Amicus Curiae Brief — Rapanos v. United States

4

mental attribute of federal authority under the Commerce

Clause, and adjacent wetlands provide critical flood-control

functions that are vital to ensure continued navigability of _

our Nation’s waters. See, ¢e.g., Oklahoma ex rel. Phillips v.

Guy F. Atkinson, Co., 313 U.S. 508, 525 (1941). Commerce

Clause authority over adjacent wetlands also is necessary to

protect traditional navigable waters against pollution and

similar injuries. Jurisdiction over wetlands that have a sur-

face water connection through tributaries to navigable-in-

fact waters (as the wetlands in Rapanos do) is plainly impor-

tant to this end. Even where the hydrological connection

may be altered by a man-made berm (as in Carabell), adja-

cent wetlands absorb water and sequester pollutants that

would otherwise flow into tributaries and traditional navi-

gable waters. Federal jurisdiction does not depend on a

showing in each case that alteration or destruction of a par-

ticular wetland poses a threat to particular navigable-in-fact

waters. Congress has the power to adopt, and to delegate to

tue Corps the power to adopt, rational rules giving the

Corps the jurisdiction generally necessary to protect navi-

gable waters. The Corps then may constitutionally assert

such jurisdiction without a showing of a specific threat in

each particular case.

Congress has constitutional power to regulate destruc-

tion and pollution of adjacent wetlands for the additional

reason that these are economic activities that have substan-

tial effects on interstate commerce. See, e.g., Gonzales v.

Raich, 125 S. Ct. 2195 (2005). The Clean Water Act regu-

lates economic activities, and the activities regulated in

these cases—filling of wetlands for commercial develop-

ment—are inherently economic. The Rapanos petitioners

planned to construct a shopping center and build roads on

the wetlands; the Carabell pet‘tioners planned to construct a

large, multi-family condominium development. It is mani-

festly rational to conclude that the pollution and destruction

of wetlands resulting from these types of economic activities

have substantial effects on interstate commerce. The issue

is not whether these effects can be shown in each instance in

which jurisdiction is asserted, but whether the class of ac-

5

tivities, rationally defined, has a substantial effect in the ag-

gregate. Moreover, the Corps’ “adjacent wetlands” regula-

tion is a critical component of the Clean Water Act’s com-

prehensive regulatory scheme that, if narrowed, would nul-

lify Congress’s purpose. See Raich, 125 S. Ct. at 2209.

III. Federal jurisdiction over adjacent wetlands is nec-

essary to the federal-state framework that Congress has en-

acted and it is wholly consistent with principles of federal-

ism. To address the national problem of protecting water

resources, Congress determined that minimum federal stan-

dards and oversight are necessary. Congress provided for

the States to play a primary role in implementing the federal

wetlands program if they so choose. But Congress did not,

as petitioners argue, divide jurisdiction between the federal

and state governments based on the proximity of wetlands

to navigable-in-fact water. Nor is there a basis for petition-

ers’ arguments that wetlands protection is a form of land use

regulation intruding on States’ traditional powers. Histori-

cally, most States have not regulated wetlands, and in any

case this Court has long upheld the primary role of the fed-

eral government in preserving environmental resources.

Comprehensive federal jurisdiction here is wholly consistent

with principles of federalism as articulated by our Nation’s

founders, who recognized that the federal government must

be and is empowered to address problems that can only be

solved at the national level.

ARGUMENT

Wetlands are critical to the health of traditional naviga-

ble waters and are of great value to the people who depend

upon these waters for their livelihoods. Wetlands filter and

purify water, absorb floodwaters, serve as storm buffers,

provide habitat for economically valuable fish and riparian

wildlife, and recharge groundwater supplies.

If the Clean Water Act is to remain effective, the juris-

dictional definition of “waters of the United States” must be

understood, as Congress intended, to include not only tradi-

tional navigable waters and their tributaries, but also the

wetlands that protect and enhance them—whether those

wetlands directly abut such waters or otherwise have func-

tional connections with them. Whereas wetlands were once

viewed as “bogs” and “swamps” suitable only for draining or

filling, improved scientific understanding of their ecological

and economic value has informed Congress’s determination

that they must be protected under the Act. From the mid-

1950s to the mid-1970s, an estimated 550,000 acres of wet-

lands were lost per year in the continental United States.

The decade following passage of the Act saw this rate cut in

half,’ and as of 2001, the rate of loss stood at only 60,000

acres per year.’

Petitioners’ arguments against federal jurisdiction in

these cases would, if adopted by the Court, defeat Con-

gress’s intent in passing the Clean Water Act. Petitioners

ask the Court to draw an arbitrary line for federal jurisdic-

tion that would include only wetlands physically abutting or

directly flowing into traditional navigable waters. Such a

line would be ineffective and has no basis in the statute. It

would exclude the vast majority of critically important wet-

lands from coverage under the Act—making them immedi-

ately vulnerable to destruction or pollution. Wetlands

across the country could again be lost at an accelerated rate,

leaving navigable waterways more polluted, rendering popu-

lations more susceptible to flooding, reducing the sustain-

ability of economically valuable fisheries and wildlife, and

potentially jeopardizing drinking water supplies.

Moreover, the jurisdictional provisions at issue in these

cases are the foundation for all of the Clean Water Act pro-

grams, including the regulation of “point source” discharges

of industrial pollution. If, as petitioners seek, this Court an-

> Thomas E. Dahl & Gregory J. Allord, History of Wetlands in the

Conterminous United States, United States Geological Survey Water

Supply Paper 2425, avatlable at http-//water.usgs.gov/nwsum/WSP2425/

history.html (last modified Mar. 7, 1997).

United States Environmental Protection Agency, Threats to Wet-

lands, Office of Wetlands, Ocean & Watersheds, EPA 483-F-01-002d

(Sept. 2001), available at http//www.epa.gov/owow/wetlands/pdf/threats

pdf.

7

nounces new limitations on the scope of the Act, essentially

re-dividing jurisdiction between federal and state govern-

ments, it would become impossible to achieve the compre-

hensive restoration of our Nation’s waters that Congress

intended. And a holding by this Court that Congress is

powerless under the Constitution to protect the wetlands ir.

these cases would call into question the validity of other dec-

ades-old environmental laws, also enacted under Congress’ .

Commerce Clause authority, that protect clean air, =

water, endangered species, and other natural resource

There is, however, no valid basis for any such holding, as we

now explain.

L “WATERS OF THE UNITED STATES” PROTECTED By THE

CLEAN WATER ACT INCLUDE ADJACENT WETLANDS WITH

FUNCTIONAL CONNECTIONS TO TRADITIONAL NAVIGABLE

A. Scope And Purposes Of The Clean Water Act

Congress passed the Clean Water Act in 1972 to “re-

store and maintain the chemical, physical, and biological in-

tegrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Prior

to 1970, responsibility for regulation of water pollution had

largely been left to state and local authorities. See Middle-

sex County Sewerage Auth. v. National Sea Clammers

Ass'n, 453 U.S. 1, 11 (1981). By 1972, however, water pollu-

tion had become a national crisis; the state-led system

proved tv be “ineffective,” id., and “inadequate in every vital

aspect,” S. Rep. No. 92-414 (1972), at 7, reprinted in 1972

U.S.C.C.A.N. 3668, 3674, cited in Milwaukee v. Illinois, 451

U.S. 304, 318 (1981). In response, Congress “establish{ed] an

all-encompassing program of water pollution regulation,”

applicable to “virtually all bodies of water.” International

Paper Co. v. Ouellette, 479 U.S. 481, 492 (1987) (citing Mil-

waukee, 451 U.S. 304). Congress recognize that protection

of the integrity of aquatic ecosystems demanded broad fed-

* £.g., Clean Air Act, 42 U.S.C. §§ 7401-7671q; Safe Drinking Water

Act, 42 U.S.C. §§ 300f to 300j-26; Endangered Species Act, 16 U.S.C.

$§ 1631-1544.

8

eral authority to control pollution, stating: “Water moves in

hydrologic cycles and it is essential that discharge of pollut-

ants be controlled at the source.” S. Rep. No. 92-414, at 77

(1972).

To this end, Congress redefined the phrase “navigable

waters,” which had been used in prior water pollution laws,

to extend to all “waters of the United States,” 33 U.S.C.

