Amicus Curiae Brief — Rapanos v. United States

4

rejected Petitioners’ proffered approach, deferring to the

agencies’ general regulatory judgments and site-specific

ecological assessments. There is no reason for the Court to

revisit this settled issue.

°

ARGUMENT

I. A BROAD INTERPRETATION OF THE TERM

“WATERS OF THE UNITED STATES” IS PIV-

OTAL TO THE NATION’S WATER POLLUTION

CONTROL EFFORTS.

Although focused on jurisdictional wetlands, these

cases have vastly broader and more troubling implications.

Petitioners essentially ask the Court to rewrite and

restrict the definition of “waters of the United States,” a

phrase that governs not only the jurisdictional scope of

section 404 “dredge and fill” permits like the ones at issue

here, but also every other pollution protection program

established by the Act. A decision by the Court to cast

aside more than three decades of settled administrative

and judicial interpretations of the phrase “waters of the

United States” would strike a crippling blow at the under-

pinnings of the Clean Water Act.

A. The Clean Water Act of 1972 Constituted a

Radical Departure from Prior Federal Wa-

ter Quality Laws and Enacted a Compre-

hensive Pollution Control Regime.

Adopted in the wake of burning rivers and toxic fish,

the Clean Water Act discarded the ineffective approaches

of the past and set a bold new course for cleanup of the

nation’s polluted waterways. The overarching objective of

5

the Clean Water Act is no less than “to restore and main-

tain the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. §125l(a). To achieve this

objective, Congress declared the ambitious goals of attain-

ing “water quality which provides for the protection and

propagation of fish, shellfish, and wildlife and provides for

recreation in and on the water” by 1983 and eliminating

altogether the discharge of pollutants into navigable

waters by 1985. 33 U.S.C. § 1251(a)X1)-(2). In addition to

its aspirations of achieving “fishable” and “swimmable”

waters, the statute also announced a new national policy

of prohibiting “the discharge of toxic pollutants in toxic

amounts.” 33 U.S.C. § 1251(aX3). Thus, as this Court has

recognized, the contemporary Clean Water Act is a com-

prehensive pollution control law aimed at controlling

commercial activities that previously evaded regulation

under federal, state and local laws. City of Milwaukee v.

Illinois and Michigan, 451 U.S. 304, 310, 317-18 (1981)

(finding that the 1972 amendments constituted “a ‘total

restructuring and ‘complete rewriting’ of the existing

water pollution legislation”). See also Environmental

Protection Agency v. California, 426 U.S. 200, 202 (1976)

(discussing the ineffectiveness of pre-1972 state and

federal water pollution control] efforts); Train v. City of

New York, 420 U.S. 35, 37 (1975) (stating that 1972

amendments “provide a comprehensive program for

controlling and abating water pollution”).’

* The statute also directs the EPA Administrator, in cooperation

with the states and others, to “prepare or develop comprehensive

programs for preventing, reducing, or eliminating the pollution of the

navigable waters and ground waters and improving the sanitary

condition of surface and underground water.” 33 U.S.C. § 1252(a). These

comprehensive programs must “conserve such waters for the protection

(Continued on following page)

6

To achieve these ends, Congress built the Clean Water

Act’s key provisions around the then-novel concept that,

except as specifically allowed, “the discharge of any pollut-

ant by any person shall be unlawful.” 33 U.S.C. § 1311(a).

The pivotal term “discharge of pollutant” is statutorily

defined as “any addition of any pollutant to navigable

waters.” 33 U.S.C. § 1362(12A). The term “navigable

waters” is, in turn, defined by statute as “waters of the

United States, including the territorial seas.” 33 U.S.C.

§ 1362(7). Thus, the scope of EPA’s and the Corps’ jurisdic-

tion to regulate the discharge of any pollutant under the

Clean Water Act is coextensive with the reach of the

phrase “waters of the United States.”

As this Court has recognized, “Congress evidently ©

intended [in 1972) to repudiate limits that had been placed

on federal regulation by earlier water pollution control

statutes and to exercise its powers under the Commerce

Clause to regulate at least some waters that would not be

deemed ‘navigable’ under the classical understanding of

that term.” Riverside Bayview, 474 U.S. at 133 (citing S.

Conf. Rep. No. 92-1236, at 144 (1972) and 118 Cong. Rec.

33756-57 (1972) (statement of Rep. Dingell)). These earlier

statutes — particularly the Rivers and Harbors Act of 1899,

33 U.S.C. § 401 et seg., and the Federal Water Pollution

Control Act of 1948, as amended — were focused on waters

that are or have been used, or may be susceptible for use,

.ad propagation of fish and aquatic life and wildlife, recreational

purposes, and the withdrawal! of such waters for public water supply,

agricultural, industrial, and other purposes.” Jd. Additionally, the

statute funds basinwide water quality planning, to be done on a

watershed basis taking into consideration “rivers and their tributaries,

streams, coastal waters, sounds, estuaries, bays, lakes, and portions

thereof as well as the lands drained thereby.” Jd. § 1262(c).

7

to transport interstate commerce and were generally

considered inadequate to regulate industrial pollutants.‘

Growing public concern over water quality and the inabil-

_ ity of existing laws to effectively control pollutants at their

source led directly to enactment of the new Clean Water

Act in 1972, with its focus on the all-encompassing section

402 discharge permit program. See Gregory J. Hobbs, Jr.

and Bennett W. Raley, Water Rights Protection in Water

Quality Law, 60 U. Colo. L. Rev. 841, 849 (1989).

B. Petitioners’ Interpretation Would Eviscer-

ate the Section 402 NPDES Permit Pro-

gram, which Lies at the Heart of the Clean

Water Act.

The NPDES program under section 402 is the corner-

stone of the Clean Water Act’s pollution control efforts,

entirely replacing the Corps’ nascent permit program

* In the 1960's, the Corps began regulating industrial pollutants

under section 13 of the Rivers and Harbors Act, 33 U.S.C. § 407, which

prohibits the discharge of refuse (but not sewage) into navigable water

and “any tributary of any navigable water from which the same shall

float or be washed into such water.” See United States v. Standard Oil

Co., 384 U.S. 224, 230 (1966) (release of aviation fuel into river).

However, the agency’s attempt to develop a formal discharge permit

program extending to both navigable waters and their tributaries was

dealt a blow in Kalur v. Resor, 335 F. Supp. 1, 9 (D.D.C. 1971) (finding

permit regulations adopted in 1971 to be ultra vires). See also generally

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

Through Clean Water Act Jurisdiction: A Legal Review, 23 Wetlands

475, 476-78 (Sept. 2003) (describing history of Rivers and Harbors Act

and judicial interpretations of traditional navigability test); Maria V.

Maurrase, Oklahoma v. EPA: Does the Clean Water Act Provide an

Effective Remedy to Downstream States or Is There Still Room Left for

Federal Common Law?, 45 U. Miami L. Rev. 1137, 1146-49 (1991)

(describing inadequacies of pre-1972 Federal Water Pollution Control

Act).

8

under the Rivers and Harbor Act. See 33 U.S.C.

§ 1342(a(5).* It constitutes a comprehensive permit

system for “the discharge of any pollutant” into waters of

the United States, requiring that all such discharges

comply with technology-based effluent limitations estab-

lished by EPA for various industrial categories of “point

sources.” Id. § 1342(a)(1). NPDES permittees also must

comply with backstop water-quality based effluent limita-

tions, if and as necessary to protect public health, indus-

trial and recreational uses, and ecological functions. Id.

§ 1312(a). The section 402 program broadly applies both to

conventional pollutants, such as those commonly associ-

ated with sewage treatment activities and industrial

operations, and to those dangerous chemical pollutants

deemed “toxic” by the EPA Administrator. Jd. § 1317(a)(1).

Petitioners’ reading of the phrase “waters of the

United States” to exclude non-navigable tributary waters

and their adjacent wetlands based on geographic prox-

imity (or, as the Carabell Petitioners apparently contend,

failure to prove a robust hydrologic connection to directly

adjacent waters) threatens to unravel the protections of

the NPDES permit program. A watershed is a vast braided

* The Clean Water Act dramatically changed the prior legal

landscape by conferring on the newly-created EPA the responsibility for

implementing the section 402 permit program and all other facets of

the statute, save for the section 404 permit program. See 33 U.S.C.

§ 1251(d). Consistent with the Corps’ historic role over dredge and fill

activities in navigable waters, the Act conferred section 404 permitting

authority on the Corps, but gave EPA ultimate veto authority over such

permits. Jd. § 1344(a)-(c). See 43 U.S. Op. Atty. Gen. 197, 201-02, 1979

WL 16529 (Sept. 5, 1979) (noting that the term “navigable waters” is

the linchpin for all Clean Water Act programs and concluding that EPA,

not the Corps, has the ultimate authority for a uniform definition of the

term).

9

network of streams, wetlands, and pools, intertwining to

form the great rivers, lakes, and estuaries downstream.

Upstream tributary streams — which form at least 75

percent of the nation’s stream miles — act as a complex

living filter system and are biologically and hydrologically

critical to gathering and gradually releasing the water

that fills larger rivers and lakes, in the process removing

pollutants and sediments. Judy L. Meyer et al., Where

Rivers are Born: The Scientific Imperative for Defending

Small Streams and Wetlands 6-7, 10-15 (2003). Down-

stream water quality depends on the protection of up-

stream areas and suffers if they are degraded. See, e.g.,

Brice J. Peterson et al., Control of Nitrogen Export from

Watersheds by Headwater Streams, 292 Science 86, 89

(April 6, 2001) (“Restoration and preservation of small

stream ecosystems should be a central focus of management

strategies [to] . . . improve the quality of water delivered to

downstream lakes, estuaries, and oceans” because nitro-

gen processing is much more rapid and effective in head-

water tributaries”); EPA Region 3 Comments on Advanced

Notice of Proposed Rulemaking on the Clean Water Act

Regulatory Definition of “Waters of the United States”

(“ANPRM”) at 7 (pathogens from upstream sewage treat-

ment facilities located on smaller order tributaries, such as

many of the facilities in the Mid-Atlantic region, can

survive long distances and end up in downstream drinking

water); EPA Region 6 ANPRM Comments, Enclosure at 1.’

* This publication is available at http://www.americanrivers.org/

site/DocServer/WhereRiversAreBorn 1 .pdf?docID=182.

* On January 15, 2003, EPA and the Corps jointly published this

advanced notice seeking public comment and soliciting technical

information on potential regulatory changes or clarification in light of -

the Court's decision in SWANCC. 68 Fed. Reg. 1991 (Jan. 15, 2003). The

(Continued c following page)

10

Tens of thousands of NPDES permits have been

issued across the nation, primarily by state agencies in the

45 states that have been delegated such permitting au-

thority by EPA. Many of these permits regulate discharges

into non-navigable tributaries, including discharges from

both industrial processes and municipal sewage treatment

facilities. See, e.g, EPA Region 6 ANPRM Comments,

Enclosure at Table 2. If the Court were to hold that dis-

tant, intermittent or artificial tributaries to navigable

waters are excluded from the definition of “waters of the

United States,” many — if not most — of the nation’s waters

would lose the important protections of the NPDES

program, virtually overnight. See, eg., EPA Region 1

ANPRM Comments, Attachment at 12 (explaining that

publicly owned treatment works in New England could

freely discharge poorly treated sewage if the NPDES

program does not cover tributaries); EPA Region 9 ANPRM

Comments at 12-13 (noting that major discharge sources

in the region, such as mines and sewage treatment plants,

would lose NPDES protection). For instance, Missouri has

over 84,000 miles of intermittent/ephemeral streams and

82 percent of the state’s NPDES permittees discharge to

these streams; limiting the reach of the Clean Water Act to

agencies received roughly 130,000 comments from the states, regional

EPA offices, various stakeholders, and the general public overwhelm-

ingly opposed to any regulatory change that would restrict the scope of

the current definition. In this brief, amici cite to several of the federal

and state agency comment letters, which are available at http:/

www.earthjustice.org/backgrounder/display. html?preview=yes&ID=143

(EPA regional office comments) and http://www.earthjustice.org/back

grounder/display.html?ID=68 (individual state comments), respectively,

and are referenced herein as “ANPRM Comments.” Ultimately, EPA

decided not to move forward with any regulatory changes. See http://

www.epa.gov/owow/wetlands/guidance/SWANCC/.

