Amicus Curiae Brief — Rapanos v. United States

4

ARGUMENT

I. BECAUSE WETLANDS ADJACENT TO

TRIBUTARIES PERFORM FUNCTIONS

ESSENTIAL TO MAINTENANCE OF WATER

QUALITY AND THE AQUATIC ECOSYSTEM,

THEY ARE “INSEPARABLY BOUND UP”

WITH THE INTEGRITY OF ADJACENT AND

DOWNSTREAM WATERS.

In upholding regulation of wetlands in Riverside Bayview,

the Court relied upon Congressional findings that pollution

must be controlled at the source in order to achieve the Act’s

goals “to restore and maintaia the chemical, physical, and

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

1251. Congress recognized that water “moves in hydrologic

cycles” such that “it is essential that discharge of pollutants be

controlled at the source.” S. REP. NO. 92-414, p. 77 (1972).

The “integrity” sought to be restored and maintained, 33

U.S.C. § i251, “refers to a condition in which the natural

structure and function of ecosystems [are] maintained.” H.

REP. No. 92-911, p. 76 (1972).

Science validates the understanding of Congress, the Corps,

and this Court. It demonstrates that the failure to protect and

maintain wetlands adjacent to “non navigable tributaries” will

result in degradation of not only millions of miles of these

important waters but 2!so degradation of traditional navigable

waters to which these tributaries contribute their flow. To

date, fortunately, regulation of wetlands under the Act has

done much to minimize their destruction and the attendant

degradation of water quality and diminishment of aquatic

integrity. The rate of loss of the nation’s wetlands has

declined from 458,000 acres per year during the two decades

preceding enactment of the Clean Water Act to 58,500 acres

5

per year during the most recent assessment period.’ Most of

the substantial reduction in wetland loss can only be

attributed to enactment and implementation of the wetland

protection provisions of the Clean Water Act.

Below, we document four related scientific points. First,

adjacent wetlands are a well-defined component of the

aquatic environment with highly distinctive hydrologic

features. Second, these distinctive features give rise to a

unique suite of functions that directly contribute to the quality

of other waters. Third, and most critically, science

demonstrates that these wetlands help maintain water quality

not just in nearby tributaries, but in navigable waters

downstream. Fourth, it is reasonable to conclude adjacent

wetlands separated from other waters by a man-made berm

perform functions important to maintenance of water quality

in the adjacent and downstream waters.

A. Adjacent Wetlands Are Distinct Features on the

Landscape With Water Quality Functions Broadly

Recognized in Science.

Adjacent wetlands lie at the interface between other surface

waters, such as rivers and lakes, and terrestrial or upland

systems. Wetland hydrology, or patterns of inundation or

saturation by water, is the driving force that defines a wetland

and controls its distinctive soi! characteristics and plants.

Hydrology is the key factor in the federal regulatory

definition of a wetland:

The term wetlands means those areas that are

inundated or saturated by surface or ground

water at a frequency and duration sufficient to

2 U.S. FisH & WILDLIFE SERVICE, STATUS AND TRENDS OF

WETLANDS IN THE CONTERMINOUS UNITED STATES 1986-

1997, 9 (2000).

6

support, and that under normal circumstances

do support, a prevalence of vegetation

typically adapted for life in saturated soil

conditions.

33 C.F.R. § 328.3(b).? The recurrent inundation or saturation

at or near the surface creates the unique environmental

conditions that result in the important functions wetlands

provide in the aquatic ecosystem - functions that scientific

literature has linked to maintaining water quality in adjacent

and downstream waters. These are not, in other words,

occasional wet spots.

As concluded by the National Research Council of the

National Academy of Sciences, “[w]etlands have strong

connections to adjacent uplands and deepwater environments.

The interdependence between wetlands and associated aquatic

ecosystems provides strong scientific justification for policies

that make a connection between clean water and the

protection of wetlands.”

B. Adjacent Wetlands Have Critical Water Quality

and Ecological Functions.

Adjacent wetlands perform several functions essential to

maintenance of water quality and the chemical, physical and

biological integrity of the aquatic ecosystem, including water

storage, nutrient transformation and removal, sediment

trapping, and provision of habitat for aquatic organisms.

> Hydrology is also the primary factor in the definition of

“wetland” proposed by the National Research Council of the

National Academy of Sciences in 1995. NAT’L RESEARCH

COUNCIL, NAT'L ACADEMY OF SCIENCES, COMM. ON

CHARACTERIZATION OF WETLANDS, WETLANDS:

CHARACTERISTICS AND BOUNDARIES 3 (1995).

* Id. at 34.

-

1. Water Storage and Flow Moderation.

Wetlands store surface water following precipitation events

and moderate the flow of adjacent and downstream waters.

Short-term surface water storage in wetlands reduces

downstream flood peaks following precipitation events.

Excessive flood peaks result in destructive scouring of stream

beds and channels which can harm aquatic life. In the

northeastern United States, watersheds with 4% or greater

wetlands had peak flows that were 50% lower than

watersheds with no remaining wetlands.’ Long-term surface

water storage in wetlands maintains the base flow and

seasonal flow distribution in adjacent streams. Wetlands in

the adjacent landscape slowly release stored water through

surface and sub-surface connections and “recharge” the

streams maintaining flow during periods of low precipitation.°

2. ~ Nutrient Transformation and Removal.

Wetlands play a critical role in limiting excessive nutrients

in water because they intercept, transform, and accumulate

nutrients (nitrogen and phosphorus) that would otherwise be

delivered directly to streams or other waters by precipitation

and runoff. All scientific studies conclude that wetlands are a

major sink of pollutant nitrogen in the landscape, and some

recent studies suggest that wetlands may be the most

important sink. ‘

> NAT’L RESEARCH COUNCIL, NAT’L ACADEMY OF SCIENCES,

COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN

WATER ACT 48 (2001).