§ 1362(7). This redefinition reflected Congress’s intent to

include within federal jurisdiction some non-navigable wa-

ters. See Riverside Bayview, 474 U.S. at 133; see also Natu-

ral Res. Def. Council v. Callaway, 392 F. Supp. 685, 686

(D.D.C. 1975) (Congress intended to extend jurisdiction over

the Nation’s waters to “the maximum extent permissible

under the Commerce Clause of the Constitution.”). As this

Court bid in Riverside Bayview with respect to the same

category of “adjacent wetlands” at issue here, Congress ac-

quiesced in this expansive definition of federal jurisdiction

when it passed extensive amendments to the Clean Water

Act in 1977. 474 US. at 136-138.

Congress’s intention to protect all U.S. waters—

including wetlands—is properly reflected in the Corps’ “ad-

jacent wetlands” regulations. The Corps defines “waters of

the United States” to include not only traditional navigable

waters and their tributaries, see ¢.g., 33 C.F.R. § 328.3(a)(1)-

(4),(5), but also “{wjetlands adjacent to” any such waters, id.

§ 328.3(a)(7). The regulations clarify that federal jurisdiction

is not defeated by the presence of obstructions that “sepa-

rate” wetlands from otherwise adjacent waters: “The term

adjacent means bordering, contiguous, or neighboring. Wet-

lands 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.” Jd. § 328.3(c).

Petitioners do not seriously dispute that all the wetlands in

these cases fall within the Corps’ regulatory definition and

thus require a Section 404 permit as long as the regulations

themselves are valid.

The Corps does not, as petitioners contend, seek to

regulate all aspects of the hydrological cycle. Petitioners

and their amici attempt to portray the Corps‘as an over-

9

zealous agency run amok, but the facts demonstrate other-

wise. Not only is the Corps’ jurisdiction constrained by the

regulatory definition of “waters of the United States,” the

Corps also exercises discretion through the Section 404

permitting process. Although the Corps received an aver-

age of 74,500 Section 404 permit requests each year from

1996 to 1999, a mere three-tenths of one percent (0.3%) were

denied.® Thus, claims that the Corps overreaches under Sec-

tion 404 are belied both by the regulatory limitations and,

empirically, by the high percentage of permits the Corps

grants.

B. The Adjacent Wetlands In These Cases Are “Waters

Of The United States” Under Riverside Bayview

And SWANCC

As this Court held in Riverside Bayview, the Corps

acted pursuant to clear statutory authority in promulgating

its “adjacent wetlands” regulations. 474 U.S. at 135. River-

side Bayview is controlling with respect to the statutory in-

terpretation issues in these cases. Petitioners have not of-

fered any basis in the statute to exclude their adjacent wet-

lands from federal protection. Like the adjacent wetlands in

Riverside Bayview, the wetlands in these cases are function-

ally connected to navigable-in-fact waters or their tributar-

ies and thus fall within the clear reach of the Clean Water

Act.

® See EPA's Clean Air Budget and the Corps of Engineers Wetlands

Budget: Hearing Before the Subcomm. on Clean Air, Wetlands, Private

Property, and Nuclear Safety of the Senate Comm. on Environment and

Public Works, 106th Cong., at 2 (2000) (testimony of Michael Davis, Dep-

uty Assistant Secretary of the Army for Civil Works).

’ Petitioners’ amici claim these cases are really about “ditches,” not

wetlands and tributaries, and “point sources” rather than “waters of the

United States,” arguing that under the Corps’ 19765 interim regulations

wetlands connected to traditional navigable waters by conveyances such

as ditches were not intended to be subject to federal protection. See Br. of

Amici Curiae Foundation for Environmental and Economic Progress et al.

in Support of Petitioners 21-22. However, the Corps’ 1976 interim regula-

tions did not use these terms in the obtuse manner urged by amici. To

the contrary, those regulations provided that even wetlands not directly

10

This functional relationship corresponds with the pur-

pose of the Act. Wetlands maintain the physical integrity of

downstream waters by providing important flood control

and storm buffer functions. For example, the substantial

impacts of Hurricane Katrina on the navigable waters of

Louisiana and Mississippi in August 2005 were due in part to

the extensive loss of wetlands that has occurred on the Gulf

Coast.’ Adjacent wetlands also maintain the chemical integ-

rity of downstream waters by filtering and removing exces-

sive nutrients and other pollutants that today threaten the

existence of major interstate ecosystems such as the Great

Lakes and the Chesapeake Bay. Finally, wetlands, including

adjacent wetlands, play a critical role in ensuring the bio-

logical integrity of downstream waters by supporting the

growth of plants and animals that form the basis of the

aquatic food chain and providing habitat for fish that spawn

in wetlands and move to open waters later in life.’

adjacent or contiguous to traditional navigable waters or their tributaries

could come within the Corps’ jurisdiction where necessary for the protec-

tion of water quality. 40 Fed. Reg. 31325 (codifying 38 C.F.R.

§ 209.120(d)(2)i)). Read as a whole, the Corps’ regulations offer no sup-

port for amici’s narrow construction. There is no reason that a water may

not be both a “point source” and a “water of the United States” under the

Act. Moreover, Congress’s intent to address ali sources of pollution that

impair navigable waters was reaffirmed in the Water Quality Act of 1987,

which further amended the Clean Water Act and established a compre-

hensive program for regulating discharges of storm water run-off. See 33

U.S.C. § 1342(p). é

* See Tim Hirsh, Katrina Damage Blamed on Wetland Loss, avail-

able at http://news.bbc.co.uk/2/hi/americas/4398862.stm (last updated Nov.

1, 2000).

* Indeed, given the critical importance of wetlands to downstream

waters, every Administration since 1989 has adopted an express policy of

“no net loss” of wetlands—a policy recently expanded to include an “over-

all increase” of wetlands on a national basis. See, ¢.g., Fact Sheet: Presi-

dent Announces Wetlands Initiative on Earth Day (2004), available at

http://www. whitehouse.gov/news/releases/2004/04/20040422-1.html. This

policy is implemented primarily through the § 404 permitting program.

Comprehensive federal jurisdiction over wetlands as waters of the United

States is absolutely essential to meet this national goal.

11

: The broad scope of Clean Water Act jurisdiction over

adjacent wetlands affirmed by the Court in Riverside Bay-

view was not affected by this Court’s holding in SWANCC.

There, the Court expressly recognized that waters are sub-

ject to federal jurisdiction where they have a “significant

nexus” with traditional navigable waters, and that in 1977

Congress acquiesced in the Corps’ broad authority over fill-

ing of adjacent wetlands as necessary to protect traditional

navigable waters. 531 U.S. at 170-171 (citing Riverside

Bayview, 474 U.S. at 136). SWANCC rejected the Corps’

assertion of jurisdiction over an abandoned, water-filled min-

ing site located wholly within Illinois where the only basis

for jurisdiction was its use by migratory birds—because

there was no connection with traditional navigable waters or

their tributaries. Unlike the isolated ponds in SWANCC,

the type of wetlands here have important functional connec-

tions to, and resulting impacts on, traditional navigable wa-

ters.

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

tion

The Court established in Riverside Bayview that Con-

gress intended, at a minimum, that jurisdiction under the

Act cover wetlands abutting traditional navigable waters.

474 U.S. at 137. To the extent that any ambiguity remains

about whether the Act reaches wetlands adjacent to tribu-

taries of traditional navigable waters, this Court should de-

fer to the Corps’ interpretation of the Act, just as it did in

Riverside Bayview. “An agency’s construction of a statute it

is charged with enforcing is entitled to deference if it is rea-

sonable and not in conflict with the expressed intent of Con-

gress.” Id. at 131; see Chevron U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842 (1984); see also United

States v. Mead Corp., 533 U.S. 218, 229 (2001) (it is “appar-

ent from the agency’s generally conferred authority and

other statutory circumstances that Congress would expect

the agency to be able to speak with the force of law when it

addresses ambiguity in the statute or fills a space in the en-

acted law”).

12

The Corps’ conclusion that wetlands adjacent to tribu-

taries of navigable-in-fact waters and wetlands separated

from such tributaries only by a man-made berm are jurisdic-

tional is well supported and reasonable. As this Court noted

in Riverside Bayview:

[W]etlands that are not flooded by adjacent waters

may still tend to drain into those waters. In such

circumstances, the Corps has concluded that wet-

lands may serve to filter and purify water draining

into adjacent bodies of water, see 33 C.F.R.

§ 320.4(b)(2)( vii) (1985), and to slow the flow of sur-

face runoff into lakes, rivers, and streams and thus

prevent flooding and erosion, see § 320.4(b)(2)(iv)

and (v). In addition, adjacent wetlands may “serve

significant natural biological functions, including

food chain production, general habitat, and nesting,

spawning, rearing and resting sites for aquatic .. .

species.” § 320.4(b)(2)(i).

