Amicus Curiae Brief — Rapanos v. United States

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The Cobb County-Marietta Water Authority

("CCMWA") is a political subdivision of the State of

Georgia. CCMWA is a regional water wholesaler that

supplies water to municipalities and counties serving more

than 780,000 people in the rapidly growing Metro-Atlanta

area. Included are all of Cobb County and its municipalities,

all of Paulding County, and portions of Douglas County,

Cherokee County and Fulton County.

The Wheeler Ridge-Maricopa Water Storage

District of California ("WRMWSD") is a_ political

subdivision of the state of California whose jurisdiction

encompasses approximately 147,000 acres of land in Kern

County, at the extreme southern end of the San Joaquin

Valley and south of Bakersfield. Most of the District's water

supply is obtained via the California Aqueduct from the State

Water Project. More than 20 different crops are grown

within the District.

SUMMARY OF ARGUMENT

1) The expansive jurisdictional approach urged by the

Government and adopted by the Sixth Circuit below runs

counter to this Court's clear guidance in Solid Waste Agency

yv. United States Army Corps of Engineers, 531 U.S. 159

(2001) that the CWA requires a showing of a "significant

nexus” to navigable waters in order to assert jurisdiction.

The lack of clear guidance and the inconsistent

interpretation y various Army Corps of Engineers districts

have created substantial confusion and uncertainty for the

public works community making it difficult to deliver

materials and to construct essential public works projects,

such as flood control, in a timely fashion.

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2) Contrary to the Sixth Circuit's ruling endorsing the

"migratory molecule" test, “significant nexus" must

constitute more that a mere tenuous hydrologic connection.

Amici submit there must be credible evidence of: (a) a direct,

discrete and defined surface hydrologic connection to a

navigable water; and (2) a demonstration that a discharge

into such a connected water has a substantial injurious

impact on the water quality of the navigable water, applying

the principles of proximate causation and forseeability set

forth by this Court in Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon, 515 U. S. 687 (1995).

3) The Sixth Circuit's broad interpretation of CWA

jurisdiction violates the fundamental principle of federalism

that, absent a "clear statement" from Congress, a reviewing

court should not sanction usurpation of State and local

control of land and water resources. Affirming the Sixth

Circuit's decisions would upset the delicate balance between

regulation under the CWA and regulation under water

pollution programs at the State and local level, which

typically are far broader than their federal counterparts.

ARGUMENT

F THE EXPANSIVE JURISDICTIONAL

APPROACH URGED BY THE GOVERNMENT

AND ALREADY ADOPTED IN SOME AREAS

OF THE COUNTRY BY THE ARMY CORPS

OF ENGINEERS HAS RESULTED IN

INCONSISTENCY AND CONFUSION AND

HAS DONE SIGNIFICANT HARM TO THE

PUBLIC PROJECTS COMMUNITY.

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A. The Lack Of Clear And Consistent Guidance

Over The Scope Of CWA Geographic

Jurisdiction Has Created Confusion In The

Regulated Community

Despite this Court's guidance in Solid Waste Agency

y. United States Army Corps of Engineers, 531 U.S. 159

(2001) ("SWANCC"), the U.S. Army Corps of Engineers

(“Corps”) has continued to assert CWA jurisdiction over wet

areas that have the most remote, if any, hydrologic

connection to navigable waters. The Corps's expansive and

often inconsistent interpretation of the CWA has been

enabled by a lack of clear guidance from the lower federal

courts, which have disagreed over the correct interpretation

of SWANCC. Complicating matters further, several regional

offices of the United States Environmental Protection

Agency’ ("EPA") and divisions of the Corps straddle two or

more Circuits that have arrived at opposing conclusions

regarding CWA jurisdiction in the wake of SWANCC. Asa

result, it is often incumbent upon individual regulators to

make sense of competing legal standards depending upon

where a particular project or parcel happens to lie.

? A 1979 Opinion of the Attorney General determined that

EPA has the ultimate authority for determining the extent of

CWA jurisdiction. See 43 Op. Att'y Gen. 15 (1979). The

Corps and EPA, however, entered into a memorandum of

agreement in 1989 that accords the Corps primary authority

to determine the scope of geographical jurisdiction under the

CWA. See Margaret N. Strand, Wetlands Deskbook, (2d ed.

1997) (Mem. of Agreement Between the Department of the

Army and the Environmental Protection Agency Concerning

the Determination of Geographic jurisdiction of the Section

404 Program and the Application of the Exemptions Under

Section 404(f) of the Clean Water Act (Jan. 19, 1989)).

In the confusion that has followed SWANCC, Amici

have found it difficult to predict when the Corps will assert

jurisdiction over isolated and ephemerally wet areas and

thereby force Amici into the time-consuming and expensive

permitting process. The reigning confusion over the proper

jurisdictional reach of the CWA in the wake of SWANCC

has had a chilling effect on public projects by allowing the

Corps and the EPA to interfere with carefully considered

decisions and investments of state and local governments

that are intended to meet vital public needs, including life

saving infrastructure.

For example, sand and gravel pits, settling ponds

related to sand and gravel operations, and ditches along rail

lines made from borrowing material to build the railway

berm have been claimed by the Corps as jurisdictional. In

other circumstances, the mere presence of a 100-year flood

plain has led to speculation about a potential hydrological

connection that is adjudged sufficient to declare a wetland as

jurisdictional. In other cases, wetlands have been claimed by

the Corp as "adjacent" due to the presence of man-made

conveyances. No mention of a determinable distance

between a wetland and navigable water has ever been

dictated to assert the difference between "adjacent" and

"isolated" wetlands. As a result, many aggregate mining

operations and road construction companies must participate

in the lengthy and complex Section 404 permitting process.

