# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A27

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 932

## Text

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

fC =t.* * el
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hana teeweee— ame ame -=--

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

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nomic Research Service, “Dead Zone” in the
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Amber Waves (Nov. 2003) 23

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

viii
TABLE OF AUTHORITIES—Continued

Page(s)
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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
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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-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A27. Public record. Not legal advice.