11

traditionally navigable waters could affect more than 76

percent of the state’s headwaters or intermittent streams.

Missouri ANPRM Comments at 2. Likewise, approxi-

mately 75 percent of the stream miles in Texas sre inter-

mittent and roughly 48 percent of the NPDES-permitted

wastewater discharges flow into such intermittent streams.

Texas ANPRM Comments at 2.

Indeed, while there are no definitive estimates of the

nationwide impacts from the loss of Clean Water Act

coverage for tributary systems and their adjacent wet-

lands, the numbers are likely quite high. In the New

England region alone, EPA estimates that approximately

35,000 miles of non-navigable tributaries (and approxi-

mately 2,140,000 acres of their adjacent wetlands and

other waters) would lose protection. EPA Region 1 ANPRM

Comments at 3. On the other side of the continent, the

State of Arizona has estimated that 95 percent of its

surface waters are intermittent or ephemeral, all of which

would fall outside the narrow definition that Petitioners

advance, Arizona ANPRM Comments at 1, and the State of

Montana estimates that limiting the definition of naviga-

ble waters to perennial or traditionally navigable rivers

would eliminate Clean Water Act coverage for 71 percent

of the state’s stream miles. Montana ANPRM Comments

at 4-5. In the nation’s heartland, the same concerns hold

true; for example, the State of Nebraska estimates that it

would lose regulatory oversight of 76 percent of its water-

ways under even an “extremely conservative estimate” of

the reach of a definition change. Nebraska ANPRM Com-

ments at 2. Thus, virtually every region of the country

would be significantly impacted by a narrowing of Clean

Water Act jurisdiction, and many of the potentially unpro-

tected waters serve as sources of drinking water. See, e.g.,

12

EPA Region 3 ANPRM Comments at 6 and Table 1 (dem-

onstrating that between 148 and 526 surface drinking

water intakes, serving populations ranging from 535,000

to 3 million people, are in headwaters streams and thus

potentially affected by restrictions on Clean Water Act

jurisdiction).

Elimination of Clean Water Act jurisdiction over non-

navigable tributaries and their adjacent wetlands also

would have a significant adverse effect on EPA’s enforce-

ment program, calling into question pending wetlands and

NPDES enforcement cases. See EPA Region 1 ANPRM

Comments at 14; EPA Region 9 ANPRM Comments at 12-

13 (describing several such vulnerable enforcement ac-

tions). For instance, in United States v. Eidson, 108 F.3d

1336 (11th Cir.), cert. denied, 552 U.S. 899 (1997), a used

oil company intentionally pumped industrial wastewater

sludge containing priority pollutants into a storm sewer

that drained into a storm drainage ditch which eventually

emptied into Tampa Bay. The Eleventh Circuit upheld

defendants’ convictions, citing Riverside Bayview and

EPA's long-established definition of “waters of the United

States” to conclude that non-navigable tributaries to

navigable waterways are covered by the Clean Water Act.

Id. at 1342 (noting that “[pjollutants are equally harmful

to this country’s water quality whether they travel along

man-made or natural routes”). Similar examples, spanning

three decades of remarkable judicial consistency across the

country, abound.” Petitioners’ proposed reading of the term

* See, e.g., Headwaters, Inc. v. Talent Irrigation District, 243 F.3d

526, 533-34 (9th Cir. 2001) (discharge of pesticide into irrigation canal

without NPDES permit); United States v. TGR Corp., 171 F.3d 762, 764-

65 (2d Cir. 1999) (criminal conviction for the knowing discharge,

without a permit, of asbestos waste slurry into a drain that flowed into

(Continued on following page)

13

“navigable waters” would imperil such enforcement

actions and the nation’s waters.

There simply is no question that “[njatural and

altered streams can serve as water pollution conduits,

whether continuous or intermittent in their flow” and that

_ “[mjan-made structures [such as ditches] ... have the

same practical effect of direct connectivity in being pollu-

tion conduits.” EPA Region 5 ANPRM Comments at 3. See

also EPA Region 9 ANPRM Comments at 8-9 (explaining

that nearly 20,000 miles of constructed drains and canals

in California’s Central Valley lie upstream of drinking

water supplies for much of the state’s population). The loss

of section 402 protections for such non-pavigable tributar-

ies would set the country’s water quality efforts back “to

pre-1960’s levels.” EPA Region 7 ANPRM Comments at 5.

a channelized brook that flowed into a tributary to the Long Island

Sound), Quivira Mining Co. v. U.S. Environmental Protection Agency,

765 F.2d 126 (10th Cir. 1985) (uranium mining company discharge of

pollutants into short-distance gullies or “arroyos”); United States v.

Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979) (unpermitted

discharge of oil); United States v. Earth Sciences, Inc., 599 F.2d 368, 375

(10th Cir. 1979) (illegal discharge of toxic sodium cyanide-sodium

hydroxide solution from gold mine leaching operation into a non-

navigable creek); United States v. Ashland Oil, 504 F.2d 1317, 1325 (6th

Cir. 1974) (conviction for the discharge of oil without a permit into an

unnamed, non-navigable tributary where its waters flowed through

three other waterways before reaching a navigable river); United States

v. Jones, 267 F. Supp. 2d 1349 (M.D. Ga. 2003) (discharge to storm

drain that flowed into tributary of navigable stream), State of Georgia v.

City of East Ridge, 949 F. Supp. 1571 (N.D. Ga. 1996) (sewage discharge

into storm drain that flowed to unnamed tributary of navigable-in-fact

river); United States v. St. Bernard Parish, 589 F. Supp. 617 (D.C. La.

1984) (discharge to canal pumped to open water pools adjacent to

wetland that was adjacent to navigable river).

14

C. Other Clean Water Act Provisions Are Simi-

larly Dependent on a Broad Interpretation

of Navigable Waters.

Sections 402 and 404 are not the only Clean Water Act

programs whose effectiveness turns on the phrase “waters

of the United States.” For example, section 304 of the

Clean Water Act mandates that, for navigable waters,

states adopt and EPA approve water quality standards

that “protect the public health or welfare [and] enhance

the quality of water . . . taking into consideration their use

and value for public water supplies, propagation of fish

and wildlife, recreational purposes, and agricultural,

industrial, and other purposes, and also taking into

consideration their use and value for navigation.” 33

U.S.C. § 1313(cX2MA). Additionally, states must develop

“total maximum daily loads” (“TMDLs”) for any waters

that do not meet these standards and must implement

these TMDLs through “waste allocations” incorporated

into NPDES permits and their non-point source planning

efforts. Id. § 1313(d).

Because many NPDES permit holders discharge into

tributary streams, a statutory reinterpretation that leaves

these streams unregulated will increase the pollutant load

in downstream waters, leading to TMDL violations. See,

e.g., California ANPRM Comments at 9; Arizona ANPRM

Comments at 3; Delaware ANPRM Comments at 14;

Rhode Island ANPRM Comments at 1-2. For example, in

the Christina River Basin that spans Pennsylvania,

Maryland, and Delaware, TMDL modeling and analysis

demonstrate that nutrients, dissolved oxygen, and dioxin

all move into the river from upstream tributaries and

must be controlled at their source to effectuate the clean-

up envisioned by section 304. EPA Region 3 ANPRM

15

Comments at 14-15. See also EPA Region 1 ANPRM

Comments at 13 (discussing effects on TMDL efforts to

restore Long Island Sound).

Many other Clean Water Act programs would be

similarly impacted by Petitioners’ cramped interpretation

of “navigable waters.” For instance, section 401, 33 U.S.C.

§ 1341(a), requires states to certify that applications for

federal permits and licences involving discharges into

“navigable waters” will comply with the standards of the

Clean Water Act. Because states often do not have the

legal authority or the resources to step in and directly

regulate the destruction of wetlands,’ many have histori-

cally relied on section 401 as the primary mechanism for

protecting wetlands and riparian areas. See, e.g., Arizona

ANPRM Comments at 3; California ANPRM Comments at

3; Hawaii ANPRM Comments at 3; Indiana ANPRM

Comments at 8; lowa ANPRM Comments at 2; Kentucky

ANPRM Comments at 1; Maine ANPRM Comments at 1;

Nebraska ANPRM. Comments at 4; South Carolina

ANPRM Comments at 1; Texas ANPRM Comments at 4;

Wyoming ANPRM Comments at 5-6. The oil and hazard-

ous substance discharge liability provisions of the Clean

Water Act and the Oil Pollution Act also turn on the

definition of “navigable water,” 33 U.S.C. §§ 1321(b),

2702(a), as do provisions regulating sewage treatment

facility discharges, 33 U.S.C. § 1345(a), and non-point

- source planning provisions. 33 U.S.C. § 1319(a). Each of

* Nebraska, for instance, protects only 2 percent of its wetlands

through state programs, Nebraska ANPRM Comments at 4, and South

Carolina has no regulatory program in place for 99 percent of its

wetlands. South Carolina ANPRM Comments at 1. California, Wyo-

ming, Montana, Arizona, and Texas have no state law in place. Respec-

tive State ANPRM Comments at 3, 6, 5, 2, and 4.

16

these programs is threatened if Petitioners’ interpretation

is adopted.

“Protection of aquatic ecosystems, Congress recog-

nized, demanded broad federal authority to control pollu-

tion, for ‘[wjater moves in hydrologic cycles and it is

essential that discharge of pollutants be controlled at the

source,” Riverside Bayview, 474 U.S. at 132-33, and the

legislative history of the Clean Water Act plainly evinces

Congress’ intent to control pollution in both navigable

waters “and their tributaries.” S. Rep. No. 92-414, at 77

(1972). Because tributary systems and their adjacent

wetlands are “inseparably bound up with ‘waters’ of the

United States,” they fall within the statute’s jurisdiction

as already construed by this Court in Riverside Bayview,

474 U.S. at 134. See also International Paper Co. v.

Ouellette, 479 U.S. 481, 486 (1987) (Clean Water Act

“applies to virtually all surface water in the country”).

SWANCC did not overrule Riverside Bayview nor did it

otherwise alter this fundamental proposition.

Il. THE FEDERAL GOVERNMENT’S CONSIS-

TENT INTERPRETATION OF CLEAN WATER

ACT JURISDICTION HAS RESULTED IN A

ROBUST FEDERAL-STATE PARTNERSHIP

FOR PROTECTING WATER QUALITY.

Petitioners contend that the government’s application

of the Clean Water Act to the facts of these cases “gives the

Corps extraordinary power to regulate matters that have

traditionally been exclusively reserved for regulation by

the States” and “will extend federal authority over an

enormous expanse of land.” Petitioners’ Brief in Carabell

at 14. Such heated rhetoric incorrectly suggests that the

Corps has engaged in an alarming departure from long-

established regulatory practices. In truth, however, EPA

17

and the Corps have for decades interpreted the Clean

Water Act’s jurisdiction to reach tributary systems and

their adjacent wetlands, such as the ones at issue here.

The Court’s decision in SWANCC does not dictate a differ-

ent course now. Petitioners’ call to ignore decades of

settled judicial interpretation would effect a major shift in

regulatory policy and largely leave the states adrift to

regulate tributary systems and their adjacent wetlands at

their own expense and on an ad hoc basis — precisely the

failed regime that Congress overrode with passage of the

Clean Water Act in 1972.

A. EPA and the Corps Have Consistently As-

serted Jurisdiction Over Tributaries and

their Adjacent Wetlands for Three Decades.

