Amicus Curiae Brief — Rapanos v. United States
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tributaries of navigable waters, see 33 C.F.R. § 328.3(5),
and wetlands adjacent’ to other jurisdictional waters,
including tributaries. See id. § 328.3(7). The Act, however,
allows for certain discharges to be authorized subject to
permits. 33 U.S.C. §§ 1311(a), 1342 and 1344. The dis-
charge of most pollutants, such as sewage waste, toxic
materials, and industrial waste into jurisdictional waters
is governed under Section 402. Id. § 1342. The discharge of
dredged and fill material into jurisdictional waters is
governed under Section 404. Id. § 1344. Section 301
established no jurisdictional distinction between an
activity involving a discharge of fill and an activity involv-
ing a discharge of other pollutants. This principle of the
Act must be borne in mind in resolving the jurisdictional
question posed by these cases.
Congress passed the Act to “restore and maintain the
chemical, physical, and biological integrity of the Nation's
waters.” 33 U.S.C. § 1251(a). One of its goals is to protect
and propagate fish, shellfish, wildlife and water-related
recreation. See id. § 1251(a)(2). The Court has previously
concluded that:
Protection of aquatic ecosystems, Congress rec-
ognized, demanded broad federal authority to
control pollution, for “[w]ater moves in hydrologic
cycles and it is essential that discharge of pollut-
ants be controlled at the source.”
Riverside Bayview, 474 U.S. at 132-33 (quoting S. Rep. No.
92-414, at 77 (1972),.reprinted in 1972 U.S.C.C.A.N. 3668,
3742).
* The regulations define “adjacent” as “bordering, contiguous, or
neighboring.” 33 C.F.R. § 328.3(c). Moreover, the regulations state that
adjacent wetlands include “[w)etlands separated from other waters of
the United States by man-made dikes or barriers, natural river berms,
beach dunes and the like.” Jd.
5
“In Riverside Bayview, the Court addressed the ques-
tion whether the Corps’ regulation of “wetlands adjacent to
but not regularly flooded by rivers, streams, and other
hydrographic features more conventionally identifiable as
‘waters’” was reasonable under the Act. Jd. at 131. The
Court found that “the Corps has concluded that wetlands
adjacent to lakes, rivers, streams, and other bodies of
water may function as integral parts of the aquatic envi-
ronment” and held that the regulation of such wetlands
was therefore permissible. Jd. at 131-35.‘ The Court noted
wetlands’ ability to “filter and purify water draining into
adjacent bodies of water, ... to slow the flow of surface
runoff into lakes, rivers, and streams and thus prevent
flooding and erosion,” and to “serve significant natural
biological functions, including food chain production,
general habitat, and nesting, spawning, rearing and
resting sites for aquatic . . . species” as reasons for uphold-
ing protection of adjacent wetlands under the Act. Jd. at
134-35 (citations omitted). Moreever, the Court did not
require each adjacent wetland to be hydrologically linked
to its neighboring water, instead finding that the Corps’
assertion of jurisdiction was reasonable over this class of
waters that “tend/s] to drain” into abutting jurisdictional
waters. See id. at 134 (emphasis supplied).
* Petitioners and Amici in support of Petitioners argue that the
Court only intended the holding in Riverside Bayview to extend to
wetlands directly abutting navigable-in-fact waters and rely heavily on
the Court’s occasional use of the term “open water” to support that
argument. See, e.g., Pet. Rapanos et al. Br. at 14. However, the Court
instead announced that its ruling applied more broadly to wetlands
adjacent to “streams” and “other bodies of waters” that are otherwise
jurisdictional under the Act. See Riverside Bayview, 474 U.S. at 135. It
was only the regulation of non-adjacent wetlands that the Court did not
address in Riverside Bayview. See id. at 131 n.8.
* In fact, Justice Stevens, who took part in the 9-0 decision in
Riverside Bayview, stated that the wetland at issue in that case was not
“hydrologically connected to navigable water.” SWANCC, 531 U.S. at
(Continued on following page)
6
The same factors present in Riverside Bayview, and
the same rationale the Court applied in rendering that
decision, are present and apply here, providing ample
bases for the Court to uphold the Corps’ assertion of
jurisdiction over all the adjacent wetlands at issue in these
cases.
Tributaries and adjacent wetlands are inseparably
bound to navigable-in-fact waters. First, most of them
drain or tend to drain into navigable-in-fact waters,
meaning that they are capable of carrying pollutants
downstream and poisoning navigable-in-fact waters.
Additionally, tributaries and adjacent wetlands maintain
and protect the integrity of navigable-in-fact waters
because they control flooding, cleanse and retain pollut-
ants, regulate flow, and provide habitat for species, includ-
ing many fish and amphibian species that depend for their
survival on movement between navigable-in-fact waters
and smaller connected streams and wetlands.
Consequently, the protection of tributaries and adja-
cent waters is no less essential for maintaining the integ-
rity of navigable-in-fact waters than the protection of
navigable-in-fact waters themselves. Absent such protec-
tion, fish and other wildlife populations will inevitably
decline. Such a decline will substantially harm wildlife-
dependent economic activities, such as hunting and
fishing. The regulation of activities affecting tributaries
and adjacent wetlands does not pose a significant constitu-
tional question, in part, because unfettered economic and
other activities that would destroy these resources would
have a substantial adverse effect on the multi-billion
dollar interstate commercial activities of hunting and
fishing.
175-76 (Stevens, J., dissenting (discussing the facts of Riverside
Bayview)).
7
I. PROTECTION OF TRIBUTARIES AND ADJA-
CENT WETLANDS IS ESSENTIAL TO THE
INTEGRITY OF OUR NATION’S WATERS,
AND TO THE VITALITY OF HUNTING AND
FISHING IN THE UNITED STATES.
A. The Health of Aquatic Life and Other
Wildlife, Including Many Game Species,
Requires Protection of Tributaries and
Adjacent Wetlands.
Overview of Tributaries and Adjacent Wetlands.
Often located miles from navigable-in-fact waters,
tributaries and adjacent wetlands provide much of the
habitat needed by fish and wildlife, and are the source of
most of the water that flows through the Nation’s water-
ways. Small headwater streams (known as first, second, or
low order streams),’ represent about three-fourths of the
total length of all streams in the United States.’ Moreover,
tributaries include many higher order streams that may
not themselves be navigable. In addition, many low order
streams flow directly into larger waters without first
joining any other tributaries."
Wetlands adjacent to tributaries are usually hy-
drologically and ecologically linked to their nearby
tributaries. These adjacent wetlands perform immensely
important water quality functions for navigable-in-fact
* Higher order streams are formed by the confluence of lower order
streams. Navigable-in-fact streams tend to be higher order streams. See
Meyer, J. L. et al., Where Rivers Are Born: The Scientific Imperative for
Defending Small Streams and Wetlands, American Rivers and Sierra
Club, publishers, 6 (Sept. 2003), available at http//www.americanrivers.
org/site/DocServer/WhereRiversAreBorn 1 .pdf?docID=182 (Where Rivers
Are Born).
" Id.
* See id.
8
waters. For instance, in four Vermont watersheds, head-
water wetlands comprise forty-five percent of the wet-
lands that improve water quality in larger downstream
waters.’ Wetlands associated with first order streams
alone account for ninety percent of phosphorous removal
for eight northeastern watersheds.” Absent these wet-
lands, much of this retained — would reach
navigable-in-fact waters.
