6833

Counsel for Amicus Curiae

*Counsel of Record

OFFICE OF THE CLERK

In The UPREME COURT, U.S.

Supreme Court of the Ani tes

Sd

JOHN A. RAPANOS, ET AL..,

Petitioners,

Vv.

UNITED STATES,

Respondent,

°

JUNE CARABELL, ET AL.,

Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,

Respondents.

¢

On Writs Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

°

BRIEF OF AMICI CURIAE DUCKS UNLIMITED, INC..,

NATIONAL WILDLIFE FEDERATION, AMERICAN

FISHERIES SOCIETY, AMERICAN SPORTFISHING

ASSOCIATION, BASS PRO SHOPS, BOONE &

CROCKETT CLUB, IZAAK WALTON LEAGUE OF

AMERICA, MICHIGAN UNITED CONSERVATION CLUBS,

THE ORVIS COMPANY, INC., PHEASANTS FOREVER,

THEODORE ROOSEVELT CONSERVATION

PARTNERSHIP, TROUT UNLIMITED, WILDLIFE

MANAGEMENT INSTITUTE, AND THE WILDLIFE

SOCIETY IN SUPPORT OF RESPONDENTS

¢

JAMES MURPHY THOMAS M. FRANCE

NATIONAL WILDLIFE NATIONAL WILDLIFE FEDERATION

FEDERATION 240 North Higgins

58 State Street Missoula, Montana 59802

Montpelier, Vermont 05602 (406) 721-6705

(802) 229-0650 Counsel for National Wildlife

Counsel of Record for Federation

Amici Curiae NEIL S. KacaNn

NATIONAL WILDLIFE FEDERATION

213 West Liberty Street, Suite 200

Ann Arbor, Michigan 48104

(734) 769-3351

Senior Counsel for

National Wildlife Federation

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ....0.........cccececesceeeeeeeeees 1

SUMMARY OF ARGUMENT ............:ccscsecescsseseeseeeees -%

PR REIS Oe SS >: aa Nhat NS 3

I. PROTECTION OF TRIBUTARIES AND

Il.

ADJACENT WETLANDS IS ESSENTIAL

TO THE INTFGRITY OF OUR NATION’S

WATERS, AND TO THE VITALITY OF

HUNTING AND FISHING IN THE UNITED

A. The Health of Aquatic Life and Other

Wildlife, Including Many Game Species,

Requires Protection of Tributaries and

I We siidtctdnnciccrisitatitmnins

B. Hunting and Fishing are Substantial

Recreational and Economic Activities

that are Dependent on the Protection

and Maintenance of the Integrity of Our

Nation’s Waters...............0ccscccsseseeeeseeeeeees

-CONGRESS INTENDED TO BROADLY

PROTECT THE ENTIRE AQUATIC SYS-

TEM, INCLUDING TRIBUTARIES AND

THEIR ADJACENT WETLANDS, AND THE

CORPS PROPERLY ASSERTED JURISDIC-

TION OVER THE WATERS IN RAPANOS

A. Courts Have Overwhelmingly Affirmed

that Congress Clearly Intended the Act

to Regulate Non-Navigable Tributaries ...