474 US. at 134-135. Here, as in Riverside Bayview, it was

13

D. Petitioners’ Proposed Interpretation Has No Sup-

port In The Statute And Could Nullify Congress's

Comprehensive Design

The Rapanos petitioners and some amici argue that ju-

risdiction under Section 404 of the Act reaches no further

than wetlands directly abutting traditional navigable wa-

ters. See, ¢.g., Rapanos Br. 11. Petitioners point to nothing

in the statute or its legislative history to support this argu-

ment. Indeed, one former Corps official has estimated that if

the definition of “waters of the United States” were inter-

preted to embrace only traditional navigable waters and

their abutting wetlands, the result would be to exclude from

Clean Water Act coverage—and thus federal protection—

more than 99% of the waters now understood to be covered

by the Act. See Wood, supra n.10, at 10192-10193. Conse-

quently, such a construction makes no sense, as it would

fundamentally defeat the Act’s core purpose of ensuring that

federal jurisdiction is sufficient to successfully combat water

Moreover, the effect of this massive curtailment of fed-

eral jurisdiction would not be limited to the filling of wet-

lands. The restrictive definition advanced by petitioners

also would gut the “point source” pollution-discharge prohi-

bition under Section 402 of the Act and other important pro-

grams relating to water quality because the statutory terms

material to this case are similarly critical throughout the

Act. See 33 US.C. § 1842; see also 43 Op. Att'y oe ag 9

200-201 (Sept. 5, 1979) (“The term ‘navigable waters’ . .

linchpin of thé Act. . .. ite definition is not specific to $ 404,

but is included among the Act’s general provisions.”). Thus,

petitioners’ proposed interpretation would immunize from

federal regulation disposal of oil, chemicals, and other pollut-

ants into the vast majority of our Nation’s wetlands and wa-

terways.

The Carabell petitioners advance an alternative inter-

pretation conveniently suited to the particular facts of their

case. They suggest that Congress intended to limit jurisdic-

tion under the Act to wetlands that flow continuously into

14

waters that are navigable-in-fact. See Carabell Br. 19. But

the Act simply does not include any such restrictions.

Petitioners’ statutory arguments cannot be understood

as a serious effort to discern the intent of Congress. Rather,

they are a transparent attempt to have this Court reverse

three decades of settled legislative policy. The Court should

take this opportunity to make clear that the holding of Riv-

erside Bayview controls when it comes to the Corps’ juris-

diction over wetlands functionally connected to navigable-in-

fact waters. The changes to the scope of the Clean Water

Act advocated by petitioners must be sought from Congress,

not the courts.

Finally, this Court should reject petitioners’ argument

that the Court must construe the scope of federal jurisdic-

tion narrowly under the canon of constitutional avoidance.

See Carabell Br. 31; Rapanos Br. 22. This doctrine arises

“only when there are serious concerns about the statute’s

constitutionality.” Harris v. United States, 536 U.S. 545, 555

(2002). As demonstrated in Part II below, the Corps’ inter-

pretation of the Clean Water Act to cover “adjacent wet-

lands” does not even come close to “invok[ing] the outer lim-

its of Congress’ power.” Cf. SWANCC, 531 US. at 172 (cit-

ing Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg.

& Constr. Trades Council, 485 U.S. 568, 575 (1988)). Nor, as

discussed in Part [II below, does this interpretation “alter{]}

the federal-state framework by permitting federal en-

croachment upon a traditional state power.” Td. (citing

United States v. Bass, 404 US. 336, 349 (1971)).

Il. Concress Has AUTHORITY To Prorecr WETLANDS ADJA-

CENT TO TRIBUTARIES OF TRADITIONAL NAVIGABLE WATERS

This Court has identified three general categories of

regulation in which Congress may engage pursuant to its

plenary power over interstate commerce: (1) regulation of

the “channels of interstate commerce”; (2) regulation of “the

instrumentalities of interstate commerce, and persons or

things in interstate commerce”; and (3) regulation of “activi-

ties that substantially affect interstate commerce.” Gonza-

les v. Raich, 125 S. Ct. 2195, 2205 (2005). Federal jurisdic-

15

tion over the “adjacent wetlands” in these cases fits com-

fortably within both the first and third categories.

A. Jurisdiction Over Wetlands Adjacent To Tributaries

Of Traditional Navigable Waters Protects Channels

Of Commerce

1. Adjacent Wetlands Provide Flood Control

Functions Necessary To Navigability

It is well settled that “(t]he power to regulate commerce

comprehends the control for that purpose, and to the extent

necessary, of all the navigable waters of the United States.”

Gilman v. City of Phila., 70 U.S. (3 Wall.) 713, 724-725 (1866)

(citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)). Con-

gress has the power to “take all needed measures to pre-

serve the navigability of the navigable water course of the

country.” United States v. Rio Grande Dam & Irrigation

Co., 174 U.S. 690, 703 (1899) (emphasis added). This power

is not limited to the navigable portion of a waterway, but

applies to any substantial threat to the navigable capacity

“wherever done or however done.” /d. at 708. “{Cjontrol

over the non-navigable parts of a river may be essential or

desirable in the interests of the navigable portions... .”

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S.

508, 525 (1941). “Flood protection” along with “watershed

development” are “parts of commerce control,” and thus

“the power of flood control extends to the tributaries of

navigable streams.” Jd. (quoting United States v. Appala-

chian Power Co., 311 U.S. 377, 426 (1940)).

Congress’s authority to regulate filling of wetlands is

supported by its “channels” power because wetlands play an

important role in flood control that affects navigability

downstream. A single acre of wetlands can store more than

one million gallons of water.'' That absorptive ability allows

wetlands adjacent to tributaries of traditional navigable wa-

ters to intercept storm run-off and slowly release or evapo-

'' United States Environmental Protection Agency, Functions and

Values of Wetlands, EPA 843-F01-002c (Sept. 2001), available at

http//www.epa.gov/owow/wetlands/pdf/fun_val.pdf.

16

rate water after peak flow has subsided, thereby regulating

water levels and reducing downstream flood damage.”

Freshwater wetlands, including forested wetlands, located

along the upper parts of river systems are thought to play a

particularly important role in flood prevention.”

Because non-navigable tributaries may comprise more

than three-quarters of the total waterway length in a river

network,'* the functional contribution of wetlands adjacent

to these tributaries is critically important to flood control.

Moreover, since floodwaters can travel over or under berms

and minor obstructions, wetlands directly adjacent to tribu-

taries serve as effective storm-water buffers even when

those wetlands do not have surface water connections with

the water bodies that they are protecting.

Further, this Court has held that the extent to which a

particular wetland will alleviate flood conditions does not

bear on the constitutional analysis. Atkinson, 313 U.S. at

527. “({Tyhe decision as to what watersheds should be con-

trolled (and what methods should be employed) in order to

protect the various arteries of interstate commerce from the

disasters of floods” is left to Congress, not the courts. Jd. at

528.

'2 See William J. Mitsch & James G. Gosselink, Wetlands 584 (2d ed.

2000) (“Because it is usually the peak flows that produce flood damage, the

effect of the wetland area is to reduce the danger of flooding.”).

'3 Paul F. Scodari, Wetlands Protection: The Role of Economics 21

(1990); Theda Braddock, Wetlands: An Introduction to Ecology, the Law,

and Permitting (1996) (“[T]he presence of vegetation and forests in par-

ticular can enhance this function through the creation of great roughness

or friction which can slow floodwater velocities.”).

' See Judith L. Meyer et al., Where Rivers Are Born: The Scientific

Imperative for Defending Small Streams and Wetlands 6-7 (2003), avail-

able at http://www.americanrivers.org/site/DocServer/Where RiversAre-

Born1.pdf.

17

2. Adjacent Wetlands Protect Traditional Naviga-

ble Waters From Pollution And Injurious Uses

Jurisdiction over adjacent wetlands also is necessary to

protect our Nation’s waters from pollution. In United States

v. Ashland Oil & Transportation Co., 504 F.2d 1317 (6th Cir.

1974), the Sixth Circuit noted that “water pollution is ...a

direct threat to navigation.” Jd. at 1325 (citing Kernan v.

American Dredging Co., 355 U.S. 426, 427 (1958)). Applying

Atkinson, the court in Ashland Oil held that as “the power

of flood control extends to the tributaries of navigable

streams . . . the power of pollution control extends to the

tributaries of navigable streams likewise.” Jd. at 1327 (in-

ternal quotation marks omitted).