Many tributeries can be characterized as “ditches,”
because they are either channelized natural streams, or
channels dug through wetlands to increase their drainage
to other waters.” In addition, wetlands and abutting
waters are often connected to navigable-in-fact waters via
seepage through a berm, subsurface flow under a berm, or
berm failures arising from erosion, cuts or overtopping.”
* Id. at 14.
~ 2
“ See TinER, R.W., IN SEARCH OF SWAMPLAND: A WETLAND SOURCE-
BOOK AND FIELD GUIDE 118 (Rutgers U. Press, New Brunswick, NJ, and
London 2005) (IN SEARCH OF SWAMPLAND) (channelization of most
streams designed to increase drainage and resulting levees can alter
adjacent wetland hydrology); Ohio Environmenta] Protection Agency,
Technical Report: Ohio’s Primary Headwater Streams - Fish and
Amphibian Assemblages, 3 (Sept. 2002), available at http//www.epa_state.
oh.us/dsw/wqs/headwaters/TechRep_FishAmphibian_2002.pdf (Ohio's
Primary Headwater Streams) (stating that a growing percentage of
headwaters streams in Ohio have been modified by channelization,
drainage and other alterations), National Research Council, Committee
on Restoration of Aquatic Ecosystems, Restoration of Aquatic Ecosys-
tems: Science, Technology, and Public Policy, National Academy Press,
33 (1992) (citing a Council of Environmental Quality finding that forty-
one percent of perennial streams are affected by siltation, bank erosion,
and channelization).
” See, e.g., U.S. Army Corps of Engineers, Digest of Water Re
sources, Policies, and Authorities, EP, 1165-2-1, 13-12 (July 30, 1999),
available at http//www.wbdg.org/cch/ARMYCOE/COEPAM/1165_2_1 pdf
(stating that levees fail due to overtopping, surface erosion, internal
erosion, underseepage and slides within the levee embankment or
foundation soils).
9
Thus, most ditches, levees and berms are simply man-
made alterations of natural features with a historic
connectivity between waters. This is particularly true in
the Midwest, where vast numbers of streams and wet-
lands have been “ditched,” otherwise altered or de-
stroyed.” Similar to natural streams, ditches can provide
significant hydrological and ecological connections to
navigable-in-fact waters that affect the integrity of those
waters.
In Riverside Bayview, the Court stated that
“wetlands may ‘serve significant natural biological
functions, including food chain production, general
habitat, and nesting, spawning, rearing and resting sites
for aquatic ... species.’” Riverside, 474 U.S. at 134-35
(citing 33 C.F.R § 320.4(b)(2)(i)). The scientific evidence
supports the Court, showing that adjacent wetlands,
along with tributaries, are essential for the health and
survival of myriad species dependent on and associated
with aquatic systems.
1. Storing Water and Maintaining Stream
and River Flows.
Tributaries and adjacent wetlands, including those
without direct or continuous surface flow into other
waters, ensure proper and healthy flow in all waters by
temporarily scoring much of the water that enters aquatic
systems. By retaining water during rain and snow melt
events, these tributaries and adjacent wetlands ensure
* See, eg., Great Lakes Regional Collaboration, Great Lakes
Regional Collaboration Strategy: To Restore and Protect the Great
Lakes, 11 (Dec. 2005), available at http://www.girc.us/documents/
GLRC_Strategy.pdf (tributaries essential to fish survival in the Great
Lakes negatively altered); Ivy SEARCH OF SWAMPLAND, at 110, 113 tbl.8.3,
118 (describing wetlands losses in the Midwest due to drainage and
other activities and stating that Michigan lost approximately 5.6
million acres of its wetlands from the 1700s to the 1980s).
10
that water more evenly and slowly flows into downstream
waters.'* This prevents washouts, maintaining the structural
nooks and crannies important to the reproduction of
certain fish.”
Streams dry up and often warm during low flow
periods.” Tributaries and adjacent wetlands recharge
groundwater, maintaining the healthy downstream flows
and temperatures that fish and other wildlife depend on
during these dry periods. For instance, fens — wetlands
that occur where groundwater continuously seeps upward
through the root zone of vegetation — provide colder
subsurface flow that maintains trout streams by allowing
sufficiently cool flows in warmer months.” Forested wetlands
also provide both water and cooling shade for adjacent
streams.” By contrast, when streams and wetlands are
destroyed, streams throughout the aquatic system experi-
ence increased flooding due to the loss of water retention |
upstream.”
“ See, e.g., IN SEARCH OF SWAMPLAND at 93 tbl.7.1, 95-6; Where
Rivers Are Born at 10.
* See, e.g., Shellberg, J., Center for Watershed Studies, University
of Washington, Fact Sheet: Bull Trout in western Washington (Jan.
2002), available at http//depts.washington.edu/cwws/Outreach/F actSheets/
bulltrout.pdf (Fact Sheet: Bull Trout in western Washington) (stating
that bull trout fry “are highly associated with the substrate of stream-
beds and are known to utilize interstitial spaces as cover” and “bull
trout eggs pockets (are) highly susceptible to . . . flood events”).
” See, e.g., Where Rivers Are Born at 11; IN SEARCH OF SWAMPLAND
at 124 (describing how water withdrawals from and adjacent to Ipswich
River (MA) wetlands have caused the river to run dry during summer).
See Where Rivers Are Born at 20.
* In SEARCH OF SWAMPLAND at 94.
" See, e.g., Where Rivers Are Born at 10-11.
11
2. Trapping Sediment.
Adjacent wetlands and tributaries trap enormous
amounts of sediment. Where they are not destroyed or
degraded, these waters can trap most sediment before it
reaches navigable-in-fact waters.” This provides impor-
tant biological and water quality benefits, such as clearer
water, which supports vegetation and fish reproduction.”
When sediment washes downstream, it can fill in habitat
areas and smother the fry and eggs that live there.”
Excess sediment can also harm the reproduction and
diversity of fish and other species, such as macroinverte-
brates that serve as the foundation for the food chain of
the entire aquatic habitat.”
3. Storing and Recycling Nutrients; Pro-
viding Food and Oxygen.
Tributaries and adjacent wetlands store and benefi-
cially recycle nutrients, preventing unnaturally high levels
of nutrients (such as phosphorous and nitrogen) which
exacerbate harmful plant and algal growth in downstream
waters, a process called eutrophication.” Eutrophication
* See id. at 12-13 (describing sediment retention functions of
wetlands); IN SEARCH OF SWAMPLAND at 95 (same); see also Gomi, T. et
al, Understanding Processes and Downstream Linkages of Headwater
Systems, 52 BioScience 905-916, 906 (2002), available at http//www.
scs.dpri.kyoto-u.ac,jp/users/sidle/papersPDF/02_Article_Gomi_(SP63).pdf
(stating that large substrate and woody debris in small headwater
streams provide sediment storage sites).
™ See Where Rivers Are Born at 12.
™ See, e.g., id.
* See id.; U.S. Environmental en, Sn ae ea
sity, available at http//www.epa.gov/bicindicators/aquatic/sediment.
html (last visited Jan. 6, 2006) (stating that sediment in waters can
“cover| |) important spawning habitats of fish and other organisms”).
* See Peterson, B.J. et «1., Control of Nitrogen Export from Watersheds by
Headwater Streams, 292 Science °S-90, 88 (2001), available at http:/Awww.
k-state.edu/doddslabjournalarts/peterson % 20et%20al %2Wscience% 20200 1. pdf
(Continued on following page)
12
causes algal blooms, which clouds water bodies, removes
oxygen vital to fish, and often results in fish kills.”