Moreover, stormwater management agencies

generally require access to wetlands and streams and other

areas that are seasonally wet due to collection of rainwater.

Depending on whether such areas are within federal

jurisdiction, these agencies may be required to obtain permits

from the Corps to conduct basic, but important, maintenance

functions such as cleaning debris basins and clearing

vegetation and other obstructions that choke flood control

channels. Such activities are critical to maintaining the

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maximum capacity and proper functioning of the flood

control systems during major flood events.

The current state of confusion amongst the regulated

community has been well documented in a February 2004

report issued by the United States General Accounting

Office ("GAO") that reviewed the problems in the Corps's

jurisdictional determination process in the wake of this

Court's decision in SWANCC. Among other findings, the

GAO noted that the Corps has been utilizing “vague”

language to make jurisdiction determinations and has been

forced to rely “on the key terms in the regulatory definitions

of waters of the United Sates which [have] not been well

defined." United States General Accounting Office, Waters

and Wetlands: Corps of Engineers Needs to Evaluate Its

District Office Practices in Determining Jurisdiction, GAO-

04-297 at 26. The result, the GAO found, has been

"confusion in the districts" and “differences in jurisdictional

determination practices among Corps districts...." Id.

The concerns voiced in the GAO's report have been

confirmed and amplified in a survey conducted by NSSGA

of its members seeking information about the state of the

CWA jurisdictional regulations as they are being applied in

the wake of SWANCC. The survey asked respundents to

describe the jurisdictional tests that Corps personnel were

using to evaluate wetlands, including separate questions

regarding the use by field personnel of groundwater, man-

made conveyances and the 100-year floodplain to establish

jurisdiction. The results of the survey reveal a gross

inconsistency of implementation that is at best unpredictable

and at worst, indecipherable.

The following are a few examples of survey

responses demonstrating the inconsistent approaches

currently being used by Corps field personnel:

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“The Corps has required fill permits for wetlands

adjacent to streams (a stream is anything that is a

blue line on a topo[ graphical] map).” (CA)

“{The Corps] chose to assert jurisdiction because of a

man-made ditch that drained the isolated wetland.

The ditch was dry but the Corps claimed a

groundwater connection.” (NY)

"In one permit where there was a hydrologic

connection with the wetland via a large drainage

ditch, they still claimed no permit required. ” (FL)

“(T]he Corps will make an assessment . . . to

determine if a specific intermittent stream has a

surface flow all the way to the tributary or interstate

water at least every other year.” (CO)

“At present, the mere presence of a 100-year flood

plain and the absence of two barriers to prevent

wetland waters from reaching the navigable waters

are sufficient criteria to name the wetland as

jurisdictional.” (SC)

“The Charleston District uses a combination of

distance from the navigable waters to the isolated

wetlands and any connection such as a ditch to assert

jurisdiction.” (SC)

“No distinction is made by the Corps between natural

and man-made conveyances in their assertion of

jurisdiction . . . There is no distance threshold

between an “isolated” wetland and a navigable

water.” (CO)

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e “Every swale and abandoned agricultural drainage

ditch was subjected to jurisdiction.” (VA)

e Sand and gravel pits, settling ponds related to sand

and gravel operations, and ditches along rail lines

made from borrowing material to build the railway

berm have been asserted by the Corps as

jurisdictional. (TX)

e The presence of a 100-year floodplain has been used

to assert jurisdiction on tributaries and isolated

wetlands. Ephemeral and intermittent waterways are

considered jurisdictional by the Corps if they can be

tied to a navigable waterway and exhibit an ordinary

high water mark ("OHWM") (TX).

The responses to the NSSGA survey leave the reader

with nothing but a tangible sense of confusion. A blue line

on a topographical map is jurisdictional; perhaps an OHWM

is required, or a groundwater connection, or a flow which

occurs every other year. A ditch may draw a jurisdictional

connection, or it may not. Nothing is covered. Everything is

covered. This is an unsustainable regulatory environment

under w 1ich to responsibly run a business.

It is vitally important that this Court reaffirm the

limited jurisdiction of the federal government under the

CWA and provide the Corps with clear jurisdictional criteria.

Such a ruling will go a long way toward providing Amici's

diverse membership with the certainty and predictability that

has long been lacking in wetlands permitting, and will ensure

that Amici can continue to provide their —_ important

services to the public at large.

While the Amici desperately need a certain and

consistent approach to the assertion of federal jurisdiction

under the CWA, it is equally important to the Amici that the

approach adopted by this Court is rooted in the CWA and

recognizes the limitations of federal jurisdiction over

wetlands and waters that are far removed from traditionally

navigable waterways.

Under the "migratory molecule” test espoused by the

Government and adopted by the Sixth Circuit in Rapanos

and Carabell, every isolated wetland with even the most

tenuous and fleeting of connections to a navigable water will

be subject to federal jurisdiction under the CWA if one

molecule of water from the wetland eventually reaches, or

could potentially reach, a navigable water. Such a test would

have a severe impact upon the Amici, as virtually every

project that occurs in wet terrain would be swept into the

CWA, with the resulting costs and delays of the Section 404

permitting process. Such expansion of the 404 permitting

process is not only burdensome, but contrary to the intent of

CWA.

