# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A39

## Record

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

## Text

A. Ditches and Drains.

Rapanos concerns three separate properties in different
Michigan counties: (1) the 175-acre Salzburg site which
lies next to the Labozinski Drain, described by the lower
courts as a manmade ditch. United States v. Rapanos, 190
F. Supp. 2d 1011, 1014 (E.D. Mich. 2002) (a “ditch which
empties into Hoppler Creek”), aff'd, 339 F.3d 447, 449 (6"
Cir.-2003) (a “one hundred year-old manmade drain”); (2)
the 600-acre Hines Road site, which is embroidered with
drainage ditches and is itself drained by a ditch called the
Rose Drain. (Cert. App. B19); and (3) the 49-acre Pine
River site, with onsite wetlands that are adjacent to ditches.
(Cert. App. B24-B25.)

The 19.61 acre Carabell site in Macomb County,
Michigan, is separated from adjacent property by an
unnamed ditch. Sidecasted spoils from the ditch’s
excavation created an upland berm, which blocks drainage
of surface water from the site. The direction of water flow
from the ditch is unclear, although the ditch connects to
another ditch known as the Sutherland-Oemig Drain at the
site’s northeastern corner. Carabell v. U.S. Army Corps of
Eng’rs, 391 F.3d 704, 705-06 (6 Cir. 2004). The
Sutherland-Oemig drain is part of Macomb County’s storm
sewer system, which has received a pollutant discharge
permit from the Michigan Department of Environmental
Quality under Section 402 of the CWA. (App. |b, 6b.)

B. The CWA is Clear: Ditches Are “Point Sources,”
not “Navigable Waters.”

In both cases, the Corps has interpreted its regulations
to deem the ditches in question “tributaries” so as to reach
the wetlands adjacent to them. See 33 C.F.R. § 328.3(a)(5)

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(tributaries); id. § (a)(7) (adjacent wetlands). The Corps’s
interpretation is unsupported by reference to any rule or
guidance; its regulations do not define “tributary.” For that
matter, “tributary” and “adjacent wetlands” are nowhere
defined in the CWA. Yet, the Court of Appeals deferred to
the Corps’s belief that a ditch is a “navigable water.”

This was wrong. At 33 U.S.C. § 1362(14), Congress
plainly stated that ditches are “point sources”:

The term “point source” means aay discernible,
confined and discrete conveyance, including but not
limited to any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling stock,
concentrated animal feeding operation, or vessel or
other floating craft, from which pollutants are or may
be discharged .... (Emphasis supplied.)

Exercises in construction “begin with the language of the
statute.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450
(2002). Obedience to text is especially due when Congress
defines statutory terms. ‘“{W]hen a statute includes an
explicit definition [courts] must follow that definition, even
if it varies from that term’s ordinary meaning.” Stenberg v.
Carhart, 530 U.S. 914, 942 (2000). See also W. Union Tel.
Co. v. Lenroot, 323 U.S. 490, 502 (1945) (“statutory
definitions of terms ... prevail over colloquial meanings”);
Lawson v. Suwanee Fruit & S.S. Co., 336 U.S. 198, 201
(1949) (“Statutory definitions control the meaning of
statutory words ....””). In Section 502(14), Congress could
not have been clearer: a “point source” is any ditch, from
which pollutants are or may be discharged.

CWA Section 502 defines two key terms: “navigable
waters” at subsection (7), and “point source” at subsection

(14). 33 U.S.C. §§ 1362(7), (14). “The term ‘navigable
waters’ means the waters of the United States, including the
territorial seas.” Jd. at § 1362(7). By regulation, the Corps
includes “tributaries” within the statutory phrase, “waters of
the United States.” 33 C.F.R. § 328.3(a)(5). “Ditch” is not
included in either the CWA definition or in the Corps’s
regulation, but it is expressly identified in the Act’s
definition of “point source.” Explicit definitions must
prevail. Western Union, 323 U.S. at 502. Accordingly, the
ditches at the Rapanos and Carabell sites are not
“navigable waters.” They are “point sources.”

Additionally, specific statutory provisions govern over
general provisions. See, e.g., Edmond v. United States, 520
U.S. 651, 657 (1997); Morales v. Trans World Airlines,
Inc., 504 U.S. 374, 384 (1992). “However inclusive may
be the general language of a statute, it will not be held to
apply to a matter specifically dealt with in another part of
the same enactment.” Fourco Glass Co. v. Transmirra
Prods. Corp., 353 U.S. 222, 228 (1957) (internal quotes
omitted). Although no specific kind of waterbody is listed
in the “navigable waters” definition, that broad term may
include bays, lakes, sounds, gulfs, rivers, streams and even
non-navigable wetlands right next to truly navigable waters.
See United States v. Riverside Bayview Homes, Inc., 474
U.S. 121 (1985). In contrast, Congress “specifically dealt
with [ditches] in another_part of the same enactment.” See
Fourco, 353 U.S. at 228 (citations omitted). Under the rule
that specific provisions supersede general ones, the precise
inclusion of “ditch” in the “point source” definition trumps
an interpretation that ditches are somehow penumbral to the
“navigable waters” definition.

Moreover, the “most important” rule of statutory
construction “is the clear statement rule.” I Laurence Tribe,

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American Constitutional Law, § 5-9 at 853 (3d ed. 2000).
Where, as here, an agency interprets a statute in a manner
that “invokes the outer limits of Congress’ power” or
overrides the “usual constitutional balance of federal-state
powers,” this Court “expect{[s] a clear indication that
Congress intended that result” pressed by the agency. Solid
Waste Agency of N. Cook County v. U.S. Army Corps of
Eng 'rs, 531 U.S. 151, 172-73 (2001). The CWA contains
no clear statement that a ditch is a “navigable water”—but
the Act is unequivocal that a ditch is a “point source.” To
avoid difficult federalism questions, and to effectuate
congressional policy “to recognize, preserve, and protect
the primary role of States” in addressing water pollution
(33 U.S.C. § 1251(b)), the Court should reject the
interpretation that an ordinary ditch is a “navigable water.”

Congress “left [no] gap for the agency to fill” in
defining a ditch as a “point source,” not as a “navigable
water.” See Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S.
837, 843-44 (1984). It has spoken to the issue, “that is the
end of the matter,” and the Court must give effect to clearly
expressed legislative intent under Chevron Step 1. Id. at
842. The Court of Appeals should therefore be reversed.

C. The “Discharge” Definition Further Clarifies
that Ditches are not “Navigable Waters.”

The “discharge” definition drives home the point that
Congress did not intend for ditches and other “point
source[s]” to be “navigable water[s].” The Act provides:
“{D)ischarge of a pollutant” ... means ... any addition of
any pollutant to navigable waters from any point source
... 33 U.S.C. § 1362(12) (emphasis added). Under a plain
reading of the statute, “point sources” are not themselves

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statutory “navigable waters,” but are features that convey
pollutants and add them to “navigable waters.”

Congress intended to control pollutant discharges
through point source permit programs. CWA Section 402,
the National Pollutant Discharge Elimination System
(“NPDES”), requires point source operators to obtain
permits for the addition of pollutants into navigable waters.
33 U.S.C. § 1342. See Nat'l Wildlife Fed'n v. Consumers
Power Co., 862 F.2d 580, 582 (6" Cir. 1988) (“The NPDES
permit program was designed to control ‘point sources’ of
pollution”). Under Section 402, EPA regulates pollutants
that exit point sources, not pollutants entering them. See S.
Fl. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541
U.S. 95, 105 (2004) (explaining that point sources require
permits when they convey pollutants to navigable waters).
Similarly, Section 404 requires point source operators to
obtain a Corps permit for discharges of a specific type of
pollutant, namely, dredged or fill material. 33 U.S.C. §
1344. In short, operators must obtain Section 402 or 404
permits when pollutants leave ditches (or other point
sources) and enter “navigable waters.”

While amicus maintains that this case should be decided
under Chevron Step 1 (supra at 6), the Corps’s
interpretation flips the CWA’s regulatory scheme on its
head and is unreasonable as well, also failing Chevron Step
2. “Discharge” is not the addition of pollutants from one
“navigable water” into another “navigable water.” See
Miccosukee, 541 U.S. at 104-05 (“discharge” requires
addition of pollutants from one “meaningfully distinct”
waterbody to another, through a point source). If the
Corps’s interpretation is upheld, such a reading would
require a federal permit for the Mississippi River where it
discharges into the Gulf of Mexico. Moreover, the Corps’s

current litigation argument is contrary to consistent
regulatory statements it has made down the years that
upland drainage ditches are not CWA “navigable waters.”
“An agency interpretation of a relevant provision which
conflicts with [its] earlier interpretation is ‘entitled to
considerably less deference’ than a consistently held agency
view.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30
(1987) (citations omitted). Deference is not due, as here, to
agency “litigating positions that are wholly unsupported by
regulations, rulings or administrative practice.” Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988).

D. Like Ditches, Municipal Storm Sewer Systems
are “Point Sources” and not “Navigable Waters.”

Another type of point source is a municipal separate
storm sewer system, or “MS4.” This is pertinent to
Carabell, because the Sutherland-Oemig Drain (supra at 3)
is part of Macomb County’s MS4. Under CWA Section
402 and Michigan Act 451 (Mich. Comp. Laws § 324.101
(1994)), the County maintains an NPDES permit for its
MS4, which expressly includes the Sutherland-Oemig
Drain. (App. 1b, 6b.) By virtue of its inclusion in the

? See 40 Fed. Reg. 31,320, 31,321 (July 25, 1975) (“(d]rainage
ditches have been excluded” from CWA jurisdiction); 48 Fed.
Reg. 21,466, 21,474 (May 12, 1983) (“waters of the United
States do not include the following man-made waters: (1) Non-
navigable drainage and irrigation ditches excavated on dry
land”); 51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986) (“We
generally do not consider [drainage and irrigation ditches
excavated on dry land] to be waters of the United States.”); 67
_ Fed. Reg. 2020, 2087 (Jan. 15, 2002) (nationwide permit for
reshaping drainage ditches in jurisdictional wetlands “does not
apply to reshaping drainage ditches constructed in uplands since
these areas are generally not waters of the United States”).