Soon after enactment of the Clean Water Act, EPA

broadly defined “navigable waters” to include all navigable

waters of the United States and all tributaries of such

waters, as well as interstate waters and a variety of

intrastate waters connected to interstate commerce. 38

Fed. Reg. 13,527, 13,529 (May 22, 1973). As then-EPA

Administrator Russell Train later explained, “aquatic

systems are ... interrelated and interdependent. We cannot

expect to preserve the remaining qualities of our water

resources without providing appropriate protection for the

entire resource.” Section 404 of the Federal Water Pollution

Control Act Amendment of 1972: Hearings Before the Sen.

Public Works Comm., 94th Cong., 41 (July 27, 1976) (Testi-

mony of EPA Administrator Russell Train), at App. 15."

” Although EPA's original definition did not expressly identify

“wetlands” as “navigable waters,” the agency contemporaneously issued

a policy statement noting that wetlands “represent an ecosystem of

unique and major importance to citizens of this Nation” which require

(Continued on following page)

18

After a short-lived, narrower Corps interpretation of

“navigable waters” was criticized by EPA” and rejected by

the courts,” today’s more comprehensive definition was

developed and refined. See Lance D. Wood, Don’t Be

Misled: CWA Jurisdiction Extends to All Non-Navigable

Waters and to Their Adjacent Wetlands, 34 Env. L. Rev.

10187, 10211 (2004) (explaining Corps’ 1974 actions).

Consistent with EPA’s regulations and the statute's

legislative history, the Corps revised its earlier definition

to give the term its “broadest possible constitutional

interpretation.” 40 Fed. Reg. 19,766 (May 6, 1975) (citing

S. Rep. No. 92-1236, at 144 (1972)).” That definition,

finalized in interim form a few months later, included

“[ajll tributeries of navigable waters of the United States

up to their headwaters and landward to their ordinary high

water mark,” as well as wetlands that are “contiguous or

adjacent to other navigable waters.” 40 Fed. Reg. 31,320,

31,324-25 (July 25, 1975). Where necessary to protect

“extraordinary protection.” 38 Fed. Reg. 10,834 (May 2, 1973). Accord-

ingly, EPA announced its policy to “preserve the wetland ecosystems

and to protect them from destruction through waste water or nonpoint

source discharges regarding protection of wetlands” and to “minimize

alterations in the quantity or quality of the natural flow of water that

nourishes wetlands and to protect wetlands from adverse dredging or

filling practices.” Id.

“ See Letter from EPA Administrator Russell E. Train to Corps Lt.

Gen. W.C. Gribble, Jr. (Jan. “5. 1974), at App. 24-27.

“ Natural Resources Defense Council, Inc. v. Calloway, 392

F. Supp. 685 (D.D.C. 1975) (invalidating regulations promulgated at 39

Fed. Reg. 12115, 12119 (April 3, 1974)).

" The House Report contained similar language, noting that “{t/he

committee fully intends the term “navigable waters” to be given the

broadest possible constitutional interpretation.” H.R. Rep. No. 92-911,

at 131 (1972).

19

water quality, the Corps District Engineer would deter-

mine jurisdiction over intermittent rivers, streams, tribu-

taries, and non-adjacent perched wetlands. Jd. EPA

simultaneously proposed complementary guidance for

evaluating dredge and fill permit applications for dis-

charge to wetlands. 40 Fed. Reg. 19,794 (May 6, 1975).

EPA explained that the program would protect “wetlands

which are especially valuable for propagation and support

of fish and wildlife, as well as other beneficial uses ...

(from] capricious development [that is] having a major

impact on the aquatic life and wildlife of the United States,

and other water uses.” Jd. These guidelines, which mirrored

the Corps’ regulations, were issued in interim final form a

few months later. 40 Fed. Reg. 41,294 (Sept. 7, 1975).

Since adoption of these early implementing regula-

tions, the agencies’ interpretation of “navigable waters”

has remained remarkably stable. In 1977, the Corps

amended the definition of “navigable waters” in order to

“make the policies and procedures more understandable to

a person desiring to perform work in the waters of the

United States.” 42 Fed. Reg. 37,122 (July 19, 1977). The

1977 amendment did not expand the Corps’ jurisdiction,

but merely aimed to resolve confusion as to which waters

were subject to jurisdiction, including wetlands adjacent to

navigable waters or their tributaries, as well as other

waters “the degradation or destruction. of which could

affect interstate commerce.” 42 Fed. Reg. at 37,144."

“ The 1977 clarification provided the first definition of “adjacent,”

defined -s “bordering, contiguous, or neighboring. Wetlands 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.’”

42 Fed. Reg. at 37,144.

20

In 1979, the EPA issued the definition of “waters of

the United States” that, with only minor modifications,

remains in effect today. 44 Fed. Reg. 32,854, 32,901 (June

7, 1979); 33 C.F.R. § 328.3(a). In 1986, the Corps adopted

the EPA definition. See 51 Fed. Reg. 41,206, 41,217 (Nov.

13, 1986); 40 C.F.R. § 230.3(s). These definitions largely

parallel the original 1975 and 1977 definitions.

In sum, the Corps and EPA have consistently inter-

preted the jurisdictional reach of the Clean Water Act’s

integrated and comprehensive pollution control programs,

and the courts have largely followed suit. See, e.g., 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) (wetlands drained by a ditch that ran

into non-navigable creek that ran into non-navigable river,

which in turn ran into navigable river are “waters of the

United States”); In re Needham, 354 F.3d 340 (5th Cir.

2003) (drainage canal adjacent to navigable-in-fact water

constitutes “navigable water”); Treacy v. Newdunn Associ-

ates, LLP, 344 F.3d 407 (4th Cir. 2003) (wetland that

drains intermittently into manmade waterway that

empties 2.4 miles later into navigable-in-fact water subject

to CWA jurisdiction); United States v. Deaton, 332 F.3d 698

(4th Cir. 2003) (wetlands adjacent to roadside ditch that

eventually empties into navigable-in-fact waters subject to

Clean Water jurisdiction); Avoyelles Sportsmen’s League,

Inc. v. Marsh, 715 F.2d 897 (Sth Cir. 1983) (wetlands

subject to Clean Water Act jurisdiction); United States v.

Byrd, 609 F.2d 1204 (7th Cir. 1979) (wetlands adjacent to

lake are “navigable waters”); Leslie Salt Co. v. Froehlke,

578 F.2d 742 (9th Cir. 1978) (Clean Water Act jurisdiction

extends at least to waters which are no longer subject to

tidal inundation because of dikes). Such contemporaneous

and long-standing administrative construction carries

21

special weight. Fawcus Machine Co. v. United States, 282

U.S. 375, 378 (1931). :

B. If Adopted, Petitioners’ Arguments Threaten

to Disrupt the Clean Water Act’s Coopera-

tive Federalism Scheme and Unduly Burden

the States. |

The Clean Water Act, as originally drafted and subse-

quently implemented, does not impinge on any traditional

area of state regulation, but rather, constitutes a classic

example of cooperative federalism. The statute manifests

Congress’ embrace of a “partnership between the States

and the Federal Government, animated by a shared

objective: ‘to restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters.’” Arkansas

v. Oklahoma, 503 U.S. 91, 101 (1992) (quoting 33 U.S.C.

§ 1251(a)). By its explicit terms, the statute preserves and

allocates substantia! roles to state governments, but also

provides for federal regulation of polluting activity. See 33

U.S.C. § 1342(b) (giving states the presumptive right to

take over administration of the Act’s discharge permit

program); 33 U.S.C. § 1342(g) (similarly giving states the

presumptive right to take over the federal “dredge and fill”

program); 33 U.S.C. § 1370 (setting forth savings clause

preserving state authority to protect waters more strin-

gently than federally required). In many states, including

the one at issue here, the federal-state partnership envi-

sioned by Congress has become a working reality over the

last thirty years, with federal and state water protection

laws integrated into one “seamless” and streamlined

regulatory process, reducing permit application costs

and time. See, e.g., Michigan ANPRM Comments at 14;

22

Delaware ANPRM Comments at 15; Vermont ANPRM

Comments at 2.

Given these long-established regulatory relationships,

many states oppose the shrinking of federal protection

over the nation’s waters. As Nebraska explained to EPA,

“staggering economic difficulties for the states mean the

additional burden would strain state resources and dra-

matically reduce our ability to protect the waters of the

State.” Nebraska ANPRM Comments at 1. See also Ari-

zona ANPRM Comments at 3 (“Given the ongoing budget

concerns of our state and many others, creation of such

programs and partnerships is unlikely in the near fu-

ture”); Montana ANPRM Comments at 5 (“A Federal basis

of support for implementation of water quality protection

efforts in Montana is critical in light of the state’s limited

regulatory resources.”). Other states have expressed

similar views. See, e.g., California ANPRM Comments at 9;

Maine ANPRM Comments at 1; North Carolina ANPRM

Comments at 6; Wyoming ANPRM Comments at 5. To

overturn thirty years of settled expectations here would, in

effect, impose an enormous unfunded mandate on the

states.

Even in the absence of budgetary woes, other practical

constraints prevent states from filling EPA’s and the

Corps’ regulatory shoes. In some states, regulatory agen-

cies are actually forbidden from imposing any regulations

stricter or more extensive than federal regulations. See,

e.g., Texas ANPRM Comments at 4. Elsewhere, the with-

drawal of federal jurisdiction likely means that “a patch-

work quilt of uneven regulations will threaten overall

water quality.” Indiana ANPRM Comments at 1-2. More-

over, the states themselves recognize that without the

“level playing field” created by the Clean Water Act, many

23

states will feel economic pressure to engage in a race to

the bottom, loosening water regulations to compete with

other states. Delaware ANPRM Comments at 14; Tennes-

see ANPRM Comments at 2-3. But even individual states

with adequate resources, legal authority and the political

will to fill the void cannot regulate beyond their own

boundaries, a serious limitation in the integrated water-

sheds of North America where virtually every state is

affected by upstream polluting activities in another

jurisdiction. There is thus no compelling reason for the

Court to rewrite the statutory federal-state balance struck

by Congress.

Il, PETITIONERS’ REAL ESTATE DEVELOPMENTS

AND THE ACT’S PROTECTIONS BOTH IMPLI-

CATE COMMERCIAL ACTIVITIES, OVERCOM-

ING CLAIMED COMMERCE POWER CON-

CERNS.

These cases do not implicate legitimate constitutional

concerns. The pervasively commercial real estate devel-

opment activities at issue in Rapanos and Carabell, the

Clean Water Act’s protections of commercial activities

dependent on America’s waters, and the Corps’ underlying

regulatory judgments about Petitioners’ impacts on water

quality easily satisfy any constitutional test linked to the

Commerce Clause. Petitioners’ plans are reachable under

both the “channels of interstate commerce” and the “sub-

stantially affect” interstate commerce rationales. They

also involve “Necessary and Proper” assertions of federal

power to protect legitimate federal interests.

First, unlike the isolated, unconnected waters at issue

in SWANCC, the waters in these cases are protectable as

part of the “channels of interstate commerce.” See United

24

States v. Lopez, 514 U.S. 549, 558-59 (1995). Petitioners’

actions involve the filling of wetlands that are proximate

or airectly connected to tributary ditches which act as

condu:ts to traditional navigable-in-fact waters. The

degradation of small stream tributaries can collectively

harm agricultural, municipal, and riparian uses of such

waters, as well as innumerable businesses dependent on

interstate travelers who seek pristine fishing streams,

small boat recreation, and swimming opportunities in

waters often miles from traditional “navigable-in-fact”

waters. See, e.g., EPA Region 10 ANPRM Comments at 4-

5. As Judge Posner observed in the factually similar Gerke

case, “the sum of many small interferences with commerce

can be large, and so to protect commerce Congress must be

able to regulate an entire class of acts if the class affects

commerce, even if no-individual act has a perceptible

effect.” Gerke, 412 F.3d at 806 (citations omitted).