This Court has cited with approval the holding in Ash-

land Oil. Addressing the constitutionality of the Surface

Mining Act, which established national standards addressing

environmental degradation caused by mining operations, the

Court in Hodel v. Virginia Surface Mining & Reclamation

Ass'n “agree[d] with the lower federal courts that have uni-

formly found the power conferred by the Commerce Clause

broad enough to permit congressional regulation of activities

causing air or water pollution, or other environmental haz-

ards that may have effects in more than one State.” 452 U.S.

264, 282 (1981) (citing e.g., Ashland Oil).

Based on this authority, all courts of appeal that have

considered the matter have held that the Clean Water Act’s

prohibition of the discharge of pollutants and fill material

into navigable-in-fact waters, their tributaries, and adjacent

wetlands is authorized under Congress’s “channels” power

even if there is no effect on navigability. In United States v.

Deaton, 332 F.3d 698 (4th Cir. 2003), which involved facts

similar to those in Rapanos, a unanimous Fourth Circuit

panel concluded that “Congress’s authority over the chan-

nels of commerce is . . . broad enough to allow it to legislate,

as it did in the Clean Water Act, to prevent the use of navi-

gable waters for injurious purposes.” Jd. at 707 (quoting

Caminetti v. United States, 242 U.S. 470, 491 (1917)).

In United States v. Gerke Excavating, Inc., a unanimous

Seventh Circuit panel agreed. Judge Posner observed that

18

“Congress may forbid the pollution of navigable waters even

if the pollution has no effect on navigability.” 412 F.3d 804,

807 (7th Cir. 2005). He continued, “it doesn’t matter

whether the objection to allowing the Gerkes of this world to

dry out wetlands is that the effect may be to reduce water

levels in navigable waterways to the point at which naviga-

tion would be affected or that the effect may be to increase

the level of pollution in such waters by reducing the supply

of unpolluted wetlands water.” Jd.

Because any pollutant or fill material discharged into a

tributary of a navigable-in-fact waterway “has the potential

to move downstream and degrade the quality of the naviga-

ble waters themselves,” Deaton, 332 F.3d at 707, Congress’s

authority is broad enough to allow it to legislate—as it did in

the Clean Water Act—to protect against pollution of navi-

gable-in-fact waters by regulating functionally connected

wetlands.'* Regardless of whether pollution takes place in

navigable-in-fact waters, or flows directly there from

neighboring wetlands (Riverside Bayview), or flows there

through tributaries of navigable-in-fact waters (Rapanos),

water is water, and there is no constitutional distinction

based on the nature or location of the discharge. Nor does

the presence of a berm that arguably interrupts the down-

stream flow of water from adjacent wetlands (Carabell) af-

fect Congress’s power to protect traditional navigable wa-

ters by preserving the connected wetlands’ essential role in

ensuring flood control, maintaining proper nutrient levels,

filtering sediments and pollutants, and providing habitat.

Even where there is little or no downstream flow, adjacent

'S At a recent congressional hearing before the Subcommittee on

Water Resources and Environment, Rep. Gilchrest described a dye ex-

periment conducted by the Corps on the property at issue in Deaton: The

Corps dropped a little dye in the drainage ditch adjacent to the property

and learned that when it became soluble, it traveled all the way to the

Wicomico River—a tidal basin of the Chesapeake Bay. Inconsistent

Regulation of Wetlands and Other Waters: Hearing Before the Subcomm.

on Water Resources and Environment of the House Comm. on Transpor-

tation and Infrastructure, 108th Cong., at 4 (2004).

19

wetlands still perform essential downstream functions that

are threatened if the wetlands are lost to condominiums and

shopping malls.

The Clean Water Act’s “adjacent wetlands” jurisdic-

tional framework survives constitutional scrutiny even if it

may reach some instances where there is no demonstrated

threat to the integrity of traditional navigable waters. Con-

gress may, for example, prohibit the discharge of deleterious

substances into wetlands adjacent to tributaries of naviga-

ble-in-fact waters without subjecting its regime to judicial

review of the likelihood that each wetland has a significant

effect on navigable waters. This is so for two reasons. First,

small instances add up: “Congress . . . may decide that the

aggregate effect of all the individual instances of discharge

... justifies regulating each of them.” Deaton, 332 F.3d at

707 (citing Wickard v. Filburn, 317 U.S. 111 (1942)). Second,

Congress may draw rational lines to prevent harm, without

requiring that every case be tested to see whether there is

an instance of the harm threatened: “Where the class of ac-

tivities is regulated and that class is within the reach of fed-

eral power, the courts have no power ‘to excise, as trivial,

individual instances’ of the class,” Perez v. United States, 402

U.S. 146, 154 (1971) (citations omitted). Thus, federal juris-

diction is not dependent on showing a particular threat in a

particular case to particular navigable waters. Congress has

the power to implement rational jurisdictional rules neces-

sary to protect navigable waters, and the Corps may then

constitutionally assert such jurisdiction without a showing of

a specific threat in each individual case.

This Court in Riverside Bayview recognized as much

when it noted that not every wetland that falls within the

Corps’ jurisdiction necessarily is an asset to navigable wa-

ters. If a given wetland is “in fact lacking in importance to

the aquatic environment—or where its importance is out-

weighed by other values—the Corps may always allow de-

velopment of the wetland for other uses simply by issuing a

permit.” 474 U.S. at 135 n.9. Though the scope of the threat

to navigable-in-fact waters may be relevant to the Corps’

permit decision, it does not bear on the determination of fed-

20

eral wetlands jurisdiction or on the constitutionality of Con-

gress’s regulatory regime to protect and preserve navigable

channels of commerce.

B. Pollution And Destruction Of Wetlands Adjacent To

Tributaries Of Traditional Navigable Waters Have

Substantial Effects On Interstate Commerce

Federal jurisdiction over adjacent wetlands also falls

within Congress’s ability to regulate “purely local activities

that are part of an economic ‘class of activities’ that have a

substantial effect on interstate commerce.” See Raich, 125

S. Ct. at 2205. Federal power over local activities may be

necessary and proper to Congress’s regulation of interstate

commerce. /d. at 2216 (Scalia, J., concurring).

“Judicial review in this area is influenced above all by

the fact that the Commerce Clause is a grant of plenary au-

thority to Congress. This power is ‘complete in itself, may

be exercised to its utmost extent, and acknowledges no limi-

tations other than are prescribed in the constitution.” Ho-

del, 452 U.S. at 276 (quoting Gibbons, 22 U.S. (9 Wheat.) at

196) (citations omitted). The key inquiry is whether there is

a rational basis for Congress’s determination that the class

of activities substantially affects interstate commerce and

whether the means that Congress employed are reasonably

tailored to the objectives of the statute. Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241, 258 (1964). The

Court will uphold a reasonably well-tailored regulation of

economic activity under tlie Commerce Clause unless it “is

clear that there is no rational basis” for a determination that

the regulated activity substantially affects interstate com-

—merce. FERC v. Mississippi, 456 U.S. 742, 753-754 (1982).

1. The Clean Water Act Regulates Economic Ac-

tivity Like The Activities Here

The activities regulated under the Clean Water Act are

obviously and overwhelmingly economic in nature. Dis-

charges of pollutants into surface waters occur primarily as

a result of industrial and commercial operations, including

manufacturing, construction, resource extraction, land de-

velopment, agriculture, and waste disposal. See, e.g., 40

21

C.F.R. pts. 403-610 (listing CWA effluent guidelines for 73

categories of industrial activities, which fill over 1500 pages

of the Code of Federal Regulations). Similarly, dredging

and filling of wetlands regulated under Section 404 are

costly activities that are undertaken by commercial interests

for monetary gain. See Thomas E. Dahl, Status and Trends

of Wetlands in the Conterminous United States 1986 to 1997,

at 12 (2000).

The facts here demonstrate the inherently economic na-

ture of the activities regulated under the Act. Through their

development corporation, the Carabell petitioners sought to

drain a wetland in order to build their proposed 112-unit

multi-building condominium complex. The Rapanos peti-

tioners and their various corporations had to level the

ground and dump sand into numerous wetlands in order to

build their roads and shopping center. The wetlands at issue

in both cases were owned by corporate entities seeking

profit for their shareholders, not by individuals with non-

economic intentions. The proposed destruction of wetlands

in these cases represented substantial and integral steps in

petitioners’ construction projects and, as such, constituted

economic activities for Commerce Clause purposes.