In one study, 64% of inorganic nitrogen entering a
small stream is retained or transformed within 1000
yards.” In another telling example, a wetland receiving
discharges of treated sewage each day removes 4.9 tons of
phosphorous, 4.3 tons of ammonia, and 138 pounds of
nitrate, while adding 20 tons of life-providing oxygen to
water that would otherwise carry these pollutants into a
tributary of the Delaware River, and, likely, the river
itself, seriously harming both water quality and wildlife in
downstream waters.” Additionally, streamside wetlands in
southern New England have been found to remove more
than eighty percent of the nitrate from water, and forested
wetlands have been shown to be particularly effective at
maintaining and restoring water quality, with their trees
storing heavy metals that would otherwise likely drain
into nearby waters.”
Tributaries and adjacent wetlands also facilitate the
processing of nutrients in ways that maintain wildlife.
Detritus and other biological materials are processed by
these waters into compounds edible by macroinvertebrates
(finding smaller streams may be the “most important in regulating
water chemistry ia large drainages because their large surface-to-
volume ratios favor rapid [nitrogen] uptake and processing”); Alexan-
der, 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/nature_alexetal-2 pdf (conclud-
ing that nitrogen-loss rates decline rapidly with stream channel size,
and declines of nitrogen removal in small streams are an important
contributor to eutrophication in the Gulf of Mexico).
™ Where Rivers Are Born at 13.
* Id. at 14.
” See IN SEARCH OF SWAMPLAND at 94-5. Vegetation in wetlands
provides life-giving oxygen to waters. Jd. at 8§.
™ See id. at 93-94.
13
which are, in turn, important food sources for fish, frogs,
and other wildlife.”
4. Allowing Completion of Life Cycles.
Many aquatic and semi-aquatic species begin their
lives and return to spawn or breed in tributaries and
adjacent wetlands. Species of salmon and trout use tribu-
taries both to spawn and during their juvenile life stages.”
Several Great Lakes species, such as chain pickerel,
largemouth bass, smallmouth bass, carp, northern pike,
and muskellunge, rely on inland wetlands for spawning
and juvenile life stages.” Moreover, wetlands are vital to
three-fourths of America’s commercial fish production,
which is worth about $111 billion.” Thus, tributaries and
adjacent wetlands serve as nurseries where fry are able to
feed and grow with shelter from predators until they are
mature enough to survive in larger waters. The impacts of
degraded water quality, hydrologic alteration, thermal
modification, and loss of stream and wetland habitat on
fish species are self-evident and well supported by the
scientific literature.
Additionally, given their unique breeding, feeding and
wintering requirements, many amphibians depend on
*” See Where Rivers Are Born at 14-15; IN SEARCH OF SWAMPLAND at
97.
* See, e.g., 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, 7-8, 12 (Aug. 2001),
available at http://www atlantismagazine.com/bettelheim/bigchico. pdf
(describing salmonid breeding habitat and stating that “Chinook
[salmon) and steelhead {trout) regularly utilize tributaries within the
Big Chico Creek watershed”); Fact Sheet: Bull Trout in western Wash-
ington (spawning and early rearing of bull trout occurs in coldwater
streams, with migration to mainstem rivers, lakes, and saltwater).
" See In SEARCH OF SWAMPLAND at 85, 86 fig.6.3.
™ Id. at 101.
14
movement from wetlands to nearby streams, lakes and
rivers.” For amphibians, successful breeding and survival
is oftentimes dependent on the lack of a direct surface
connection between nearby waters. For instance, many
amphibians, such as the Northern Leopard Frog which is
native to the Great Lakes, find particularly successful
breeding opportunities in wetlands where predacious fish
are prevented access from adjacent waters.“ Later, many
of these amphibians move to nearby tributaries and other
waters to feed and overwinter in deeper waters that will
* See, eg., Smith, B., U.S. Dep't of Agriculture, Forest Service, Conser-
vation Assessment for the Northern Leopard Frog in the Black Hills National
Forest South Dakota and Wyoming, 6-12, 13 (April 2003), available at
http/Anaps.wildrockies.org/ecosystem_defense/Science_Documents/Smith_.
2003.pdf (Conservation Assessment for the Northern Leopard Frog in the
Black Hills National Forest) (describing movement pattern of northern
leopard frogs from breeding wetland areas to nearby lakes, rivers and
streams for feeding and overwintering); Ohio's Primary Headwater
Streams, at 17-19 tbl.5 (listing salamander species that use small
headwater streams, some directly associated with wetlands, for
breeding. Also shows that certain salamander species migrate from
such waters to higher order streams); Maxwell, B., Management of
Montana's Amphibians: A Review of Factors that may Present a Risk to
Population Viability and Accounts on the Identification, Distribution,
Taxonomy, Habitat Use, Natural History and the Status and Conserva-
tion of Individual Species, Report No. 43-0343-0-2224 to the USDA
Forest Service, 9 (Sept. 2000), available at http//www.isu.edu/
~petechar/iparc/Maxell_Mgmnt odf (Management of Montana's Amphibi-
ans) (describing amphibians need for a complex set of connected
habitats for breeding, foraging and overwintering).
™ See, e.g., Conservation Assessment for the Northern Leopard Frog
in the Black Hills National Forest at 36 (waters that do not have direct
in which to promote the growth of vigorous populations of northern
leopard frogs”); U. S. Geologica] Survey, Northeast Amphibian Research
and Monitoring Initiative, available at http://pwrc.usgs.gov/nearmi/
species/ (last modified Aug. 5, 2005) (last visited Jan. 6, 2006) (some
frogs and toads “require fishless temporary ponds” for successful
reproduction).
15
not freeze.” Due in large part to their movement between
nearby waters, amphibians are an important link in the
ecosystem’s food chain and serve as a food source for fish
and other aquatic wildlife.”
Moreover, invertebrates such as stoneflies and may-
flies, which many game fish rely on for food, often origi-
nate in fishless upstream waters and drift downstream.” A
recent lige ms found that forested, fishless headwaters in
Alaska provide abundant food sources for downstream
salmon.
Waterfowl also depend on tributaries and adjacent
wetlands, such as Michigan’s valuable duck population. An
average of approximately 819,000 breeding ducks has been
counted in Michigan annually since 1992, including about
415,000 mallards.” This also includes blue-winged teal,
* See, e.g., Conservation Assessment for the Northern Leopard Frog
in the Black Hills National Forest at 11-12; Management of Montana's
Amphibians at 9.
* See, e.g., Conservation Assessment for the Northern Leopard Frog
in the Black Hills National Forest at 11-12, 19-21 (stating that northern
leopard frogs are a food source for a variety of fish and other wildlife),
Management of Montana's Amphibians at 8 (amphibians are key links
in the aquatic and terrestrial] food webs).
” See Where Rivers Are Born at 15; Wipfli, M.S, and D.P. Grego-
vich, Export of invertebrates and detritus from fishless headwater
streams in southeastern Alaska: implication for downstream salmonid
production, 47 Freshwater Biology 957-69 (2002), available at http://
www .troutnut.com/pdfarchive/wipfli.pdf (Export of invertebrates and
detritus from fishless headwater streams in southeastern Alaska)
(finding that forested headwaters provide a year round source of
invertebrates and detritus for downstream habitats).
* See Export of invertebrates and detritus from fishless headwater
streams in southeastern Alaska.