*T.C. Winter, U.S. GEOLOGICAL SURVEY CIPCULAR,

GROUNDWATER AND SURFACE WATER: A SINGLE RESOURCE,

1139 (1999).

” NaT’L RESEARCH COUNCIL, NAT’L ACADEMY OF SCIENCES,

CLEAN COASTAL WATERS: UNDERSTANDING AND REDUCING

A recent study of five wetlands (size 0.4-3.1 hectares) in

southwestern Michigan found even these relatively small

wetlands removed nitrate and sulfate from introduced water

containing those pollutants at a rapid rate: “The rapid rates of

[nitrate and sulfate] removal demonstrate how very small

areas of wetland sediment are capable of improving water

quality, and such areas often occur at critical points of water

flow between surface and groundwater reservoirs.”

Wetlands reduce nitrogen pollution in surface waters by

converting polluting forms of nitrogen into harmless gaseous

form in a process called denitrification. It is the hydrology, or

recurrent saturation or inundation, of a wetland that creates

the conditions that make wetlands ideal for denitrification.

Denitrification occurs under anoxic (without oxygen) soil

conditions, but oxic (with oxygen) soils may be important in

processing nitrogen first! Inundation or saturation of the soil

with water limits oxygen except in the upper level of the soil

and along some plant roots, creating an interface of oxic and

anoxic soil conditions ideal for denitrification. Since some

forms of nitrogen are highly mobile in groundwater, wetlands

that do not have a surface hydrologic connectivity but have a

subsurface groundwater connection can be important to

reducing nitrogen pollution to nearby surface waters.” While

other ecosystems provide some denitrification, only wetlands

THE EFFECTS OF NUTRIENT POLLUTION (2000); R.W. Howarth,

et al., Sources of Nitrogen Pollution to Coastal Waters of the

United States, 25 ESTUARIES 656-676 (2002); Van Breemen,

et al., Where Did All the Nitrogen Go? Fate of Nitrogen

Inputs to Large Watersheds in the Northeastern USA, 57&58

BiIOGEOCHEMISTRY 267-293 (2002).

*S.L. Whitmire & S.K. Hamilton, Rapid Removal of Nitrate

and Sulfate in Freshwater Wetland Sediments, 34 J. ENVIRON.

QUALITY 2062, 2070 (2005).

* NAT’L RESEARCH COUNCIL, supra note 7.

9

have this tremendous capacity to intercept and remove

nitrogen, thus maintaining the water quality of adjacent and

downstream waters.

In fact, scientists believe that wetlands adjacent to smaller

tributaries in the upper reaches of watersheds “may be the

most important regulating water chemistry in large drainages

because their large surface-to-volume ratios favor rapid

nitrogen uptake and processing.”’° Once water reaches larger

rivers, the nitrogen in the water is less likely to come into

contact with soils and vegetation, so it is critical to water —

quality that excessive nitrogen be filtered in wetlands adjacent

to smalier tributaries.'' In a given watershed, smaller

tributaries and associated wetlands may process more

nitrogen and retain more large sediment particles while

wetland floodplains associated with larger downstream rivers

retain phosphorous and trap fine particles. Wetlands thus

may be needed both upstream and downstream to fully

address problems of nitrogen and phosphorus in surface

waters.

3. Sediment Trapping.

Wetlands adjacent to streams and other waters are generally

depositional areas on the landscape. Soil erodes from the

adjacent upland areas “downhill” into the wetland. Adjacent

wetlands intercept and trap eroding soil and sediment from

uplands preventing delivery to the stream or other water body.

Sediment adversely affects water quality by stnothering

'0 Peterson, et al., Control of Nitrogen Export From

Watersheds by Headwater Streams, 292 SCIENCE 86-90

(2001).

'' D.F. Whigham, et al., Jmpacts of Freshwater Wetlands on

Water Quality: A Landscape Perspective, ENVIRONMENTAL

MANAGEMENT, 663-671 (1988).

10

streambeds and destroying or degrading aquatic habitat.'? In

addition, toxic materials including pesticides, industrial

wastes, and metals can be bound to sediment and carried into

waier bodies.'? States report that sedimentation is one of the

most widespread pollutants of streams and rivers and impairs

12% of assessed stream miles and 31% of the impaired stream

miles.

41 Habitat for Aquatic Organisms.

Wetlands provide the only habitat for numerous organisms

and are important to the overall maintenance of biodiversity

and the aquatic ecosystem. Similarly, tributaries provide

different physical habitat for different kinds of aquatic species

and different lifestages of certain fish species. Most fish ~

require different physical habitats for each life stage, so that

connectivity of diverse habitats including perennial,

intermittent, ephemeral, and headwater streams is important

to the fish finding suitable habitats during reproduction and

each critical life stage.'* '®'’

U.S. ENVT’L PROTECTION AGENCY, NATIONAL WATER

INVENTORY REPORT 13 (2000) (Report to Congress).

'S W.R. Osterkamp, et al., Economic Considerations of a

Continental Sediment-Monitoring Program, 13

INTERNATIONAL JOURNAL OF SEDIMENT RESEARCH No. 4: 12-

24 (1998).

"4 U.S. ENVT’L PROTECTION AGENCY, supra note 12, at 12.

'S T.R. Labbe & K.D. Fausch, Dynamics of Intermittent

Stream Habitat Regulate Persistence of a Threatened Fish at

Multiple Scales, 10(6) ECOLOGICAL APPLICATIONS 1774-

1791 (2000).

‘© MN. Paller, Relationships Between Fish Assemblage

Structure and Stream Order in South Carolina Coastal Plain

Streams, 123 TRANSACTIONS OF THE AMERICAN FISHERIES

SociETY 150-161 (1994).

1]

Headwaters are essential breeding habitat for some species of

fish.’

C. Wetlands Adjacent tc Tributaries Have Functions

Important to Maintaining Water Quality in

Traditionally Navigable Water Bodies.