Macomb County MS4, dirt and other pollutants conveyed
through the Sutherland-Oemig Drain into navigable waters
have been authorized under Section 402 of the Act. (App.
3b.) (It is unclear whether any of the ditches in Rapanos
are part of an MS4.)

Congress amended the CWA in 1987 and added Section
402(p) which, among other things, required EPA to develop
regulations for an MS4 permit program regarding
stormwater discharges.’ By putting the MS4 program in
Section 402, Congress expressed its intent that MS4s are
“point sources.” EPA thereby defined “MS4” to track the
Act’s “point source” definition. Compare 33 U.S.C. §
1362(14) (supra at 4), with 40 C.F.R. § 122.26(b)(8).‘
Courts also recognize that storm sewers are point sources
subject to NPDES permitting requirements. Natural Res.
Def. Council, Inc. v. Costle, 568 F.2d 1369, 1379 (D.C.
Cir.1977) :

Permits for discharges from MS4s “shall require
controls to reduce the discharge of pollutants to the
maximum extent practicable, including management

* See 33 U.S.C. §§ 1342(p)(3)(B), (4). The history of the MS4
permit program, and its phased approach for regulation of
municipalities based on their population size, is traced in Envil.
Def. Ctr., Inc. v. U.S. Envtl. Prot. Agency, 344 F.3d 832, 841-42
(9" Cir. 2003).

* EPA defines MS4 as “a conveyance or system of conveyances
(including roads with drainage systems, municipal streets, catch
basins, curbs, gutters, ditches, man-made channels or storm
drains)” owned and operated by a State or municipality and
“[d]esigned or used for collecting or conveying storm water ....”
40 C.F.R. § 122.26(b)(8) (emphasis supplied).

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practices, control techniques and systems, design, and
engineering methods.” 33 U.S.C. § 1342(p)(3)(B)(iii).°
Modern MS4s are waste treatment systems because they
reduce pollutants by treating stormwater with such features
as settling structures to collect sediment, and racks to
capture trash. Ben Urbonas, et al., Stormwater, Best
Management Practices and Detention for Water Quality,
Drainage, and CSO Management 42, 416-433 (1993);
Design and Construction of Urban Stormwater
Management Systems 454, 489-511 (Am. Soc’y of Civil
Eng’rs 1992). Indeed, EPA identifies stormwater as a
“waste.”° The key point is this: EPA expressly excludes
“waste treatment systems” from the definition of “waters of
the United States,” see 40 C.F.R. § 122.2, and a recent
memo from EPA’s General Counsel and Assistant
Administrator for Water confirms that “waste treatment
systems” like MS4s are “by definition” not CWA
“navigable waters.” (App. 3c, at n. 18.)’ When a third
party discharges into an MS4, which itself discharges
directly into a “navigable water,” EPA “always addressed
such ‘discharges as ‘discharges through [MS4s] as opposed

* “Best management practices” include “treatment
requirements.” 40 C.F.R. § 122.26(d\iv)(D).

® 40 C.F.R. § 122.26(b)(8)i) (MS4 is a conveyance system
owned and operated by a municipality with junsdiction over the
“disposal of sewage, industrial wastes, storm water, or other
wastes”) (emphasis supplied).

’ Memorandum from Ann R. Klee, General Counsel, and
Benjamin H. Grumbles, Assistant Administrator for Water,
Environmental Protection Agency, to Regional Administrators,
Regarding Agency Interpretation on Applicability of Section 402
of the Clean Water Act to Water Transfers, at 18, n. 18 (Aug. 5,
2005) (excerpts at App. C).

to ‘discharges to waters of the United States ...."” 55 Fed.
Reg. 47,990, 47, 997 (Nov. 16, 1990) (emphasis supplied).

“[A] statute is to be considered in all its parts when
construing any one of them.” Lexecon Inc. v. Milberg Weiss
Bershad Hynes & Lerach, 523 U.S. 26, 36 (1998). See also
Comm 'r of Internal Revenue v. Engle, 464 U.S. 206, 217
(1984) (court should “find that interpretation which can
most fairly be said to be imbedded in the statute [and is] ...
most harmonious with its scheme and with the general
purposes that Congress manifested”). Section 402(p)’s
structure and EPA’s regulations make clear that MS4s are
“point sources,” not “navigable waters.” As such, the Court
of Appeais should be reversed for ruling in Carabe// that
the Sutherland-Oemig Drain is a “navigable water,”
because that ditch is part of the Macomb County MS4.

E. Classifying Ditches and MS4s as “Navigable
Waters” Yields Unreasonable Results.

If the Corps’s interpretation holds, all of the CWA’s
requirements and programs for “navigable waters” would
be triggered for ditches and MS4s. But “statutes should be
interpreted to avoid ... unreasonable results whenever
possible.” Am. Tobacco Co. v. Patterson, 456 U.S. 63, 71
(1982). For example, Section 303 requires States to adopt
and submit to EPA water quality standards (“WQSs”), 33
U.S.C. § 1313, which “consist of a designated use or uses
for the waters of the United States ....- 40 CFR. § |
131.3(i).* There are an estimated 3.9 million miles of roads

* An example of a designated use: “All the Great Lakes, and
their connecting waters .. are designated for .. coldwater
fisheries.” Mich. Admin. Code R. 323.1100(5) (1999).

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in the Nation,’ and regulations require that federally funded
primary roads must be “designed ... and maintained to have
adequate drainage, cross drains, and ditch relief drains.” 30
C.F.R. § 816.151(d). If all of these roadside ditches are
“navigable water,” then the Act would require States to
establish WQSs for all of them. Congress could not have
intended such an absurd result. Similarly, if MS4s are
“navigable waters,” then Section 303 requires States to
develop WQSs and “designated uses” for the water in
municipal sewer systems. The main purpose of an MS4 is
to transport stormwater away from upland areas. However,
using a “navigable water” in such a manner would plainly
violate EPA’s regulation that “in no case shall a State adopt
waste transport ... as a designated use for any water of the
United States.” 40 C.F.R. § 131.10(a).

In conclusion, the Corps’s interpretation that drainage
ditches and parts of an MS4 are “navigable waters” should
not receive deference because it (1) contradicts the CWA’s
plain language, and (2) is unreasonable in any event. The
Court of Appeals should be reversed because it erroneously
held that “point sources” at the Rapanos and Carabell sites
are CWA “navigable waters.”

Il. WETLANDS ADJACENT TO FEATURES THAT
ARE NOT “OPEN WATERS” ARE NOT WITHIN
CWA JURISDICTION AS A MATTER OF LAW.

_ Corps regulations provide that wetlands “adjacent” to
certain listed waters (like “interstate waters” and

* U.S. Department of Transportation, Federal Highway
Administration, Highway Statistics 2001 § V, Roadway Extent,
Characteristics, and Performance Tol. HM-10,_ at

mitp. ith yOL £OV/ONITTYV ET u (last visited

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“tributaries”) are jurisdictional under the CWA. 33 C.F.R.
§ 328.3(a)(7). This Court has considered the (a)(7)
regulation in the past, ruling that wetlands which actually
abut “open waters” are jurisdictional. The Court of
Appeals should be reversed because it extended adjacency
jurisdiction to wetlands that are next to drainage ditches,
which are “point sources,” and are not “open waters.”

A. Riverside Bayview and SWANCC

This Court considered the adjacency regulation in
United States v. Riverside Bayview Homes, Inc., 474 U.S.
121 (1985). It allowed the CWA to cover non-navigable
wetlands that “actually abut{[ted] on a navigable waterway,”
Black Creek. /d at 135. The Court stated it was
expressing no opinion on the status of “wetlands that are
not adjacent to bodies of open water.” Id. at 131, n. 8
(emphasis supplied). Then in SWANCC, the Court stressed
that the Riverside Bayview wetlands “actually abutted on a
navigable waterway” (531 U.S. at 167), and ruled against
the Corps because “the text of the statute will not allow”
coverage of ponds that “are not adjacent to open water.” Jd.
at 168 (original emphasis). The dissent read the thajority
opinion as “excising” from the CWA waters “that are not
contiguous or adjacent to navigable waters.” /d. at 190, n.
14 (Stevens, J., dissenting).

B. This Court Treats “Open Waters” as Navigable-
in-Fact Water.

Riverside Bayview and SWANCC used the term “open
water” and “navigable waterway” interchangeably. Indeed,
Black Creek is traditionally navigable-in-fact and has

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supported heavy boat traffic.'° In this regard, these
opinions are part of the Court’s long tradition of using the
phrase “open water” as synonymous with navigable-in-fact
water. For example, in Kotch v. Bd. of River Port Pilot
Comm'rs, 330 U.S. 552, 558 (1947), the Court explained
that pilots take ships from “open waters” to local waters. In
United States v. Oregon, 295 U.S. 1, 22 (1935), “open
water” described the area where boats could be used. The
Court has also analyzed whether the term “high seas” in a
criminal statute applied “to the open, uninclosed waters of
the Great Lakes, between which the Detroit River is a
connecting stream.” United States v. Rogers, |50 U.S. 249,
253 (1893). The Court observed, “the fact remains that
there are other seas than the ocean, whose open waters
constitute a free highway for navigation to the nations and
people residing on their borders ....” /d at 256. See also
The Nevada v. Quick, 106 U.S. 154, 158-59 (1883) (a
steamship “may freely exercise its powerful propeller and
sport its leviathan proportions on the ocean or in deep and
open waters”). In short, the phrase “open water” abounds
in maritime and admiralty cases, and it has consistently
referred to navigable-in-fact water.