* See US. Fish and Wildlife Service, Waterfowl: Population Status,
2005, 52 (July 2005), available at http://www.fws.gov/migratorybirds
/reports/status05/final_status_05.pdf.
16
green-winged teal, hooded mergansers, black ducks, ring-
necked ducks and several other species of ducks which are
dependent upon the state’s waters and wetlands.”
Two of the most economically-important ducks in the
U.S. are the mallard and wood duck, comprising 36.8%
and 9%, respectively, of the nation’s 2004 harvest.“ These
two species are highly adapted to forested wetlands, such
as the type at issue in the Carabell case. The wood duck’s
habitat requirements restrict its primary distribution to
wooded wetlands.” A leading study stated that “in general,
wood ducks use the wetlands associated with streams and
rivers more than any other habitat type,” and explicitly
included “sluggish ditches” within the description of wood
duck habitats.” The study further noted that ponds and
wetlands near, but separate from, channels had added
value to the species, particularly as breeding habitat.“
Thus, wetlands and tributaries precisely like the ones in
question in these two cases are critical to maintaining this
important species.
To sum up, tributaries and adjacent wetlands are of
enormous importance to the chemical, physical, and biologi-
cal integrity of navigable-in-fact waters, and “inseparably
bound up” with them in numerous and significant ways. As
“ Michigan Dep’t of Natural Resources, Landowner’s Guide:
Waterfowl, available at http://www.michigandnr.com/publications/pdfs/
huntingwildlifehabitat/Landowners_Guide/Species_Mgmt/Waterfow!.htm
(last revised Dec. 12, 1999) (last visited Jan. 4, 2006).
“ Richkus, K. et al., U.S. Fish and Wildlife Service, Migratory Bird
Harvest Information, 2004, Preliminary Estimates, 27 (2005), available
at http://www.fws.gov/migratorybirds/reports/whs/Migratory%20Bird®
20Harvest%20Information,%202004%20Preliminary%20Estimates.pdf.
“ FREDRICKSON, L. AND D. BATEMA, GREENTREE RESERVOIR MANAGE.
MENT HANDBOOK 68 (Univ. of Missouri-Columbia 1992).
“ BELLROSE, F. AND D. HOLM, ECOLOGY AND MANAGEMENT OF THE
Woop Duck 41 (Stackpole Books, Mechanicsburg, PA 1994).
“ See id.
_--—~-= -
17
such, the Clean Water Act must necessarily continue to be
interpreted to protect such waters.
B. Hunting and Fishing are Substantial Recrea-
tional and Economic Activities that are De-
pendent on the Protection and Maintenance
of the Integrity of Our Nation’s Waters.
Hunting, fishing and other wildlife-related activity
account for substantial economic activity in the United
States. In 2001, the country had about thirty-eight million
sportspersons, including hunters (thirteen million) and
anglers (thirty-four million, including twenty-eight million
freshwater anglers) who spent $70 billion on these activi-
ties.” In 2001, about 1.8 million waterfow)] hunters,
including just under 1.6 million duck hunters, expended
approximately $935 million for hunting-related goods and
services, generating a total economic output of over $2.3
billion.” Wildlife watching was also a tremendous source
of economic activity in 2001: approximately 14.4 million
Americans watched waterfowl and about 10.3 million
Americans watched other water birds.”
The 2001 U.S. Fish and Wildlife Survey documented
that many of those who participated in wildlife-related
economic activity crossed state lines to do so. For example,
“ US. Fish and Wildlife Service, 2001 National Survey of Fishing,
Hunting, and Wildlife-Associated Recreation, 5 (2002), available at
http//www.census gov/prod/2003 pubs/fhw0 1-us.pdf (2001) National Survey
of Fishing, Hunting, and Wildlife-Associated Recreation).
“US. Fish and Wildlife Service 2005, Economic Impact of
Waterfowl Hunting in the United States: Addendum to the 2001
National Survey of Fishing, Hunting, and Wildlife-Associated Recrea-
tion, 4 tbl.1 and 11 tbl.4 (July 2005), available at http/Aibrary.fws.gov/
nat_survey2001_waterfowlhunting. pdf.
” National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation at 88 tbl.40.
18
thirty percent of those who watched waterfowl, and thirty-
one percent of those who watched other water birds,
traveled across state lines to do so.“
The Great Lakes area and Michigan benefit greatly
from hunting and fishing. In 2001, there were almost two
million anglers in the Great Lakes area, nineteen percent
of whom fished in states where they did not reside.“
Twenty-six percent of the just under 1.4 million anglers in
Michigan traveled from outside the state to fish there.”
Lake St. Clair and the St. Clair River in Michigan were
visited by approximately 96,000 anglers in 2001, who
spent about 524,000 days fishing.” The Carabell and
Rapanos wetlands may directly impact the water quality
of Lake St. Clair.
Key game species like trout and ducks would decline
significantly if tributaries and wetlands were not pro-
tected by the Act. Hunting and fishing activity would also
drop as the quantity and quality of game diminished,
resulting in a decrease in associated economic activity.
Other fish and wildlife-related activities, such as water-
fowl watching, and their associated economic activity
would face similar declines.
“ Id. at 88 thi.40.
* Id. at 80 thl.27, 109 tbl.61.
” Id. at 103 tbl.55.
" Id. at 80 thl.27.
19
Il. CONGRESS INTENDED TO BROADLY PROTECT
THE ENTIRE AQUATIC SYSTEM, INCLUDING
TRIBUTARIES AND THEIR ADJACENT WET-
LANDS, AND THE CORPS PROPERLY AS-
SERTED JURISDICTION OVER THE WATERS IN
RAPANOS AND CARABELL.
In Riverside Bayview, this Court found that the
legislative history and language of the 1972 Act and its
1977 amendments made clear that Congress intended the
Act to reach wetlands adjacent to other waters subject to
the Act’s jurisdiction. 474 U.S. at 138. The Court did not
disturb this holding in deciding SWANCC. Rather, the
Court endorsed its decision in Riverside Bayview, stating
that, “We found that Congress’ concern for the protection
of water quality and aquatic ecosystems indicated its
intent to regulate wetlands ‘inseparably bound up with
the “waters” of the United States.’” SWANCC, 531 U.S at
167 (emphasis supplied) (citation omitted). In SWANCC,
the Court only found that Congress did not intend to
regulate certain intrastate ponds that were not adjacent
to any other waters and had no connection whatsoever to
other waters other than their use by migratory birds. Jd.
at 168 (declining to find that “the jurisdiction of the [Act]
extends to ponds that are not adjacent to open water”)
(emphasis in original). Thus, Riverside Bayview’s recogni-
tion of the significant hydrological and ecological effects
of adjacent wetlands on navigable-in-fact waters has
continued vitality and applies with equal force to the
types of tributaries and adjacent wetlands at issue in
these cases.
A. Courts Have Overwhelmingly Affirmed
that Congress Clearly Intended the Act to
Regulate Non. Navigable Tributaries.
From the Act’s passage in 1972, courts have recog-
nized Congress’s intent to protect the entire tributary
system of navigable waters. In 1974, the Sixth Circuit held
20
that non-navigable \xibutaries are plainly covered, noting
that, “Congress’ clear intention as revealed in the Act itself
was to effect marked improvement in the quality of the
total water resources of the United States, regardless of
whether that water was at the point of pollution part of a
navigable stream.” United States vu. Ashland Oil and
Trans. Co., 504 F.2d 1317, 1323 (6th Cir. 1974).