Whether or not a 404 permit is required has a huge

impact on the expense and timeframe of public projects, as

Amici often face great costs and significant delays under the

404 program. A 1999 survey indicates that it takes an

average of 788 days to process an individual permit under

Section 404 at an average cost in excess of $270,000 per

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licati 3

This delay and expense is particularly troublesome in

the wake of the unprecedented damage wrought by the 2005

hurricane season. As a result of storms like Hurricane

Katrina, the demand for new public infrastructure is

immense. In Louisiana alone, more than $32.6 billion has

been requested to rebuild the state's transportation

infrastructure and hurricane defenses. See Testimony

provided to Committee of Transportation and Infrastructure:

Before Subcomm. on Highways, Transit, and Pipelines,

109th Cong. (2005) (statement of Johnny B. Bradberry,

Secretary of Louisiana Department of Transportation and

Development) at 2 (available online at

http://www.house.gov/transportation/highway/10-27-05/

bradberry.pdf) Clear criteria defining “substantial nexus"

will help ensure that these critical projects are not impeded

by the confusion and uncertainty that currently exists as to

what is and what is not a regulated water of the United States

under the CWA.

In addition to the broad national implications of this

overreach, the process of aggregate mining itself

demonstrates the “real world" consequences of the Sixth

Circuit's ruling. For example, NSSGA member Martin

Marietta Aggregates constructed a dam which created a

pond at its Appling Quarry, in Columbia County, Georgia for

sedimentation control, water supply and final treatment of

process water — necessary aspects of such mining.

Discharges from the pond into a nearby creek were permitted

under a CWA Section 402 NPDES permit issued by the State

_ Ss Bete |. Suntan ont Bots Sem, Te

. Natural Re +1 ary at — 9-10

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of Georgia and the Corps determined that the pond was not

subject to the jurisdiction of the Corps under section 404 of

the CWA. Despite the fact that the non-jurisdictional pond

cut off any surface flow from wetlands and waters upstream

of the pond to the downstream creek and that any discharges

from the pond itself complied with the NPDES permit and

‘ See

Engineers, CV 104-146 (S.D. Ga., April 13, 2005).

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ll. THE REQUISITE “SIGNIFICANT NEXUS"

BETWEEN A NON-NAVIGABLE WETLAND

AND A NAVIGABLE-IN-FACT WATER CAN

ONLY BE ESTABLISHED BY PROOF OF A

SIGNIFICANT HYDROLOGICAL

CONNECTION AND EVIDENCE THAT

POLLUTANTS DISCHARGED INTO THE

WETLAND WOULD BE HARMFUL TO THE

CHEMICAL, PHYSICAL, OR BIOLOGICAL

INTEGRITY OF THE NAVIGABLE WATER

Prior decisions of this Court make clear that unless a

wetland or water is directly adjacent to a navigable water,

there must be a “significant nexus” between the isolated

wetland and a water that is navigable-in-fact. The lower

courts (and the Corps for that matter), however, have

struggled to determine what constitutes the necessary

"significant nexus." This difficulty has had a profound effect

on Amici and the public they serve through inconsistent and

confusing jurisdictional determinations.

This Court's opinion in United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121 (1985), cannot justify

the overbroad assertion of jurisdiction by the Sixth Circuit

and other lower courts. There, the Court found CWA

jurisdiction only over non-navigable adjacent wetlands that

actually abutted a navigable waterway. The Court reasoned

that the fact that such wetlands were "inseparably bound up"

with the navigable water provide’ an adequate “legal

judgment” that they too were jurisdictional. 474 U.S. at 134.

This judgment was based on evidence that the adjacent

wetlands have significant effects on water quality and the

aquatic ecosystem of the adjacent waterways. Id. at 135.

The Court, however, specifically did not “express any

opinion” on the “question of the authority of the Corps to

regulate discharges of fill material into wetlands that are not

adjacent to bodies of open water... ." Id. at 131-132, n.8.

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Nor is SWANCC just a very narrow ruling on the

"migratory bird” test. Rather, in excluding a particular non-

adjacent, isolated pond from CWA jurisdiction, the Court

stressed the importance of establishing a nexus to

traditionally navigable waters (defined in relevant part as

"those waters that are subject to the ebb and flow of the tide,

or have been use in the past, or may be susceptible for use to

transport interstate or foreign commerce." 33 C.F.R. §

329.4). That is, 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." Id. at 172. The Court clarified that

"{ijt was the significant nexus between the wetlands and

‘navigable waters’ that informed our reading of the CWA in

Riverside Bayview Homes." SWANCC, 531 U.S. at 167.

Thus, the true question before this Court is how to define the

parameters of the requisite "significant nexus."

Amici submit that this “significant nexus" must

constitute more than a mere hydrological connection. In

order to be true to the statute, the significant nexus ought to

meet two factors. There must be credible evidence of: (1) a

direct, discrete and defined surface hydrological connection

to a navigable water (based on Congress's limited power over

navigation, 33 U.S.C. §§ 1344(a), 1362(7)); and (2) a

demonstration that a discharge into that "connected" water

has a substantial injurious impact on the water quality of

navigable water (based on the CWA's stated purpose of

protection of the chemical, physical, and biological integrity

of the Nation's waters, 33 U.S.C. § 1251(a) (2000)).

In their struggle to define what constitutes a

“significant nexus" many courts have settled for the Corps

providing any sort of hydrological connection, even in the

absence of evidence that water from the non-navigable area

actually reaches the navigable water. See, ¢.¢. United States

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v. Rueth Development Co., 335 F.3d 598 (7th Cir. 2003) and

United States v. Deaton, 332 F.3d 698 (4th Cir. 2003). Yet,

as explained by the Fifth Circuit, a definition of "navigable

waters" that would include all waters that have any

hydrological connection with “navigable water" is

"unsustainable under SWANCC.” In re Needham, 354 F.3d

340 (Sth Cir. 2003).

A. The Extension Of CWA Jurisdiction To Waters

That Have Only An Intermittent, Indirect,

Tenuous Or Remote Hydrological Connection To

Navigable Waters Exceeds The Corps's Authority

Under The CWA

In Rueth, the district court reasoned that if “a

molecule" of water from the disputed wetland eventually

intermingles with the molecules of a navigable water, the

Corps has jurisdiction: "A drop of rainwater landing in the

Site is certain to intermingle with water from the Little

Calumet River . . . the Site, therefore, has the ‘significant

nexus’ to a navigable waterway [required by SWANCC]}."