B. The Corps Was Reasonable in Regulating

the Wetlands At Issue as “Adjacent Wet-

FIG tnrisncntsntpitinivaichenitilinininaibininbcnntionta

17

19

19

21

it

TABLE OF CONTENTS - Continued

Page

III. CONGRESS CAN REGULATE TRIBUTAR-

IES AND ADJACENT WETLANDS UNDER

THE COMMERCE CLAUSE, GIVEN THE

SUBSTANTIAL EFFECT THAT ECONOMIC

ACTIVITIES THAT POLLUTE THESE WA-

TERS HAVE ON FOREIGN AND INTER-

STATE COMMERCIAL ACTIVITY, SUCH AS

HUNTING AND FISHING ................c:cccceseeeees 24

CREE Re: Rename ae ee 30

ii

TABLE OF AUTHORITIES

Page

CASES

Barnhart v. Thomas, 540 U.S. 20 (2003) ..........::cccseceeeeees 22

Carabell v. U.S. Army Corps of Engineers, 391 F.3d

SEES sr ES 23, 25

City of Milwaukee v. Illinois and Michigan, 451

TEE te iiiusnsciasevinuatandibiliinbaaltbustinintetutedupencatanimntnis 26

The Daniel Ball, 77 U.S. 557 (1870) ...........:ccccccceseseeeseeeenees 2

Gonzales v. Raich, 125 S.Ct. 2195 (2008) ....... 24, 26, 27, 28

Headwaters, Inc. v. Talent Irrigation District, 243

Se EEE CEE STEIN Decincecicinienuitaditacehaincmesecseccceqsnsesnesae 20

Hodel v. Indiana, 452 U.S 314 (1981)............ccccecceseeeeeeees 25

Hoffman Homes, Inc. v. U.S. Environmental Protec-

tion Agency, 999 F.2d 256 (7th Cir. 1993) ............:00e0 27

In re: Needham, 354 F.3d 340 (5th Cir. 2003)................... 21

Int'l Paper v. Quelette, 479 U.S. 481 (1987) ....2......cccceceeeees 3

Katzenbach v. McClung, 379 U.S. 294 (1964)..............0000 25

Perez v. United States, 402 U.S. 146 (1971)..................0002 25

Rice v. Harken Exploration Co., 250 F.3d 264 (5th

Cir. 2001), reh’g (en banc) denied, 263 F.3d 167

| ee Ee 21

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

Army Corps of Engineers, 531 U.S. 159 (2001)......passim

Treacy v. Newdunn, 344 F.3d 407 (4th Cir. 2003),

cert. denied, 124 S.Ct. 1874 (2004)..............cccccceeceeeeeeeee 20

United States v. Ashland Oil and Trans. Co., 504

Ee Ee TINS Te siniexcntiduaenitininisnedstinieneasediceeinsapeiann 20

United States v. Darby, 312 U.S. 100 (1941) ..........cccseeees 25

iv

TABLE OF AUTHORITIES -— Continued

Page

United States v. Deaton, 332 F.3d 698 (4th Cir.

2003), cert. denied, 124 S.Ct. 1874 (2004)............... 20, 27

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

BBG) ccvecccccsscctccnsesesniitnstenetpiaiinianipisnieniaieiataamaaaniinal 20

United States v. Gerke Excavating, 412 F.3d 804

CHU Chie, BD ccceonvsnissinsctinvissestilicnsenisstisisilaanaaaiaaias 20, 25

United States v. Lopez, 514 U.S. 549 (1995)......... 25, 26, 27

United States v. Morrison, 529 U.S. 598 (2000)......... . 26, 27

United States v. Rapanos, 376 F.3d 629 (6th Cir.

SOD vcccnecscsecevinccssihinicenssainstieaisedinnnaniaenian 23, 25

United States v. Riverside Bayview Homes, Inc., 474

TE BER CRIED cceciscssttiocinsescntnctesaseentscniettasconmeladil passim

Wickard v. Filburn, 317 U.S. 111 (1942)..............ee 24, 27

STATUTES

33 U.B.C. § 12B 1la)........cccccccrcererererereconrnrerersensesenosessvessseesees 4

SB UTB.G. § LEBER wiccccccscasscscccseccnsssitnnsosncneeneeiaanninlaain 4

SB UI.L. 9 LGR TOD cccrersccsccscocscrvessccsessnsssesdnteossiccsinnniaiaia 3, 4

SB UB.G. © SG ncccoccccscnsnssnossccsnstescscnnsetiosiabinnnmeiaiaan 4

BB WTR. © TG acc ciccctncsscssscosississeintictntnsieniiaigiaa 4

SB UG.G. 6 LDIF .cccrsccscoccconssscsvsseessoneinccentannsmaitomnal 3

‘ REGULATIONS

SB OI. 6 SUBBED cc cccrssecccsvevivesssesistinnecussenntiihaiedinenmantaaa 4

SS C.F § SEB.BT) nccccccccocseccoscsescessesseneesesinssenannensnapvensientiaian 4