Both before and efter SWANCC, other courts have
consistently concluded that even far-reaching tributaries
of navigable waters are covered by the Act. In a case of
recent vintage, Judges Michael, Wilkinson and Luttig of
the Fourth Circuit held that because “discharges into
nonnavigable tributaries and adjacent wetlands have a
substantial effect on water quality in navigable waters,”
the intended reach of the CWA encompasses the “entire
tributary system” of navigable waters. United States v.
Deaton, 332 F.3d 698, 710, 712 (4th Cir. 2003), cert. denied,
124 S.Ct. 1874 (2004).
Other Circuits have found the Act to cover tributaries
other than navigable-in-fact waters, including a manmade
ditch, Deaton, 332 F.3d at 712; Treacy v. Newdunn, 344
F.3d 407, 417 (4th Cir. 2003), cert. denied, 124 S.Ct. 1874
(2004), irrigation canals, Headwaters, Inc. v. Talent Irriga-
tion District, 243 F.3d 526, 533 (9th Cir. 2001), and storm
drains that led to the Tampa Bay. United States v. Eidson,
108 F.3d 1336, 1342-43 (11th Cir. 1997). In a case involv-
ing an extended tributary system that included a man-
made ditch, Judge Posner recently noted:
A stream can be a tributary, why not a ditch? A
ditch can carry as much water as a stream, or
more; many streams are tiny. It wouldn’t make
much sense to interpret the [Corps’s] regulation
as distinguishing between a stream and its man-
made counterpart.
United States v. Gerke Excavating, 412 F.3d 804, 805-06
(7th Cir. 2005).
21
As the courts have recognized, tributaries can convey
pollutants directly to navigable-in-fact waters, poisoning
them for both human and wildlife use.” The same holds
true for adjacent wetlands that “tend to drain” into tribu-
taries and are likely to be hydrologically linked to naviga-
ble-in-fact waters. However, as the Court has recognized in
Riverside Bayview, and reaffirmed in SWANCC, other
equally compelling ecological reasons support jurisdiction
over the waters at issue in these cases.
B. The Corps Was Reasonable in Regulating
the Wetlands At Issue as “Adjacent Wet-
lands.”
Riverside Bayview’s finding that wetlands “adjacent”
to waters subject to the Act’s jurisdiction are themselves
jurisdictional was based both on the tendency of adjacent
waters to drain into other jurisdictional waters, and to the
vital ecological functions these wetlands perform that
maintain the integrity of navigable-in-fact waters. As the
Court stated, “[T]he Corps’ ecological judgment about the
relationship between waters and their adjacent wetlands
provides an adequate basis for a legal judgment that
adjacent wetlands may be defined as waters under the
Act.” Riverside Bayview, 434 U.S. at 134.
“ Petitioners rely on two Fifth Circuit decisions, Jn re: Needham,
354 F.3d 340 (5th Cir. 2003) and Rice v. Harken Exploration Co., 250
F.3d 264 (5th Cir. 2001), reh’g (en banc) denied, 263 F.3d 167 (2001), for
their position that the Act does not extend to the Rapanos and Carabell
wetlands. See, e.g, Pet. Carabell.Br. at 36-7. These cases involved the
Oil Pollution Act (“OPA”), not the Clean Water Act. In Needham, the
court ultimately found that the spill at issue was covered by the OPA.
Needham, 354 F.3d at 344-47. In Rice, the Court held that the OPA does not
apply to discharges of oi] onto dry land that seeped through the ground into
groundwater which, in turn, contaminated several intermittent streams
where there was little evidence in the record concerning how often the
creek runs, how much water flows in it, and whether the creek ever
flowed into a navigable body of water. Rice, 250 F.3d at 265, 269-72.
22
In addition, the Court deemed the Corps reasonable in
regulating adjacent wetlands even though “not every
adjacent wetland is of great importance to the environ-
ment of adjoining bodies of water” and “the existence of
such cases does not seriously undermine the Corps’ deci-
sion to define all adjacent wetlands as ‘waters.’” Id. at 135
n.9. The Court went on to state:
If it is reasonable for the Corps to conclude that
in the majority of cases, adjacent wetlands have
significant effects on water quality and the
aquatic ecosystem, its definition can stand. That
the definition may include some wetlands that
are not significantly intertwined with the ecosys-
tem of adjacent waterways is of little moment.
Id.” This conclusion is consistent with the Court’s juris-
prudence regarding generalized rules regulating a class:
“To generalize is to be imprecise. Virtually every legal (or
other) rule has imperfect applications in particular cir-
cumstances.” Barnhart v. Thomas, 540 U.S. 20, 29 (2003)
(emphasis in original).
The Court has therefore recognized that the class of
wetlands adjacent to other jurisdictional water are “in-
separably bound up” with navigable-in-fact waters and are
enormously valuable to their integrity. No argument
Petitioners put forth disputes this.
" The Court went on to state that for wetlands that are not
significantly intertwined with other waters, the Act provides an answer:
activities impacting such waters may be permitted. See Riverside
Bayview, 434 U.S. at 135 n.9.
Moreover, while the Court noted in SWANCC that a “significant
nexus” between adjacent wetlands and navigable waters informed its
decision in Riverside Bayview, this characterization did not dismiss
the above holding in Riverside Bayview. See SWANCC, 531 U‘S. at
167. (“It was the significant nexus between the wetlands and ‘naviga-
ble waters’ that informed our reading of the CWA in Riverside
Bayview Homes.”).
23
All of the wetlands at issue in these cases are clearly
adjacent to jurisdictional waters. The Rapanos wetlands
easily satisfy the adjacency requirement because all three
sites share hydrological surface water connections to
“waters of the United States,” namely Lake Huron and
Lake St. Clair. See United States v. Rapanos, 376 F.3d 629,
642-43 (6th Cir. 2004). Pollutants discharged into the
wetlands could therefore have significant impacts on those
navigable-in-fact waters as the water flows downstream.
Similarly, the Carabell wetlands are adjacent to jurisdic-
tional waters. As the court below found, the property
containing the wetlands indisputably abuts an unnamed
tributary that eventually connects to Lake St. Clair.
Carabeli v. U.S. Army Corps of Engineers, 391 F.3d 704,
705-06, 708 (6th Cir. 2004). The Corps was reasonable to
believe that the wetlands are likely hydrologically con-
nected to the tributary flowing into Lake St. Clair given
the tendency of wetlands separated from other waters by a
berm to drain into the abutting water by seepage through,
cuts in or overtopping of the berm. Furthermore, the
record provides strong indications that additional facts
would show that cuts in the berm or overtopping results in
hydrological connections between the Carabell wetland
and the abutting tributary. See Carabell J.A. at 186a-187a -
(testimony describing cuts and low areas in the berm
where water might flow from wetland into nearby tribu-
tary during storm events). The Corps also found that the
wetlands perform valuable water quality and ecological
functions, preventing floods, retaining sediments and
other pollutants that would otherwise be free to flow
directly into jurisdictional waters, and providing habitat to
aquatic wildlife. Carabell, 391 F.3d at 706. These factors
satisfy the adjacency requirements detailed in Riverside
Bayview and distinguish the Carabell wetlands from the
ponds in SWANCC, which possessed none of these proper-
ties.