Numerous scientific studies have documented and described

the functions of wetlands in relation to adjacent waters and

downstream waters. Functions of a wetland are associated

with its landscape position.'? Most of a surface water

drainage network’s interface with the land occurs in streams

and associated wetlands at the most upper or “headwater”

extent of the watershed. In most landscapes, approximately

75% percent of the stream length of a surface water drainage

network consists of first order streams (no tributaries) and

second order streams (where two first order streams join).

These headwater tributaries and adjacent wetlands are “first

responders” to the discharge of pollutants generated by

activities in uplands. The most obvious reason even small

tributaries and adjacent wetlands play a critical water quality

function is that the great majority of water passes through

them on the way downstream.

'7 1.J. Schlosser, Critical Landscape Attributes That Influence

Fish Population Dynamics in Headwater Streams, 303

HYDROBIOLOGIA 71-81 (1995).

'® J.L. Meyer & J.B. Wallace, Lost Linkages and Lotic

Ecology: Rediscovering Small Streams, ECOLOGY:

ACHIEVEMENT AND CHALLENGE 302 (M.C. Press et al. eds.,

2001).

'? See M.M. BRINSON, A HYDROGEOMORPHIC CLASSIFICATION

FOR WETLANDS, Technical Report WRP-DE-4, (U.S. Army

Engineer Waterways Experiment Station, Vicksburg, MS,

1993).

12

While first and second order tributaries constitute most of a

surface drainage system, no generalizations can be made

about proximity of first or second order tributaries to

navigable waters. In some cases, first order tributaries may

be many miles from the nearest navigable water. In other

cases, first order tributaries may empty directly into navigable

waters. Consequently, no generalizations can be made about

the relative function of first or second order tributaries and

associated wetlands with respect to downstream water quality

based on their proximity to the downstream waters.

The Carabell wetlands are adjacent to a ditch excavated in

wetlands. Ditches are typically excavated to modify the

natural drainage characteristics of a site to increase the rate of

flow from the site by decreasing surface and subsurface water

retention. A large percentage of the nation’s streams and

wetlands have been channelized or ditched. Ditches

connected to other waters function as tributaries by conveying

water, and any pollutants contained in that water, to

downstream water bodies.

The water quality maintenance functions of wetlands

adjacent to tributaries extend hundreds of miles downstream

to the larger waters to which the tributaries contribute flow.

Nutrient control provides a paradigmatic example. Pollution

from excessive nutrients is a significant problem in coastal

waters including Chesapeake Bay, Albemarle and Pamlico

Sounds in North Carolina, and the Gulf of Mexico.” Large

additions of nutrients, including nitrogen, into such waters

causes an overgrowth of algae and subsequent depletion of

oxygen in the water, a process called eutrophication.

2 The degradation of coastal estuaries prompted Congress to

amend the Clean Water Act to establish a national estuary

program to develop comprehensive conservation and

management plans to implement corrective actions to address

pollution of estuaries. See 33 U.S.C. 1330.

13

“Eutrophication accounts for about half of the impaired lake

area and 60% of the impaired river reaches in the U.S. and is

also the most widespread pollution problem of U.S.

estuaries.””' Much of the excessive nutrient loading of coastal

waters and estuaries is delivered by upstream tributaries from

sources in watersheds that can be long distances from the

coastal zone.”

The notorious “dead zone” in the Gulf of Mexico illustrates

just how serious the problem can become, and how wetlands

are integral to solving it. Nutrient laden waters from the

Mississippi River seasonally create a large area of oxygen-

depleted water, referred to as hypoxia, in the Gulf of Mexico

on the Louisiana continental shelf. Excessive nutrients

contribute to algal production which in turn leads to increased

availability of organic carbon and depletion of oxygen in the

water column. Most aquatic species cannot survive in oxygen

depleted water — yet this hypoxia occurs in the middle of the

most important commercial and recreational fisheries in the

conterminous United States.” Significantly for present

purposes, some eighty-six percent of nitrogen arriving at the

hypoxic zone originates in the upper Mississippi River basin

above the confluence with the Ohio

2! Carpenter, et al., Nonpoint Pollution of Surface Water with

Phosphorus and Nitrogen, 3 IssUES IN ECOLOGY 1-12 (1998).

NAT’L RESEARCH COUNCIL, supra note 7; R. Howarth, et

al., Nutrient Pollution of Coastal Rivers, Bays, and Seas, 7

ISSUES IN ECOLOGY 1-15 (2000).

” See N.N. Rabalais, et al., Characterization of Hypoxia,

Topic 1 Report for the Integrated Assessment of Hypoxia in

the Gulf of Mexico{U.S. Dep't. of Commerce, Nat’! Oceanic

and Atmospheric Admin. (1999)),

http://oceanservice.noaa.gov/products/pubs_hypox_t! final.pdf

14

River. The National Oceanic and Atmospheric

Administration has identified restoration of wetlands in the

Mississippi River watershed as a strategy to address hypoxia

in the Gulf based on the nutrient removal functions wetlands

provide in the upper Mississippi River tributaries.2> Although

its watershed is located hundreds of miles from the Gulf, “the

Illinois River basin, with 7% of its watershed converted to

wetland, could reduce about 50% of the 144,000 metric

tons/yr of nutrients it generates, or about 5% of the entire

nitrogen load to the gulf of Mexico.”

D. Wetlands Neighboring, Bordering, or Contiguous

to Other Waters Usually Have Significant

Functional Relationships to the Adjacent Waters

Notwithstanding Natural or Man-Made Berms or

Similar Barriers.

The water quality and other functions of adjacent wetlands

for downstream water bodies are only partially removed, if

removed at all, by construction of levees or berms. Natural

river levees are formed on most large meandering rivers and

consist of linear elevated lands along the river bank often

separating the river from wetland areas or “backswamps.”