C. Likewise, Federal Agencies Understand “Open
Water” to Mean Navigable-In-Fact Water.

Numerous federal regulations use the phrase “open
water” similarly. For example, Federal Aviation
Administration regulations require minimum safe altitudes
for aircraft of 500 feet above the surface, “except over open

'° See The Macomb Daily, Boat Jam, (June 13, 2003), available
at A 7 ily/article.asp?ID=8 9
(reporting that several rivers including Black Creek experienced
boat jams in warm weather so that public ramps had to be
temporarily closed).

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water or sparsely populated areas.” 14 C.F.R. § 91.119.
Similar restrictions apply for persons test flying aircraft
“except over open water.” 14 C.F.R. § 91.305. National
Oceanic and Atmospheric Administration regulations, in 15
C.F.R. Pt. 921, App. II, define volcanic estuaries as “coastal
bodies of open water ....” At 40 C.F.R. § 125.83, EPA
defines a “[l]jake or reservoir [to] mean[ } any inland body
of open water with some minimum surface area free of
rooted vegetation ....”. The Department of Interior, in 43
C.F.R. Pt. 11, App. II, defines “landward open water” as “a
body of water that does not contain vegetation, (e.g.,
wetland, seagrass, or kelp).” And regulations of the
Department of Transportation state that facilities at which
flammable solids are loaded or unloaded “must be located
so that each vessel ... has an unrestricted passage to open
water.” 49 C.F.R. § 176.415(c)(4).

In opposing the petitions for writs of certiorari, the
Corps contended that the term “open water” is “a shorthand
for ‘rivers, streams, and other hydrographic features more
conventionally identifiable as “waters.’” Resp’t Cert. Br. in
Opp’n at 11, Carabell v. United States Army Corps of
Engrs, No. 04-1384 (U.S. 2005); Resp’t Cert. Br. in Opp’n
at 14, Rapanos v. United States, No. 04-1034 (U.S. 2005).
That position is emphatically belied by the overwhelming
judicial and regulatory precedent, spanning decades,
equating “open water” with navigable-in-fact water. No
one coming upon the MS4 or ditches at the Carabell or
Rapanos sites would think they had reached “open water.”
This Court’s decisions simply do not sweep into CWA
jurisdiction wetlands adjacent to ditches, drains, and MS4s.

Read in tandem, Riverside Bayview and SWANCC
provide legal guideposts at opposite ends of the CWA
jurisdictional spectrum. As a matter of law, the Corps (1)

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has power over “open water” (i.e., navigable-in-fact) and
immediately abutting wetlands, but (2) Jacks power over
waters that are isolated from navigable-in-fact waters. The
ditches at issue in these cases are not “open waters,” so the
wetlands next to them are not within Corps authority as a
matter of law, and the Sixth Circuit should be reversed.

ii. TO SATISFY THE “SIGNIFICANT NEXUS”
PRINCIPLE, THE GOVERNMENT SHOULD
PRODUCE PROOF OF DOWNSTREAM
EFFECT ON NAVIGABLE-IN-FACT WATERS.

In Part 1, amicus maintained that any non-navigable
feature which is itself a “point source,” such as a ditch or an
MS4, is not a CWA “navigable water.” In Part II, amicus
explained that the CWA does not, as a matter of law, reach
wetlands adjacent to ditches, MS4s, and other features that
are not “open water.” We submit that the Court of Appeals
should be reversed on these points alone.

However, questions of CWA jurisdiction are by no
means limited to “point sources” or wetlands immediately
adjacent to “open water.” For example, whether the CWA
encompasses a non-navigable linear feature (like a remote
tributary, creek, or stream) is a lingering question. Part III
thus addresses the mode of analysis that should be
employed to determine whether CWA jurisdiction
encompasses non-navigable linear features in any given
case. As discussed below, SWANCC has provided the legal
Standard to help answer this question: there must be a
“significant nexus” to navigable-in-fact waters. This Part
will flesh-out what that standard means, and what facts the
Corps must adduce to satisfy that standard when it brings

17

an enforcement action against property owners regarding
remote tributaries and the like.''

“Navigability ... is not susceptible of definition or
determination by a precise formula which fits every type of
stream or body of water under all circumstances and at all
times.” 78 Am. Jur. 2d Waters § 124 (May 2005). “[E]ach
determination as to navigability must stand on its own
facts.” United States v. Appalachian Power Co., 311 U.S.
377, 403 (1940) (quoting United States v. Utah, 283 US.
64, 87 (1931)). The same should hold true when
determining the scope of CWA “navigable waters.”
Whether a particular tributary has a “significant nexus” to
navigable-in-fact waters must be determined by considering
all surrounding circumstances. Indeed, evidence of
persistent, downstream effects on navigable-in-fact waters
should be crucial to any “significant nexus” inquiry.

A. Historical Context

In England, virtually all navigable waterways are
susceptible to the ebb and flow of the tide, so at common
law ““‘tidewater’ and ‘navigability’ were synonymous.”
Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 478
(1988). Given the continental expanse of the United States,
a “different test” was needed on these shores because
“{s]ome of our rivers are as navigable for many hundreds of
miles above as they are below the limits of tide water ....”
The Daniel Ball, 77 U.S. 557, 563 (1870). Thus, the classic
test is that American waters are “navigable in law when
they are navigable in fact. And they are navigable in fact

'' The burden of proof is on the government when it asserts
navigability. See, e.g., Mundy v. United States, 22 Cl.Ct. 33, 34
(1990); United States v. 531.10 Acres in Anderson County, S.C.,
243 F. Supp. 981, 986 (D.S.C. 1965).

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when they are used, or susceptible of being used, in their
ordinary condition, as highways for commerce, over which
trade or travel are or may be conducted ....” /d. at 563.

As the Nation’s population grew, so burgeoned our need
for water. In the early 20" century, federal agencies
(primarily the Corps and the Bureau of Reclamation in the
Interior Department) commenced massive. public works
projects to harness rivers and streams for beneficial uses like
irrigation, power, and water supply. See generally Marc
Reisner, Cadillac Desert: The American West and its
Disappearing Water (rev. ed. 1993). The Daniel Ball test, as
it is limited to in-fact navigable waters, could not
accommodate the Nation’s unslakeable thirst. A more
flexible formulation—-not so strictly bound to the control of
navigation—became necessary. Thus, in time, the Court
recognized that federal power needed to encompass non-
navigable waters that may be made navigable-in-fact with
“reasonable improvements.” Appalachian Power, 311 U.S.
at 407-09 (1940). See also Econ. Light & Power Co. v.
United States, 256 U.S. 113, 118 (1921) (non-navigable
points on Des Plaines River “above the head of steamboat
navigation” regarded as navigable-in-law).

Accordingly, what is “navigable” has changed over time,
and congressional power may fairly encompass non-
navigable features. But this is the crucial point: this Court
has endorsed federal authority over non-navigable features
only as needed to service the constitutional power to regulate
navigation, which derives from the commerce authority.

The plenary federal power over commerce must be
able to develop properly with the needs of that
commerce which is the reason for its existence. /t
cannot properly be said that the federal power over

19

navigation is enlarged by the improvements to the
waterways. It is merely that improvements make -
applicable to certain waterways the existing power
over commerce.”

Appalachian Power, 3\1 U.S. at 409 (emphasis supplied).
The Court has thus upheld federal authority over non-
navigable features, but only as necessary to effectuate the
federal navigation power.

Indeed, federal authority over navigable-in-fact waters
is “plenary,” “as broad as the needs of commerce,” and may
be wielded for purposes other than navigation (like
irrigation and hydropower). Appalachian Power, 311 U.S.
at 426. Federal authority over non-navigable features is not
nearly so broad, and has been sustained only upon findings
and evidence that activities conducted in or upon such
features will actually and demonstrably impact downstream
navigable-in-fact waters. For example, in United States v.
Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899),
Congress had the power to prevent a state’s appropriation
of water, “even at a place above the limits of navigability,”
where such an appropriation “diminish{es}] the volume of
waters [flowing into] a navigable stream, to such an extent
as to destroy its navigability.” Id. at 709 (emphasis
supplied). The Court examined international treaties,
“affidavits and other evidence” to determine that the state’s
uses would “substantially interefere[] with the navigable
capacity” of the Rio Grande and could be enjoined by
federal statute. /d. at 708-09.

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313
U.S. 508 (1941), is similar. The Court upheld
congressional authority to control water flows over non-
navigable stretches of the Mississippi River to prevent

20

flooding in the River’s navigable-in-fact segments. /d. at
516-24. Extensive documentation through a legislative and
engineering record allowed the Court to find that the
activities in the upstream, non-navigable portion of the
River had a “tangible” effect on the downstream, navigable
portion. /d. at 524.

Accordingly, the Court has long taken a measured,
cautious approach when determining the reach of federal
power over non-navigable features. While flexibility is
necessary as the needs for commerce evolve, traditional
notions of navigability must always set the bounds on
federal authority. The above cases are thus premised on
regulating activities in non-navigable features only where
they cause “substantial interference” with, and “tangible
impact” on, downstream navigable-in-fact waters.