Rueth, 189 F. Supp. 2d 874, 878. This "migratory molecule"

theory, which is perhaps the most extreme and aggressive

construction of the Corps’s authority acknowledged in the

wake of SWANCC, has already spread to other courts,

including the Fourth Circuit in Deaton.’

Staking CWA jurisdiction upon an indirect, tenuous

* The Fourth Circuit in Deaton, while showing respect for the

notion that there must be at least a hydrologic connection,

did not require the connection to be significant, allowing for

regulation if a drop of water could potentially end up in the

navigable water no matter how far this molecule would

migrate and regardless of the path it would take. Deaton, 332

F.3d at 714.

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hydrological connection quite simply ignores the clear

import of SWANCC. A "significant nexus" constitutes more

than a mere hydrological connection or "migratory

molecule” but rather should require the Corps to establish

that there is a discernable, discrete and uninterrupted surface

water connection between the wetlands and/or “wet" area

involved and a navigable-in-fact water. "Consequently, . . .

the United States may not simply impose regulations over

puddles, sewers, roadside ditches and the like.” Needham,

354 F.3d. at 345.

Amici submit that asserting CWA jurisdiction based

upon an intermittent, remote or indirect connection to a

navigable water -- without any consideration of the

connection between a given discharge and the water quality

of the navigable water -- expands CWA jurisdiction well

beyond the limits set by Congress. "Significant nexus"

requires limiting principles because, if an indirect connection

is enough to create jurisdiction, then the Corps will have

jurisdiction over practically every drop of water anywhere in

the nation, unless that drop of water is caught in a jar as

rainfall from the sky.° Amici submit that, in determining if a

discrete hydrologic connection exists, evidence of one or

more of the following criteria should apply:

First, non-navigable waters should not be determined

to be connected “navigable waters" by virtue of some

temporary, artificial and reversible man-made conveyance,

such as a ditch, swale, pipe, storm drain or similar

manipulation. The Eastern District Court of Virginia

recognized this problem in United States v. Newdunn

® Justice Stevens, dissenting in SWANCC, noted that most

wetlands designated as "isolated" in fact have some degree

of hydrological connection to the surrounding water system.

SWANCC, 531 U.S. at 176, n.2.

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Associates, 195 F. Supp. 2d 751 (E.D. Va. 2002); rev'd,

Treacy _v. Newdunn Associates, 344 F.3d. 407 (4th Cir.

2003). In rejecting Corps iurisdiction over a wetland site

connected to navigable water by a series of swales and

drainage culverts, the court noted that defining a storm drain

as a tributary would uureasonably expand Corps jurisdiction

- because any property connected to a storm drain system

could be regulated (presuming that water discharged into a

storm drain eventually found its way to navigable water

somewhere down its path). Moreover, allowing for use of

man-made tributaries when calculating the reach of

jurisdiction creates jurisdiction that shifts whenever a new

culvert is laid or removed. Id. at 765 ("wetlands could

alternately become jurisdictional or non-jurisdictional in

tandem with adjacent road and storm drainage

construction.")

Second, a wetland or pond created in uplands for

various purposes such as sediment control should not be

considered jurisdictional absent a clear surface connection to

a navigable water. For example, members of NSSGA often

create surface mining pits in uplands as settling basins for

materials excavated during aggregate mining. Such basins

must be reclaimed under state law and cannot be simply

“abandoned” when the mining ceases. However, while, the

Corps concedes that waters of the United States does not

include “pits excavated in dry lands for the purpose of

obtaining fill, sand or gravel, unless or until the construction

or excavation is abandoned," the agency "reserves the right

on a case-by-case basis to determine that a particular water

body within these categories of waters is a water of the

United States." 51 Fed. Reg. 41206, 41217 (1986). Such

waters, by definition, cannot be part of a "connected"

tributary system during mining and should also be excluded

after mining ceases and reclamation is completed without

clear evidence that they have become “inseparably” linked to

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navigable waters via a natural surface channel.

Third, “wet” spots such as vernal pools, ephemeral’

areas that pond after rain events, mud puddles, indistinct

depressions and farm ditches that lack any evidence of

continuous surface flow to navigable waters should not be

considered jurisdictional. An acceptable indicator of surface

flow between the "wet area" and the navigable water might

include a , Continuous “ordinary high water mark"

("OHWM").® However, manmade structures should be

considered in assessing whether regular flow has been

interrupted and can prevent establishment of an OHWM.

For example, a wetland adjacent to a ditch where that ditch

follows an indistinct path to a navigable water interrupted by

uplands and manmade structures would not have the

requisite substantial nexus to that navigable water. In

United States v. RGM Corp., 222 F. Supp. 2d 780 (E.D. Va.

2002), the court rejected the suggestion that manmade

’ The Corps defines "ephemeral streams" as having “flowing

water only during, and for a short duration after,

precipitation events in a typical year. Ephemeral stream

beds are located above the water table year-round.

Groundwater is not a source of water for the stream. Runoff

from rainfall is the primary source of water for stream flow."

65 Fed. Reg. 12818, 12897 (March 9, 2000). This lack of a

continuous flow does not comply with “significant nexus”

principles laid out in SWANCC.

® The term "ordinary high water mark" is defined as “that

line on the shore established by the fluctuations of water and

indicated by physical ch» acteristics such as clear, natural

line impressed on the bank, shelving, changes in the

character of soil, destruction of terrestrial vegetation, the

presence of litter and debris, or other appropriate means that

consider the characteristics of the surrounding areas." 33

C.F.R. § 328.3(e).