* D.A. Goolsby, et al., Flux and Sources of Nutrients in the

Mississippi — Atchafalaga River Basin: Topic 3 Report for

the Integrated Assessment on Hypoxia in the Gulf of Mexico,

(U.S. Dep’t of Commerce, Nat’! Oceanic and Atmospheric

Admin.(1999)),

http://www.nos.noaa.gov/Products/hypox_t3final.pdf.

** W.J. Mitsch, et al., Reducing Nutrient Loads, Especially

Nitrate-Nitrogen, to Surface Water, Ground Water, and the

Gulf of Mexico, Topic 5 Report for the Integrated Assessment

on Hypoxia in the Gulf of Mexico 84 (U.S. Dep’t of

Commerce, Nat’! Oceanic and Atmospheric Admin. (1999),

http: -//oceanservice.noaa.gov/products/pubs_hypox.tSfinal.pdf

2° Id.

15

These levees are formed by the deposition of sediment during

flood stage as sediment laden water leaves the river channel,

slows and spreads out, and drops its sediment load along the

immediate river shoreline. The levee does not isolate the

backswamp from the river as the levee is periodically

overtopped by the river during flood stage such that

backswamp wetland absorbs floodwaters, attenuates flows

and receives pollutants such as sediment that would otherwise

travel immediately downstream.”’ Similar man-made dikes or

barriers usually do not isolate a wetland from all surface

connection with adjacent waters. If water levels rise and

overtop the dike or barrier, it results in a direct surface

connection with the adjacent wetland.

Subsurface connections also can exist between wetlands and

adjacent waters even where “separated” by surface features

such as berms, dikes, or dunes. For example, studies show

that beach dunes do not completely isolate a wetland from

adjacent waters. Wetland dune swales along the immediate

shoreline of the Great Lakes have direct subsurface

hydrological connectivity to the adjacent lake and water

tables in the wetland are controlled by lake levels.”

Exchange of water between adjacent wetlands and a river is

often through shallow groundwater, in both directions.”

77 WJ. Mitsch & J.G. Gosselink, 317-351 WETLANDS (1986).

* D. Albert, Borne of the Wind: An Introduction to the

Ecology of Michigan's Sand Dunes (Michigan Natural

Features Inventory 2000).

2? See NAT’L RESEARCH COUNCIL, NAT’L ACADEMY OF

SCIENCES, RIPARIAN AREAS, FUNCTIONS AND STRATEGIES FOR

MANAGEMENT 33 (2002) (“Because floodplains are porous

and contain aquifers that are closely linked to and controlled

by the channel system, waterbodies and their riparian areas

are linked longitudinally, vertically and horizontally); id. at

34 (Figure 1-4 and legend describing how in most “alluvial

river corridors” river water moves rapidly through surficial

16

Indeed, even where man-made levees are in place, hydrologic

connectivity between wetlands and adjacent waterways

persists.°”

The direct subsurface connections between wetlands and

adjacent waters can affect water quality despite surface

features. As discussed above in I.B.2., excessive nitrogen is a

major pollutant of surface waters. Because nitrogen is mobile

in groundwater, wetlands separated from waters by dikes or

berms may still perform important functions by reducing

nitrogen conveyed to the adjacent water by subsurface

connections.°!

Failure to include wetlands as “adjacent” where immediate

at-grade abutment is interrupted by natural or man-made

landforms will eliminate federal protection over large

expanses of wetland function. The U.S. Geological Survey

has calculated that over ninety-percent (93%) of the lower

Mississippi River floodplain has been modified by the

alluvia in a hyporheic zone immediately underlying the

stream bed and adjacent areas).

http://www.nap.edu/books/030908295 | /html/33.html; Gerald

J. Gonthier, Ground-water-flow Conditions Within a

Bottomland Hardwood Wetland, Eastern Arkansas, \6

WETLANDS 334-46 (1996) (describing groundwater flow from

wetland adjacent to Cache River in Arkansas to and from

river).

© See, e.g., Kelley, Relations Among River Stage, Rainfall,

Ground Water Levels, and Stage at Two Missouri River

Flood-Plain Wetlands (U.S. Geological Survey 2001)

(describing water levels in floodplain wetlands separated

from Missouri River by levees rising and falling as river

heights (stages) varied).

** NAT’L RESEARCH COUNCIL, supra note 7.

17

presence of levees.*? Many of the remaining wetlands are

landward of those levees.

Il. |THE FEDERAL DEFINITION OF “ADJACENT”

WETLANDS ACCURATELY REFLECTS THE

CONNECTION TO ADJACENT #£=AND

DOWNSTREAM NAVIGABLE WATERS, AND

THAT DEFINITION ENCOMPASSES THE

RAPANOS AND CARABELL WETLANDS.

Given the demonstrated physical interconnections between

wetlands, adjacent tributaries and navigable waters, Clean

Water Act jurisdiction over wetlands adjacent to tributaries

will serve to protect the biological, chemical and physical

integrity of traditional navigable waters. The federal

“adjacent” wetlands definition accurately reflects the known

interrelation of such wetlands with navigable waters and thus

further the aim of the Clean Water Act. Further, information

in the record of these cases supports the conclusion that the

Rapanos and Carabeill wetlands qualify as regulated adjacent

wetlands.

The federal regulation applied in these cases defines waters

of the United States to include wetlands that are “adjacent” to

traditional navigable waters or their tributaries. 33 C.F.R. §

328.3(aX(7); 40 C.F.R. § 230.3(s\(7). The term “adjacent” is

defined to mean “bordering, contiguous, or neighboring,” id.,

with the further provision that “[w]etlands separated from

other waters of the United States by man-made dikes or

barriers, natural river berms, beach dunes and the like are

‘adjacent wetlands.” 33 C.F.R. § 328.3(c); 40 C.F.R. §

230.3(b). As discussed in Section I, supra at 14-17,

® R.L. Delany & M.R. Craig, Longitudinal Changes in

Mississippi River Floodplain Structure (U.S. Geological

Survey 1997).