TABLE OF AUTHORITIES — Continued

Page

IRE SOT SS NT 4

ESS ER OD 28

OTHER AUTHORITIES

Alexander, R.B. et al., Effect of stream channel size

on the delivery of nitrogen to the Gulf of Mexico,

403 Nature 758-761 (2000), available at

http://water. usgs.gov/nawqa/sparrow/nature/

I cain rerindansenincpnectesenenenscesepeecsennes 12

BELLROSE, F. AND D. HOLM, ECOLOGY AND MANAGE-

MENT OF THE Woop Duck (Stackpole Books, Me-

SIT TIITI Tiiereenpennnetpaneepntsagmnuspacnscsneseccaseces 16

Bettelheim, M., State of California Dep't of Fish

and Game, An Evaluation of Big Chico Creek,

Lindo Channel, and Mud Creek as Salmonid

Nonnatal Rearing Habitats (Aug. 2001), available

at http://www.atlantismagazine.com/bettelheim/

FREDRICKSON, L. AND D. BATEMA, GREENTREE

RESERVOIR MANAGEMENT HANDBOOK (Univ. of

Missouri-Columbia 1992) ..............ccccccccceccsceceecereeeesescees 16

Gomi, T. et al, Understanding Processes and

Downstream Linkages of Headwater Systems, 52

BioScience 905-916 (2002), available at http:/

www.scs.dpri.kyoto-u.ac,jp/users/sidle/papersPDF/

02_Articlo Gouni_(SPES). pif ...........cccesscscescecssscsssceeeeees 11

Great Lakes Regional Collaboration, Great Lakes

Regional Collaboration Strategy: To Restore and

Protect the Great Lakes (Dec. 2005), available at

http//www.girc.us/documents/GLRC_Strategy. pdf.......... 9

vi

TABLE OF AUTHORITIES ~— Continued

Maxwell, B., Management of Montana’s Amphibi-

ans: A Review of Factors that may Present a Risk

to Population Viability and Accounts on the Iden-

tification, Distribution, Taxonomy, Habitat Use,

Natural History and the Status and Conservation

of Individual Species, Report No. 43-0343-0-2224

to the USDA Forest Service (Sept. 2000), avail-

able at http://www.isu.edu/~petechar/iparc/Max-

Sh FR sichercittsintinnenbcdaitiaibiniinniinniioimees

Meyer, J. L. et al., Where Rivers Are Born: The

Scientific Imperative for Defending Small

Streams and Wetlands, American Rivers and

Sierra Club, publishers (Sept. 2003), available at

http://www.americanrivers.org/site/DocServer/

Page

WhereRiversAreBorn1.pdf?docID=182.................. passim

Michigan Dep't of Natural Resources, Landowner’s

Guide: Waterfowl, available at http://www.michi-

gandnr.com/publictions/pdfs/huntingwildlifehabit

at/Landowners_Guide/Species_Mgmt/Waterfowl.

htm. (last revised Dec. 12, 1999) (last visited Jan.

©, GREED cnvecunsscccnsccspcavensnensecenssensnsnsipentgunminseemaenesnecience

National Research Council, Comittee on Restora-

tion of Aquatic Ecosystems, Restoration of

Aquatic Ecosystems: Science, Technology, and

Public Policy, National Academy Press (1992).........

Ohio Environmental Protection Agency, Technical

Report: Ohio's Primary Headwater Streams -

Fish and Amphibian Assemblages (Sept. 2002),

available at http//www.epa.state.oh.us/dsw/wqs/

headwaters/TechRep_ FishAmphibian_2002.pdf......

. 8,14

vii

TABLE OF AUTHORITIES - Continued

Peterson, B.J. et al., Control of Nitrogen export

from watersheds by headwater streams, 292 Sci-

ence 86-90 (2001), available at http://www.k-

Richkus, K. et al., U.S. Fish and Wildlife Service,

Migratory Bird Harvest Information, 2004,

Preliminary Estimates (2005), available at http://

www.fws.gov/migratorybirds/reports/whs/Migrtory

%20Bird%20 Harvest %20 Information, %202004%

Samet, M., The Clean Water Act: Commerce Has

Everything to Do With It, NAT'L WETLANDS NEws-

Shellberg, J., Center for Watershed Studies, Uni-

versity of Washington, Fact Sheet: Bull Trout in

western Washington (Jan. 2002), available at http://

depts. washington.edu/cwws/Outreach/FactSheets/

Page

TT wiscincssrcsscanttennnionininesocratitaieecitinitunnssds 10, 13

Smith, B., U.S. Dep’t of Agriculture, Forest Service,

Conservation Assessment for the Northern Leop-

ard Frog in the Black Hills National Forest

South Dakota and Wyoming (April 2003), avail-

TINER, R.W., IN SEARCH OF SWAMPLAND: A WETLAND

SOURCEBOOK AND FIELD GUIDE (Rutgers U. Press,

New Brunswick, NJ, and London 2005) ............... passim

U.S. Army Corps of Engineers, Digest of Water

Resources, Policies, and Authorities, EP, 1165-2-1

(July 30, 1999), available at http://www.whdg.org/

ecb/ARMYCOE/COEPAM/1165_2_1. pdf .............0000

see

TABLE OF AUTHORITIES - Continued

U.S. Environmental Protection Agency, Aquatic

Biodiversity, available at http://www.epa.gov/

bioindicators/aquatic/sediment.htm! (last visited

Ba, © FD cevccepncrsesctceccontevtanesteencsseniememermesensnene

U.S. Fish and Wildlife Service, 2001 National

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www.census.gov/prod/2003pubs/fhw01-us. pdf. ........

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reation (July 2005), available at http://ibrary.