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obstacles, such as catch basins and culverts, are not

considered interruptions of a continuous OHWM, noting that

the Corps engages in circular logic by relying on manmade

features (such as ditches) to assert the presence of a

continuous hydrological connection, while attempting to

disavow their presence when they interrupt the connection.

Id. at 788.

Fourth, ground water alone should not create a

hydrologic connection, unless the wetland connected by

groundwater is directly abutting a navigable water so as to be

"inseparably bound up” with that water (as in Riverside

Bayview). As the Fifth Circuit explained in Rice v. Harken

Exploration Co., 250 F.3d 264 (Sth Cir. 2001), it would be

an unwarranted expansion of the CWA to conclude that a

discharge that migrates into a navigable water via natural

groundwater seepage could become a "discharge" into a

navigable water. Jd, at 271 (Congress was aware of the

connection between groundwater and surface water but

nonetheless decided to leave groundwater unregulated under

the CWA).

B. Evidence Of Significant Impact To The Water

Quality Of A Navigable Water Is Necessary To

Demonstrate That A Non-Navigable Water Is

"Inseparably Bound Up" With A Navigable

Water

Amici are concerned that in requiring merely an

indirect hydrological connection, the courts lose sight of the

underlying purpose that Congress sought to achieve in

enacting the CWA. The connection must not only be direct

but there must be evidence that the pollutants discharged into

the "connected" water will eventually discharge into and

“significantly” impair the water quality ot thc navigable

water. Congress passed the CWA for the stated purpose of

"restor[ing] and maintain{ing] the chemical, physical, and

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biological integrity of the Nation's waters." 33 U.S.C. §

1251(a) (2000). Hence, where the discharge of the pollutant

will not have a "significant" impact on a navigable water that

is hydrologically connected, there is no “substantial nexus."

The district court in Rapanos, 190 F. Supp. 2d 101!

(E.D. Mich. 2002), correctly required a showing by the

Corps that “navigable[-in-fact] waters [were] impacted by

Defendant’s activities,” in order for those activities to be

regulated under the CWA. 190 F. Supp. 2d at 1017. The

ee oe ee ee nee ee

239 F. Supp. 24.509 (DJ. 2003) is also instructive. In FD

& _P the court analyzed the differing interpretations of

SWANCC, and held that after SWANCC "the ‘hydrological

connection’ test is no longer the valid mode of analysis." Id.

at 516. Rather, the court held that the Corps must

demonstrate evidence of "substantial injurious impact" to a

navigable water — which goes "beyond a mere hydrological

connection." Id. According to the court, the question of

whether there is a “substantial nexus" tums on whether

"filling of the wetlands will have a substantial injurious

impact upon the chemical, physical and/or biological

integrity of the [navigable waterway]." Id. at 517. Applying

this test, the FD & P court denied the Corps's motion for

summary judgment despite the Agency's broad assertions

that “the filling of the wetlands would have an injurious

impact on the River by increasing the sediments and

chemicals flowing into the River....and would displace flood

storage capacity." The court noted that the contrary factual

claims of F D & P created a genuine issue of material fact as

to whether there is a "substantial nexus" between the

wetlands and the Hackensack River.

These decisions are consistent with the Fifth Circuit's

analysis in Rice, which held that there must be "a close,

direct and proximate link" between the discharge of a

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pollutant in the non-navigable water and any resulting actual,

identifiable impact to natural surface water. Rice, 250 F.3d

at 272. Further, as the Second Circuit recently held, the

simple "potential" for a discharge is not enough to regulate

the underlying activity Water Keeper Alliance v. US EPA,

399 F.3d 486, 505 (2d Cir. 2005) (explaining that the CWA

"gives the EPA jurisdiction to regulate and control only

actual discharges - not potential discharges, and certainly

not point sources themselves").

Principles developed by Justice O'Connor in her

concurring opinion in Babbitt vy. Sweet Home Chapter of

Communities for a Great Oregon, 515 U.S. 687, 708-14

(1995) (O'Connor, J., concurring), provide a good framework

for analysis in determining whether a discharge would have a

“substantial injurious impact” to navigable waters. In Sweet

Home, the Court addressed a US Fish and Wildlife Service

rule that determined whether "habitat modification” would

result in a Section 9 "take" of species listed as “endangered”

under the Endangered Species Act. See 16 U.S.C. § 1538.

In agreeing with the majority that "significant habitat

modification must cause actual, as opposed to hypothetical

or speculative, death or injury” to protected species, Justice

O'Connor noted that such a test implicates “ordinary

principles of proximate causation, which introduce notions

of foreseeability.” Id. at 709 (O'Connor, J., concurring).

More recently, this Court in Department of

Transportation _v. Public Citizen, 541 U.S. 752 (2004),

embraced a similar principle of "proximate causation" in the

context of the agency's underlying authority. In finding that

the National Environmental Policy Act ("NEPA") did not

require the Federal Motor Carrier Safety Administration

("FMCSA") to consider the environmental effects arising

from the entry of Mexican trucks as a result of the President's

lifting or modification of the moratorium against such

entries, this Court found it significant that the FMCSA

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lacked discretion to prevent such operations. Id. at 766.

Consequently, the Court held that, the "but for" test of

causation was “insufficient to make the agency responsible

for a particular environmental effect under NEPA and the

relevant regulations." Id. at 767.