18

numerous studies demonstrzte that wetlands bordering,

contiguous, or neighboring tributaries have hydrological

interconnections with those water bodies and with waters

downstream, such that the water quality functions of those

wetlands are effectively transmitted to navigable waters. The

regulatory definition of adjacent wetlands accurately

encompasses wetlands that are important to maintaining and

protecting the integrity of waters of the United States.

Scientific understanding also supports the regulation’s

effective presumption that “man-made dikes or barriers,

natural river berms, beach dunes and the like” do not operate

to defeat the rationale for extending jurisdiction to wetlands

that are “bordering, contiguous, or neighboring” to other

waters, including tributaries. Wetlands and neighboring

surface waters can interact through a variety of means,

including surface flows caused by local wet weather events

(e.g., rainwater causing overflow from a wetland into a

tributary); surface flows caused by remote wet weather (e.g.,

upstream precipitation causing a tributary to flood into a

wetland); and by flows that travel at least temporarily through

the ground before discharging into the tributary.”? Thus, even

though adjacent wetlands may lack constant, obvious, or

contiguous surface water connection to a nearby tributary,

they can still possess significant hydrologic connectivity and

functional linkage.™*

Turning to application of the regulation, the Rapanos

property includes three wetland areas, all with surface water

connections through tributaries to traditionally navigable

waters. United States v. Rapanos, 376 F.3d 629, 642-643 (6"

Cir. 2004). As the Rapanos do not dispute that their wetlands

have direct connections to tributaries, those wetlands fall

3 See Gonthier, supra note 29 (describing flow of water from

wetland into local aquifer and then into river).

** See id.; Albert, supra note 34; Mitsch, supra note 27.

19

within the definition of adjacent wetlands. 33 C.F.R. §

328.3(a)(7); 40 C.F.R. § 230.3(s)7).

The 19.6 acre Carabell property includes approximately 16

acres of forested wetlands that are a remnant of the once more

expansive Lake St. Clair, \/hich lies about one mile southeast

of the tract. Carabell v. United States, 391 F.3d 704, 705 (6"

Cir. 2004). At some time in the past, a ditch was excavated

from the wetland and the spoil material cast along both sides

of the ditch, creating a berm. 391 F.3d at 705. The ditch

connects with the Sutherland-Oemig Drain which flows into

Auvase Creek, which in turn flows into Lake St: Clair, a

traditionally navigable water that connects to Lake Erie. JA

Vol. 4 at 847 (Magistrate’s Report and Recommendation).

The administrative record supports the conclusion that the

Carabell wetlands are “adjacent” under federal regulation.

The ditch was excavated out of wetlands contiguous to the

delineated wetlands on the site, with removed wetland

materials “sidecast” along the ditch to form the berm. JA

Vol. 3 at 532. The record contains little clarifying

information about this sidecast berm’s manner or mode of

construction, its size, or its actual demonstrated performance

as a hydrological barrier between the wetlands, ditch, and

drain, particularly during wet-weather events. Based on what

was before it, however, the Corps concluded that the ditch

remained adjacent to the wetlands from which it was dug for

the purposes of its regulatory jurisdiction. JA Vol. 3 at 516,

_ 523, 531-534. While the frequency and extent of surface

water connection between the wetland and the neighboring

tributaries is not clear from this record, what does appear

clear is the fact that a periodic surface water connection

exists.°° The record also presents evidence of subsurface

°° The Carabells’ attorney stated that “at least” three “lateral

cuts, drainage cuts that run through the berm,” through which

rainwater could “go over,” JA Vol. 3 at 639, while another

20

connection between the wetlands and ditch.” The hydrologic

connectivity between the Carabell wetlands and nearby

tributaries supports the Corps’ conclusion that water quality

functions could be lost if these wetlands were destroyed.

Compare JA Vol. 3 at 519 (Corps determination stating

wetlands on site provide “valuable seasonal habitat for

aquatic organisms” and “water storage functions that, if

destroyed, could result in an increased risk of erosion and

degradation of water quality in the Sutherland-Oemig Drain,

Auvase Creek, and Lake St. Clair.”) with Section I, supra at

6-11 (discussing water storage, pollution reduction and

biological habitat values of wetlands for navigable waters).

CONCLUSION

Peer-reviewed scientific studies demonstrate that wetlands

adjacent to tributaries are functionally interrelated with, and

physically interconnected to traditionally navigable waters,

and play an important role in restoring and maintaining “the

chemical, physical, and bioiogical integrity of the Nation's

Carabell consultant objected to the proposition that the

existing wetlands were essentially “offline” with “no

outflow,” stating that a three-and-a-half-inch rain would result

in “some overflow.” JA Vol. 3 at 639.

*° The Carabells’ consultant stated that that the Sutherland-

Oemig “drain dropped the water table three, four feet, so it

has been a long slow drying out process, and I’m not so sure

that that process isn’t continuing today.” JA Vol. 3 at 629

(statement of Mr. Leighton). And the Corps’ site inspector,

addressing the question of “Site Hydrology” and the nearest

water receiving runoff from the site, answered “perhaps drain,

perhaps groundwater discharge.” JA Vol. 3 at 487. See also

United States v. Deaton, 332 F.3d 698, 702-703 (4" Cir.

2003) (discussing drainage ditch dug in wetlands with

sidecasting as increasing drainage with a purpose to “destroy

wetland characteristics”).

21

waters.” 33 U.S.C. § 1251. Federal regulations defining

waters of the United States to include those wetlands

accordingly have a sound foundation in science. Those

regulations, applied to the wetlands in this case, support

federal jurisdiction in both Carabell and Rapanos. The

decisions below should be affirmed.

Respectfully submitted.

JAMES BLANDING HOLMAN, IV*

Ders S. CARTER, JR.