24
Ill. CONGRESS CAN REGULATE TRIBUTARIES
AND ADJACENT WETLANDS UNDER THE
COMMERCE CLAUSE, GIVEN THE SUBSTAN-
TIAL EFFECT THAT ECONOMIC ACTIVITIES
THAT POLLUTE THESE WATERS HAVE ON
FOREIGN AND INTERSTATE COMMERCIAL
ACTIVITY, SUCH AS HUNTING AND FISHING,
The regulation of tributaries and adjacent wetlands is
constitutional under the commerce clause because it is
both (1) regulation of the “channels of commerce,” and (2)
regulation of activities which, in the aggregate, have a
substantial effect on interstate commerce. Gonzales v.
Raich, 125 S.Ct. 2195, 2205 (2005).” In this brief, we focus
on the constitutionality of the regulation under the latter
theory. In the aggregate, the placement of fill in wetlands
for the purposes of economic development reasonably could
substantially affect interstate commerce by degrading
resources depended upon by a multi-billion dollar recrea-
tion and sporting industry, as well as related businesses.
In upholding Congress’s broad prohibition on the
manufacture, distribution or possession of marijuana
under the Cuntrolled Substances Act (“CSA”), this Court
strongly affirmed Congress’s power to regulate a class of
activity “even if [the individual activity] se local and
though it may not be regarded as commerce, . . . if it exerts
a substantial economic effect on interstate commerce.”
Raich, 125 S.Ct. at 2205-06 (quoting from Wickard v.
Filburn, 317 U.S. 111 (1942)). The Court has long endorsed
this principle in many regulatory contexts.”
“ It is also possible thet these waters may be regulated by
Congress as “instrumentalites” of interstate commerce, or “things” in
interstate commerce. See Raich, 125 S.Ct. at 2205.
“ For instance, this Court has held that the prohibition on the
shipment of goods produced in violation of wage and hour restrictions
under the Fair Lepor Standards Act was constitutional because “the
tota! effect of th: competition of many smal! producers may be great”,
(Continued on following page)
25
Thus, in the case of “adjacent wetlands” and “tributar-
ies,” the analysis must focus on the substantial aggregate
effect that destroying these resources may have on com-
merce. As the Seventh Circuit has stated:
Obviously, filling in a 5.8 acre tract ... is not
going to have a measurable effect on the depth of
the Wisconsin or Mississippi Rivers. But that
cannot be the test. The sum of many small inter-
ferences with commerce can be large, and so to
protect commerce Congress must be able to regu-
late an entire class of acts if the class affects
commerce, even if no individual act has a percep-
tible effect.
Gerke, 412 F.3d at 806. Further, the Court noted that it
“need not determine whether respondents’ activities, taken
in the aggregate, substantially affect interstate commerce
posi am Nae Pigg 7g = peers exists for so
concluding.” Raich, 125 S.Ct. at 2208 (citing United States
v. Lopez, 514 U.S. 549, 557 (1995)).
Petitioners activities — development of 4 large condo-
minium complex, Carabell, 391 F.3d at 706, and the filling
of wetlands for development of a shopping center, Ra-
panos, 376 F.3d at 632 - are indisputably commercial in
natvre. As discussed above, the wetlands these economic
activities affect belong to a class of waters that play a
major role in sustaining a multi-billion dollar hunting and
United States v. Darby, 312 U.S. 100, 123 (1941), and that Congress
was within its powers to protect “prime farmland” from mining impacts
under the Surface Mining Control and Reclamation Act even though the
likely impacts to total farmland from mining was small. Hodel v.
Indiana, 452 U.S 314, 321-30 (1981); see also, Perez v. United States,
402 U.S. 146, 153-4 (1971) (aggregate effects relied on to uphold “loan
sharking” prohibition of Consumer Credit Protection Act); Katzenbach
v. McClung, 379 U.S. 294, 301 (1964) (aggregate effects relied on to
uphold prohibition of racial discrimination in restaurants under the
Civil Rights Act of 1964).
fishing industry. Therefore, the Court has a rational] basis
for concluding that unregulated commercial development
of such waters, in the aggregate, would have substantial
impacts on interstate commerce and adversely affect
America’s long-standing hunting and fishing industries.
Raich dispels Petitioners’ contention that Section 404
regulation should contain a “jurisdictional element” giving
the Corps “a method for distinguishing between wetlands
that would substantially affect interstate commerce and
wetlands that would not.” Pet. Carabell et al. Br. at 43.
The Court found that, “[Wle have often reiterated that
where the class of activities is regulated and that class is
within the reach of federal power, the courts have no
power to excise, as trivial, individual instances of the
class.” Raich, 125 S.Ct. at 2209 (citations and internal
quotes omitted). Unless a “particular statute or provision
[falls] outside Congress’ commerce power in its entirety,”
the fact that the statute may apply in instances where the
activity is not strictly commercial is not fatal to the exer-
cise of commerce clause authority. Jd. at 2209.
Regulation of tributaries and adjacent wetlands can
easily be distinguished from the Court’s holdings in
United States v. Lopez, 514 U.S. 549 (1995), and United
States v. Morrison, 529 U.S. 598 (2000), where the Court
ruled that the Commerce Clause did not provide Con-
gress power to regulate certain non-economic activities:
intrastate possession of a gun near a school zone under
the Gun-Free School Zone Act of 1990, and intrastate
crimes involving violence against women under the
Violence Against Women Act of 1994, respectively. Unlike
the statute in Lopez, which was a “brief, single-subject
statute making it a crime for an individual to possess a
gun in a school zone,” Raich, 125 S.Ct. at 2209, the
Section 404 permitting system is an essential part of a
large comprehensive regulatory scheme that extensively
touches economic activities substantially affecting inter-
state commerce. See City of Milwaukee v. Illinois and
Michigan, 451 U.S. 304, 318 (1981) (“The ‘major purpose’
27
of the [CWA] was ‘to establish a comprehensive long-range
policy for the elimination of water pollution.’” (quoting
S.Rep.No.92-414, at 95, 2 Leg.Hist. 1511)) (emphasis in
original as supplied by the Court).
Justice Scalia concurred that Lopez and Morrison
“do not declare noneconomic intrastate activities to be
categorically beyond the reach of the Federal Govern-
ment. Neither case involved the power of Congress to
exert control over intrastate activities in connection
with a more comprehensive scheme of regulation.”
Raich, 125 S.Ct. at 2218 (Scalia, J., concurring). This
reasoning plainly applies here to uphold the constitu-
tionality of the Corps’ “adjacency” and “tributary”
regulations.
Moreover, despite Petitioner Carabell’s claim that
Section 404 would regulate many activities that are not
economic, most wetland fills involve economic activity at
least as substantial as that in Wickard. In that case, the
Court upheld the constitutionality of the Agricultural
Adjustment Act, finding that wheat homegrown to supply
the grower could have an economic effect on the market by
removing a consumer from the market, thus influencing
wheat prices. See Wickard, 317 U.S. at 127-29. The Court
found that even though a farmer’s “own contribution to the
demand for wheat may be trivial ... his contribution,
taken together with that of many others similarly situ-
ated, is far from trivial.” Wickard v. Filburn, 317 U.S. 111,
127-28 (1942).
Most wetland and tributary fills occur for economic
activity, such as the type of residential and commercial
development at issue in these cases“ When the overall
” See, e.g., Deaton, 332 F.3d at 702 (fill placed in wetlands in effort
to destroy wetlands for a residentia] subdivision); Hoffman Homes, Inc.
v. U.S. Environmental Protection Agency, 999 F.2d 256, 257 (7th Cir.