B. “Significant Nexus”

The rulings in Riverside Bayview and SWANCC fit
comfortably within this historical context. In Riverside
Bayview, the Court upheld federal CWA jurisdiction over
non-navigable wetlands that “actually abut[ted] on a
navigable waterway,” Black Creek (474 U.S. at 135); the
wetlands and the Creek were “inseparably bound up” with
each other. /d. at 134. Given their physical inseparability,
any discharge of pollutants into the non-navigable wetlands
would have a direct impact on the immediately adjacent,
navigable-in-fact Creek. SWANCC stressed that the
Riverside Bayview holding “was based in large measure on
Congress’ unequivocal acquiescence to, and approval of,
the Corps’ regulations interpreting the CWA to cover
wetlands adjacent to navigable waters.” SWANCC, 531
U.S. at 167. Accordingly, finding no_ inseparable
relationship between non-navigable ponds isolated from

21

navigable-in-fact waters, the Corps’s claim of jurisdiction
over the isolated ponds “exceed[ed] the authority ... under
Section 404(a) of the CWA.” Jd. at 174.

In reinforcing the need for an “inseparable” relationship
between non-navigable features and navigable waters, the
SWANCC Court stated: “It was the significant nexus
between the wetlands and ‘navigable waters’ that informed
our reading of the CWA in Riverside Bayview Homes.”
531 U.S. at 167 (emphasis supplied). The “significant
nexus” standard artfully captures the need to both maintain
and keep flexible the traditional notions of navigability. To
achieve the vital goal of cleaning-up our Nation’s waters,
Congress afforded “limited import” to the term “navigable”
as used in the CWA, so as “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. Meanwhile, that “classical understanding” provides
the very constitutional basis for congressional action:

The term “navigable” has at least the import of
showing us what Congress had in mind as its
authority for enacting the CWA: its traditional
jurisdiction over waters that were or had been
navigable in fact, or which could reasonably be so
made.

SWANCC, 531 U.S. at 172 (citing Appalachian Power, 311
U.S. at 407-08). “Significant nexus” grounds the Act’s
scope to navigable-in-fact waters, while affording “limited
import” to traditional jurisdiction by allowing federal
authority to sometimes reach non-navigable features.

22

C. Hydrologic Connection Alone does not Satisfy
the “Significant Nexus” Standard.

The cases at bench upset this careful balance. The
Court of Appeals, by endorsing the Corps’s hydrologic
connection theory of jurisdiction, tipped all of the weight
toward the “limited import” side at the expense of the
“traditional jurisdiction” side. Carabell found CWA
jurisdiction over wetlands adjacent to “a nonnavigable ditch
abutting their property, a ditch that flows one way or
another into other tributaries of navigable waters ....” 391
F.3d at 710 (emphasis supplied). In Rapanos, the Court of
Appeals deemed “adjacent waters” (not simply wetlands)
jurisdictional by concluding that a “significant nexus ... can
be satisfied by the presence of a hydrological connection.”
376 F.3d at 639. See also United States v. Rapanos, 339
F.3d 447 (6" Cir. 2003), cert. denied, 541 U.S. 972 (2004)
(criminal phase; “ample nexus” is sufficient). Both cases
rely heavily on the Fourth Circuit’s decision in United
States v. Deaton, 332 F.3d 698 (4" Cir. 2003), cert. denied,
541 U.S. 972 (2004), which endorsed CWA jurisdiction
where there is simply “a nexus” to navigable-in-fact waters,
and construed SWANCC as “suggesting that. covered
nonnavigable waters are those with ‘some connection’ to
navigable ones.” Jd. at 709 (emphasis supplied). Deaton is
universally cited for the proposition that “jurisdiction
extends over any branch of a tributary system that
eventually flows into a navigable body of water.” /d. at 711
(emphasis supplied).

The purposeful choice of words selected by these
Courts of Appeals disserves this Court’s “significant
nexus” requirement. Riverside Bayview and SWANCC
never “suggested” that federal CWA authority depended on
an “eventual flow” of water “one way or another,” or that

23

“a” nexus or “some” connection is all that is needed to
trigger the Corps’s power. Rather, this Court announced
that the standard is a “significant nexus.”

Amicus respectfully urges the Court to reject the
hydrologic connection theory as a stand-in or substitute for
“significant nexus,” because the Corps’s approach supports
CWA jurisdiction—as a matter of law—based on nothing
more than the presence of a route along which water
molecules may possibly migrate. For example, Carabell
upheld a grant of summary judgment in the Corps’s favor
(391 F.3d at 707), based on a record that simply traced a
course between wetlands next to “an unnamed ditch,”
which connected to a drain, then to a creek, and eventually
to the Great Lakes. /d. at 708. Rapanos upheld a criminal
_ conviction solely based on testimony of a state official who
“followed the flow of water” and discerned “a surface
connection between the Salzburg site and the Saginaw
Bay.” Rapanos, 376 F.3d at 642. Likewise, Deaton
granted motions for summary judgment, and to reconsider
CWA jurisdiction, in favor of the Corps. Deaton, 332 F.3d
at 703. The Fourth Circuit found CWA jurisdiction merely
due to a “winding thirty-two mile path” between a roadside
ditch and the Chesapeake Bay (id. at 702), through which
drops of water “eventually flow” (id. at 711) and “ha[ve]
the potential” to carry pollutants downstream. /d. at 707.
The most extreme example of the hydrologic connection
theory that amicus has located is United States v. Buday,
138 F. Supp. 2d 1282 (D. Mont. 2001). It stretched the
CWA to reach a non-navigable creek, solely due to a 190-
mile linear connection to the closest navigable-in-fact
water. /d. at 1283.

The federal government has won these cases by playing
a game of six degrees of separation (one way or another).

24

To justify CWA jurisdiction, the Corps deems unnecessary
facts like the amount, direction, duration, and frequency of
water flow. But such facts regarding the extent of
hydrologic exchange (not simply distance) between non-
navigable and navigable resources should be critical to the

“significant nexus” calculus. Put another way, a hydrologic
connection is a prerequisite to prove a nexus, but that alone
does not prove the nexus is significant.'”

D. Effect on Navigable-in-Fact Waters Must be
Imported into a “Significant Nexus” Analysis.

The hydrologic connection theory is a conspicuous
detour from the path charted by this Court, dating back to
The Daniel Ball and up through SWANCC, because it is not
moored to any showing that upstream activity in a non-
navigable area causes an actual, downstream impact on
navigable-in-fact water. The Fifth Circuit’s decision in
Rice v. Harken Exploration Co., 250 F.3d 264 (S" Cir.
2001), is instructive. The Rice court rejected claims of
CWA jurisdiction over intermittent streams, even though
some connection to navigable waters existed:

There is no detailed or comprehensive description
of any of these seasonal creeks available in the
record. There is also very little evidence of the
nature of Big Creek itself .... There is no detailed
information about how often the creek runs, about
how much water flows through it when it runs, or
about whether the creek ever flows directly (above
ground) into the Canadian River. /n short, there is

'? The common meaning of “significant” is “{hJaving or likely to
have a major effect; important.” The American Heritage®
Dictionary of the English Language (4th ed. 2000).

25

/

nothing in the record that could convince a
reasonable trier of fact that either Big Creek or any
of the unnamed other intermittent creeks on the
ranch are sufficiently linked to an open body of
navigable water. ...

Id. at 270-71 (emphasis supplied).

A district court decision regarding the New Jersey
Meadowlands is also on point. In FD&P Enters., Inc. v.
U.S. Army Corps of Eng'rs, 239 F. Supp. 2d 509 (D.N_J.
2003), the court couched the question as “whether there is
a substantial nexus—beyond a mere hydrologic
connection—between the [property] and the navigable
waters of the Hackensack River.” /d at 516-17. The
FD&P court decided it could not grant summary judgment
in favor of the Corps because, following SWANCC,
“hydrological connection’ is ... [not] the relevant standard
....” Id. at 517. Summary judgment was also not granted
for the property owner, because “the evidence submitted
by the parties does not permit this court to conclude that no
genuine issue of material fact exists as to the effect of the
filling of the wetlands on the Hackensack River.” /d.

(emphasis supplied).

Thus, the government should not win a motion for

summary judgment (or some other dispositive motion on
the law), where material facts are disputed or lacking
regarding the »mpact on downstream navigable-in-fact
waters. Whether a non-navigable feature is subject to
CWA jurisdiction under the “significant nexus” standard
must be based on solid proof showing an on-going impact
or effect on downstream navigable waters. Considering
impact is fully consistent with seminal cases like
Appalachian Power and Rio Grande Dam, which have

26

allowed the extension of federal authority over non-
navigable features based on evidence of a persistent,
deleterious downstream effect. See supra at 18-20.

E. Requiring Proof of Effect is Consonant with the
CWA’s Objective to Prevent Actual Discharges of
Pollutants.

Requiring the Corps to show downstream impact on
navigable-in-fact waters makes all the more sense in the
modern context, given the CWA’s overriding regulatory
objective to prohibit the unpermitted discharge of
pollutants. Supra at 2. The federal government has no
CWA authority to require a permit for activities that may
only result in a potential discharge of pollutants.

In the absence of an actual addition of any
pollutant to navigable waters from any point, there
is NO point source discharge, no statutory violation,
... and no statutory obligation of point sources to
seek or obtain [a CWA] permit in the first instance.

Waterkeeper Alliance, Inc., v. U.S. Envtl. Prot. Agency,
399 F.3d 486, 505 (2d Cir. 2005) (emphasis supplied).

Enforcement actions brought by the Corps are typically
based on alleged discharges of common dirt—the pollutant
at issue—without a permit. Thus, at the very least, the
government should be required to produce evidence
showing that the upstream activities it seeks to regulate
cause dirt to migrate off-site and enter the hydrologic flow.
How can there be an actual discharge of sediment, if
sediment never leaves a construction site and is not
transported downstream? But there is no such evidentiary

showing in Carabell, Rapanos, or other hydrologic

27

connection cases, because they are not premised on an
actual discharge of pollutants, but rather on the assumption
that a pollutant “has the potential to move downstream and
degrade the quality of the navigable waters themselves.”
Deaton, 332 F.3d at 707 (emphasis supplied). In short, if
the Corps’s “hydrologic connection” theory is the
standard, all it needs to prove is that a ditch connects to a
creek, which connects to a stream. which connects to a
river, which is all part of a tributary system, that
contributes downstream flow.