2. Pollution And Destruction Of Adjacent Wet-

lands Have Substantial Effects On Interstate

Commerce

In Hodel, the Court upheld Congress’s Commerce

Clause authority to regulate local surface mining activities

because of the cumulative effects on interstate commerce of

“destroying or diminishing the utility of land for commercial,

industrial, residential, recreational, agricultural, and for-

estry purposes, by causing erosion and landslides, by con-

tributing to floods, by polluting the water, by destroying fish

and wildlife habitats, by impairing natural beauty, by dam-

aging the property of citizens, by creating hazards danger-

ous to life and property by degrading the quality of life in

local communities, and by counteracting governmental pro-

grams and efforts to conserve soil, water, and other natural

resources.” 452 U.S. at 277. As was true of the intrastate

22

surface mining activities in Hodel, the discharge of pollut-

ants or other fill material into wetlands adjacent to tributar-

ies of traditional navigable waters impairs or eliminates a

number of valuable ecological functions, leading to the same

environmental harms and associated burdens on interstate

commerce. These wetland functions include:

(a) Flood Control. The flood-control function of wet-

lands has significant impacts on the economy.’® In a 1978

study, the Corps estimated that wetlands provided 75% of

the natural water storage in the Charles River watershed

and that loss of the flood-control function of these wetlands

would lead to $18 million in flood damage per year.’ The

loss of flood-control services can have tremendous economic

consequences. Floods killed 835 people and caused approxi-

mately $41.5 billion worth of damage between 1994 and

2003."* The 1993 Midwest flood, which was exacerbated by

the loss of wetlands in the Mississippi River watershed,

killed 70 people and destroyed approximately $18 billion in

homes, businesses, and crops."®

(b) Pollutant and Nutrient Removal. Wetlands re-

move pollutants—including toxic chemicals, sediments, and

harmful levels of nutrients like nitrogen and phosphorus—

from waters of the United States. See United States Dep’t

'® According to the Corps’ evaluation of the Carabell proposal:

“Wetlands located on the parce! likely provide floodwater storage due to

the fact that the site contains clay soils and the parcel appears to be a de-

pressional area.” United States Army Corps of Engineers, Department of

the Army Permit Evaluation, File No. 99-250-002-1, at 6-7 (C.A.J.A. 107-

"’ Francis R. Thibodeau & Bart D. Ostro, An Economic Analysis of

Wetlands Protection, J. Envtl. Mgmt. 19, 22 (1981); see also 123 Cong.

Rec. 38994 (1977) (Statement of Rep. Lehman) (noting that wetlands pro-

vide $140 billion worth of flood control and water purification services).

'8 United States Arniy Corps of Engineers, Annual Flood Damage

Report to Congress for Fiscal Year 2008, tables 4 & 5 (June 2003), avail-

able at http//www.usace.army.mil/inet/functions/cw/cecwe/flood2003/.

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

Through Wetland Protection, National Wetlands Newsletter 3-4 (May-

June 2000).

23

of Agric., Econ. Res. Serv., “Dead Zone” in the Gulf: Ad-

dressing Agriculture's Contribution, Amber Waves 8 (Nov.

2003) (USDA, Amber Waves). Pollutant removal generally

occurs in two stages: filtration and withdrawal. Office of

Technology Assessment, Wetlands: Their Use and Regula-

tion 48 (1984) (OTA). Filtration occurs as pollutants precipi-

tate out of the slow-moving waters in the wetlands. With-

drawal occurs either when those pollutants are bound up in

the wetlands’ biomass (i.e., plant matter) and substrate or

when complex biochemical processes in the wetlands convert

the chemical compounds into ecologically inert forms. See

Scodari, supra n.13, at 14. While all wetlands serve as nutri-

ent and sediment traps to some degree, those with fine, an-

oxic sediments, such as the forested wetlands in these cases,

are particularly well suited to storing and removing nutri-

ents. Jd. In the absence of wetlands, increased levels of ag-

ricultural run-off and other pollutant-saturated wastewater

make their way directly into tributaries and then into other

economically valuable waters of the United States.

The effects of nutrient pollution can be devastating. A

number of significant commercial fishing grounds, including

the Gulf of Mexico and the Chesapeake Bay, currently suffer

from a condition of depleted oxygen content known as “hy-

poxia” due to elevated levels of nitrogen, phosphorus, and

other nutrients in the rivers that flow into these water bod-

ies. The hypoxic zone in the Gulf of Mexico doubled in size,

to 18,000 square kilometers, after the 1993 Midwest Floods.”

Hypoxia reduces biological productivity and leads to fish

kills, creating expansive areas of water known as “dead

zones” that are essentially devoid of life. See USDA, Amber

Waves 8. The loss of productivity in the Chesapeake Bay,

Gulf of Mexico and other key fishing grounds that are cur-

rently suffering from nutrient pollution would have signifi-

cant impacts on the national economy. According to the De-

National Centers for Coastal Ocean Science, Hypoxia in the Gulf

of Mezico, at http://oceanservice.noaa.gov/products/pubs_hypox.html (last

visited Jan. 11, 2006).

24

partment of Commerce, Americans spent over $61.9 billion

on seafood products in 2004. National Marine Fisheries Ser-

vice, Fisheries of the United States: 2004 (2005); see also Na-

tional Academy of Sciences, Clean Coastal Waters: Under-

standing and Reducing the Effects of Nutrient Pollution 111

(2000) (reporting the results of a study that found that re-

storing 100,000 acres of wetlands in the Mississippi River

basin would provide an economic benefit of between $11.8

and $40 billion based on increases in water quality).”"

Finally, wetlands adjacent to tributaries play a key role

in filtering out sediments that would otherwise harm tradi-

tional navigable waters. These wetlands may remove up to

80% of suspended sediments from the water that flows

through them.” Sedimentation is a major threat to commer-

cially-important fish species such as salmon, which spawn in

freshwater streams and need clean water to ensure that

their eggs receive enough oxygen to survive.

(c) Fisheries and Other Wildlife Habitat Support. Ad-

jacent wetlands also serve habitat needs of economically sig-

nificant wildlife species. Wetlands are more effective pro-

ducers and exporters of useful nutrients than terrestrial sys-

tems. Scodari, supra n.13, at 15. Forested wetlands such as

those at issue here can produce 7-14 metric tons of biomass

per hectare each year. OTA, supra p. 23, at 59. As this ma-

terial decomposes, it supports the growth of the inverte-

brate populations that form the basis of the aquatic food

chain. Jd. at 58. Thus, elimination of this source of natural

material, either through development of the wetland or the

2! These commercial impacts extend beyond fisheries. One study re-

cently estimated that the boating, recreational fishing, and swimming

benefits resulting from the decrease in nutrient loading as a consequence

of Clean Water Act regulation were between $357.9 million and $1.8 bil-

lion. Cynthia Morgan & Nicole Owens, Benefits of Water Quality Policies:

The Chesapeake Bay, 39 Ecological Econ. 271, 274 (2001).

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

Trapping Efficiency of a Constructed Wetland Near Delavan Lake, Wis-

consin, 1993-1995, available at http//wi.water.usgs.gov/pubs/FS-232-

96/F'S_232-96.pdf.

severing of the surface water connection between the wet-

land and surrounding waters, deprives the wildlife popula-

tion of an important food source. Moreover, numerous spe-

cies of commercial and sport fish, including pike and large-

mouth bass, rely on temporarily flooded freshwater wet-

lands for spawning grounds. /d. at 56. In addition to the

$61.9 billion in commercial seafood consumption noted above,

Americans spent $35.6 billion on recreational fishing in 2001.

U.S. Fish & Wildlife Service, 2001 National Survey of Fish-

ing, Hunting & Wildlife-Associated Recreation 4 (2002).

More generally, approximately 82 million U.S. residents par-

ticipated in wildlife-related activities in 2001, with expendi-

tures related to such activities totaling $108 billion. Jd.

While the loss of functions associated with any particu-

lar wetland alone might not significantly affect commerce, it

is sufficient that Congress had a rational basis for concluding

that the aggregate commercial impacts stemming from im-

pairment of these wetland functions, including flood control,

pollutant filtration, and habitat support, would have such an

impact. See Raich, 125 S. Ct. at 2207-2209; Wickard, 317

U.S. at 127-128; see also Perez, 402 U.S. at 154. Given the

key role that wetlands play in ensuring the health and integ-

rity of the waters of the United States and the importance of

these waters to the national economy, Congress plainly

could have rationally concluded that the loss of wetlands

currently subject to federal jurisdiction would have a sub-

stantial effect indeed on interstate commerce.

3. Protection Of Adjacent Wetlands Is Necessary

To The Clean Water Act's Regulatory Scheme

Federal authority under the Commerce Clause to regu-

late intrastate activity also is appropriate where it is an es-

sential part of a larger regulatory scheme. Raich, 125 S. Ct.

at 2207. A comprehensive regulatory program such as the

Clean Water Act can be upheld without a specific showing

that every facet of the program is independently and di-

rectly related to a valid congressional goal if the scheme as a

whole is valid and the challenged provision is an integral

part of that scheme. See Hodel v. Indiana, 452 U.S. 314, 329

n.17 (1981). This Court recently upheld a federal ban on in-

trastate possession of marijuana to avoid creating a “gaping

hole” in the comprehensive federal drug control scheme.