Under the “channels” rationale, this Court has long

recognized federal power to “insure the convenient and

safe navigation of all the navigable waters of the United

States,” including efforts to “remov[e] ... obstructions to

their use.” The Daniel Ball, 77 U.S. 557, 564 (1871). See

also United States v. Appalachian Electric Power Co., 311

U.S. 377, 405 (1940) (“To make its control effective the

Congress may keep ‘the navigable waters of the United

States’ open and free and provide by sanctions against any

interference with the country’s water assets.”). This power

reaches to activities in non-navigable waters necessary to

protect navigable-in-fact waters. See Oklahoma ex rel.

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

(recognizing federal power under the Commerce Clause to

reach watersheds due to their link to “flood control on

navigable streams and their tributaries”). Once “channels

25

of interstate commerce” are implicated, congressional

power can be asserted to “keep the channels of interstate

commerce free from immoral and injurious uses,” even

where a defendant’s conduct is itself not commercial.

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

Second, under the third category of Commerce Clause

power analysis, the federal government also has “the

power to regulate those activities having a substantial

relation to interstate commerce, i.e., those activities that

substantially affect interstate commerce.” Lopez, 514 U.S.

at 558-59. As the Court recently explained, Congress can

even regulate “purely intrastate activity that is not itself

‘commercial,’ in that it is not produced for sale, if it con-

cludes that failure to regulate that class of activity would

undercut the regulation of the interstate market in that

commodity.” Gonzalez v. Raich, 125 S.Ct. 2195, 2206

(2005). In assessing federal power under a category three

Commerce Clause analysis, the Court looks to the particu-

lar activities being regulated as well as the commerce-

related activities protected by the statute. See, e.g., Raich,

125 S. Ct. at 2209 (distinguishing Lopez, which involved a

“brief, single-subject statute making it a crime for an

individual to possess a gun in a school zone”); United

States v. Morrison, 529 U.S. 598, 610 (2000) (explaining

that “the noneconomic, criminal nature of the conduct at

issue” in Lopez was “central” to the Court’s decision there).

In the recent Raich case, for example, the Court focused on

how Congress’ comprehensive regulation of the illegal drug

market implicated commerce in numerous ways, contrast-

ing the statute in Morrison, whose focus on gender-

motivated crimes of violence “did not regulate economic

activity.” Raich, 125 S. Ct. at 2210-11.

The Clean Water Act’s explicit text calls for Commerce

Clause analysis of the activities causing harm, here

polluting conduct, as well as commercial and economic

activities dependent on the “chemical, physical and bio-

logical integrity” of America’s waters. 33 U.S.C. § 1251(a).

The factual setting of Rapanos and Carabell, where

commercial real estate developers sought to fill wetlands

for profit, undoubtedly involves the sorts of economic and

commercial activity so completely lacking in Lopez and

Morrison. Moreover, as the Court recognized in Riverside

Bayview, adjacent wetlands and tributaries such as those

at stake here fulfill numerous commercially and economi-

cally significant “hydrological” functions, thereby overcom-

ing any commerce power objections. See also Gerke, 412

F.3d at 806-08 (rejecting similar constitutional attack and

stating the “power of Congress to regulate pollution is not

limited to polluted navigable waters”); Deaton, 332 F.3d at

704-08 (finding fill of wetlands flowing into ditch threat-

ened “aggregate effects” with other similar actions and

was reachable because action implicated “channels of

interstate commerce”); Gibbs v. Babbitt, 214 F.3d 483 (4th

Cir. 2000) (analyzing the harmful activities regulated, the

activities contingent on regulatory protection, and the

need to reach intrastate activities as an essential part of a

larger regulation of economic activity).

Regulation of the class of pollution discharges at issue

here lies within the government’s Commerce Clause power

because it is part and parcel of a “comprehensive” regula-

tory scheme intended to control polluting harms and

protect the manifold uses of America’s waters. Raich, 125

S. Ct. at 2206 (“the de minimis character of individual

instances arising under [the] statute is of no significance”).

As it did in Raich, the Court should decline entreaties to

27

“excise individual applications of a concededly valid

statutory scheme.” Jd. at 2209. These cases are unlike

Lopez and Morrison, where the parties asserted that a

particular statute or provision fell outside Congress’

commerce power in its entirety. Jd.

Finally, the federal government also can protect

downstream commercial and economic uses of waters

pursuant to the Necessary and Proper Clause, which

allows “Congress ‘to take all measures necessary or appro-

priate to’ the effective regulation of the interstate market,

‘although intrastate transactions ... may thereby be

controlled.’” Raich, 125 S. Ct. at 2218 (Scalia, J., concur-

ring). Congress has the power to “facilitate interstate

commerce by eliminating potential obstructions, and to

restrict it by eliminating potential stimulants,” even

where the activity is “noneconomic.” Raich, 125 S. Ct. at

2216, 2217 (Scalia, J., concurring) (citing NLRB v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 36-37 (1937)).

Petitioners’ constitutional arguments thus rest in

their entirety on taking a few clauses in SWANCC out of

context, while virtually ignoring Raich, and claiming, in

effect, that SWANCC rewrote well-established Commerce

Clause precedents. The SWANCC Court alluded to poten-

tial Commerce Clause concerns under its particular facts,

but declined to analyze the “object or activity that, in the

aggregate, substantially affects interstate commerce,”

apparently questioning the timeliness of government

arguments. Jd. at 173. In light of constitutional concerns,

the SWANCC Court merely read the statute as not encom-

passing regulation under the “Migratory Bird Rule.” Jd.

at 173-74. The cases now before the Court, in contrast, do

not involve isolated ponds, and do not now rely on the

28

Migratory Bird Rule, but involve private commercial real

estate development, with fill into “adjacent wetlands” and

tributaries that are significantly different in their loca-

tions and commercial functions from the isolated

SWANCC waters. Much as this Court in Hodel v. Virginia

Surface Mining & Reclamation Ass’n, 452 U.S. 264, 275-83

(1981), rejected a Commerce Clause attack on a federal

mining law because that law involved underlying commer-

cial activity causing harms, market competition that could

spur destructive activity, and many beneficial uses of -

resources potentially threatened by mining harms, the

Court should similarly reject Petitioners’ misguided

constitutional arguments here.

IV. AS THE COURT RECOGNIZED IN RIVERSIDE

BAYVIEW, DEFERENCE TO THE AGENCIES’

REGULATORY INTERPRETATIONS AND ECO.

LOGICAL JUDGMENTS IS WARRANTED.

Petitioners’ claims boil down to an attack on the

statutory interpretations and regulatory judgments of the

Corps and EPA. Those agency judgments consist of both

longstanding regulatory interpretations and site-specific

assessments about Petitioners’ particular lands, waters,

and planned activities. It is for the implementing agencies,

not the courts, to define the “precise bounds of regulable

waters” by exercising their “ecological judgment about the

relationship between waters and their adjacent wetlands.”

Riverside Bayview, 474 U.S. at 134. The exercise of that

ecological judgment is precisely what occurred in these

cases. As it did in Riverside Bayview, the Court should

defer to the agencies’ scientific judgments and “technical

expertise” about “biological functions” and the “aquatic

environment” under the principles set forth in Chevron

29

U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 842-45 (1984). Jd. at 131, 134.

Petitioners advance two slightly different, but equally

unpersuasive, rationales for overriding the Court’s prior

conclusion in Riverside Bayview. In Rapanos, Petitioners

argue that some greater hydrologic connection than the

one determined by the Corps to exist in this instance is

necessary to establish Clean Water Act jurisdiction. They

posit that a closer geographic proximity between tributar-

ies and downstream navigable-in-fact waters is required,

but they offer neither an appropriate test for determining

acceptable proximity nor any legislative, regulatory or

judicial support for their position. In reality, the hydrologic

connection that the Court discussed at length in Riverside

Bayview was not spatial or geographic, but functional. See

Riverside Bayview, 474 U.S. at 132-35. If the courts begin

usurping the proper role of the agencies in determining

these functional hydrologic connections at particular sites,

they will likely find themselves in the line-drawing busi-

ness for many years to come.

The Carabell Petitioners pursue a different tack,

asking the Court to second-guess the ecological judgment

of the Corps with respect to the ability of their man-made

berm to isolate an admittedly adjacent wetland and

thereby cut off Clean Water Act jurisdiction. This Court

firmly rejected such a case-by-case approach in Riverside

Bayview, upholding agency jurisdiction over the class of

adjacent wetlands because the Corps “has concluded” that

such wetlands “may function as integral parts of the

aquatic environment.” Riverside Bayview, 474 U.S. at 135

(emphasis added). The Court was untroubled that some

adjacent wetlands might not be “significantly intertwined

with the ecosystem of adjacent waterways.” Id. at 135,

30

fn.9." It was enough that such waters “tend to drain” into

waters, “may serve to filter and purify water draining into

adjacent bodies of water,” or “may serve” important bio-

logical functions. Jd. at 134-35 (emphasis added). The

Court’s holding in that case and the basic principles of

stare decisis dictate the same result here.

e

CONCLUSION

The decisions of the Sixth Circuit Court of Appeals in

these consolidated cases should be affirmed in their entirety.

Dated: January 13, 2006

Respectfully submitted,

DEBORAH A. SIVAS

LAWRENCE C. MARSHALL*

HOLLy D. GORDON

STANFORD LAW SCHOOL

ENVIRONMENTAL LAW CLINIC

Crown Quadrangle

559 Nathan Abbott Way

Stanford, California 94305

(650) 724-1900

WILLIAM W. BUZBEE .

Gambrell Hall

1301 Clifton Road

Atlanta, Georgia 30322

(404) 727-6507

*Counsel of Record

” If in any particular case the filling of an adjacent wetland will

not appreciably impact water resources, the developer can simply

obtain a section 404 permit and proceed.

App. 1

SECTION 404 OF THE FEDERAL WATER POLLU-

TION CONTROL ACT AMENDMENTS OF 1972

HEARINGS

BEFORE THE

COMMITTEE ON PUBLIC WORKS

UNITED STATES SENATE

NINETY-FOURTH CONGRESS

SECOND SESSION

JULY 27 AND 28, 1976

SERIAL NO. 94-H49

Printed for the use of the Committee on Public Works

[LOGO]

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 1976

COMMITTEE ON PUBLIC WORKS

JENNINGS RANDOLPH, West Virginia, Chairman

EDMUND S. MUSKIE, JAMES L. BUCKLEY,

Maine New York

JOSEPH M. MONTOYA, HOWARD H. BAKER, JR..,

New Mexico Tennessee

MIKE GRAVEL, Alaska ROBERT T. STAFFORD,

LLOYD BENTSEN, Texas Vermont

QUENTIN N. BURDICK, JAMESA. McCLURE, Idaho

North Dakota PETE V. DOMENICI,

JOHN C. CULVER, Iowa New Mexico

ROBERT MORGAN,

North Carolina

GARY HART, Colorado

App. 2

M. BARRY MEYER, Chief Counsel and Chief Clerk

BAILEY GUARD, Minority Staff Director

LEON G. BILLINGS AND RICHARD D. GRUNDY,

Senior Professional Staff Members

JOHN W. YAGO, JR., Assistant Chief Clerk;

PHILIP T. CUMMINGS, Assistant Chief Counsel

HAROLD H. BRAYMAN, Senior Professional

Staff Member (Minority)

Professional and research staff. KARL R. BRAITHWAITE,

JAMES W. CASE (Assistant Counsel), PAUL CHIMES,

TRENTON CROW, KATHERINE Y. CUDLIPP, PAUL F. EBEL-

TOFT, JR., GEORGE F. FENTON, JR., RANDOLPH G.

FLOOD, KATHALEEN R. E. FORCUM, JOHN D. FRESH-

MAN, ANN GARRABRANT, RICHARD T. GREER, RICHARD

M. Harris (Assistant Counsel); WESLEY F. HAYDEN,

RICHARD E. HEROD (Assistant Counsel, Minority), VE-

RONICA A. HOLLAND, RONALD L. Katz, JuDY F. PAr-

ENTE, JOHN B. PURINTON, JR., JAMES D. RANGE, W.