Yet Congress did not prohibit the potential addition of
water to “navigable water,” but the actual addition of
pollutants to “navigable water.” Polluting activities in non-
navigable features that result in an actual discharge must be
regulated. However, that outcome can be obtained without
deeming a common drainage ditch and every inch of its
downstream path a CWA “navigable water.”

To this end, several reported decisions, where there is
clear evidence of an actual discharge of pollutants,
needlessly go too far in alchemizing certain non-navigable
features into statutory “navigable waters.” In Headwaters,
Inc. v. Talent Irrigation Dist., 243 F.3d 526, 528 (9" Cir.
2001), toxic herbicides were discharged through irrigation
canals into Bear Creek, where “[o]ver 92,000 juvenile
steelhead were killed.” In light of that proof of
environmental harm from an actual discharge of pollutants
through point sources, it was entirely unnecessary for the
court to rule that the canals (that is, “point sources”) were
“tributaries” encompassed by the CWA. /d. at 533.
Likewise, in United States v. Eidson, 108 F.3d 1336, 1340,
1342 (11" Cir. 1997), the appellant was caught pumping a
“sludge substance” from a truck, through a hose, which
flowed into a storm sewer. (The truck, the hose, and the

28

sewer system were all point sources.) The flow then left
the sewer and entered a tidal drainage canal that directly
emptied into Tampa Bay. /d. at 1342-43. Under those facts,
it was not necessary for the court to declare the sewer
system a CWA jurisdictional “tributary of Tampa Bay” to
affirm the criminal convictions. /d.

These cases warrant comparison to Jn re Needham, 354
F.3d 340 (5" Cir. 2003), where federal regulatory
jurisdiction was upheld based on the parties’ factual
stipulation that “residue from the spill was found 10-12
miles from the oil well, i.e., in Bayou Folse,” an undisputed
traditionally navigable water. /d. at 346. In affirming
federal regulatory authority, the Fifth Circuit nonetheless
declared the hydrologic connection theory § as
“unsustainable under SWANCC,” and refused to extend
federal power “over puddles, sewers, roadside ditches, and
the like.” /d. at 345. Needham perfectly shows that a
polluting activity can be regulated under the CWA without
federalizing the place—as long as there is an actual,
discernible discharge of pollutants through a point source
and into downstream, navigable-in-fact waters.

F. The “Significant Nexus” Standard is Analogous
to a Proximate Cause Requirement.

Whether a non-navigable feature has a “significant
nexus” to a navigable water is another “difficult question{]
of proximity and degree” for this Court. Babbitt v. Sweet
Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687,
708 (1995). Federal environmental regulations are
commonly premised on a _ threshold showing of
“significant” effects. In Sweet Home, for example, the
Court upheld a U.S. Fish and Wildlife Service regulation
under the Endangered Species Act, which defined “harm”

29

to species as including “significant habitat modification.”
50 C.F.R. § 17.3. The majority observed that “every term
in the regulation’s definition of ‘harm’ is subservient to the
phrase ‘an act which actually kills or injures wildlife.” /d.
at 700 (emphasis supplied). Justice O’Connor’s
~ concurrence upheld the regulation because it “is limited to
significant habitat modification that causes actual, as
opposed to hypothetical or speculative, death or injury to
identifiable protected animals.” /d. at 708-09. She further
noted that the activity in question mu~t be the proximate
and foreseeable cause of the species’ actual injury. /d. at
709. Proximate cause “is about the legal significance of
causation, rather than the existence of causation.” Dan B.
Dobbs, The Law of Torts § 167, 409 (2000) (original
emphasis). “These questions must be addressed in the
usual course ... through case-by-case resolution and
adjudication ...” Sweet Home, 515 U.S. at 713.

Similarly, the National Environmental Policy Act
(NEPA) requires the preparation of an environmental
impact statement for major federal actions “significantly
affecting” the quality of the human environment. 42 U.S.C.
§ 4332(2)(C). Regulations state that “‘[s]ignificantly’ as
used in NEPA requires consideration of both context and
intensity,” with “intensity” bearing on “the severity of the
impact” and including evaluation of “(t]he degree to which
the proposed action affects public health or safety.” 40
C.F.R. § 1508.27(b). Thus, “NEPA requires ‘a reasonably
close causal relationship’ between the environmental effect
and the alleged cause[,]” an approach analogous “to the
‘familiar doctrine of proximate cause from tort law.’”
Dep't of Transp. v. Public Citizen, 541 U.S. 752, 767
(2004) (citing Metro. Edison Co. v. People Against Nuclear
Energy, 460 U.S. 766, 774 (1983)).

30

Perhaps SWANCC’s “significant nexus” standard is best
designed to ensure that upstream activity in a non-navigable
feature proximately causes concrete, actual harm to
navigable-in-fact waters further downstream. See Rice, 250
F.3d at 272 (requiring a “close, direct, and proximate link
between ... [the] discharges of oil and any resulting actual,
identifiable oil contamination”). The “hydrologic
connection” theory, however, with its premise on potential
impacts and eventual flows, is nothing more than a variant
of “but for” causation. Such a loose causal relationship
should not be the standard by which the federal government
can assert its awesome regulatory power under the CWA.
The Corps should be required to prove more than a “but
for” connection when it brings CWA enforcement actions
against private land owners.

CONCLUSION

The judgments of the Court of Appeals should be
reversed.

DATED: December 2, 2005

Respectfully submitted,
Duane J. Desiderio
(Counsel of Record)
Thomas J. Ward
Felicia K. Watson
THE NATIONAL ASSOCIATION
OF HOME BUILDERS

Attorneys for Amicus Curiae

TABLE OF APPENDICES*

A. List of Cases in Which NAHB has Appeared as an
Amicus Curiae Before This Court......................:.00+ la

B. Excerpts from National Pollutant Discharge
Elimination System (NPDES) Permit, Issued by
State of Michigan Department of Environmental
Quality, to Macomb County Public Works Office,
Regarding Macomb County MS4 (Dec. 17, 2003)... Ib

C. Excerpts from Memorandum from Ann R. Klee,
General Counsel, and Benjamin H. Grumbles,
Assistant Administrator for Water, U.S.
Environmental Protection Agency, to Regional
Administrators, Regarding Agency Interpretation
on Applicability of Section 402 of the Clean Water
Act to Water Transfers (Aug. 5, 2005) ..............0...... Ic

*Under Rule 32.3, Amicus will lodge complete copies
of the documents in Appendices B and C at the Court’s
request.

la

Cases in which the National Association of Home Builders
has appeared before the U.S. Supreme Court as an amicus
curiae:

Agins v. City of Tiburon, 447 U.S. 255 (1980); San Diego
Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (1981);
Williamson County Reg'l Planning Comm'n v. Hamilton
Bank of Johnson City, 473 U.S. 172 (1985); MacDonald,
Sommer & Frates v. Yolo County, 477 U.S. 340 (1986);
First English Evangelical Lutheran Church of Glendale v.
Los Angeles County, 482 U.S. 304 (1987); Nollan v. Calif.
Coastal Comm'n, 483 U.S. 825 (1987); Yee v. City of
Escondido, 503 U.S. 519 (1992); Lucas v. S.C. Coastal
Council, 505 U.S. 1003 (1992); Dolan v. City of Tigard,
512 U.S. 374 (1994); Babbitt v. Sweet Home Chapter of
Cmtys. for a Great Or., 515 U.S. 687 (1995); Suitum v.
Tahoe Reg'l Planning Agency, 520 U.S. 725 (1997); City of
Monterey v. Del Monte Dunes at Monterey, Ltd., 526 US.
687 (1999); Solid Waste Agency oy N. Cook County v. U.S.
Army Corps of Eng’rs, 531 U.S. 159 (2001); Palazzolo v.
Rhode Island, 533 U.S. 606 (2001); Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S.
302 (2002); Borden Ranch P'ship v. U.S. Army Corps of
Eng'rs, 537 U.S. 99 (2002); City of Cuyahoga Falls v.
Buckeye Cmty. Hope Found., 538 U.S. 188 (2003); S. Fila.
Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541
U.S. 95 (2004); San Remo Hotel, L.P. v. City & County of
San Francisco, 125 §S. Ct. 2491 (2005); Lingle v. Chevron
U.S.A., Inc., 125 S. Ct. 2074 (2005); and Kelo v. City of
New London, 125 S. Ct. 2655 (2005).

lb

STATE OF MICHIGAN D es; LZ.

DEPARTMENT OF ENVIRONMENTAL QUALITY

LANSING
JENNIFER M. GRANHOLM STEVEN E. CHESTER

GOVERNOR DIRECTOR

December 17, 2003

Ms. Lynn Yustick

Macomb County Public Works Office
115 South Groesbeck Highway
Mount Clemens, Michigan 48043

Dear Ms. Yustick:

SUBJECT: National Pollutant Discharge Elimination
System (NPDES)
Certificate of Coverage No. MIG610052
Designated Name: Macomb Co MS4

Your certificate of coverage under NPDES General Permit
No. MIG619000 has been processed tn accordance with
appropriate State and Federal regulations.

Please carefully review the requirements contained in
Certificate of Coverage No. MIG610052, which is
enclosed, and General Permit No. MIG619000. If you do
not have a copy of the General Permit, one can be obtained
via the Internet at: (http://www.michigan.gov/deg - on the
left side of the screen click on Water, Surface Water, and
NPDES Permits; then click on "General NPDES Permits"
which is under the Permits banner), or you may call the
following number to request a paper copy: (517) 373-8088.
These requirements are subject to the criminal and civil
enforcement provisions of both State and Federal law.