1993) (wetlands filled by Hoffman Homes to construct a subdivision);
see also Samet, M., The Clean Water Act: Commerce Has Everything to
(Continued on following page)
regulatory scheme of the Act as it applies to tributaries
and adjacent wetlands is examined it becomes clear that it
ment and other economic activities that substantially
impact the multi-billion dollar sporting industry and other
industries dependent on healthy water resources. Further-
more, these cases concern Congress's ability to regulate the
placement of other pollutants generated by myriad indus-
adjacent wetlands that flow directly into economically
important navigable-in-fact waters, further supporting
regulation under the commerce clause.”
Similarly unpersuasive is Petitioner Carabell’s argu-
ment that jurisdiction in this case violates the commerce
clause because congressional findings concerning the CWA
contain “no cogent rationale for permitting the extension
of federal authority” over the Carabell wetlands. Pet.
Carabell et al. Br. at 44. The Court has previously ob-
served that it has “never required Congress to make
particularized findings in order to legislate ... absent a
special concern such as the protection of free speech.”
Raich, 125 &Ct. at 2208 (citation omitted). Further,
“Congress c. .0t be expected (and certainly should not be
required) to include specific findings on each and every
Do With It, NaT’L WETLANDS NEWSLETTER, Mar.-Apr. 2004, at 4 (stating
that “the majority of acreage for which section 404 permits are sough.
is intended for commercial, industrial, or other economic uses”) (citing,
Albrecht, V. and B. Goode, Wetland Regulation in the Real World,
Beveridge & Diamond (1994)). Moreover, even fills for purely “aes-
thetic” purposes, see Pet. Carabell et al. Br. at 43, on private land would
likely affect the market value of that property and potentially nearby
properties, as well as having potential market impacts through the
purchase of fill or the hiring of labor.
" For instance, EPA regulations which cover discharges into
waters — including those similar to the ones at issue in this case - for
purposes of regulation under Section 402 have over 1,500 pages devoted
to effluent guidelines for discharges caused by 73 different categories of
industrial activity alone. See, e.g., 40 CFR pts. 403-610.
29
substance contained [in the CSA].” Raich, 125 S.Ct. at
2208 n.32. This reasoning applies equally to the CWA.
In sum, there are numerous ways that economic
activities causing the destruction of tributaries and
adjacent wetlands could have a substantial aggregate
effect on interstate commerce. As described above, these
waters provide breeding grounds, habitat and food for
various fish, game and other species. Additionally, they
protect habitat in navigable-in-fact waters by filtering out
nutrients and other pollutants, preventing erosion, ensur-
ing healthy flows, and preventing flooding. They also
possess the ability to transport poison and other dis-
charged pollutants to downstream navigable-in-fact
waters, harming their fish and wildlife populations. As a
class, therefore, tributaries and adjacent wetlands are
crucial to the viability of hunting, fishing, wildlife watch-
ing and other wildlife-related interstate commercial
activity.
Moreover, given that these resources and the aquatic
within Congress’s authority to regulate commerce.
CONCLUSION
The judgments of the Court of Appeals should be
affirmed.
Respectfully submitted,
JAMES MURPHY
NATIONAL WILDLIFE FEDERATION
58 State Street
Montpelier, Vermont 05602
(00) 320 0650
Counsel of Record for Amici Curiae
Ww)
tl
Nos. 94-1034 and 04-1384
IN THE OFFICE OF Ty
Supreme Court of the Anited States
F CLEPK
JOHN A. RAPANOS, et al.
Petiti
Vv.
UNITED STATES,
Respondent.
JUNE CARABELL, et al.
Petitioners,
v.
U.S. ARMY CORPS OF ENGINEERS
Respondent.
On Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
BRIEF OF AMICUS CURIAE JOHN J. DUNCAN, JR.
IN SUPPORT OF THE PETITIONERS
THOMAS C. JACKSON
WALSON-Eres Pravrive Co. INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
1. Does the Clean Water Act extend to wetlands that
are hydrologically isolated from any of the “waters of the
United States?”
2. Do the limits on Congress’ authority to regulate
interstate commerce preclude an interpretation of the
Clean Water Act that would extend federal authority to
wetlands that are hydrologically isolated from any of the
“waters of the United States?”
3. Does the Clean Water Act prohibition on
unpermitted discharges to “navigable waters” extend _to
nonnavigable wetlands that do not even abut a navigable
water?
4. Does extension of Clean Water Act jurisdiction to
every intrastate wetland with any sort of hydrological
connection to navigable waters, no matter how tenuous or
remote the connection, exceed Congress’ constitutional
power to regulate commerce among the states?
(i)
QUESTIONS PRESENTED...............scccssessesssssenes
STATEMENT OF INTEREST............ccssssssssssessees
SUMMARY OF ARGUMENT. ..............ececesessesenees
SAT Eectieernanemnmin
I. There Is No Clean Water Act Jurisdiction
Il.
Ill.
TABLE OF CONTENTS
Over Wetlands That Are Hydrologically
Isolated From Navigable Waters ..............+.+.
A Hydrological Connection Alone Does Not
Establish A Significant Nexus Between A
Wetland And Navigable Waters Sufficient
To Establish Jurisdiction As A Matter Of
There Is No Clean Water Act Jurisdiction
Over Wetlands That Are Adjacent To Point
(iii)
iv
TABLE OF AUTHORITIES
CASES Page
FD&P Enters. Inc. v. U.S. Army Corps of
Eng’rs, 239 F. Supp. rea ewactcon
Fei eniesptecccatcintaeeicanta 11
Headwaters, Ine. v. Talent Irrigation
Dist., 243 F.3d 596 (9th Cir. 2001) ...........000+ 15, 16
In re Needham, 354 F.3d 340 (5th Cir.
ee csruivinencituinhteennticneieineintanminninaeniinn 15
Rice v. Harken Exploration Co., 250 F.3d
SOR GR CR. BRD cccneineinvictemenmmininciiom 7,12
Rodriguez v. United States, 480 U.S. 522,
ee eetcctignernenssinnninnmenimepininnguiiciniiis 18
Solid Waste Agency of N. Cook County v.
United States Army Corps of Eng’rs,
531 U.S. 159 (2001).........00rcerververereseesessereenres passim
South Fla. Water Mgmt. Dist. v.
Miccosukee Tribe of Indians, 541 U.S.
OB GO ccccccnepeneretenswcnsneznssseterernseneniommmmnesnatiie 14
United States v. Buday, 138 F. sins 2d
Se 12
United States v. Rapanos, 190 F. Supp. 2d
1011 (E.D. Mich. 2002) rev'd, 339 F.3d
GGT GBs Cir. STEED cxceccsscsonsscseceseescnsssesnsesssceve 3, 11, 12
United States v. Rapanos, 339 F.3d 447 ;
4 ae 12
v
TABLE OF AUTHORITIES (Continued)
United States v. Riverside Bayview Homes, Inc., 474
U.S. 121 (1985) sees 8, 9
Village of Oconomowoc Lake v. Dayton Hudson rah
24 F.3d 962 (7th Cir. 1994) cvcoese 7
STATUTES
33 US.C. § 1251-1387 (2000) wo §
33 U.S.C. § 1251(b) (2900). 8
33 U.S.C. § 1251-74 (2000) a 17
33 U.S.C. § 1288 (2000)..... 17
33 U.S.C. $§ 1291-1301 (2000) wee 17
33 U.S.C § 1311 (2000)... ecsossece 16
33 U.S.C § 1311(a) (2000) . wwe 15, 17
33 U.S.C. § 1329 (2000) 17
83 U.S.C. § 1342 (2000) ovseee 5, 14, 15, 16, 17
33 U.S.C. § 1342(p) (2000) 8, 16
33 U.S.C. § 1344 (2000) - 15,17
vi
TABLE OF AUTHORITIES (Continued)