LEE RAWLS, CHARLENE A. STURBITTS, E. STEVENS

SWAIN, JR., SALLY W. WALKER, and HAVEN WHITESIDE

CONTENTS

OPENING STATEMENTS

Page

Hart, Hon. Gary, U.S. Senator from the State of

ee eee ee ne eT Ce ne a 3

Muskie, Hon., Edmund S., U.S. Senator from the

STE ATES SE ID a Tae ee AE RE 2

Randolph, Hon. Jennings, U.S. Senator from the

I Ee SHI cnsenccnasisenesentinnstinnecnsnanenéseumsennaineianeens 1

App. 3

LIST OF WITNESSES

JULY 27, 1976 (p. 1)

Dole, Hon. Bob U.S. Senator from the State of

NN a, eT ENA Cee ae aE e 33

Reed, Nathaniel P., Assistant Secretary of the

Interior for Fish and Wildlife and Parks ...................... 68

Taft, Peter R., Assistant Attorney General, Land

and Natural Resources Division. ..................ccc0sseseesese00s 90

Train, Russell, Administrator, Environmental

Protection Agency; Nathaniel Reed, Assistant

Secretary of the Interior for Fish and Wildlife

and Parks; Victor Veysey, Assistant Secretary of

Army for Civil Works; and Peter Taft, Assistant

Attorney General for Land and Natural Re-

I cncrcnsinenseennnntinvisenepicticatetnnadinnmeiinitiilibiniinenes 38

Veysey, Victor, Assistant Secretary of the Army for

I TRI Dill tishs icarticsinsndeinedtealiticiedh spimieiaiadiansitiaiabin bial 44

NUTTIN i oecaseictisiohinensicietmnsigitshaiiontiaiinaniiidiatimmiatiad 53

SECTION 404 OF THE FEDERAL WATER POLLU-

TION CONTROL ACT AMENDMENTS OF 1972

TUESDAY, JULY 27, 1976

U.S. SENATE,

COMMITTEE ON PUBLIC WORKS,

Washington, D.C.

The committee met at 7:12 p.m., pursuant to call, in

room 4200, Dirksen Senate Office Building, Hon. Jennings

Randolph (chairman of the committee) presiding.

Present: Senators Randolph, Muskie, Burdick, Hart,

Baker, and Domenici.

App. 4

OPENING STATEMENT OF

HON. JENNINGS RANDOLPH, U.S. SENATOR

FROM THE STATE OF WEST VIRGINIA

Senator RANDOLPH. Good evening, ladies and gentle-

men.

The Committee on Public Works this evening and also

tomorrow evening will conduct two hearings on a difficult

subject as we review the environmental problems with

which the Congress is faced.

We hope to further our understanding of the problem

or problems and to receive recommendations for an effec-

tive resolving of these issues.

The situation has arisen, as members of the commit-

tee know, from the Water Pollution Control Act Amend-

ments of 1972, section 404 of that legislation requires the

____.—Army Corps of Engineers to issue permits for the disposal

, of dredge and fill material in our navigable waters.

When we wrote the act, we were concerned primarily

or even solely with controlling the way in which these

materials were disposed. Dredge and fill materials often

are highly contaminated, and thus a situation should be

addressed in the terms of water pollution control.

All the members of the committee have expressed an

interest in this subject, and we are appreciative that many

of them arranged their schedules to be here tonight.

We did not understand earlier that a judicial decision

would subsequently broaden the impact, as I have referred

to it, of section 404. As a result of the action in the courts,

the Corps of Engineers has set down regulations covering

an extensive range of activities. These are proposed to be

App. 5

implemented in three phases. The first phase has already

gone into effect. The regulations covering phase two were

to have been implemented on July 1, but were ordered

postponed by the President pending action in the Con-

gress.

These hearings have been planned by the committee

to review the implication of the Corps of Engineers’ regula-

tions. Legislation has been adopted by the House of

Representatives, and there are proposals pending in the

Senate.

The witnesses counseling with us during these two

evenings represent a broad spectrum of affected parties. I

am sure all members of the committee welcome the oppor-

tunity to hear the witnesses and discuss with them in

dialog the problems that we know are necessary to be

discussed. The exchange, I am sure, between members of

the committee and those who testify will be helpful, as

well as the formal statements.

Senator Robert Dole of Kansas is at the witness table.

We are prepared to hear his testimony at this time.

Are there comments from members of the committee?

Senator Muskie?

OPENING STATEMENT OF

HON. EDMUND S. MUSKIE, U.S. SENATOR

FROM THE STATE OF MAINE

Senator MUSKIE. I have a brief statement which I

hope will be helpful. I-had hoped that the Senate could

defer until next year consideration of the substantive

issues associated with the 1972 Clean Water Act.

App. 6

_ Unfortunately, much of the debate, much of the

regulations, and much of the suggested legislative re-

sponses stem from what I regard as a misinterpretation of

congressional intent.

Section 404 is designed to require the corps, because

of their existing authority to maintain navigation, to

regulate the dumping of polluted dredge spoil at specified

disposal sites, the EPA having veto power over the selec-

tion-of the sites. That was the intent precisely and specifi-

cally stated.

Section 404 was an exception to the otherwise com-

prehensive regulatory program embodied in section 402.

But implementation of section 404 has not led to the end

of open water dredge spoil discharge, which was the

specific objective of section 404.

No specified disposal sites have been established.

Instead, the section 404 regulations have led to confusion,

irritation, and divisiveness that have undermined the

confidence in the basic Federal role in water pollution

control.

They have created a perception of needless interfer-

ence in the affairs of farmers, foresters, miners, and

ranchers whose activities were by no means comprehended

as coming under the section of 404 when it was written.

At this point, the most appropriate course of action for

this committee may be to strike section 404, eliminate this

exception, and return to the basic regulatory structure

anticipated by the act.

If we adopted this course, dredge, spoil, and fill would

be considered pollutants. Where they are discharged, they

would be regulated by the Environmental Protection

App. 7

Agency or the States. Where they are nonpoint sources,

they would be regulated by the States pursuant to section

208. This was the original position of the Senate in 1972.

Given all the problems that section 404 has created,

perhaps it should be in its saddest position now. I am not

wedded to this position, My mind is open, whatever my

emphasis may indicate to the contrary.

I hope the statements of our witnesses will help

clarify these issues and provide us with a course of action

which will preserve our ability to regulate the disposition

of polluted dredge spoil without creating another unneces-

sary duplicated Federal regulatory program.

Senator RANDOLPH. Thank you Senator Muskie, for

your continuing leadership on the committee. We are

grateful as members of our committee and the Senate as

well.

Senator Baker, do you have any comments?

Senator BAKER. Mr. Chairman, I have no prepared

statement at this time. Possibly I will have suggestions to

make as we proceed. But I prefer to hear the testimony of

the witness.

Senator RANDOLP!I. Thank you, Senator Baker.

Senator Hart?

OPENING REMARKS OF HON. GARY HART,

U.S. SENATOR FROM THE STATE OF COLORADO

Senator HART. Mr. Chairman, I have no prepared

statement. As with other members of the Senate, I have

my own proposal which I will be discussing with this

App. 8

committee and perhaps the full Senate on section 404 to

deal with problems that Senator Muskie has so articu-

lately identified.

_ It is a classic of a case that all of us in the Congress

are faced with time and time again: the congressional

intent and administrative implementation, between which

there seems to be a gap.

The people of the country are upset. We are upset.

Somehow the Congress and the executive branch must get

together on the laws that are passed and implemented to

free the people of this country from what they definitely

consider to be burdensome regulations.

I think all of us have the same intent. We are here to

try to solve that problem.

Senator RANDOLPH. Thank you, Senator.

Senator Domenici?

Senator DOMENICI. I have no comments, Mr. Chair-

man. Thank you.

Senator RANDOLPH. For the record, Governor Marvin

Ms~- ‘el of the State of Maryland had indicated to the

committee that he would appear this evening and would

address himself to the subject matter, not as a Governor of

that State but for the National Governors’ Conference.

The change of time and other commitments made it

impossible for Governor Mandel to be with us tonight. He

has submitted testimony which will be a part of our

record. Did the Governor provide copies so that they might

be available to those who will be covering the hearing or

interested parties? Do you have knowledge of that?

App. 9

Mr. MEYER.’ Yes, sir.

Senator RANDOLPH. There are copies, then.

[The statement of the National Governor’s Conference

follows]

Russell Train, Nathaniel Reed, Victor Veysey, and Peter

Taft - are men of stature. They are men who have certain

authority and leadership which we all recognize, I am sure

that their testimony will bring forth colloquy which will

help to bring out the points of view they present.

Would you gentlemen please come forward as a panel?

Thank you, gentlemen.

Off the record.

[Discussion off the record.]

Senator RANDOLPH. The members of the panel, as I

have indicated, are men of stature and leadership. Mr.

Train, would you proceed to give us your thinking as the

Administrator of the Environmental Protection Agency?

STATEMENTS OF RUSSELL TRAIN, ADMINISTRA-

TOR, ENVIRONMENTAL PROTECTION AGENCY;

NATHANIEL REED, ASSISTANT SECRETARY OF

THE INTERIOR FOR FISH AND WILDLIFE AND

PARKS; VICTOR VEYSEY, ASSISTANT SECRE-

TARY OF ARMY FOR CIVIL WORKS ; AND PETER

TAFT, ASSISTANT ATTORNEY GENERAL FOR

LAND AND NATURAL RESOURCES

‘ Mr. Barry Meyer, Chief Counsel, Senate Public Works Committee.

App. 10

Mr. TRAIN. Thank you, Mr. Chairman and members

of the committee. I have what at least seems to me in

comparison to some of the other statements a relatively

short statement. Since I come first, I propose to read the

full statement, with your permission. Since Governor

Mande] is not appearing, perhaps I can use, part of his

time, although we may not say the same thing.

I am here today to discuss with you our continuing

efforts to achieve the goals of the Federal Water Pollution

Control Act in the context of one specific program — the

regulation of discharges of dredged or fill material under

section 404.

Needless to say, I am just delighted that this commit-

tee has called this hearing. I think that this has been long

overdue. The issues are complex. They need resolution. I

think the fact that the committee is willing to gather at

this late hour to take up this issue is just extraordinarily

commendable. The amount of interest which is evident in

the size of the audience here I think speaks to the impor-

tance of the issue in the public mind.

With the passage of the 1972 amendments to the

FWPCA, our fundamental objective became the restora-

tion and maintenance of the chemical, physical, and

biological integrity of the Nation’s waters.

Full implementation of the 404 decisionmaking

process is imperative if we are to achieve that goal. Section

404 represents an essential tool for moderating the degra-

dation, and sometimes the irrevocable destruction, of

aquatic areas that naturally control the quality of water,

including those vital areas of shallow water known as

wetlands.

App. 11

I might add that if we did not have those wetlands,

the course of abating pollution in this country by industry

and municipalities would be enormously increased because

of the additional costs that would be required by the

technology to take the place of what nature has provided

us.

We welcome the opportunity to participate in dispel-

ling the widespread misinformation that continues to

impede constructive debate on this program.

I will direct my brief remarks to three concerns: First,

the origin of the program and the much talked about

concept of “broad jurisdiction over water”; second, a few of

the ecological realities that compel Federal jurisdiction

over water; and finally, I will highlight the encouraging

first year of implementing a program that is designed to

overregulation.

The Federal Water Pollution Control Act places the

responsibility upon EPA to administer a permit program

for industrial and municipal discharges. The act reserves

to the Corps of Engineers a separate permit program

under section 404 for discharges of dredged or fill material

into the Nation’s waters.

The statutory language authorizing the 404 program

requires the cooperation of the corps and EPA to insure

that discharges of dregded [sic] material and fill material

will not have unacceptable adverse effects on municipal

water supplies, shellfish beds, fisheries, wildlife, and

recreation.

A fundamental element of the Water Act is broad

jurisdiction over water for pollution control purposes.