SOUTHERN ENVIRONMENTAL

LAW CENTER

200 W. Franklin Street, St. 330

Chapel Hill, NC 27516

(919) 967-1450

*Counsel of Record

f IN THE

Supreme Court of the United

JOHN A. RAPANOS, et al.,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

JUNE CARABELL, ¢¢ al.,

Petitioners,

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF ENVIRONMENTAL LAW INSTITUTE

AS AMICUS CURIAE SUPPORTING RESPONDENTS

LESLIE CAROTHERS

JAY E. AUSTIN

D. BRUCE MYERS JR.

LISA GOLDMAN

ENVIRONMENTAL LAW

INSTITUTE

2000 L Street, N.W.

Washington, DC 20036

(202) 939-3800

SETH P. WAXMAN

Counsel of Record

LOUIS R. COHEN

JAMES R. WRATHALL

CAREY BOLLINGER

RACHEL Z. STUTZ

TODD HETTENBACH

WILMER CUTLER PICKERING

HALE AND DORR LLT

2445 M Street, N.W.

Washington, DC 20037

(202) 663-6000

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TABLE OF AUTHORITIEG..............--se-s+: -

INTEREST OF AMICUS CURIAE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT.

I.

Il.

TABLE OF CONTENTS

“WATERS OF THE UNITED STATES” PRO-

TECTED BY THE CLEAN WATER ACT INCLUDE

ADJACENT WETLANDS WITH FUNCTIONAL

CONNECTIONS TO TRADITIONAL NAVIGABLE

WATERS. nit

A. Scope And Purposes Of The Clean Water

Act 7

B. The Adjacent Wetlands In These Cases

Are “Waters Of The United States” Under

Riverside Bayview And SWANCC —

C. The Court Should Defer To The Corps’ In-

terpretation 11

D. Petitioners’ Proposed Interpretation Has

No Support In The Statute And Could

Nullify Congress’s Comprehensive Design............ 13

CONGRESS HAS AUTHORITY TO PROTECT

WETLANDS ADJACENT TO TRIBUTARIES OF

TRADITIONAL NAVIGABLE WATERS 14

A. Jurisdiction Over Wetlands Adjacent To

Tributaries Of Traditional Navigable Wa-

ters Protects Channels Of Commerce.. 15

1. Adjacent Wetlands Provide Flood

Control Functions Necessary To

Navigability 15

i

TABLE OF CONTENTS—Continued

Page

2. Adjacent Wetlands Protect Tradi-

tional Navigable Waters From Pollu-

tion And Injurious Uses 17

B. Pollution And Destruction Of Wetlands

Adjacent To Tributaries Of Traditional

Navigable Waters Have Substantial Ef-

fects On Interstate Commerce 20

1. The Clean Water Act Regulates Eco-

nomic Activity Like The Activities

Here 20

2. Pollution And Destruction Of Adija-

cent Wetlands Have Substantial Ef-

fects On Interstate Commerce 21

3. Protection Of Adjacent Wetlands Is

Necessary To The Clean Water Act’s

Regulatory Scheme

III. JURISDICTION TO PROTECT ADJACENT WET-

LANDS IS NECESSARY TO THE FEDERAL-

STATE FRAMEWORK CREATED BY CONGRESS

AND CONSISTENT WITH PRINCIPLES OF FED-

ERALISM

A. Congress Provided For State Regulation..............

B. Wetlands Protection Does Not Impair

C. Federal Authority Is Necessary To Ad-

dress This National Problem

CONCLUSION

&

TABLE OF AUTHORITIES

CASES

Page(s)

California Coastal Commission v. Granite Rock

Co., 480 U.S. 572 (1987) 28

Caminetti v. United States, 242 U.S. 470 (1917) 17

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

Council, Inc., 467 U.S. 837 (1984) 11

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building & Construction Trades Council, 485

U.S. 568 (1988) : 14

FERC v. Mississippi, 456 U.S. 742 (1982) 20

Gilman v. City of Philadelphia, 70 US. (3 Wall.)

713 (1866) - 15

Gonzales v. Raich, 125 S. Ct. 2195 (2005).............cccereeees passim

Harris v. United States, 536 U.S. 545 (2002)...... 14

Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241 (1964) 20

Hodel v. Indiana, 452 U.S. 324 (1981) 25

Hodel v. Virginia Surface Mining & Reclamation

Ass'n, 452 U.S. 264 (1981)... 17, 20, 21, 28, 30

International Paper Co. v. Ouellette, 479 U.S. 481

(1987) =

Kernan v. American Dredging Co., 355 U.S. 426

(1958) 17

Middlesex County Sewerage Authority v. National

Sea Clammers Ass'n, 453 U.S. 1 (1981) 7

Milwaukee v. Illinois, 451 U.S. 304 (1981) 7

Minnesota v. Mille Lacs Band of Chippewa Indi-

ans, 526 U.S. 172 (1999) 28

Natural Resources Defense Council v. Callaway,

392 F. Supp. 685 (D.D.C. 1975) 8

New York v. United Sates, 505 U.S. 144 (1992) 27

Oklahoma ex rel. Phillips v. Guy F. Atkinson, Co.,

313 U.S. 508 (1941) 4, 15, 16

Perez v. United States, 302 U.S. 146 (1971) .- 19, 25

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

531 U.S. 159 (2001).. passim

United States v. Appalachian Power Co., 311.US.