33 U.S.C. § 1362(7) (2000)
33 U.S.C. § 1362(12) (2000)
33 U.S.C. § 1362(14) (2000)
33 U.S.C. §§ 2701-20 (2000)
33 U.S.C. § 2702 (2000)
42 U.S.C. §$§ 9601-9675 (2000)
15
15
42 U.S.C. § 9601(8) (2000)
42 U.S.C. § 9607 (2000)...
REGULATIONS
33 C.F.R. § 328(a)(1) (2005) “
~ 33 C.F.R. § 328(a)(2) (2005)
33 C.F.R. § 328(a)(3) (2005)
33 C.F.R. § 328(a)(4) (2005)
33 C.F.R. § 328(a)(5) (2005)
33 C.F.R. § 328(a)(6) (2008) ... seneneees
vil
TABLE OF AUTHORITIES (Continued)
83 C.F.R. § 328(aX7) (2005) ........... 7
40 C.F.R. § 230.3(s) (2005) ... — we
MISCELLANEOUS
U.S. General Accounting Office, GAO-04-297,
Waters and Wetlands: Corps of Engineers
Needs to Evaluate its District Office
Practices in Determining Jurisdiction
(2004) a )
IN THE
Supreme Court of the United States
No. 04-1034
JOHN A. RAPANOS, et al.
Petitioners,
Vv.
UNITED STATES,
Respondent.
No. 04-1384
JUNE CARABELL, et al
Petitioners,
Vv.
U.S. ARMY Corps oF ENGINEERS,
BRIEF OF AMICUS CURIAE JOHN J. DUNCAN, JR.
IN SUPPORT OF THE PETITIONERS
a
STATEMENT OF INTEREST
With the written consent of the parties, reflected in
letters on file with the Clerk, this brief is submitted on
behalf of the Honorable John J. Duncan, Jr., as amicus
2
curiae, pursuant to Rule 37 of the Rules of this Court. The
Honorable John J. Duncan, Jr. is the Chairman of the
Subcommittee on Water Resources and Environment of the
Committee on Transportation and Infrastructure of the
U.S. House of Representatives, which has jurisdiction over
the Clean Water Act and responsibility for oversight over
the implementation of that Act. As a result, amicus has a
strong interest in the proper construction and enforcement
of the Clean Water Act.’
SUMMARY OF ARGUMENT
This case is about continuing efforts of the U.S. Army
Corps of Engineers to extend the boundaries of its
jurisdiction under the Clean Water Act beyond the limits on
such jurisdiction recognized by this Court in Solid Waste
Agency of N. Cook County v. U.S. Army Corps of Eng’rs,
531 U.S. 159 (2001) (“SWANCC”), and about judicial
acquiescence in these overly expansive assertions of
jurisdiction. In United States v. Rapanos, 376 F.3d 629 (6th
Cir. 2003), cert. granted, 126 S. Ct. 414 (2005) (Pet. App.
Al), and Carabell v. U.S. Army Corps of Eng’rs, 391 F.3d
704 (6th Cir. 2004), cert. granted, 126 S. Ct. 415 (2005) (Pet.
App. la), the U.S. Court of Appeals for the Sixth Circuit
recognized that under SWANCC, the Corps’ jurisdiction
over wetlands or water bodies must be premised on a
“significant nexus” between the wetlands or waters at issue
and waters that are navigable-in-fact. However, the Sixth
Circuit's interpretation of the “significant nexus” require-
ment is inconsistent with SWANCC. In essence, the Sixth
Circuit gave the Corps broad authority to contro! the use of
any piece of land that exhibits the soils, vegetation, and
hydrology that are characteristic of wetlands as long as that
' No counsel for a party authored this brief in whole or in part and no
person or entity, other than the amicus curiae or his counsel, made
any monetary contribution to the preparation or submission of this
brief.
3
land “neighbors” any natural or man-made means of con-
veying surface water that the Corps considers to be a
“tributary” of waters that are navigable-in-fact. Under that
standard, the Corps may assert jurisdiction over land, as a
matter of law, even if the land is hydrologically isolated
from all water that is navigable-in-fact,’ and regardless of
whether dredged or fill material that an owner proposes to
place on his or her land will ever have any discernable
impact on any water that is navigable-in-fact.* Thus, the
issue before the Court is whether the Sixth Circuit’s
interpretation of the “significant nexus” requirement -
upholding jurisdiction over wetlands that are hydrologically
isolated from navigable waters or that have a hydrological
connection that is so attenuated that pollutants discharged
into the wetlands would in fact never affect the navigable
waters — can be sustained in light of this Court’s decision in
SWANCC.
That question must be answered in the negative. In
authorizing these assertions of jurisdiction, the Sixth
Circuit misinterpreted the scope and structure of the Clean
Water Act, 33 U.S.C. §§ 1251-1387 (2000). The Act regu-
lates “navigable waters,” which are defined as “the waters
of the United States, including the territorial seas.” 33
U.S.C. § 1362(7) (2000). As this Court observed in
* Carabell, 391 F.3d at 705 (Pet. App. 3a) (upholding grant of
summary judgment for Corps despite finding that “(t]he berm
edging the Carabells’ property serves to block immediate drainage
of surface water out of the parcel into the ditch.”).
* Thus, in Rapanos, 376 F.3d at 639 (Pet. App. Al6), the court of
appeals required only a hydrological connection to navigable waters
to establish jurisdiction over a wetland, even though the district
court in a related case had found that the closest navigable waters
are 20 miles away and that the activities of Mr. Rapanos had no
direct impact on those waters. United States v. Rapanos, 190 F.
Supp. 2d 1011, 1015-16 (E.D. Mich. 2002), rev'd, 339 F.3d 447 (6th
Cir. 2003).
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4
SWANCC, the use of the term “navigable waters” to define
the scope of jurisdiction under the Clean Water Act
demonstrates that in passing the Act, Congress intended to
assert its traditional authority over navigation. 531 US. at
172. The Court further held that the Corps’ assertion of
jurisdiction over waters that had no connection to tra-
ditionally navigable waters invoked the outer limits of
congressional authority and encroached on traditional state
authority over land and water use. Jd at 174.‘ Given these
concerns, the Court concluded that wetlands or other water
bodies must have a significant nexus with navigable waters
in order to qualify as waters of the United States. Jd at
167.
The Sixth Circuit acknowledged the “significant nexus”
requirement, but applied it in a way that ignores the
concerns underlying the deasion in SWANCC and that
conflicts with the text of the Act in fundamental ways.
First, the Sixth Circuit authorized the assertion of
jurisdiction over wetlands that were hydrologically isolated
from any navigable waters or tributaries thereof simply
because the Corps determined those wetlands to be
“adjacent” to a “tributary” of a navigable water. However,
that assertion of jurisdiction over wetlands “neighboring”
waters that are not even themselves navigable is flatly
inconsistent with the Court’s decision in SWANCC, which
rejected an attempt by the Corps to regulate waters that
had no hydrological connection with navigable waters. The
Corps cannot be allowed to evade SWANCC’s jurisdictional
limitation through the simple expedient of deeming
wetlands to be “adjacent” to tributaries of navigable waters
and assuming that the adjacency label is sufficient to
establish a significant nexus.
* Hereinafter such traditionally navigable waters will be referred to
simply as “navigable waters.”
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.