Several Federal courts have endorsed the wisdom, and

constitutionality, of this committee’s observation that:

App. 12

Water moves in hydrologic cycles and it is

essential that discharge of pollutants be con-

trolled at the source. Therefore, reference to the

control requirements must be made to the navi-

gable waters, portions thereof, and their tribu-

taries.

In affirming the constitutionality of the statute's

jurisdiction over all the Nation’s waters in the Ashland Oil

opinion, the Court of Appeals for the Sixth Circuit ob-

served:

We believe that the language of the Federal

Water Pollution Control Act and its legislative

history show that the United States Congress

was convinced that uncontrolled pollution of the

Nation’s waterways is a threat to the health and

welfare of the country, as well as a threat to its

interstate commerce.

Obviously water pollution is a health threat

to the water supply of the Nation. It endangers

our agriculture by rendering water unfit for irri-

gation. It can end the public use and enjoyment

of our magnificent rivers and lakes for fishing,

for boating, and for swimming. These health and

welfare concerns are, of course, proper subjects

for Congressional attention because of their

many impacts upon interstate commerce gener-

ally. (United Slates v. Ashland Oil, 7 ERC 1114,

1120 (6th Cir., 1974).)

The court recognized that comprehensive jurisdiction

is necessary not only to protect the natural environment

but also to avoid creating unfair competition. Unless

Federal jurisdiction is uniformly implemented for all

waters, dischargers located on nonnavigable tributaries

upstream from the larger rivers and estuaries would not

App. 13

be required to comply with the same procedural and

substantive standards imposed upon their downstream

Thus, artificially limiting the jurisdiction can create a

considerable competitive disadvantage for certain dis-

charges.

Let me add at this point, Mr. Chairman, that the

administration supports the approach of maintaining

broad jurisdiction under this program, as set forth under

the so-called Cleveland-Harsha amendment offered in the

other House, with appropriate amendments.

I believe Mr. Veysey will be prepared to go into more

detail on this. But let me just mention in passing that

such amendments should provide for delegation to the

States under carefully drawn criteria. They should provide

for authorization to the Corps of Engineers to exclude

insignificant activities. They should insure that permits

will only be denied on the basis of adverse impacts on fish

and wildlife or other water quality concerns. They should

exempt inuse agricultural or silvicultural activities, as

would be carefully defined in detail in legislative language.

Mr. Chairman, continued applicability of the 404

program to our Nation’s waters is essential if we are to

moderate the two most significant types of harm caused by

dredged or fill material.

First, just as water uses are degraded by industrial

and municipal wastes, adverse effects also occur from

dredged and fill materials that contain a wide range of

pollutants, including toxic substances.

An initial screening of sediments from over 700 harbor

and waterway locations showed that sediments in over

App. 14

half of the locations contained a significant pollutant load.

Pollutants identified in the sampling included lead,

arsenic, cyanide, PCB’s, mercury, and cadmium.

Contaminated materials threaten water supplies,

fisheries and other beneficial water uses unless carefully

managed. The corps and EPA are currently using the 404

decisionmaking process to assess the risk of dredging

James River sediments that are contaminated with

Kepone.

It is important to understand that toxic substances

threaten the aquatic environment when discharged into

small streams or into major waterways. Similarly, pollut-

ants are available to degrade water and attendant biota

when discharged in marshes and swamps, both below and

above the mean and ordinary high water marks.

Second, unlike most industrial and municipal pollu-

tion, dredged and fill material can physically destroy

essential parts of the aquatic system, including swamps,

marshes, submerged grass flats and shellfish beds. These

critica] aquatic areas are essential to many water uses, not

the least of which is a viable commercial and sports

fishery.

Wetlands serve as spawning and nursery areas while

providing natural control of organic and inorganic nutrient

transfers that dictate quantity and quality of life in the

water. The declining availability of swamps, marshes, and

free-flowing streams to assimilate pollution from point and

nonpoint sources will greatly increase the dollar and

energy costs of maintaining desirable water uses.

For example, discharge of fill material into certain

swamps in New York and New Jersey can affect the

App. 15

quantity and quality of water seeping into the aquifers

from which many communities draw their water supply,

thereby naturally causing increased treatment costs.

We testified in the July 1975 hearings before the

House Subcommittee on Water Resources that the Army

Corps of Engineers and EPA had agreed to cooperate in

establishing a joint program.

Shortly thereafter, interim final regulations were

promulgated by the corps on July 25, 1975. These regula-

tions were followed by the publication of interim final

guidelines by EPA on September 5, 1975.

Together the regulations and guidelines establish a

manageable program that focuses the decisionmaking

process on significant threats to aquatic areas while

avoiding unnecessary regulation of minor activities.

The first year of implementation of the 404 program

ended just last Sunday. In view of the attention that has

been given to this program in recent months and the

misunderstandings that have been voiced by various

interest groups, I want to discuss briefly the key features

of the program that are preventing overregulation.

First, comprehensive jurisdiction is, we believe,

essential for the protection of the aquatic environment.

The once seemingly separable types of aquatic systems

are, we now know, interrealted [sic] and interdependent.

We cannot expect to preserve the remaining qualities of

our water resources without providing appropriate protec-

tion for the entire resource.

Moreover, this broad geographical jurisdiction should

reduce the confusion and expense inherent in earlier

jurisdictional approaches that established artificial and

App. 16

often arbitrary boundaries that included only part of some

bodies of water.

For example, the old jurisdictional mean high water

line excluded one-half to cue-third of most coastal

marshes, thus possibly allowing destruction of an essential

element of the aquatic system, depending on the degree of

- control exercised by the Stater.

Today this problem has been eliminated. The location

of a coastal marsh by using the aquatic vegetation line

accurately identifies most marsh areas. One Florida

developer informed us that with the new approach, the

location of coastal marshes is less time consuming and less

expensive. No longer is it necessary to expend thousands

of dollars for tide experts and surveyors to establish the

exact mean high water mark as required by the old Corps

program.

Second, let me emphasize that while the geographical

jurisdiction of the program is broad, hundreds of activities

have been identified which do not require permits. The

term “fill material” has been defined so as clearly to

exclude normal farming, silvictulure [sic] and ranching

activities such as plowing, cultivating, seeding, and

harvesting. Maintenance of existing fill has also been

excluded.

We hope this hearing will help us reassure the public

that many activities simply do not require permits.

Third, the 404 program will use general permits to the

maximum extent possible to authorize categories of

discharge that cause only minimal harm to water quality.

Thus, the need for dischargers to apply for individual

permits is eliminated except in those instances involving

environmentally significant activities. Several districts

App. 17

have already issued general permits to authorize erosion

control bulkhead and fill and for fills associated with

highways and log roads.

Several of our regions have reported a sharp decrease

in the number of public notices for permits for insignifi-

cant activities under both the 404 program and the 1899

Rivers and Harbors Act.

Fourth, phased implementation of the broad jurisdic-

tion over water has provided a measure of moderation and

flexibility we all see as necessary to a reasonable program.

A commendable management effort by the Corps of Engi-

neers has already resulted in improved coordination with

EPA, other Federal and State agencies, and the public.

I would like to emphasize, I think the Corps has done

an outstanding job in moving this program forward and

developing reasonable and manageable regulations. You

certainly can explore that more fully with them. But I

want this committee to know that EPA is strongly suppor-

tive of the Corps’ effort in this regard and believe that they

really have done an outstanding job.

Finally, considerable effort has been made in develop-

ing a 404 program that would directly involve the States

in the decisionmaking process. Several States with exist-

ing permit programs to regulate the same types of activi-

ties that are regulated under section 404 are taking

advantage of the opportunity to participate in the joint

processing Federal-State permit applications.

Iowa, Michigan, and Maryland *-e notable examples.

I believe this opportunity to establ.sh joint programs will

encourage needed improvement in many States that have

not yet adequately addressed environmental problems

App. 18

caused by discharging dredgea or fill material into the

water environment.

To conclude my remarks, let me emphasize that the

protection of water quality must encompass the protection

of the interior wetlands and smaller streams.

In this regard, I should remiad you that through the

International Convention on the Prevention of Marine

Pollution by the Dumping of Wastes and Other Matter and

our own Ocean Dumping Act of 1972, the United States

has established both international and domestic programs

to protect the oceans from uncontrolled discharges of

sludges and dredged material.

The criteria for permitting the ocean dumping of

dredged or fill material are, by design, consistent and very

similar to those issued under section 404(b). Without an

appropriate and ef‘ective program under section 404, only

ocean dumping of dredged material will be closely regu-

lated while many of our more productive and more limited

inland water resources will be unprotected from both

chemical and physical degradation.

The Department of the Interior has estimated that

almost half of the wetlands which originally contributed to

aquatic resources of our Nation have already been lost

through draining, dredging, or filling.

Even with numerous programs aimed at their preser-

vation, in excess of 25,000 acres of prime wetlands are lost

each year. Our most productive aquatic systems have

already been drastically reduced from their original 127

million acres to less than 80 million acres.

As you know, wetlands are « priceless, multiuse

resource. They perform the following services:

App. 19

One: High yield food source for aquatic animals;

Two: Spawning and nursery areas for commercial

and sports fish;

Three: Natural treatment of waterborne and air-

borne pollutants;

Four: Recharge of ground water for water supply;

Five: Natural protection from floods and storms; and

Six: Essential nesting and wintering areas for wa-

terfowl.

We should be mindful oi the fact that when these

areas are polluted out of existence, we will have lost the

very valuable free service of nature; and if toxic-laden

dredged or fill material is discharged into wetlands, we

risk poisoning the very foundation of our aquatic system.

I must caution against expedient short-term consid-

erations relating to the section 404 program, however

compelling they may seem, in view of the long-term

consequences associated with any such actions. What we

do now affects not only the next decade but our next

generation, and those that follow.

I mentioned at the beginning, Mr. Chairman, that

there has been a lot of misinformation about this program.

We believe the program has been managed in a way to

avoid the kind of problems that you rightly are concerned

about and that many members of the public are concerned

about.

I am also concerned that misinformation and misguided

advice has been put forward not on behalf of those frequently

referred to, such as small farmers who we believe are totally

excluded from the scope of these regulations, but by those

App. 20

who wish to dredge and fill and develop wetlands to make

a fast buck, if you will, at the expense of a long-term public

interest.

I make that statement with full concern for the

complexity of the problem. But I think that the wetland

resource of this Nation is so vitally important to all of us

that I would urge and beg this committee and the Con-

gress to legislate in this area with the utmost care.

Again I commend the committee for conducting this

hearing.

Senator RANDOLPH. Thank you very much, Adminis-

trator Train. If agreeable to the members of the commit-

tee, I would suggest that we have our four panelists give

their presentation and then we go to the questioning.

Senator MUSKIE. Could I ask one question? I agree

with that, Mr. Chairman. Could I ask one question simply

to fill in on the history of the thing so it is clear?

Senator RANDOLPH. Yes.

Senator MUSKIE. The regulations which you have

described, Mr. Train, are those issued a year ago this

summer. What created the initial storm in section 404 was

the policies that the Corps of Engineers announced in a

press release issued after the court opinion; is that not so?

Mr. TRAIN. I believe that is correct. Mr. Veysey

should answer that.

Senator Muskiz£. In other words, what created the

initial storm of public opinion was a policy announced

before you moved in, or somebody moved in, to redefine

the policy in a more careful way you have described.

App. 21

If the Corps had not, in other words, moved as it had

with what I thought was distortion of legislative intent

and created all of the reaction, you would not have had to

move in as sort of the wet nurse to try to bring the storm

under control.

That is the context in which your regulations were

issued, as I recall. You may not, use the rhetoric that I just

used, but isn’t it a fact —

Mr. TRAIN. I think I will ask Mr. Veysey to respond to

the question.

Senator MUSKIE. Isn’t it a fact that the public rela-

tions problem which has brought all these people into this

room at a late hour in the night, stirred up an issue by a

release issued by the Corps of Engineers following the

court opinion, before the careful definition of the regula-

tions which you have described?