377 (1940) 15

United States v. Ashland Oil & Transportation Co.,

504 F.2d 1317 (6th Cir. 1974)...... 16, 17

United States v. Bass, 404 U.S. 336 (1971)........cccccseseseeseseeee 14

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

2003) 17

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

804 (7th Cir. 2005). 18, 29

United States v. Mead Corp., 533 U.S. 218 (2001).. 11

United States v. Rio Grande Dam & Irrigation Co.,

174 U.S. 690 (1899).... 15

United States v. Riverside Bayview Homes, Inc.,

474 US. 121 (1985) passim

Wickard v. Filburn, 317 U.S. 111 (1942) —

STATUTES AND REGULATIONS

16 U.S.C. §§ 1531-1544 7

33 U.S.C. § 1251 0 3, 7, 26, 27

33 U.S.C. § 1341 on 26

33 U.S.C. § 1342. 10, 13

33 U.S.C. § 1362. > . 2,8

42 U.S.C. $§ 300f to 300j-26........ enone

42 US.C. $§ 7401-7671q 7

33 C.F.R. § 209.120 10

33 C.F.R. § 328.3(a)(7).. 8

40 C.F.R. pts. 403-610 .. 20

40 Fed. Reg. 31325 7

LEGISLATIVE MATERIALS

S. Rep. No. 92-414 (1972), reprinted im 1972

U.S.C.C.A.N. 3668 8, 28

v

TABLE OF AUTHORITIES—Continued

Page(s)

EPA's Clean Air Budget and the Corps of Engi-

neers Wetlands Budget: Hearing Before the

Subcommittee on Clean Air, Wetlands, Private

Property, and Nuclear Safety of the Senate

Committee on Environment and Public

Works, 106th Cong. (2000) (testimony of Mi-

chael Devis, Deputy Assistant Secretary of the

Army for Civil Works) —

Inconsistent Regulation of Wetlands and Other

Waters: Hearing Before the Subcommittee on

Water Resources and Environment of the

House Committee on Transportation and In-

frastructure, 108th Cong. (2004) 18

123 Cong. Rec. 38994 (1977) 22

ADMINISTRATIVE AND EXECUTIVE MATERIALS

43 Op. Att’y Gen. 197 (Sept. 5, 1979) 13

OTHER AUTHORITIES

Braddock, Theda, Wetlands: An Introduction to

Ecology, the Law, and Permitting (1995) 16

Dahl, Thomas E. & Allord, Gregory J., History of

Wetlands in the Conterminous United States,

United States Geological Survey Water Supply

Paper 2425, available at http://water.usgs.gov/

nwsum/WSP242s/history.html (last modified

Mar. 7, 1997). 6

Dahl, Thomas E., Status and Trends of Wetlands in

the Conterminous United States 1986 to 1997

(2000) 21

Elder, John F. & Goddard, Gerald L., Sediment and

Nutrient Trapping Efficiency of a Constructed

Wetland Near Delavan Lake, Wisconsin, 1993-

1995, available at http-//wi.water.usgs.gov/

pubs/F'S-232-96/F'S_232-96.pdf 24

vi

TABLE OF AUTHORITIES—Continued

Fact Sheet: President Announces Wetlands Initia-

Page(s)

10

Hirsh, Tim, Katrina Damage Blamed on Wetland

Loss, available at http://news.bbe.co.uk/2/hi/

americas/4393852.stm (last updated Nov. 1,

2000)

10

Houck, Oliver A. & Rolland, Michael, Federalism in

Wetlands Regulation: A Consideration Of

Delegation Of Clean Water Act Section 404

And Related Programs To The States, 54 Md.

L. Rev. 1242 (1995)

Hulsey, Brett & Tichenor, Geoff, A Call for Flood

Security Through Wetland Protection, Na-

tional Wetlands Newsletter 3-4 (May-June

2000)

Kusler, Jon A., et al., State Wetland Regulation:

Status of Programs and Emerging Trends 1

(Ass’n of State Wetland Managers 1994) et al.,

State Wetland Regulation: Status of Prograrvs

and Emerging Trends 1 (Ass’n of State Wet-

land Managers 1994)

Meyer, Judith L., et al, Where Rivers Are Born:

The Scientific Imperative for Defending Small

Streams and Wetlands (2003), available at

http-?//www.americanrivers.org/site/DocServer/

WhereRivers AreBorn1.pdf

Mitsch, William J. & Gosselink, James G., Wetlands

(2d ed. 2000)

Morgan, Cynthia & Owens, Nicole, Benefits of Wa- _

ter Quality Policies: The Chesapeake Bay, 39

Economics 271 (2001)

National Academy of Science, Clean Coastal Wa-

ters: Understanding and Reducing the Effects

of Nutrient Pollution (2000)

vii

TABLE OF AUTHORITIES—Continued

Page(s)

National Centers for Coastal Ocean Science, Hy-

poxia in the Gulf of Mexico, at http//oceanser

vice.noaa.gov/products/pubs_hypox.htm! (last

visited Jan. 5, 2006) 23

National Marine Fisheries Service, Fisheries of the

United Staves: 2004 (2005) 23

Notes of Debates in the Federal Convention of 1787

(W.W. Norton & Co. ed., 1966) 29

Office of Technology Assessment, Wetlands: Their

Use and Regulation (1984) 23, 24, 25

Scodari, Paul F., Wetlands Protection: The Role of

Economics (1990) 16, 23, 24

Thibodeau, F.R. & Ostro, B.D., An Economic

Analysis of Wetlands Protection, J. Environ.

Management (1981) 22

US. Fish & Wildlife Service, 2001 National Survey

of Fishing, Hunting & Wildlife Associated

Recreation (2002) 25

United States Army Corps of Engineers, Annual

Flood Damage Report to Congress for Fiscal

Year 2003, this. 4 & 5, available at

http://www.usace.army.mil/inet/functions/cw/ce

cwe/flood2003/ 22

United States Army Corps of Engineers, Depart-

ment of the Army Permit Evaluation, File No.

99-250-002-1 22

United States Department of Agriculture, Eco-

nomic Research Service, “Dead Zone” in the

Gulf: Addressing Agriculture's Contribution,

Amber Waves (Nov. 2003) 23

United States Environmental Protection Agency,

Functions and Values of Wetiands, EPA 843-

F-01-002c (Sept. 2001), available at http-/

viii

TABLE OF AUTHORITIES—Continued

Page(s)

United States Environmental Protection Agency,

Threats to Wetlands, Office of Wetlands, Ocean

& Watersheds, EPA 483-F-01-002d (Sept.