Page

ponte 17

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1

STATEMENT OF INTEREST

Amici are organizations that represent members who

comprise a substantial number of America’s anglers,

hunters, and conservationists; businesses that rely on

hunters and anglers as customers; organizations that

represent professionals who manage fisheries, wildlife and

water resources; and organizations that represent wildlife

and fisheries scientists.’ All of amici have a strong and

demonstrated interest in continued water resources’

protection. Some amici have developed expertise on the

Clean Water Act through education and ‘conservation

efforts to protect water resources and wildlife dependent

on water resources dating back to the Act’s passage in

1972; others rely on healthy water resources to support

their angling and hunting related businesses; others are

concerned with water and wetland restoration and preser-

vation efforts; still others represent a broad diversity of

professionals devoted to fish and wildlife conservation.

SUMMARY OF THE ARGUMENT

Protecting fish, shellfish, wildlife and recreational

opportunities is a central goal of the Clean Water Act

(CWA or Act). The Court has recognized that in passing

the Act Congress explicitly intended to “restore and

maintain the chemical, physical, and biological integrity of

the Nation’s waters” by ensuring that pollution is con-

trolled at its source and by protecting the important

~ ecological habitat functions of aquatic systems. To achieve

its goal, Congress recognized the necessity of broadly

applying the Act’s comprehensive protections to “waters of

the United States.”

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

that (1) all parties consented to the filing of this brief, (2) no counsel for

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

entity other than above-named amici curiae and their counsel made a

monetary contribution to the preparation or submission of this brief.

2

These cases concern water resources essential for fish

and wildlife to thrive throughout the interconnected

waters of aquatic systems: tributaries, such as headwater

streams that include the ditch tributaries at issue in these

cases, and wetlands adjacent to tributaries. Tributaries

and adjacent wetlands are inseparably bound to naviga-

ble-in-fact waters’ like trees are to their roots. If the roots

of a tree are poisoned and destroyed, the tree dies. Simi-

larly, if tributaries and adjacent wetlands are poisoned

and destroyed, connected navigable-in-fact waters are

made lifeless and polluted.

This brief will demonstrate the importance of tribu-

taries and adjacent wetlands to the maintenance and

protection of “the biological integrity of the nation’s Wa-

ters,” i.e., the wildlife and aquatic life throughout aquatic

systems. Not only is the protection of such resources

reasonable under the Act, but necessary and intended by

Congress. This brief will further show that the multi-

billion dollar a year economic activity generated by hunt-

ing, fishing and wildlife-related activity depends on the

protection of these resources and would be substantially

affected by their degradation and destruction. Conse-

quently, the protection of such waters was a valid exercise

of Congress’s commerce clause power.

In Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 531 U.S. 159 (2001)

(SWANCC), the Court held that the Migratory Bird Rule

cannot be the sole basis for asserting jurisdiction over

ponds that had formed in abandoned sand and gravel pits.

In these cases, Petitioners attempt to contort the Court's

narrow holding in SWANCC to mean that the significant

* Waters are navigable-in-fact “when they are used, or are suscep-

tible of being used, in their ordinary condition, as highways for com-

merce, over which trade and travel are or may be conducted in the

customary modes of trade and travel on water.” The Daniel Ball, 77

U.S. 557, 563 (1870).

3

ecological and hydrological connections between tributar-

ies and adjacent wetlands and navigable-in-fact waters

also cannot serve as a basis for asserting jurisdiction over

such waters. Petitioners would have the Court rewrite the

Act to allow for not only the unregulated fill of these

waters, and the resulting loss of their essential life-giving

functions, but also the discharge of all other pollutants

into countless tributaries and adjacent wetlands, many of

which flow directly into navigable-in-fact waters. Such a

ruling would be contrary to the Act and the Court’s prece-

dent.

Only a generation ago, our nation faced a crisis of

unrestrained pollution that left many of our waters dead

or degraded, poisoning the habitat upon which our fish

and wildlife depend. Understanding the need to broadly

restore and maintain the health of these aquatic systems,

Congress acted by adopting the Clean Water Act. See

United States v. Riverside Bayview Homes, Inc., 474 U.S.

121 (1985); see also, Int'l Paper v. Ouelette, 479 U.S. 481,

492, 486 n.6 (1987) (where the Court held that the Act was

designed to establish “an all-encompassing program of

water pollution regulation” and “applies to all point

sources and virtually all bodies of water,” and that “navi-

gable waters” has been construed “expansively”) (citations

omitted). The Court should follow the precedent it set in

Riverside Bayview by re-affirming that the Act provides

broad protection and rejecting the Petitioners’ attempt to

undo the law Congress designed to restore and maintain

America’s most precious natural resource, its water.

ARGUMENT

Despite its many complexities, the heart of the Act is

quite simple. Section 301(a) prohibits the discharge of

pollutants, including dredged and fill material, into

“navigable waters” defined broadly as “waters of the

United States.” 33 U.S.C. §§ 1311(a) and 1362(7). Regula-

tory definitions for “waters of the United States” include