Raich, 125 U.S. at 2209. Because pollutants can harm the

integrity of a water network regardless of whether they en-

ter that network through a large interstate river or a small

intrastate tributary, this Court should uphold the Corps’

regulation of wetlands adjacent to tributaries of traditional

navigable waters to avoid creating a similar hole in Con-

gress’s comprehensive scheme to combat water pollution.

fl. JURISDICTION TO PROTECT ADJACENT WETLANDS Is NECES-

SARY TO THE FEDERAL-STATE FRAMEWORK CREATED By

CONGRESS AND CONSISTENT WITH PRINCIPLES OF FEDERAL-

ISM

Petitioners and their amici argue that affirming federal

jurisdiction in these cases would violate principles of federal-

ism and undermine the role of the States in protecting water

resources. They advance various proposed “tests” for juris-

diction, supposedly in defense of the prerogatives of the

States, by which they are effectively asking this Court to

divide jurisdiction over wetlands protection between the

federal government and the States. But the division of ju-

risdiction proposed by petitioners’ amici would directly con-

flict with Congress’s stated intention to create a comprehen-

sive federal program of water protection. See /nternational

Paper Co. v. Ouellette, 479 U.S. 481, 486 (1987).

A. Congress Provided For State Regulation

In the context of this comprehensive federal program,

Congress chose “to recognize, preserve, and protect the

primary responsibilities and rights of States to prevent, re-

duce, and eliminate pollution, to plan the development and

use (including restoration, preservation, and enhancement)

of land and water resources, and to consult with the Admin-

istrator in the exercise of his authority under this chapter.”

SWANCC, 531 US. at 166-167 (quoting 33 U.S.C. § 1251(b)).

All States, including those that lack independent wetlands

laws, have authority under Section 401 of the Act to partici-

pate in the federal wetlands permitting process to ensure

27

that permit decisions are consistent with each State’s water

quality standards. 33 U.S.C. § 1341.

In addition, Section 404(g) of the Act authorizes a State

to apply to the EPA for permission “to administer its own

individual and general permit program for the discharge of

dredged or fill material” into certain navigable waters. By

incorporating Section 404(g) into the Act, Congress “opted

... for a scheme that encouraged States to supplant federal

control with their own regulatory programs.” 513 US. at

192 (Stevens, J., dissenting).” But to attain the national goal

of restoring the integrity of navigable waters, Congress de-

termined that where States assumed the lead, States would

implement and enforce standards no less stringent than the

federal rules. This cooperative federal-state framework

mandated by Congress necessarily depends on federal juris-

diction over all waters of the United States. Absent such

jurisdiction, the statutory provision permitting States to as-

sume primacy would be rendered meaningless with respect

to vast tracts of critically important wetlands, and Con-

gress’s goal of consistent national protection would be de-

feated.

Thus, petitioners’ reliance on the Act’s preamble (33

U.S.C. § 1251(b)), to argue that the States are “primary,” is

wholly misplaced. The Act was not intended to limit the

overarching comprehensive nature of the federal program,

but rather to ensure that States could play a primary role

within that program if they so elected. See S. Rep. No. 92-

414 (explaining that “(a) significant aspect of the entire bill is

the emphasis placed on development of a cooperative state-

federal approach toward environmental enhancement” while

noting that the federal government retains ultimate control

for setting certain water pollution control standards); New

> This integrated system of environmental regulations has state and

federal components. See, ¢.g., 33 U.S.C. § 1251(g) (“Federal agencies shall

co-operate with State and loeal agencies to develop comprehensive solu-

tions to prevent, reduce and eliminate pollution in concert with programs

for managing water resources.”).

York v. United States, 505 U.S. 144, 167 (1992) (describing

legal framework of “cooperative federalism”).

B. Wetlands Protection Does Not Impair Traditional

State Functions

Petitioners repeatedly describe federal wetlands pro-

tection as “land use regulation” and argue that it usurps tra-

ditional state powers in this area. E.g., Rapanos Br. 29;

Carabell Br. 45. But that label has no basis in fact. De-

struction of wetlands and the related threats to downstream

waters have never been principal subjects of land use law.

See California Coastal Comm'n v. Granite Rock Co., 480

U.S. 572, 587 (1987); see also Minnesota v. Mille Lacs Band

of Chippewa Indians, 526 U.S. 172, 204 (1999) (observing

that traditional State authority to regulate natural resources

must be shared when the federal government exercises one

of its enumerated powers). Indeed, prior to 1970, most

states did not regulate wetlands impacts, see Jon A. Kusler

et al., State Wetland Regulation: Status of Programs and

Emerging Trends | (Ass’n of State Wetland Managers 1994),

and the losses, as noted above, were massive.

Moreover, incidental impacts on local authority do not

defeat federal jurisdiction. “This Court has upheld as consti-

tutional any number of federal statutes enacted under the

commerce power that preempt particular exercises of state

police power.” Hodel, 452 U.S. at 292 (citations omitted) (re-

jecting contention that mining regulations impermissibly

interfered with traditional state land use powers). To argue

that federal wetlands protections should be invalidated be-

cause they intrude on States’ traditional regulation of land

use is similar to arguing that federal civil rights legislation

should be invalidated because States traditionally regulated

employment and business operations. The fact that a federal

program, addressing quintessentially national problems,

may indirectly affect traditional state functions is not a

proper reason to disable the federal government from act-

ing.

C. Federal Authority Is Necessary To Address This Na-

tional Problem

A core objective of the Framers in 1787 was to empower

the federal government to address problems national in

scope that the individual States were incapable of solving

themselves. The sixth Virginia Resolution, approved by the

Constitutional Convention on July 17, 1787, highlighted this

principle that “the national legislature ought to possess the

legislative rights vested in Congress by the confederation;

and moreover, to legislate in all cases for the general inter-

ests of the union, and also in those to which the States are

separately incompetent, or in which the harmony of the

United States may be interrupted by the exercise of indi-

vidual Legislation.” Notes of Debates in the Federal Con-

vention of 1787, 380 (W.W. Norton & Co. ed., 1966). This

fundamental principle—that the federal government must

be able to legislate to solve national problems, particularly

where the States are unable to do so themselves—is just as

important to the principles of federalism as the reservation

to States of their traditional police powers.

Clean water and healthy wetlands benefit the entire

Nation, and only a federal program with uniform standards

can maintain these wetlands and protect adjacent waters.

See generally Oliver A. Houck & Michael Rolland, Federal-

ism in Wetlands Regulation: A Consideration of Delegation

of Clean Water Act Section 404 and Related Programs to the

States, 54 Md. L. Rev. 1242, 1252-1253 (1995). The inherent

economic incentives favoring development in a purely state-

by-state framework further highlight the importance of re-

taining federal jurisdiction over adjacent wetlands. The

benefits from development flow to individual States, while

many of the costs of wetlands loss are widely dispersed. See

SWANCC, 531 US. at 195 (Stevens, J., dissenting); see also

Gerke, 412 F.3d at 807 (rejecting federalism argument as

“two-edged” for “(t]he more extensive the wetlands, the

greater their potential importance as a source of water to

keep the navigable waterways full and clean”). Thus, the

local costs and benefits of development should be weighed

against national costs and benefits; in the absence of this

kind of national calculus, the interests of downstream States

are unlikely to be adequately considered.

Congress has traditionally enjoyed the Commerce

Clause power to prevent the “destructive interstate compe-

tition” that arises where different States offer uneven levels

of environmental protection. See Hodel, 452 U.S. at 282 (up-

holding congressional finding that nationwide surface mining

and reclamation standards are essential to ensure that inter-

state competition does not undermine the ability of individ-

ual States to maintain adequate standards within their bor-

ders). In the context of wetlands regulation, “{i]f (develop-

ment) pressures are to be tempered in favor of wetlands

preservation, there are g od reasons for this regulation to be

federal, reasons that drove enactment of the Clean Water

Act and section 404 in the first place.... [UJneven regula-

tion among the states tended to penalize those that safe-

guarded the national interest and to favor a ‘race to the bot-

tom’ towards maximum development.” Houck & Rolland,

supra p. 29, at 1310.