-_ —_—__—_—- —

CONSTITUTION HALL 525 WEST ALLEGAN STREET P O. BOX 30273 LANSING, MICHIGAN 48909-7773
www.michigan.gov - (517) 241-1300

2b

Permit compliance and violations are audited by the
Department of Environmental Quality (DEQ) and the
United States Environmental Protection Agency.

You must comply with the requirements and other
responsibilities in accordance with General Permit No.
MIGG619000 and Certificate of Coverage No. MIG610052.
A guidance document is enclosed to help you develop your
Public Participation Process, which shall be submitted by
the date specified in your certificate of coverage. Any
reports, notifications, or questions regarding the NPDES
program, the enclosed certificate of coverage, or the general
permit-should be directed to the DEQ office indicated on
your certificate of coverage.

Sincerely,

Chas Ma

Christe Alwin

Lakes Erie and Huron Permits
- Unit

Surface Water Permits Section

Water Division
517-241-7414

CA/sea

Enclosures: Certificate of Coverage No. MIG610052
Public Participation Process Guidance Document

cc: Mr. Phil Argiroff, Southeast Michigan District Office, Water
Division, DEQ (with COC)
PCS Unit, Water Division (with COC)
File

CONSTITUTION HALL 525 WEST ALLEGAN STREET P.O BOX 30273 LANSING, MICHIGAN 48909-7773
www.michigan.gov - (517) 241-1300

3b

MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY

DEQ WATER DIVISION
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)
Authorized by Michigan Act 45/1, Public Acts of 1994, as amended, Part 3!

CERTIFICATE OF COV

Under General Permit No. MIG619000
MS4 Watershed General Permit

CERTIFICATE OF COVERAGE NO.: MIG610052
DESIGNATED NAME: Macomb Co MS4

PERMITTEE MAILING ADDRESS: Macomb County
115 South Groesbeck Highway Mount Clemens, Michigan
48043

This certificate of coverage authorizes Macomb County to
discharge storm water through a separate storm water
drainage system to waters of the state, including but not
limited to the Clinton River, Lake St. Clair, Stony Creek,
and the drains listed in Table | (attached). This
authorization also includes nested jurisdictions for which
the permittee has accepted responsibility. The applicable
watersheds for this certificate of coverage and general
permit are the Anchor Bay, Lake St. Clair Direct Drainage,
Paint/Stony Creek, Red Run, Clinton River East and North
Branch Clinton River.

' The permittee shall submit an Illicit Discharge Elimination
Plan and Public Education Plan, or updates to existing plans
to comply with current permit requirements on or before
November |, 2004. The permittee shall begin
implementation of its Illicit Discharge Elimination Plan and
its Public Education Plan upon receiving approval from the
Department or beginning 90 days after submittal,
whichever comes first.

4b

The general permit allows the permittee to implement one
Storm Water Pollution Prevention Initiative for their
jurisdiction. After the permittee develops and submits a
Storm Water Pollution Prevention Initiative, all other
Initiative submissions shall be developed as revisions to the
existing Initiative. This Initiative shall be consistent with all
of the permittee's authorizations as described below.

zk*xz*

For the Lake St. Clair Direct Drainage watershed, the
permittee, in conjunction with other permittees in the
watershed, shall submit a joint Public Participation Process
(Part I.B.1. of the permit) by May 1, 2004 and a joint
Watershed Management Plan (Part 1.B.1. of the permit) by
November |, 2006. Based on development of the additional
watershed plan, the permittee shall submit a revised Storm
Water Pollution Prevention Initiative (or written
determination not to revise the Initiative) (Part I.B.2.b. of
the permit) by May 1, 2007. The permittee shall also submit
a joint revised Watershed Management Plan (or written
determination not to revise the Plan) (Part 1.B.1. of the
permit) by November 1, 2008 and any additional revisions
to the Storm Water Pollution Prevention Initiative (or
written determination not to revise the Initiative) (Part
1.B.2.b. of the permit) by May 1, 2009.

zk

The permittee shall submit an annual progress report by
November Ist of each year beginning on or before
November 1, 2004.

References in the general permit to the Department shall be
defined as the Southeast Michigan District Supervisor of

Sb

the Water Division. The Southeast Michigan District Office
is located at 38980 Seven Mile Road, Livonia, Michigan
48152-1006, telephone: 734-953-8905, fax: 734-953-1467.

xk

This certificate of coverage is based on a complete
application received by the Department of Environmental
Quality on May 29, 2003. The permittee is subject to all
conditions specified in General Permit No. MIG619000
issued December 5, 2002, expiring April |, 2008. This
certificate of coverage may be modified, terminated,
reissued, or revoked as allowed for in General Permit No.
MIG619000. On the effective date of this certificate of
coverage, this certificate of coverage shall supersede
Certificate of Coverage No. MIG610052, issued August 6,
2001, which is hereby revoked on the effective date of this
certificate of coverage.

This certificate of coverage takes effect on the date of

on = wie

December 16, 2003 Bryce Feighner, Chief
Date Issued Lakes Erie and Huron Permits
Unit

Surface Water Permits Section
EQP 4677 (9/03) Water Division

6b

Table 1. List of Drains under the jurisdiction of the MCPWO

"16 and One-Half Mile Drain’

*17 Mile Road Drain & Branches’
*18 Mile Drain’

"Ahrens Drain’

‘Alexander Relief Drain and Branches’
*Alwardt Drain’

"Andersen Drain’

*Anderson East Branch Drain’
"Apel Drain’

"Armada and Ray Drain’

"Arndt Drain’

*Asbery Park Drain’

*Savan Drain’
*Savan Extension Drain’
*Schocke Retention’

*Sutherland-Oemig Drain’
"Yates Branch Drain’

"Yates Drain’
*Zander Drain’

Ic

UNITED STATES ENVIRONMENT AL PROTECTION AGENCY
Washington, D.C. 20460 AUG - 5S 2005

SUBJECT: Agency Interpretation on Applicability o1
Section 402 of the Clean Water Act to Water
Transfers

FROM: AnnR. Klee
General Counsel

Benjamin H. Grumbles
Assistant Administrator for Water

TO: Regional Administrators

This Agency interpretation addresses the question of
whether the National Pollutant Discharge Elimination
System (NPDES) permitting program under Section 402 of
the Clean Water Act (CWA) is applicable to water control
facilities that merely convey or connect navigable waters.
For purposes of this Agency interpretation, the term "water
transfer” refers to any activity that conveys or connects
navigable waters (as that term is defined in the CWA)
without subjecting the water to intervening industrial,
municipal, or commercial use. This interpretation focuses
exclusively on water transfers and is not relevant to whether
any other activity is subject to the CWA permitting
requirement. '

l Section VI, below, discusses activities that are beyond
the scope of, and not affected by, this Agency interpretation.

L_ Overview

The question of whether or not an NPDES permit is
required for water transfers has arisen because activities
that result in the movement of navigable waters, such as
trans-basin transfers of water to serve municipal,
agricultural, and commercial needs, can also serve to move
pollutants from one waterbody (donor water) to another
(receiving water). The Supreme Court recently addressed
this issue in South Fla. Water Mgmt. Dist., v. Miccosukee

Inibe of Indians, 541 U.S. 95 (2004), leaving the matter
unresolved.

2 In this case, the Supreme Court vacated a decision by the
11" Circuit, which had held that a Clean Water Act permit was
another, a Water Conservation Area in the Florida Everglades.
The Court remanded the case for further fact-finding as to -
whether the two waters in question were "meaningfully distinct.”
If they were not, no permit would be required. The Court
declined to address legal arguments made by the parties because
the arguments had not been raised in the lower court
proceedings. The Court noted that EPA had not spoken to these
legal issues in an administrative document. 541 U.S. at 107.

3c

se

VL Scope of this Agency Interpretation
This Agency interpretation addresses only water
transfers - that is, activities that convey or connect
navigable waters without subyecting the water to intervening
industrial, municipal or commercial use.'* It does not

address any other activities, or any jurisdictional terms
under the statute other than “addition.”'®

For example, this interpretation does not affect
EPA's longstanding position that, if water is withdrawn
from navigable waters for an intervening industnal,
municipal or commercial use, the reintroduction of the intake
water and associated pollutants is an “addition” subject to
NPDES permitting requirements. EPA has long imposed
NPDES requirements on entitics that withdraw process
water or cooling water and then return some or all of the
water through a point source. See, e.g.. 40 C.F.R. § 122.2
(definition of process wastewater); 40 C.F.R. §§ 125.80-
125.89 (regulation of cooling towers); 40 C.F.R. §
122.45(g) (regulations governing intake pollutants for
technology-based permitting); 40 C.F.R. Part 132,

18 We emphasize, for purposes of clarity, that a water
transfer occurs between two “waters of the United States.”
Accordingly, the movement of water through a dam is not a
water transfer because the dam merely conveys water from one
location to another within the same waterbody (although the
movement of water through a dam also does not require an
NPDES permit because no “addition” has occurred). Moreover, a
discharge from a waste treatment system, for example, which by
definition is not a water of the United States, to a water of the
United States, would not constitute a water transfer (and would
require an NPDES permit). See 40 C_F.R. § 122.2.

19 Thus, this interpretation does not address the meaning of
the terms, “point source,” “pollutant” or “navigable waters.”