I wrote you a letter myself in that interim.

Mr. TRAIN. I remember practically the day that was

issued. I was before another Senate committee on another

matter. I was immediately confronted. In fact, I hadn't

read the release at that time. And there was no question

that the release contributed to a climate of public concern

over the issue.

Senator MUSKIE. It didn’t contribute; it created.

Mr. TRAIN. But I would say that the Corps of Engi-

neers was by no means the only instrument for increasing

public concern over the program.

Senator MUSKIE. I understand the Secretary of

App. 22

Mr. TRAIN. Yes.

Senator MUSKIE. The Secretary of Agriculture, I

think, cooperated very well with the Corps of Engineers. I

just wanted to make that point because after your descrip-

tion, it sounded as though the problem had started with

the regulations, where it actually started before.

If it had started with the regulations, conceivably

there might not be a problem.

But the impression created by the release of the Army

Engineers is still creating ripple effects in every State that is

affected by the problem, and I suspect many cf the refine-

ments of your regulations have not yet caught up with those

ripple effects to help abate the storm. That is my only point.

Mr. TRAIN. I must say I suspect that those who feel

that their interests are threatened by 404 would have

created a public storm over this issue, irrespective of any

possible contribution from that press release.

Senator MUSKIE. We will make our independent

judgments about that.

Mr. TRAIN. I wouldn’t want to point a finger to the

Congress on that. In any event, that is water over the dam.

Senator MUSKIE. Was the dam built with a permit?

Mr. TRAIN. I think with that I shall yield.

STATEMENT OF VICTOR VEYSEY, ASSISTANT

SECRETARY OF THE ARMY FOR CIVIL WORKS

Mr. VEYSEY. Mr. Chairman, if ] might, I would like to

respond in part to Senator Muskie’s question, which I

think is an appropriate one.

App. 23

Since there is no part of that included in my testi-

mony, I welcome the opportunity to insert it at this point.

It is true, it is a sad fact, that sometime in the early hours

on a long weekend when folks in the Corps of Engineers

had been struggling with this problem, perhaps too long, a

very misguided and very unfortunate press release was

cee aaa cath IP call venw anni that under this

law, many things might happen. That was before the

regulations were written.

In a sense, it was true that a lot of things might

happen, although there was no intent on the part of the

Army Corps of Engineers or EPA to let any of those things

happen. But the damage was done, as you point out so

correctly. That stirred or perhaps struck a sympathetic

note — I don’t know which — but anyway, the release was

issued from the Public Information Office of the Corps of

Engineers. I guess we will never be permitted to forget

that.

Senator MUSKIE. Neither will! we.

Mr. VEYSEY. I regret very much that it did happen.

After that time we took a rather firm grip on the situation.

I will say that with magnificent cooperation from Russ

Train and all of his people at EPA, and the Interior and

the Justice Depart-

App. 24

[LOGO] UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

WASHINGTON, D.C. 20460

JUN 19 1974

THE ADMINISTRATOR

Dear General Gribble:

As you are undoubtedly aware, on March 13, 1974, the

U.S. District Court for the Middle District of Florida

issued a Memorandum Opinion in United States v. Hol-

land. In that case, the United States sought to enjoin

disposal without a permit of dredged material in wetlands

which were above the mean high water line but were

periodically inundated by tidal waters. The court held,

inter alia, that wetlands above the mean high water line

are subject to Federal jurisdiction under Section 404 of the

Federal Water Pollution Control Act, as amended (the

“FWPCA”) and that discharges of dredged material into

such areas “constituted discharges entering ‘waters of the

United States’.”

The result reached in U.S. v. Holland is a jurisdic-

tional milestene under the FWPCA. Wetlands above, and

below, the mean high water line are of vital importance to

our envirommnent. The Corps has ta’.en an admirably firm

position to protect wetlands below the mean high water

line. Recently issued Corps regulations stated that: “As

environmentally vital areas, [wetlands] constitute a

productive and valuable public resource, the unnecessary

alteration or destruction of which should be discouraged

as contrary to the public interest.” 33 CFR Section

209.120(g3). Our concern is that similar protections be

App. 25

_ We believe that the Holland decision provides a

necessary step for the preservation of our limited wetland

resources. Moreover, we are firmly convinced that the

court properly interpreted the jurisdiction granted under

the FWPCA and Congressional power to take such a grant.

Notwithstanding the decision in U.S. v. Holland and

the recognized importance of wetlands to the environment,

we have been informed that the Corps has declined to

acquiesces in the Holland decision and has advised Corps

installations not to accept applications tor permits under

FWPCA Section 404 for dredge and fill disposal in these

areas. The Department of Justice has taken the position

that it will not bring enforcement action against persons

disposing of dredged or fill material to wetland areas

without Section 404 permits so long as the Corps refuses

to issue such permits. As a consequence, wetland areas

above the mean high water line are presently unprotected

from the irreparable damage caused by the disposal of

dredged and fill materials.

So that this important and irreplaceable part of the

environment will not go unregulated, I strongly urge the

Corps of Engineers to reconsider its position and to com-

mence processing Section 404 permits for wetlands above

the mean high water line immediately. I would appreciate

the opportunity to discuss this matter with you at your

A separate but related matter also requires attention.

On April 3, 1974, the Corps of Engineers promulgated

final regulations with respect to Corps permits for various

activities in navigable or ocean waters. 39 Federal Regis-

ter 12115. Among other things, these regulations set forth

certain procedures for the issuance of permits for the

App. 26

disposal of dredged or fill material under Section 404 of

the FWPCA.

Of particular concern to the Environmental Protection

Agency is the definition of “navigable waters” set forth in

these regulations, 33 CFR Section 209.120(d\1). In pro-

posed regulations published on May 10, 1973 (38 Federal

Register 12217), the Corps proposed to define the term

“navigable waters” to mean “waters of the United States,

including the territorial sea,” in accordance with the

definition of “navigable waters” in the FWPCA. The final

regulations promulgated on April 3, 1974, deleted the

previous definition of “navigable waters” and substitutes

therefor the following:

“The term ‘navigable waters of the United States’

and ‘navigable waters, as used herein mean

those waters of the United States which are sub-

ject to the ebb and flow of the tide, and/or are

presently or have been in the past, or may be in

the future susceptible for use for purposes of in-

terstate or foreign commerce (See 33 CFR

209.260 for a more complete definition of these

terms).”

The preamble to the final regulation discusses the

Corps’ reasons for changing the definition and makes it

clear that the term “navigable waters of the United

States” as used in the Rivers and Harbors Act of 1899 and

the term “navigable waters” as defined in the FWPCA are

to be “created synonymously.” The preamble and the

reference to the Corps’ definitional regulation at 33 CFR

209.260 make it clear that the Corps intends to delineate

FWPCA Section 404 jurisdiction on the basis of court

decisions and Corps interpretations of “navigability.” Our

interpretation of “navigable waters” within the meaning of

App. 27

the FWPCA does not conform to the Corps’ recently issued

regulation. We firmly believe that the Conferences Com-

mittee deleted “navigable” from the FWPCA definition of

“navigable waters” in order to free pollution contro] from

jurisdictional restrictions based on “navigability.” Indeed,

as the Conference Report states with respect to the modi-

fied definition of “navigable waters”: “The conferees fully

intend that the term ‘navigable waters’ be given the

broadest possible constitutional interpretation unencum-

bered by agency determinations which have been made or

may be made for administrative purposes.” S. Rep. 92-

1236, 92d Cong., 2d Sess. at 144. Perhaps a meeting of the

appropriate personnel of the Corps and of EPA should be

scheduled to resolve these discrepancies.

Sincerely yours,

/s/ John Quarles

Russell E. Train

Administrator

Lt. General W. C. Gribble, Jr.

Chief, Corps of Engineers

DAIN-ZA

Forrestal Building

Washington, D. C. 20314

Prepared by:

ASSW:JMcwardincd:5/4/74:50760:Rm.509

JOHN A. RAPANOS; JUDITH A. NELKIE RAPANOS;

PRODO, INC.; ROLLING MEADOWS HUNT CLUB; and

PINE RIVER BLUFF ESTATES, INC.,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

JUNE CARABELL; KEITH CARABELL;

HARVEY GORDENKER; FRANCES GORDENKER,

Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS;

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

On Writs of Certiorari to

The United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICI CURIAE FOUNDATION FOR

ENVIRONMENTAL AND ECONOMIC PROGRESS,

NATIONAL ASSOCIATION OF REALTORS®,

UTILITY WATER ACT GROUP, AND CHAMBER

OF COMMERCE OF THE UNITED STATES

OF AMERICA iN SUPPORT OF PETITIONERS

VIRGINIA S. ALBRECHT

Counsel of Record

DEIDRE G. DUNCAN

DAVID J. DEPIPPO

HUNTON & WILLIAMS LLP

1900 K Street, N.W.

Washington, D.C. 20006 .

December 2, 2005 (202) 955-1500

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

Of Counsel:

JOHN R. STOLLER

FOUNDATION FOR ENVIRONMENTAL

AND ECONOMIC PROGRESS

1900 K Street, N.W.

Washington, D.C. 20006

(202) 778-2229

RALPH W. HOLMEN

NATIONAL ASSOCIATION OF REALTORS®

430 N. Michigan Avenue

Chicago, IL 60611-4087

(312) 329-8200

MARK G. WEISSHAAR

HUNTON & WILLIAMS LLP

1900 K Street, N.W.

Washington, D.C. 20006

(202) 955-1500

Counsel for Utility Water Act Group

ROBIN S. CONRAD

AMAR D. SARWAL

NATIONAL CHAMBER LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20036

(202) 463-5337

QUESTIONS PRESENTED

Rapanos v. United States

1. Does the Clean Water Act prohibition on unpermitted

discharges to “navigable waters” extend to nonnavigable

wetlands that do not even abut a navigable water?

2. Does the extension of Clean Water Act jurisdiction to

every intrastate wetland with any sort of hydrological

connection to navigable waters, no matter how tenuous or

remote the connection, exceed Congress’s constitutional

power to regulate commerce among the states?

Carabell v. U.S. Army Corps of Engineers

1. Does the Clean Water Act extend to wetlands that are

hydrologically isolated from any of the “waters of the United

States”?

2. Do the limits on Congress’s authority to regulate inter-

state commerce preclude an interpretation of the Clean Water

Act that would extend federal authority to wetlands that are

hydrologically isolated from any of the “waters of the United

States”?

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TABLE OF CONTENTS

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II.

II.

THE CWA REGULATES “NAVIGABLE

WATERS” AND MAY REACH NON-

NAVIGABLE WATERS ONLY IF THE

NONNAVIGABLE WATERS HAVE A

“SIGNIFICANT” AND “INSEPARABLE”

BOND WITH “NAVIGABLE WATERS.” ......

A. “Significant Nexus” Means an Important

and Regularly Recurring Relationship ........

B. The Fifth Circuit Properly Applied the

Term “Navigable” and This Court’s “Sig-

nificant Nexus” Standard .................ss0see0

THE GOVERNMENT TRIES TO AVOID

SWANCC BY CLAIMING THAT ITS REA-

SONING IS IRRELEVANT TO “CON-

NECTED” WATERS AND THEN FINDING

“CONNECTIONS” IN UNLIKELY PLACES ..