Finally, the federal-state partnership that resulted in

the implementation of the Clean Water Act has been highly

effective in achieving the objectives set by Congress. Over

more than three decades, the law has delivered dramatic re-

ductions in pollution and stronger protection of wetlands re-

sources of great value to the American people. Congress’s

achievement in fashioning this framework, and the perform-

ance of both the federal and state governments in making

the Act work, have been a signal success. The vital federal

role in the preservation of water resources intended by

Congress in the Clean Water Act should be upheld. by the

Court.

CONCLUSION

For the foregoing reasons, the judgments of the court of

appeals should be affirmed.

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

JANUARY 2006

Respectfully submitted,

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 LLP

2445 M Street, N.W.

Washington, DC 20037

(202) 663-6000

@

1 p=

3n The

Supreme Court of the Anited states

S

JOHN A. RAPANOS, et al.,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

°

JUNE CARABELL, et ai.,

Petitioners,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Respondents.

+

On Writs Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

.

BRIEF OF FORMER EPA ADMINISTRATORS

CAROL M. BROWNER, WILLIAM K. REILLY,

DOUGLAS M. COSTLE, and RUSSELL E. TRAIN AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

S

WILLIAM W. BUZBEE DEBORAH A. SIVAS

Gambrel] Hall LAWRENCE C. MARSHALL

1301 Clifton Road Counsel of Record

Atlanta, Georgia 30322 HOLLy D. GORDON

Telephone: (404) 727-6507 StanrorD Law SCHOOL

Facsimile: (404) 727-6820 ENVIRONMENTAL LAW CLINIC

Crown Quadrangle

559 Nathan Abbott Way

Stanford, California 94305

Telephone: (650) 724-1900

Facsimile: (650) 723-4426

Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-4964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE .0.0......000.0ssseseseeeeeeees 1

SUMMARY OF ARGUMENT. .............:cccescsesesesesesesesesees 2

PE ERR ERs ROG 4

I. A BROAD INTERPRETATION OF THE

Il.

TERM “WATERS OF THE UNITED STATES”

IS PIVOTAL TO. THE NATION’S WATER

POLLUTION CONTROL EFFORTS ................

A. The Clean Water Act of 1972 Constituted a

Radical Departure from Prior Federal Wa-

ter Quality Laws and Enacted a Compre-

hensive Water Pollution Control Regime...

B. Petitioners’ Interpretation Would Eviscer-

ate the Section 402 NPDES Permit Pro-

gram, which Lies at the Heart of the Clean

C. Other Clean Water Act Provisions Are

Similarly Dependent on a Broad Interpre-

tation of Navigable Waters.......................+

THE FEDERAL GOVERNMENT'S CONSIS-

TENT INTERPRETATION OF CLEAN WATER

ACT JURISDICTION HAS RESULTED IN A

ROBUST FEDERAL-STATE PARTNERSHIP

FOR PROTECTING WATER QUALITY..............

A. EPA and the Corps Have Cu.sistently As-

serted Jurisdiction Over Tributaries and

their Adjacent Wetlands for Three Decades...

B. If Adopted, Petitioners’ Arguments Threaten

to Disrupt the Clean Water Act’s Coopera-

tive Federalism Scheme and Unduly Bur-

I cenincaceicsvncnecningiiiniininaitiimaanecs

14

16

17

li

TABLE OF CONTENTS - Continued

Page

Ill. PETITIONERS’ REAL ESTATE DEVELOP-

MENTS AND THE ACTS PROTECTIONS

BOTH IMPLICATE COMMERCIAL ACTIVI-

TIES, OVERCOMING CLAIMED COM-

MERCE POWER CONCERNG............--ccceceeeeees 23

IV. AS THE COURT RECOGNIZED IN RIVER-

SIDE BAYVIEW, DEFERENCE TO THE

AGENCIES’ REGULATORY INTERPRETA-

TIONS AND ECOLOGICAL JUDGMENTS IS

IIIS vxnsrnernesousceserepecstsendasannebansetervincimenscosooest 30

iii

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Arkansas v. Oklahoma, 503 U.S. 91 (1992) ............cccceeeeee 21

Avoyelles Sportsmen’s League, Inc. v. Marsh, 715

gE AE ER AD te Re 20

Caminetti v. United States, 242 U.S. 470 (1917).............. 25

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

Council, Inc., 467 U.S. 837 (1985)................ccccceseeeeeeeees 28

City of Milwaukee v. Illinois and om, 451

REI ERRTSER NS ERR eee Sr te aT 5

Environmental Protection Agency v. California, 426

a ID ciiikdihininseaciiatintitebincnilsiteil taiinaialligagibA cians sdinsesiies 5

Fawcus Machine Co. v. United States, 282 U.S. 375

I iaiiadhdeiol cincciila ciniicieeldpaithatinansiniainnatt ani iaaitises tutti 21

Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000).................. 26

Gonzalez v. Raich, 125 S. Ct. 2195 (2005)............ 25, 26, 27

Headwaters, Inc. v. Talent Irrigation District, 243

I le 12

Hodel v. Virginia Surface Mining & Reclamation

Association, 452 U.S. 264 (1981) 00... cceccceeeeeeteeeeees 28

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

Sire aeinidiinitichacnncatintntnatindiiaigeicniibabiintuatitedtadelh tnniabecctdiniieti 16

Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir.

TITT ccilicssiieiliscviintiiiaebsbiibitinatisasiiiabatisnasciaidiintceimtiiiiesddiniatiabendtadd 20

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1

Sree inesescitenaicceceiceadiliiiiladncideibihidhieatiniaitite tate dipshit a tidieamenasael 27

Natural Resources Defense Council, Inc. v. Calloway,

392 F. Supp. 685 (D.D.C. 1975)................csecsecccessereeeeees 18

iv

TABLE OF AUTHORITIES -— Continued

Page

In re Needham, 354 F.3d 340 (5th Cir. 2003).................... 20

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

Fe aes I ID sectstcccctnsenieenrtailicstindtindsili ils athe ail 24

Quivira Mining Co. v. U.S. Environmental Protec-

tion Agency, 765 F.2d 126 (10th Cir. 1985) ................... 13

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

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

State of Georgia v. City of East Ridge, 949 F. Supp.

Fe a Gs Te ricitericccnnviitinicestitasittibinetianacidannipittinciniisiia 13

The Daniel Ball, 77 U.S. 557 (1871) .........cccccccececeseeeeeeeeees 24

Train v. City of New York, 420 U.S. 35 (1975) .............0000. 5

Treacy v. Newdunn Associates, LLP, 344 F.3d 407

GN GI Bi istctoccancncocctitcsicnnicntiniaduiinaddnittenitieenmnn 20

United States v. Appalachian Electric Power Co.,

Gs SS Get ccrcccccceccsentccininncniinsamiidusniiibaditiabiasiiaaials 24

United States v. Ashland Oil, 504 F.2d 1317 (6th

EE CID ccccitcinccsiedtestincsictticnedntiananishapaindditahaaitiatd ia tcatnl acai aaa 13

United States v. Byrd, 609 F.2d 1204 (7th Cir. 1979)....... 20

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

ren semen Heme ren ehaTes Ne 20, 26

United States v. Earth Sciences, Inc., 599 F.2d 368

CO Ge Bee cccernnbiicwesinctitasdianialecitthasichiaianihsNcertsitaliniston ttiaiatieail 13

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

cert. denied, 552 U.S. 899 (1997)...........:cccsccccesereeeeeeeeees 12

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

804 (7th Cir. 2005), petition for cert. filed, 74

USLW 3309 (U.S. Nov. 11, 2005) (No. 05-623).. 20, 24, 26

v

TABLE OF AUTHORITIES -— Continued

Page

United States v. Jones, 267 F. Supp. 2d 1349 (M.D.

EE ee 13

United States v. Lopez, 514 U.S. 549 (1995)............... 23, 25

United States v. Morrison, 529 U.S. 598 (2000).......... 25, 26

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

ALA ETE SE SEED passim

United States v. St. Bernard Parish, 589 F. Supp. :

EO Se 13

United States v. TGR Corp., 171 F.3d 762 (2d Cir.