4c

Appendix F, Procedure 5-D (containing regulations
governing water quality-based permitting for intake
pollutants in the Great Lakes). Conversely, waters that are
diverted and used for irrigation and then reintroduced to the
navigable waters are exempt from permitting requirements
under the exemption for return flows from irrigated
agriculture from the definition of "poini source” i section
502(14) and this Agency interpretation does not affect that
exemption.

s**t

VIL. Conclusion

For the reasons explained above, based on the CWA
as a whole, the Agency concludes that Congress intended to
leave the oversight of water transfers to authorities other
than the NPDES program. While resort to a case-specific
evaluation of waters is not necessary or appropriate in light
of Congressional intent, if such an evaluation were
determined to be needed, a permit would not be required for
waters that are not “meaningfully distinct” and that term
should be construed in light of the water quality goals of the
statute and Congressional intent to rely on non-NPDES
authorities for overseeing water management activities.
Finally, the Agency intends to initiate a rulemaking process
to address water transfers.

wep: ~ ae 4
r t<—-J

(") Coo 2 ~ 2005
Nos. 04-1 & 04-1384 ee ee

IN THE

Supreme Court of the Anited States

JOHN A. RAPANOS, ef al.,
Petitioners,
Vv.

UNITED STATES,
Respondents.

JUNE CARABELL, et al,
Petitioners,
Vv.

ARMY CORPS OF ENGINEERS, ef al.,
Respondents.

On Writs of Certiorari to the
United States Court of Appeals
for the Sixth Circuit

BRIEF FOR AMICUS CURIAE NATIONAL
ASSOCIATION OF WATERFRONT EMPLOYERS
IN SUPPORT OF PETITIONERS

FRANCIS EDWIN F ROELICH *
CHARLES T. CARROLL, JR.
CARROLL & FROELICH, PLLC
919 18th Street, NW
Suite 901
Washington, DC 20006

* Counsel of Record (202) 587-4850

Wison-Epes PRINTING Co., INC. = (202)789-0096 - WASHINGTON, D. C. 20001

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE..........:c0:c0000004
SUMMARY OF THE ARGUMENT................cccccceseeees
TER CD NEY ET DO SOTTO TON

Il.

TT.

THE TERM “NAVIGABLE WATERS” AND
PHRASE “WATERS OF THE UNITED
STATES” MUST BE INTERPRETED IN
LIGHT OF THE ADMIRALTY CLAUSE OF
Fs Oe BI irectinecccessipinestsiinepemeanies

ADMIRALTY CLAUSE BACKGROUND .....

A. What is or is not navigable waters
determines the boundaries of what falls
within the scope of admiralty/maritime
BI ciniiniitinssemeinicinasssinniatininliastebasaniingss

B. Federal power over the use of the
navigable waters of the United States is
IIIT sith artercciiesinrhinanesiiteaiaiiaiiabaiiaidianabsinins

C. Federal power over the use of the
navigable waters of the United States is
icine itinticccriaiitiniainiiitinitiattiianss

THE EXECUTIVE BRANCH IS WITHOUT
AUTHORITY TO INTERPRET A TERM
THAT THE COURTS HAVE ALREADY
ICE PIED contneccanecenssnntynasnehsagnemmsunbienieisins

A. No alternative executive branch inter-
pretation of a term is allowed when the
interpretation of the term is clear at the
I ic encseetttccinthitmecieninitnitaataiiteanas

(i)

12

14

il
TABLE OF CONTENTS—Continued

B. The Courts are the sole source of interpret-
ing what is and is not a navigable water........ 16

IV. THE FEDERAL COURTS AND CONGRESS
HAVE CONSISTENTLY USED THE
TERM “NAVIGABLE WATERS” AND
PHRASE “WATERS OF THE UNITED
STATES” IN THEIR) ADMIRALTY/
MARITIME CONTEXT ...........ccccccescsseesseeseseees 18

A. Congress repeatedly used the term “navi-
gable waters” and the phrase “navigable
waters” of the United States ....................0.. 22

V. FEDERAL RESPONDENT’S POSITION ....... 25
IU ccncnssuensitavpoesnenessciitenntsonesinesvciinteniicttiegiboncen 27

ill

TABLE OF AUTHORITIES
CASES Page
Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984)...... 15, 16
Crowell v. Benson, 285 U.S. 22 (1932) ....c.cccceeeese 7
East River S. S. Corp. v. Transamerica Delaval
Inc., 476 U.S. 858 (1986) .........cccscceseeesereneeseeees 8
Economy Light & Power Co. v. U.S., 256 U.S.
SE ictaeteictensiticliceccensceeeneieeccvecitameniitiion 20, 21
Executive Jet Aviation v. City of Cleveland, 409
CE CIEE sicccthtiiessonicsiassnentminsteieéscciitiivesiesaniniin 9
Foremost Ins. Co. v. Richardson, 457 U.S. 668
PEt cwinsccnstniedecinnsetiteneiaiienncnntiaitanitcdannciginitiodinensdatie 13
Gibbons v. Ogden, 22 U.S. } (1824) ......cccceeeeees 18
Gilman v. Philadelphia, 70 U.S. 713 (1866)......... 17
Jerome B. Grubart, Inc: v. Great Lakes Dredge
& Dock Co., 513 U.S. 527 (1995) ...cccecceeeees 3, 8,9
Kaiser Aetna v. United States, 44 U.S. 164
CR ctiseicictbthiesicnctlidconcsiniihsdanenisbeiannpicipinaianeseaiicllion 4
Knickerbocker Ice Co. v. Stewart, 253 U.S. 149
Ce inteiibeticttsiinsresiabbiceietentiiabcitinieinapislbaitinaied 2, 10, 12, 13
Madruga v. Superior Court of Cal., County of
San Diego, 346 U.S. $56 (1954)........:cccccceceeees 12
Marbury v. Madison, 5 U.S. 137 (1803) ............... 15
Presley v. Etowah-County Comm'n, 502 U.S. 491
(i cciicheichittpinciiaacianiicebeesiiintipimsiesitiinaionnitiiis 16
Red Cross Line v. Atlantic Fruit Co., 264 U.S.
DP icticedincsiniitinitinemnasebinntiqntbienntitnitisiniianiaun 12
Romero v. International Term Co., 358 U.S. 354
CO endciiedbcabesinctididliiscniglinbendsebiincanttinisborgainpdiie 7,11
Sisson v. Ruby, 497 U.S. 358 (1990) .........:ccceeeeees 13

Solid Waste Agency of Northern Cook County v.
United States Army Corps of Engineers, 531
OR ED acinstadlb hirdacinicnticpsitncntenvintiocnvniibants 25

ee hy
TABLE OF AUTHORITIES—Continued

Page
Southern Pacific Rail Co. v., Jensen, 244 U.S.

BID COE CR ivenssintiisscrsitntitcncintaemppolaintiibiitininsiaaliala 13
The Daniel Ball, 77 U.S. 557 (1870)...........:c0c000 passim
The Jefferson, 61 U.S. 393 (1857)......ccccccsseseeeees 8
The Lottawanna, 88 U.S. 558 (1874) ...........:ccc00 10

_ The Montello, 87 U.S. 430 (1874) ......cccceeceeees 3, 19, 20
The New Jersey Steam Navigation Company v.

The Merchants’ Bank of Boston, 47 U.S. 344

CRTs dinnithiciisnatoersingiencibcipipsinielipiabaiicininmndiieas 10
The Plymouth, 70 U.S. 20 (1866) ..........cccccecceeeeees 9
Thomas v. Lane, 23 F. Cas. 957 (No. 13,902)

GR, SRR Bip icsicccnsiicinsnsesnissintalanictioniiovinsiicinbsagiie 9
U.S. v. Appalachian Electric Power Co., 311

CA, DES LOUD secevepincsseneniaeiveninSibiadinniininiandniiil 21
United States v. Bass, 404 U.S. 336 (1971)...........
United States v. Locke, 529 U.S. 89 (2000)........... 8
Yamaha Motor Corp., U.S.A. v. Calhoun, 516 .

SRS WUPUT OU ennsccrpstctnisunacdicisssiinitbbibitoidibadinetadinamn 8

STATUTES

SE CEI. © ccievscisthiintinnitsendisessubtinisemietentinibabanidaaa 22
So ew OF denicccisiericncivtiinwcsinaninisticicaapninanatinatiinl 22
DO We lice Ce i iasisnintsinhistcieniensnticiigetientiinthaain 23
BP Silas SE eetncerkpiintgnsiiinonatimmnisivinbienmmciiaiiais 23
Fo Os Geis tices iniscciscsiinsniiiistnithiapivicanainiiediatil 23
SF PE irk Se il cennsnecrevssicintigiopesbiitiiinasdigamais 23
GB BA. GI BB vnceeccesccensivisesyesvensseesinnnteceitiinns 23
QB UGA. FEI S FO accstsctcetcsorsinincenicnnnensntonnntigiins .
ae ci nicenhcectecnsnincontenaniecaiiiiniceeiailinataies 23
BE FG iit saseciniencacnavinitsittaisiivaiisianbicagaea 24
GE UGC, GRURUIIEYD a ceeseciesniesicscictsnrcenitnsieeta 24
GAL, FD vccerwsiierintiscanstsiiiiiachbinstasininnniaiia 24

GRID BE iirc scenretcitctnctiniecicitas ioe 24

Vv
TABLE OF AUTHORITIES—Continued

Page
Administrative Procedures Act, 5 U.S.C. 551
OT sta ichasicasetcininsnnpetnmbesbanienbitinningees 14,17
Admiralty, maritime and prize cases, 28 U.S.C.
EA NO a 11,13
Carriage of Goods by the Sea Act, 46 U.S.C.
CNR Saat EEA ALS LER CT 2
Federal Water Pollution Control Act Amend-
ments of 1972, 33 U.S.C. 1251 ef seq. «0.20.00 passim
Longshore and Harbor Workers’ Compensation
Act, 33 U.S.C. 901 ef S€q. .....ccccccseceeeeeeeees 2, 13, 23, 26
The Judiciary Act of 1789: An Act to establish
the Judicial Courts of the United States, | Stat.
73, Section 9 (September 24, 1789) .................. 11
The Shipping Act of 1998, 46 U.S.C. App. 801 e
ii ccasialehasdiuleiadipenhitictbccniedipstninpercentsynscousencinocssane 2
OTHER AUTHORITIES

Black’s Law Dictionary (Eighth Edition, 2004)..... 6

Presidential Proclamation No. 5928 (December
ESET RE Ra ee oO 23

GT 12

CONSTITUTIONAL PROVISIONS

Article I, Section 8, Clause 3 (Commerce Clause) ... 3, 7, 13

Article 1, Section 8, Clause 9 ..............cccccccceseeeeeees 7
Article Ill, Section 2, Clause 1 (Admiralty
dit sictacitiaehsitciantchiteninddeneimnnnetgneoepietapetetente passim

IN THE

Supreme Court of the United States

Nos. 04-1034 & 04-1384

JOHN A. RAPANOS, ef ai.,
Petitioners,
v.