These principles of proximate causation and notions

of forseeability, consistent with an agency's underlying

authority to act, can similarly be applied to discharges under

the CWA in determining "substantial injurious effects" to

navigable waters. For example, evidence that an oil or

chemical discharge into a "connected" tributary would

actually reach the navigable water might be sufficient to

establish jurisdiction over the discharge. However, evidence

that filling an isolated (tenuously connected) wetland that

would not foreseeably and substantially impair the functions

of a navigable water several miles away, should be enough to

preclude jurisdiction over the discharge activity. While the

exact nature and extent of the evidence needed to establish

such a causal linkage may vary from case to case, such a test

will put an end to the Corps and EPA's psesumption that any

filling of wetlands or discharge of pollutants is automatically

subject to CWA jurisdiction due to the interconnected nature

of all aquatic systems.

Il, THE SIXTH CIRCUIT'S BROAD

INTERPRETATION §-OF "“NAVIGABLE

WATERS" VIOLATES THE FUNDAMENTAL

PRINCIPLE OF FEDERALISM THAT ABSENT

A “CLEAR STATEMENT" FROM CONGRESS,

A REVIEWING COURT SHOULD NOT

SANCTION USURPATION OF STATE AND

LOCAL CONTROL OF LAND AND WATER

RESOURCES

By federalizing any wet area, no matter how remote

from navigable waters, the Sixth Circuit adopted an

25

unprecedentedly broad interpretation of the geographic scope

of CWA jurisdiction. As this Court held in SWANCC, the

courts should be hesitant to intrude upon the delicate balance

between federal and state regulation of land and water

resources absent a "clear statement from Congress" that such

a result was intended. 531 U.S. at 174. In enacting the

CWA, Congress did not seek to impinge upon the States’

traditional and primary power over land and water use when

setting out the scope of jurisdiction under the CWA.

One of the principal tenets of federalism is that courts

shal! not interpret federal legislation to abrogate local power

unless it is clear that Congress considered and intended,

when it passed the authorizing legislation, to alter the

traditional balance between federal and state powers. This

“clear statement" principle applies "in cases implicating

Congress’s historical reluctance to trench on state legislative

prerogatives or to enter into spheres already occupied by the

States." United States v. Lopez, 514 U.S. 549, 606 (1995)

(Souter, J., dissenting) (citation omitted). In cases where a

court seeks to invoke the outer limits of Congress's power,

there must be a clear indication that Congress intended that

result. See SWANCC, 531 U.S. at 172. Indeed, this Court

has recognized that there is an underlying assumption that

the power to legislate in areas traditionally regulated by the

States "is an extraordinary power .. . . [that] Congress does

not exercise lightly." Gregory v. Ashcroft, 501 U.S. 452, 460

(1991).

A. Nothing In The CWA Evinces A Clear Statement

That Congress Intended To Encroach Upon Local

Regulation of Activities That Do Not Add

Pollutants to Navigable Waters

Of course, as long as Congress is acting pursuant to

one of its enumerated powers, the Supremacy Clause of the

Constitution permits Congress to trump state law, even in

;

cE

e

;

&

E

:

Ez

within state sphere. Nonetheless, under the “clear

statement" principle, courts must not simply assume that

Congress has used its power to override state authority. See

SWANCC, 531 U.S. at 172-73. Rather, “unless Congress

conveys its purpose clearly, it will not be deemed to have

significantly changed the federal-state balance." United

States v. Bass, 404 U.S. 336, 349 (1971). Mere ambiguity

will not suffice to demonstrate that Congress intended to

It is the policy of the Congress to recognize,

preserve, and protect the primary

responsibilities and nights of States to prevent,

reduce, and eliminate pollution, [and] to plan

the development and use (including

restoration, preservation, and enhancement)

of land and water resources. . . .

A review of the plain language of the CWA provides

* See also 33 U.S.C. § 1288 (2000) (encouraging states to

develop area-wide management plans).

27

nothing approaching a "clear statement" from Congress that

it intended CWA jurisdiction to extend to every intrastate

wetland with any sort of hydrological connection to

navigable waters, no matter how tenuous or remote. In truth,

far from being “unmistakably clear" that Congress intended

the statutory term “water of the United States" to encompass

every wet spot, Congress set forth the very specific limit that

water must be “navigable” in order to fall within the scope of

the CWA. The “waters” that the Sixth Circuit would have

regulated are more properly addressed under the state and

local land use processes. This careful balance between state

and federal power should not be upset.

B. The Sixth Circuit Would Upset The Delicate

Balance Between The CWA And Comprehensive

State And Local Programs For Controlling Water

Pollution

Amici recognize the legitimate objective of the CWA

to protect the Nation's waters. However, the CWA does not

extend federal authority to all wetlands and waters in the

Nation. Fundamental principles of federalism dictate that

control of land use decisions are properly within the purview

of State and local governments. Indeed, the Court has

recognized that “regulation of land use is perhaps the

quintessential state activity." See "ed. Energy Regulatory

Comm'n _ vy. Miss, 456 U.S. 742, 767 n30 (1980). As

discussed above, the CWA bestows “primary” responsibility

upon the States to protect water resources. The literally

thousands of State and local governments that regulate

wetlands and waters firmly establishes that the States have

enthusiastically assumed this role. '°

' See Federal Wetland Protection Policy, 1993: Hearings on

S. 1304 Before the Subcomm. On Clean Water, Fisheries

Wetland Regulation, 29 Envtr. L. 1, 48 (1999).

State-based clean water laws are typically far broader

than their federal counterpart ~ regulating a broader scope of

waters. Maryland is an excellent example of a state that has

regulatory regime that goes beyond the 404 program, having

enacted one of the first laws declaring a goal of “no net

overall loss in nontidal wetland acreage and function and to

strive for a net resource gain in nontidal wetlands over

present conditions." See MD Code. Ann. Envir. Sect. 5- 902

(1996). The Maryland law covers “both surface and

underground waters within the boundaries of the state.“ MD.