SE AE EE a eee eee 12

United States v. Texas Pipe Line Co., 611 F.2d 345

EEE 13

FEDERAL STATUTES

Federal Water Pollution Control Act of 1972, 33

I aetna iceareerartitarieesmeenetimesmants 1

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

EE 6

CL 5, 21, 26

EE Oe 5

a 5

ae 8

ES 5

CEE 6

EE 2,6

a a) UE cnactepsinersecinerinepencaneoncusecenninnnenemmenntensetneeenn 8

vi

TABLE OF AUTHORITIES -— Continued

Page

POE DN an i aes F5 14

33 U.S.C. § 1313(d)......cccccccceeeees EE 14

eee » bain s

I I iii iii ctettiaiiithiitintentattaiinl 15

GO Bi ibtenccic tients er) 15

I i ae 15

I Biekisekeicintin ee ek is 2

TE OT eee ITC a 8

SN RR aiicetet hn ttt a 8

FE LIA Oe IIe 21

I Dit cinnsistaiteniniabiteiitiitinnntananibil 21

UI ON i ~

a E 15

I ii 3,6

nn 6

I i icicidh kiss i a 21

I ie eet ee 15

FEDERAL REGULATIONS

I I i 20

RE SR A SCOP RA 20

38 Fed. Reg. 10,834 (May 2, 1973) .........cc.cccccccecsseccesesssvee 18

38 Fed. Reg. 13,527 (May 22, 1973) .......cc..ccccccecsseessseessvee 17

39 Fed. Reg. 12,115 (April 3, 1974) .............ccccccccsseeeeneeenees 18

vii

TABLE OF AUTHORITIES — Continued

Page

40 Fed. Reg. 19,766 (May 6, 1975) .................ccccccccceeecceeees 18

40 Fed. Reg. 19,794 (May 6, 1975) ...............ccccccccceceeeeeeeeee 19

40 Fed. Reg. 31,320 (July 25, 1975) ..............ccccecccceeeeeeenes 18

40 Fed. Reg. 41,294 (Sept. 7, 1975)............cccccccceceeeeeeeeeeees 19

42 Fed. Reg. 37,122 (July 19, 1977) ...........2..0ccccccecceeeeeeeeee 19

44 Fed. Reg. 32,854 (Jume 7, 1979) ...0..........ccccccccsceeseeeeeees 20

51 Fed. Reg. 41,206 (November 13, 1986) ........................ 20

68 Fed. Reg. 1991 (Jan. 15, 2003) ..20....... ee ccccceeeeeeeeeeedeeeee 9

LEGISLATIVE HISTORY

a 6

ey a Ee EE I rremnpernieniinntiitennmengsnemnsmeen 18

Section 404 of the Federal Water Pollution Control

Act Amendment of 1972: Hearings Before the Sen.

Public Works Comm., 94th Cong., 40-41 (July 27,

1976) (Testimony of EPA Administrator Russell

RS Se See 17

S. Conf. Rep. No. 92-1236 (1972) .........cccccccccesseeeeeeees 6,18

ee 16

OTHER AUTHORITY

43 U.S. Op. Atty. Gen. 197, 1979 WL 16529 (Sept. 5,

ECS ee See ne 8

Bruce J. Peterson et al., Control of Nitrogen Export

from. Watersheds by Headwater Streams, 292

8 9

TABLE OF AUTHORITIES - Continued

Donna M. Downing, Cathy Winer, and Lance D.

Wood, Navigating Through Clean Water Act Ju-

risdiction: A Legal Review, 23 Wetlands 475

Gregory J. Hobbs, Jr. and Bennett W. Raley, Water

Rights Protection in Water Quality Law, 60 U.

CRED. Be, RBs GE GR cercscecssessecescconsenmasessecenmecnssivns

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

Scientific Imperative for Defending Small Streams

and Wetlands http://www.americanrivers.org/site/

-DocServer/WhereRiversAreBorn1.pdf?docID=182

GD crcscssrcersesnapssncnnisecasnscsensueavsremngnqmssaneqemensnmnenensenaees

Lance Wood, Don't Be Misled: CWA Jurisdiction

Extends to All Non-Navigable Waters and to

Their Adjacent Wetlands, 34 Env. L. Rev. 10187

i crendinasdernctnemnrettiaitniinatiisatiieenitseniiguunipscipninaeaitves

Maria V. Maurrase, Oklahoma v. EPA: Does the

Downstream States or Is There Still Room Left

for Federal Common Law?, 45 U. Miami L. Rev.

De

1

INTERESTS OF AMICI CURIAE'

Amici curiae’ are a bipartisan group of former Envi-

ronmental Protection Agency (“EPA”) Administrators,

spanning nearly twenty years of service, with an interest in

the continued application of the Federal Water Pollution

Control Act of 1972, 33 U.S.C. § 1251 et seg. (hereinafter

“Clean Water Act”) to all waters of the United States,

including tributaries and adjacent wetlands like those

isolated disputes over the U.S. Army Corps of Engineers’

(“Corps”) wetlands jurisdiction. Petitioners’ arguments to

exclude non-navigable waters and their adjacent wetlands

from federal regulation strike at the very heart of the

nation’s water pollution control programs. As the agency

primarily charged with implementing the Clean Water Act,

EPA has worked closely with the states over the last three

decades to make steady progress toward reducing water-

borne contamination and restoring the commercial, recrea-

tional, and ecological health of our aquatic systems. Amici

have an abiding interest in ensuring that this successful

federal state partnership and the long-settled administra-

tive practices on which it is built are not weakened by an

unnecessarily narrow interpretation of the statute.

+

' All parties have consented to the filing of this brief in letters that

are on file with the Clerk. Pursuant to Rule 37.6, counsel for amici

state that no counsel for a party authored this brief in whole or in part

and no person or entity, other than amici or their counsel, made a

monetary contribution to the preparation or submission of this brief.

* Amici are Former EPA Administrator Carol M. Browner (Jan.

1993 to Jan. 2001), Former EPA Administrator William K. Reilly (Feb.

1989 to Jan. 1993), Former EPA Administrator Douglas M. Costle (Mar.

1977 to Jan. 1981), and Former EPA Administrator Russel] E. Train

(Sept. 1973 to Jan. 1977).

2

SUMMARY OF ARGUMENT

The key phrase at issue here — “waters of the United

States” — undergirds every water pollution control pro-

gram established in the Clean Water Act, not just the

wetlands permit program. Most significant among these

water quality efforts are the law’s basic prohibition

against discharging pollutants into waters without a

permit, 33 U.S.C. § 1311(a), the National Pollutant Dis-

charge Elimination System (“NPDES”) permit program

established by section 402 of the Act, 33 U.S.C. § 1342, and

the statute’s linked water quality-based requirements. In

broadly defining “navigable waters” as “waters of the

United States,” Congress recognized both the reality of

hydrologic cycles and the need to address pollution at its

source. Given the quintessentially economic activities

regulated by the statute, and by the Corps in these par-

ticular cases, Congress unquestionably acted within its

Commerce Clause powers in articulating a statutory

definition broad enough to effectuate the statute’s various

pollution control programs.

In the three decades since the Clean Water Act’s

passage, regulatory agencies and the courts have given

effect to Congress’ intent by consistently interpreting the

term “navigable waters” to cover all interconnected wa-

ters, including non-navigable tributaries and their adja-

cent wetlands. The system of cooperative federalism that

Congress envisioned in crafting the Clean Water Act has

since developed into a robust federal-state partnership

that relies heavily on this interpretation of the statute's

jurisdiction. The radical reinterpretation that Petitioners

press here would upend long-settled expectations, ham-

string enforcement efforts, and impair the ecological,

3

recreational, and covamercial value of the nation’s lakes,

rivers, and coastal estuaries.

Petitioners base their arguments primarily on an

expansive misreading of a few clauses in Solid Waste

Agency of Northern Cook County (“SWANCC”) v. U.S.

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

failing to heed the more directly applicable heidings and

language of United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121 (1985). The touchstone for the Court’s

analysis in both cases was the scope of the term “navigable

waters,” expressly defined by the Clean Water Act as

“waters of the United States, including the territorial

seas.” 33 U.S.C. § 1362(7). In Riverside Bayview, the Court

recognized that the Clean Water Act confers broad regula-

tory jurisdiction on the Corps and EPA over “wetiands

adjacent to but not regularly flooded by rivers, streams,

and other hydrographic features more conventionally

identifiable as ‘waters.’” 474 U.S. at 131. The Court’s

decision in SWANCC confirmed the ongoing validity of

Riverside Bayview, concluding only that Clean Water Act

jurisdiction does not extend as far as non-navigable

“isolated ponds, some only seasonal, wholly located within

two Illinois counties” solely because they serve as habitat

for migratory birds. 531 U.S. at 171-72.

The Corps’ actions in both Rapanos and Carabell fall

squarely within the contours of Riverside Bayview. Peti-

tioners’ arguments amount to nothing more than a request

by two commercial real estate developers that the Court

second-guess the ecological judgments of the expert

administrative agencies concerning water flows, the

significance of wetlands and their connection to tributar-

ies, and the role of these components of the aquatic system

in protecting water quality. Riverside Bayview soundly