UNITED STATES,
Respondents.

JUNE CARABELL, ef al,
Petitioners,

Vv.

ARMY CORPS OF ENGINEERS, ef al.,
Respondents.

On Writs of Certiorari to the
United States Court of Appeals
for the Sixth Circuit

BRIEF FOR AMICUS CURIAE NATIONAL
ASSOCIATION OF WATERFRONT EMPLOYERS
IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE

The National Association of Waterfront Employers (NAWE)
is a not for profit, trade association organized under section
501(c)(6) of the tax code.’ NAWE represents the United

' Pursuant to S. Ct. Rule 37.6, counsel for amicus curiae state that they
authored this brief in its entirety and that no party, other than the amicus

2

States private sector marine terminal operators (MTOs) and
stevedores. NAWE member companies load and unload
vessels at the vast majority of the general cargo and container
terminals along the Great Lakes, East Coast, Gulf Coast,
West Coast, Alaska, Hawaii, territories and commonwealths
of the United States. The ports of the United States handle
approximately 15 percent of the United States gross domestic
product and NAWE member companies handle the majority
of this cargo. The national and world economies are depend-
ent on the efficient flow of maritime commerce through our
facilities.

NAWE member companies are heavily regulated by the
federal government through the admiralty/maritime juris-
diction of the federal government. The industry’s workers’
compensation is federal under the Longshore and Harbor
Workers’ Compensation Act, 33 U.S.C. 901 et seq. (LHWCA).
The industry’s contracts for leasing land are federal contracts
regulated by the Federal Maritime Commission (FMC) under
The Shipping Act of 1998, 46 U.S.C. App. 801 et seg. (The
Shipping Act). The industry’s customer contracts for loading
and unloading vessels are federal contracts regulated by the
FMC under The Shipping Act. The industry’s tort liability for
handling cargo is federal under the Carriage of Goods by the
Sea Act, 46 U.S.C. 1300. The same federal admiralty/
maritime jurisdiction that gives the federal government au-
thority to regulate every aspect of the MTO/stevedoring
industry also protects the industry from conflicting and
inconsistent state laws. Knickerbocker Ice Co. v. Stewart,
253 U.S. 149 (1920).

The industry has a long standing interest in maintaining
clear and consistent boundaries between federal admiralty/
maritime jurisdiction and state jurisdiction. Amicus submits

curiae, its members and its counsel have made a financial contribution to
the preparation and submission of this brief. Pursuant to Rule 37.2(a)
letters of consent have been filed with the Clerk.

3

this brief to assist the Court in understanding how an expan-
sive reading of the term “navigable waters” and phrase
“waters of the United States” could blur federal/state jurisdic-
tional lines leading to years of litigation in related areas of
federal law that have otherwise been settled for decades or
centuries.

SUMMARY OF THE ARGUMENT

The Clean Water Act (CWA) is a federal statute governing
the use of “navigable waters” that are part of the “waters of
the United States.” 33 U.S.C. 1362(7). The constitutional
authority for enacting the CWA comes from the Commerce
_ Clause, Article I, Section 8, Clause 3 and the Admiralty
Clause, Article III, Section 2, Clause 1. But once enacted, the
CWA became part of the admiralty/maritime laws of the
United States because it regulates the use of “navigable
waters” which are “waters of the United States.” Admiralty/
maritime law and jurisdiction go hand in glove together.
With one automatically comes the other. Jerome B. Grubart,
Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 545
(1995).

For almost 200 years, both the federal courts and Congress
have used the term “navigable waters” and the phrase “waters
of the United States” to define the boundaries of federal
admiralty/maritime jurisdiction. The test for what constitutes
“navigable waters of the United States” was outlined by this
Court in The Daniel Ball:

Those rivers must be regarded as public navigable rivers
in law which are navigable in fact. And they are naviga-
ble in fact when they are used, or are susceptible of
being used, in their ordinary condition, as highways for
commerce, over which trade and travel are or may be
conducted in the customary modes of trade and travel on
water.

The Daniel Ball, 77 U.S. 557, 563 (1870); see also The
Montello, 87 U.S. 430 (1874). This test applies whether the

4

term “navigable waters” or phrase “waters of the United
States” appears in statute or arises as part of a constitutional
question. The term and phrase have been used in scores of
federal statutes over the last 150 years. The legal test has
always been the same—The Daniel Ball test—that flows from
the Admiralty Clause of the Constitution.’

The answer to the question of whether a specific location is
part of the navigable waters of the United States can only be
YES or NO. A given location is either part of the navigable
waters of the United States or it is not.

The answer to this question is wholly independent of the
statute involved. The legal test for what constitutes navi-
gable waters of the United States is today what it has always
been—waters which are navigable in fact. The facts con-
cerning what constitutes navigable waters of the United States
may change over time as changes occur to waterways and
ports. But the legal test—the constitutional test—of what
constitutes “navigable waters” and “waters of the United
States” should never change. That test is ingrained in our
Constitution and not subject to amendment or modification by
agency regulation.

Furthermore any expansion of what constitutes “navigable
waters” or “waters of the United States” could have profound
implications. The use of the navigable waters of the United
States is under exclusive federal control. Land and those
waters that are not “navigable waters” are subject to state

? In dicta, this Court once indicated that the concept of what is “naviga-
ble waters” might vary from statute to statute. Kaiser Aetna v. United
States, 44 U.S. 164, 170-1 (1979). However, even the Kaiser Aetna
Court went on to find that the waters in question were “navigable waters”
because they were navigable in fact. The better reading of the case law is:
the substantive rules that apply to the “navigable waters of the United -
States” may vary from one statute to another, but the legal test of what
constitutes the “navigable waters of the United States” is a constitutional
test that cannot vary.

5

control. A holding that filling drainage ditches on Mr.
Rapanos’ land is placing fill into the navigable waters of the
United States could significantly alter the boundary between
federal and state jurisdiction. Such an overreaching of federal
power should be avoided. See United States v. Bass, 404 U.S.
336, 349 (1971) (“[U]nless Congress conveys its purpose
clearly, it will not be deemed to have significantly changed
the federal-state balance.”’)

While the ends of achieving clean water may be just, the
means employed by the executive branch of simply ignoring
the plain and unequivocal language of the CWA can never be
justified in a nation that is governed by the rule of law.

ARGUMENT

I. THE TERM “NAVIGABLE WATERS” AND
PHRASE “WATERS OF THE UNITED STATES”
MUST BE INTERPRETED IN LIGHT OF THE
ADMIRALTY CLAUSE OF THE CONSTITU-
TION.

Other briefs in this case will undoubtedly explain in great
depth that this case turns on the meaning of two words—
navigable waters—and one phrase—waters of the United
States—used in the Federal Water Pollution Control Act
Amendments of 1972, 33 U.S.C. 1251 et seq., (CWA). The
question presented in this case could easily have been “Does
the term ‘navigable waters’ in the CWA mean what it has
always meant in every other legal context or can the Army
Corps of Engineers give it a new and creative meaning never
before contemplated?”

Amicus submits that these two words—navigable waters—
were not simply words picked at random by Congress.
Instead, Congress carefully selected two words that have a
long and well established meaning under the Admiralty
Clause of the United States Constitution. Article III, Section

6

2, Clause 1 (“The judicial Power shall extend . . . —to all
Cases of admiralty and maritime Jurisdiction’) Admiralty
Clause).’ Amicus submits that the term “navigable waters” is
an admiralty/maritime law term with a meaning long ago
established by the courts and well known to Congress at the
time the term was used in the CWA.

Not only did Congress use the traditional admiralty/
maritime term “navigable waters,” Congress went on to
define the term “navigable waters” using traditional admiralty/
maritime law language: “The term ‘navigable waters’ means
the waters of the United States, including the territorial seas.”
33 U.S.C. 1362(7). As will be outlined in some detail below,
the definitional phrase “waters of the United States” further
ties the CWA to traditional admiralty/maritime law.

Because the term “navigable waters” and phrase “waters of
the United States” have a well established meaning—a mean-
ing that flows from the Constitution—that term and phrase
cannot be altered by agency regulation and must be given
their normal and well established meaning under federal law.

Il, ADMIRALTY CLAUSE BACKGROUND

When Congress enacted the CWA, Congress relied on
the federal police powers‘ to control the use of “navigable

* The Constitution uses the words admiralty and maritime without
defining them. Although these two terms aic closely related, the words
are not synonyms. In England, the word maritime referred to cases arising
upon the high seas, whereas admiralty meant primarily cases of a local
nature involving police regulations of shipping, harbors, fishing, and the
like. For purposes of this brief, amicus will refer to the “Admiralty Clause”
to mean Article Ill, Section 2, Clause | of the Constitution and admiralty/
maritime law and admiralty/maritime jurisdiction to refer to the body of
federal law and federal jurisdiction that flows from the Admiralty Clause.

* The term “police powers” is used in this brief to mean the authority to
place restraints on personal freedoms and property nghts for the protec-
tion of the public safety, health and morals or the promotion of the public

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A39. Public record. Not legal advice.