Code Ann., Envir. Sec. 5-102. In turn, California's Porter-

Cologne Water Quality Control Act broadly defines “waters

of the State” as “any surface water or groundwater, including

saline waters, within the boundaries of the state.” Cal. Water

and Wildlife of the Senate Comm. on Environment and

Public Works, 103d Cong., Ist Sess. (1993) (statement of

National Association of State Departments of Agriculture),

available in LEXIS, Legis Library, Cngtst File (noting that

over 5,000 local governments have adopted wetland

protection regulations).

Code Sec. 13050.

Well aware of the comprehensive state-based

initiatives discussed above, the EPA has also recognized the

essential role played by the States in the protection of

wetlands and other waters even as to the permitting of point

omumidinl laini

More than a dozen States already are

currently administering aquatic

resources/wetlands protection programs

similar to the Federal Section 404 program.

This makes sense because State and Tribal

regulators are, in many cases, located closer

to the proposed activities and are often more

familiar with the local resources, issues, and

needs than are Federal regulators. ''

The Sixth Circuit's expansive interpretation of

jurisdiction under the CWA threatens to displace the

important role played by the States in the regulation of their

aquatic resources. Because such an outcome was never

intended by Congress, this Court should reverse the Sixth

Circuit's decisions below.

'' USEPA Office of Wetlands, Oceans, and Watersheds,

State or Tribal Assumption of the Section 404 Permit

Program (May 25, 1999) available online

at http://www.epa.gov/owow/wetlands/facts/fact23.html.

30

CONCLUSION

Amici respectfully request this Court to reverse the

Sixth Circuit's rulings and provide clear limiting principles in

determining the reach of jurisdiction under the Clean Water

Act.

Respectfully Submitted,

LAWRENCE R. LIEBESMAN *

RAFE PETERSEN

ETHAN ARENSON

STUART TURNER

Holland & Knight LLP

2099 Pennsylvania Ave., NW

Washington, DC 20006

(202) 955-3000

Counsel for Amici Curiae

* Counsel of Record

) ars

a Bans me MD, eo '

IN THE

SUPREME COURT OF THE UNITED STATES

JOUN A. RAPANOS, ef al.,

Petitioner,

- Vv s *

UNITED STATES OF AMERICA,

Respondents,

JUNE CARABELL, ef al.,

Petitioner,

“V.-

UNITED STATES ARMY CORPS OF ENGINEERS, e7 ai,

Respondents.

On Writs of Certiorari to the United States Court of

Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE THE CITY OF NEW YORK

IN SUPPORT OF RESPONDENTS

MICHAEL A. CARDOZO,

Corporation Counsel of the

City of New York

Attorney for Amicus Curiae

The City of New York

100 Church Street

New York, NY 10007

(212) 788-1585

LEONARD J. KOERNER, *

HILARY MELTZER,

AMANDA C. GOAD,**

ot Counsel.

*Counsel of Record

** Awaiting Admission to the Bar of the State of New York

January 13, 2006

QUESTION PRESENTED

The City of New York (“City”) relics on wetlands

to protect and improve watcr quality in the watershed of its

surface drinking water supply sysicm. The question the

City addresses is whether Clean Watcr Act protection

extends to all wetlands that provide such watcr quality

bencfits, and that thus have a significant nexus, to

navigable watcrs.

TABLE OF CONTENTS

Page

QUESTION PRESENTED. sich ceiainassiasetiai ell i

TABLE OF AUTHORITIES ........cccscsscssssssssscsssessesessveee iii

INTERESTS OF AMICI CURIAE coccssssssssssssesssssessssssssesees

SUMMARY OF ARGUMENT .........cssscsssscsssesssssssssseeeees 6

‘WETLAND FUNCTIONS WITHIN A WATERSHED..7

IE witicrepsrivnsitisinisisrsmnsntinecineuisimniipniccaiiinnniiiten 11

1. THE CLEAN WATER ACT PROVIDES

FEDERAL JURISDICTION OVER ANY

WETLAND WITH A “SIGNIFICANT NEXUS”

TO NAVIGABLE WATERS. ............:...cccesssessesesees 1]

Il. PRESERVATION OF WATER QUALITY BY

REGULATING WETLANDS WITH A

SIGNIFICANT NEXUS TO NAVIGABLE

WATERS IS AN APPROPRIATE FEDERAL

FUNCTION UNDER THE COMMERCE

SITET sratnirqnccenncrossinicsenasptunnnutenetesiitainascinibeanabiiniiiie 17

I Bcvnccccxsscontpesemnencstomscsartiininensctiglaliisebinassidin 21

TABLE OF AUTHORITIES

Cases Page

Carabell v. United States Army Corps of Engineers,

391 F.3d 704 (6th Cir, 2004) 00... cceeeceeereeeees passim

Citizens Bank v. Alafabco,

A, Ce estcctncibiapecieniitiihnecsiniticsaiehvebiinitui 19

Gonzalez v. Raich,

ma 06: eS ee 7,19

Headwaters v. Talent Irrigation District,

pw Ree 13

Northern California River Watch v. City of Healdsburg

No. C01-04686, 2004 U.S. Dist. LEXIS 1008 (N.D.