THE GOVERNMENT’S THEORY _IM-

PINGES ON THE STATES’ TRADITIONAL

AUTHORITY OVER LAND AND WATER

USE WITHOUT A CLEAR CONGRES-

SIONAL STATEMENT ...........cseesessesserseeseeees

(iii)

wine <

iv

TABLE OF CONTENTS—Continued

Page

IV. THE GOVERNMENT’S THEORY IS

INCONSISTENT WITH PAST AND

PRESENT REGULATORY TREATMENT

OF DITCHES, INTERMITTENT STREAMS,

AND EPHEMERAL DRAINAGES AND

WARRANTS NO DEFERENCE...............000000: 19

V. THE GOVERNMENT HAS AMPLE

AUTHORITY TO REGULATE POLLUTING

ACTIVITIES THAT WILL IMPACT NAV-

IGABLE WATERS WITHOUT DECLAR-

ING EVERY DITCH AND EPHEMERAL

DRAINAGE A “WATER OF THE UNITED

Te 25

SEIS cocvcscencussseticersssssencsssececessssecssscsssessensseesee 29

ee la

Vv

TABLE OF AUTHORITIES

FEDERAL CASES Page

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204

Goi iccersenanccciiniteniesenntnciniibasimnaitddasindiapentsievatenn 24

Carabell v. U.S. Army Corps of Eng’rs, 391 F.3d

704 (6th Cir. 2004), cert. granted 126 S.Ct.

I cerciinessininiceciesiliniegrinieala sinslasdtinatnstaiiiataenitiies 4,10

Christensen v. Harris County, 529 U.S. 576

Garett dchnecmesctenianpbilinnssientaniiatmtiallttainiiscasiaeliccatiaints 24

Concerned Area Residents for the Env't v.

Southview Farm, 34 F.3d 114 (2d Cir. 1994)... 28

EPA v. Cal. ex rel. State Water Res. Control Bd.,

x Se ED cetiiitrentintdimininanaineenen 26

FD&P Enters., Inc. v. U.S. Army Corps of

Eng'rs, 239 F. Supp. 2d 509 (D.N.J. 2003)....... ”

Gregory v. Ashcroft, 501 U.S. 452 (1991) ce... 15

Hess v. Port Auth. Trans-Hudson Corp., 513

Fey IED ccttiicsscitiiiininiaiatepaiinegisngisatinaanaas 15

In re Needham, 354 F.3d 340 (Sth Cir. 2003) .......8, 9, 28

KCST-TV, Inc. v. FCC, 699 F.2d 1185 (D.C. Cir.

(eine tevenectscnnnsinsiniendnnialinipitiientesiedeemenranitemedtionasinds 6

Nat'l Ass'n of Home Builders v. Norton, 340

ee 6

Nat'l Mining Ass'n v. U.S. Army Corps of

Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998)............ 22

Nat'l Wildlife Fed'n v. Gorsuch, 530 F. Supp. :

Se Cee TUE cctuieneribiniuicatttictinniinatantesiens 26

New Orleans Gaslight Co. v. Drainage Comm'n

of New Orleans, 197 U.S. 453 (1905) ............... 16

Natural Res. Def. Council v. Callaway, 392 F.

ee 20

Oklahoma v. Texas, 260 U.S. 606 (1923).............. 7

Onishea v. Hopper, 171 F.3d 1289 (11th Cir.

AEE ARTES ROLES ATE OES TRO a

vi

TABLE OF AUTHORITIES—Continued

Page

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

SII IE iesdihanaiarinbecitaistnteataiiniitiataistabiianiass 8,9

Save Our Sonoran, Inc. v. Flowers, 408 F.3d

EE CEU cecctiuasihetidimeapisnniniasiitiinniingiinn 18

Seminole Tribe of Fla. v. Florida, 517 U.S. 44

(IT icenantisttneieciihishet tctasenintnnguveniemeiitaianindnannial 9

Solid Waste Agency of N. Cook County v. US.

Army Corps of Eng'rs, 531 U.S. 159 (2001) ..... passim

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

2003), cert. denied 541 U.S. 972 (2004) ........... 16

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

| a ee 25

United States v. Harrell, 926 F.2d 1036 (1ith

I eee icteipetiaeirbiensideieripsiiianisindanecntanpplatanesiniicitaates 7

United States v. Hartsell, 127 F.3d 343 (4th Cir

ESS 2 ea ee en Eee 28

United States v. Krilich, 303 F.3d 784 (7th Cir.

2002), cert. denied 538 U.S. 977 (2003) ........... 9

United States v. Lopez, 514 U.S. 549 (1995).....15, 19, 23

United States v. Mead Corp., 533 U.S. 218

(SI itesinsiscenniinkstidelimantnatiiaidapestnnninnatdteaininnpsiitibiits 24

United States v. Ortiz, 2005 U.S. App. LEXIS

23559 (10th Cir. Nov. 1, 2005) ..0.........ccccccceceeee 28

United States v. Pend Oreille Pub. Util. Dist. No.

1, 926 F.2d 1502 (9th Cir. 1991) 00.2... eccccceseeee 7

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

2004), cert. granted 126 S.Ct. 414 (2005)......... 4

United States v. Riverside Bayview Homes, Inc.,

Se as Se CED ahccrsvcticnnctsgeccrnencnennetemeninnn passim

Waterkeeper Alliance, Inc. v. U.S. EPA, 399 F.3d

ee 25

vii

TABLE OF AUTHORITIES—Continued |

DOCKETED CASES Page

Carabell v. U.S. Army Corps of Eng’rs, No. 04

SSS a 8, 9, 17, 23

Rapanos v. United States, No. 04-1034 (U.S.).. 17, 19, 25, 29

United States v. Johnson, No. 05-1444 (ist Cir.).. 9

United States v. Johnson, No. 99-12465 (D.

TID ciceiiesnepeusiprntmnnnmennnsnaienmieccnsbecapeniatinnanientaltn 12

FEDERAL STATUTES

ed I ncincrenicgrinisinenmetmtanmmennedinniins 17

ee stcitecscrenniiadeibinitinniiindinipeisinniinaation 26

Be ee et cccniesctitnncectngnianinntmassnstegins 18

ee eee ED ctitarincterserentinnipumentensnmniemneticontiiny 26

AT TIIIITET witiicsscienniciniieslinpestnedainmantipenndiamanbins 26

EES Te eer 4

Be ee te ED cctcernserncciitinimenaneniiintins 22

Be a i iisieicaciciitcitnececsitittadenieninencitaatiiin 4

BP ne EE nininnesecsincrnencertinnearmonnnetain 21, 26

EE eee 21

ES 6,7

STATE STATUTES

Md. Code Ann. Art. 25 § 52(a)............ccccecceeeeeeeeeee 16

Md. Code Ann. Art. 25 § 53 .......ccccccccscsceeeeeeeneeenees 16

FEDERAL REGULATIONS

oe ER een 16

EE SERS ee eae 7

Re eerne 18

a aes Tc ccnerresenucirenptiniapepaeemmsantnmpaian 22, 23

Ee 22, 23

a 7

oo ee 27

Se ST nsinncrtsenitineinnninigmtveinnneitints 28

Os B Srl csencsascassanesensescsesassnsmsessenenegsatins 18

vill

TABLE OF AUTHORITIES—Continued

Page

RR eee 7

re i iserididatscnsetnncnicnuiciacnnansenneniintets 28

FEDERAL REGISTER

39 Fed. Reg. 12,115 (Apr. 3, 1974) ..cccccccssscssssvees 20

40 Fed. Reg. 31,320 (July 25, 1975) ...........cccccceeee 21

42 Fed. Reg. 37,122 (July 19, 1977) ...ccccccccsccesssee 21, 22

44 Fed. Reg. 32,854 (June 7, 1979) ..........ccccceceeeees 27

51 Fed. Reg. 41,206 (Nov. 13, 1986) ...............0000 23

55 Fed. Reg. 47,990 (Nov. 16, 1990) .............0000+. 28

68 Fed. Reg. 1991 (Jan. 15, 2003) ...0..........cceeceeee 23, 24

ADMINISTRATIVE DECISIONS

In re Friendswood Development Co., 1976 WL

25237 (EPA Gen. Counsel Op. June 11, 1976)... 27

U.S. Army Corps of Eng’rs, Buffalo Dist.,

Admin. Appeal Decision, NEC Transit/

William, LLC, File No. 2000-00325(2) (Aug.

Pe Aicunribuatnenenriiemnmnbinaintmmniteindinnats 14

U.S. Army Corps of Eng’rs, Jacksonville Dist.,

Harmony Ranch Application Denial ................. 19

U.S. Army Corps of Eng’rs, Los Angeles Dist.,

Admin. Appeal Decision, Approved Jurisdic-~

tional Determination for the Sunrise Office

Park, File No. 2001-00379-RJD (Sept. 7,

Fee ccrseeesccssstarssninenssienmabonmeniniidamsomertetmenne 13

U.S. Army Corps of Eng’rs, Los Angeles Dist.,

Admin. Appeal Decision, Approved Jurisdic-

File No. 2000-00554-RJD (Apr. 2, 2001) ......... 13

U.S. Army Corps of Eng’rs, Los Angeles Dist.,

Jurisdictional Determinations in Arizona ......... 13

ix

TABLE OF AUTHORITIES—Continued

LEGISLATIVE HISTORY Page

S. 2770, 92d Cong. § 502(h) (1971) ...ccsw..«. sistas 4

S. Rep. No. 92-414 (1972) ..cccccsssscsssessssssesssesensnesee 25

MISCELLANEOUS

Cutler, Justin, Project Manager, Delta Office,

U.S. Army Corps of Eng’rs, Sacramento Dist.,

Letter to James Gibson, Gibson & Skordal

Oe 1}

General Accounting Office, Waters and Wet-

lands: Corps of Engineers Needs to Evaluate

Its District Office Practices in Determining

Jurisdiction (Feb. 2004) ........cccccecceeeeereeeeeees 12, 13,14

Gibson, James, Gibson & Skordal, Letter to

Justin Cutler, Project. Manager, Delta Office,

U.S. Army Corps of Eng’rs, Sacramento Dist.

ee ll

Isoe, Mitchell, Chief, Regulatory Branch, U.S.

Army Corps of Eng’rs, Chicago Dist., E-mail

to U.S. Army Corps of Eng’rs, Chicago

SS ee 12

Jewell, Michael, Chief, California/Nevada Sec-

tion, U.S. Army Corps of Eng’rs, Sacramento

Dist., Letter to James Gibson, Gibson &

Skordal (Aug. 13, 2001) ..........ccccccccceseeesereeeereees 11

Physical Science: Concepts in Action (Pearson

Prentice Hall ed. 2004) ...........cccccseeeeeeeeerenenenes 12

Pierce, Robert J., Wetland Science Applications,

Inc., Technical Principles Related to Estab-

lishing the Limits of Jurisdiction for Section

404 of the Clean Water Act (Apr. 2003)............. 29

Presentation by John Hall, Chief, Regulatory

Division, U.S. Army Corps of Eng’rs, Jack-

sonville Dist., SWANCC Update and Afier-

Co AS Oe 1]

TABLE OF AUTHORITIES—Continued

RANDOM HOUSE UNABRIDGED DICTIONARY

Sunding, David L. & David Zilberman, The

Economics of Environmental Regulation by

Licensing: An Assessment of Recent Changes

to the Wetland Permitting Process, 42 Nat.

Resources J. 59 (Winter 2002) ............cccccceeevees

THE NEW SHORTER OXFORD ENGLISH DICTION-

ARY ON HISTORICAL PRINCIPLES (1993) ............

Tribe, Lawrence H., AMERICAN CONSTITUTIONAL

Sj

U.S. Army Corps of Eng'rs, Jacksonville Dist.,

Approach on Identifying Adjacent Wetlands

and Isolated Waters (July 11, 2003)................

U.S. Dep’t of Transp., Fed. Highway Admin.,

Highway Statistics 2003 § V, Roadway Extent,

Characteristics and Performance, Table HM-

i crimbneniecihtetinetniibitapataenninatnintat inate mamnmsinmesin

U.S. Geological Survey, The Water Cycle ............

U.S. EPA, Watersheas ............ccceccccesseeeseeeeeeecerernees

U.S. EPA Region 1, The Water Cycle and Water

icietcccunensamnenmnannnean

WEBSTER’S THIRD NEW INTERNATIONAL Dic-

TIONARY OF THE ENGLISH LANGUAGE UN-

ED citciccmatuistesticunstemmmammnsninens