2001), available at http://www.epa.gov/owow/

wetlands/pdf/threats. pdf

Wood, Lance D., Don't Be Misled: Clean Water Act

Jurisdiction Extends to Ali Non-Navigable

Tributaries of the Traditional Navigable Wa-

ters and to Their Adjacent Wetlands, 34 ELR

10187 (Feb. 2004) 12, 13

INTEREST OF AMICUS CURIAE

The Environmental Law Institute (ELI) is an inde-

pendent, nonpartisan education and policy research center

dedicated to environmental protection through improved

environmental law and governance.’ Over 3,000 environ-

mental professionals from law firms, government, industry,

public interest organizations, and academia support ELI

through its Associates Program.

Founded in 1969, at the dawn of the modern era of envi-

ronmental law, ELI has long been a leader in the areas of

water quality and wetlands protection. ELI has undertaken

extensive research (often at the request of the U.S. Envi-

ronmental Protection Agency or the US. Army Corps of

Engineers) to promote innovative and cost-effective legal

and policy approaches. In particular, ELI has exhaustively

studied and reported on aspects of the collaborative federal-

state framework that governs wetlands conservation. Since

1979, ELI has published the National Wetlands Newsletter,

now the preeminent journal on wetlands policy. ELI has

actively participated in the implementation of the Clean Wa-

ter Act since its enactment in 1972.

ELI has concluded from its long-standing involvement

in wetlands law and policy that the current comprehensive

federal program is absolutely essential to the health of our

Nation’s waters. Because of the profound threat these cases

pose to the framework established by Congress to protect

water resources nationwide, ELI for the first time in its 36-

year history is participating in judicial proceedings as an

STATEMENT OF THE CASE

In these consolidated cases, the U.S. Court of Appeals

for the Sixth Circuit upheld federal Clean Water Act juris-

diction over (a) wetlands sharing a surface water connection

This brief was not authored in whole or in part by counsel for any

party and no person or entity, other than amicus and its counsel, made

any monetary contribution to its preparation or submission. Letters from

the parties consenting to the filing of this brief are on file with the Clerk.

with tributaries of navigable-in-fact waterways’ (Rapanos)

and (b) wetlands separated from such tributaries only by a

man-made berm (Carabell). Both cases involve “adjacent

wetlands” under regulations promulgated by the U.S. Army

Corps of Engineers (Corps) pursuant to Section 404 of the

Clean Water Act (Act). Section 404 does not prohibit all fill-

ing of wetlands; rather, it requires that a permit be obtained

prior to any filling, setting forth reasonable protection and

mitigation measures. Permits are liberally granted by the

Corps, and most smaller projects are permitted by rule

rather than by individual applications.

The Sixth Circuit held in these cases that the Corps

reasonably interpreted “waters of the United States” to en-

compass wetlands adjacent to tributaries of navigable-in-fact

waters, including the wetlands that petitioners here pro-

posed to fill. These decisions were based on the plain lan-

guage, express purpose, and legislative history of the Clean

Water Act as construed in the unanimous decision of this

Court in United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) (Riverside Bayview). There, as in the

cases below, “the Corps’ ecological judgment about the rela-

tionship between waters and their adjacent wetlands” re-

flected a nexus sufficient to confer statutory jurisdiction to

protect the adjacent wetlands. /d. at 134.

The Sixth Circuit’s decisions also were in full accord

with this Court’s opinion in Solid Waste Agency of Northern

Cook County v. United States Army Corps of Engineers,

531 U.S. 159 (2001) (SWANCC), which held that the Clean

Water Act did not extend to abandoned gravel pits where

the sole basis for jurisdiction was their use by migratory

birds. /d. at 171-172. Unlike the isolated ponds addressed in

SWANCC, the types of adjacent wetlands addressed in

? Amicus uses the terms “navigable-in-fact” and “traditional naviga-

ble waters” to connote waters that are actually navigable or are suscepti-

ble to being so made. The term “navigable waters,” as used in the Clean

Water Act, is defined to mean “waters of the United States” and is a more

comprehensive term of art that includes waters that are not navigable-in-

fact. See 33 U.S.C. § 1362(7).

these cases have physical, biological, and chemical connec-

tions with navigable-in-fact waters that bring them within

the “waters of the United States” covered by the Act. Be-

cause the statutory question is conclusively resolved under

this Court’s prior decision in Riverside Bayview, the pri-

mary issue of law presented in these cases is whether juris-

diction to protect adjacent wetlands is within the power

granted to the federal government under the Commerce

Clause of the U.S. Constitution.

SUMMARY OF ARGUMENT

I. Congress intended to include within “waters of the

United States” those wetlands that have functional connec-

tions sufficient to affect the “chemical, physical, and biologi-

cal integrity” of our Nation’s waters. See 33 U.S.C.

§ 1251(a). As the Court held in Riverside Bayview, the

Corps’ regulations broadly interpreting “waters of the

United States” to encompass adjacent wetlands were rea-

sonable and were ratified by Congress in the 1977 Clean Wa-

ter Act Amendments. 474 U.S. at 132-133, 137. The Court

again should defer to the judgment of the Corps, which rea-

sonably has determined that the categories of adjacent wet-

lands at issue here are within the scope of jurisdiction in-

tended by Congress under the Act. Petitioners’ arguments

that Congress intended to limit jurisdiction only to wetlands

abutting or directly flowing into traditional navigable waters

conflict with Congress’s express legislative purpose and

with the Corps’ administrative construction of the Act that

Congress acquiesced to in 1977. Jd. at 137.

SWANCC does not support a contrary conclusion.

Unlike the isolated ponds in SWANCC, the Corps’ jurisdic-

tion over adjacent wetlands that have functional connections

the waters of the United States, as Congress mandated un-

der the Act.

Il. Congress has Commerce Clause authority to pro-

tect wetlands adjacent to navigable-in-fact waters and their

tributaries. The power to protect navigability is a funda-