Cal. Jan. 23, 2004) (9th Cir. argued Nov. 16,

SITE nsncutinenitetdinhiptchsentgenanietcepscnesnieaidinseeniipeeadedtetiinen 15, 16

Rancho Viejo, LLC v. Norton,

323 F.36 1062 (D.C. Cir. 2003) ..ecccrrscssesroscersessorseees 18

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers.,

Fe I cnitnicetitakscsiiiceslanshenintebiidiniettieed passim

Treacy v. Newdunn Associates,

344 F.3d 407 (4th Cir. 2003),

cert. denied, Newdunn Associates v. United States

Army Corps of Engineers, 541 U.S. 972

(2004)

iv

United States v. Cortes,

BOO SSE USSD CO Cie. FETED cccccccsscncesesssnicuscninneesens 20

United States v. Deaton,

332 F.3d 698 (4th Cir. 2001),

cert. denied, 541 U.S. 972 (2004)................ 12, 14, 16

United States v. Eidson,

108 F.3d 1336 (1 bth Cir. 1997) 200.0... ccc ceseseses. 13

United States v. Gerke Excavating,

412 F.3d 804 (7th Cir. 2005) ..0.... eee 7, 18, 19, 20

United States v. Lamplight Equestrian Center,

No. 00 C 6486, 2002 U.S. Dist. LEXIS 3694 (N.D.

Sah WD. Gh, BPUUID <ovoceptiniconssetnaddinicepeecibenndnttialauiienadael 15

United States v. Lopez,

SOO TA. FO Ce incnssescnevtiiinstiiinittsnsenisnabibnition 7,17, 19

United States v. Pozsgai,

SO Fae FO Gre Gs RON cccitsicorncsuinitusintesndaieiitaal 13

United States v. Kung-Shou Ho,

SED: FDS FED Ge Cae, BID ceccesevsn ses evcehicicinpecttiaisaies 20

United States v. Rapanos,

376 F.3d 629 (6th Cir. 2004) oo... cece cceeeeeeeeees passim

United States v. Riverside Bayview Homes,

474 U.S. 121 (1985)

Statutes and Regulations

Federal Statutes

Rules of the Supreme Court of the United States, 28

Sg a crccserccenceaseccnnintapeseperecsenseenesnanes l

Clean Water Act, 33 USC. §§ 1251 ef sey

SIN chadisiniiiehdtbgneednsetntentpesseeectescodnsiutatecseapmiasiets passim

Clean Water Act, 33 U.S.C. § 125 1(a) .......0ccccceneeevees 6, 18

Clean Water Act, 33 U.S.C. § 1344(a) ........cccccececeeeneeeees 6

Clean Water A.ct, 33 U.S.C. § 1344(D) ......e-cceecosecsseennees 13

Safe Drinking Water Act, 42 U.S.C. § 300g-1 (2005)......1

Federal Regulations

33 C.F.R. §§ 320-29 (2006).............00000 | sesssnsecennnsesennsesssse®

33 C.F.R. § 328.3(D) ..........rercvesscerenserssescenserssesncensenesanseness 5

Sy INDIO constitenipidapscctuctivcsenctansneiesimessasncestioneneted el

a EOE l

State Statutes

N.Y. Pub. Health Law § 1100(1) (McKinney 2005) ........ 5

vi

State Regulations

N.Y. Comp. Codes R. & Regs. tit. 10, Part 128 (2005)....5

N.Y. Comp. Codes R. & Regs. tit. 10, § 128-

0 EARL AEE 5

N.Y. Comp. Codes R. & Regs. tit. 6, § 663.2(p) (2005)...5

Other

Issuance of Nationwide Permits; Noticc, Part 11, 67 Fed.

Reg. 2020, 2093 (Jam. 15, 2002) ..........cccccccceeseneeeneeees 5

James Hassett, State University of New York College

of Environmental Science and Forestry, The Croton

Process Studies Project (2003).............c.cccccecceseceeeeeee 10

National Research Council, Compensating for Wetland

Losses under the Clean Water Act (2001),

http://books.nap.edu/catalog/10134.html.................... 9

R.W. Tiner, C.W. Polzen, and B.J. McClain, United

States Fish and Wildlife Service, Wetland

Characterization and Preliminary Assessment of

Wetland Functions for the Croton Watershed of the

New York = Water Supply System (2004) ............ 9

United States Seitaneened Protection Agency, New

York City Filtration Avoidance Determination,

(November 2002), http://www.epa.gov/Region2/

water/nycshed/fad2002. pdf o.............ecccecceecesseseeeereeneees 2

vu

United States Environmental Protcction Agency,

Managing Urban Runoff: Poinicr No. 7, (May 20,

2004), http://www.cpa.gov/owow/nps/facts/

TIEN cnssocinctesennennnsibientnaddmessincmpnanntsteminebedenseel 4

United States Environmenial Protection Agency,

Wetlands: Status and Trends (March 23, 2005),

http://www .epa.gov/OW OW/wetlands/vital/

ee ceiteentitens tieneraschaticiinettaciinateiieniiainninccintinticsi 4

United States Environmental Protection Agency, What

is Nonpoint Source (NPS) Pollution, Questions and

Answers (August 18, 2003), http://www.cpa.gov/

I incicitincsnaininineinnd 4

INTERESTS OF AMICUS CURIAE

Amicus curiae the City of New York (“City”)

submits this bricf in support of respondents United States

of America, United States Army Corps of Engincers

(“Army Corps”), and United States Environmental

Proicction Agency (“EPA”) secking affirmance of the

United States Court of Appeals for the Sixth Circuit's

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

Cir. 2004) and Carabell v. United States Army Corps of

Engineers, 391 F.3d 704 (6th Cir. 2004).'

The City, a political subdivision of the State of New

York, owns and operates a water supply system that

provides water of excellent quality to some nine million

residents of the City and State of New York. The City’s

water supply is not currently filtered and, based on the high

quality of the water and the City’s long-term plans for

protecting against its degradation, EPA has granted a

filtration avoidance determination’ for the City’s Catskill

' Pursuant to Rule 37.6 of this Court, the City represents that

counsel for the City authored this brief in its entirety and that no

person or entity other than the City and its representatives made

any monetary contribution to the preparation or submission of

this brief. Consent to the filing of amicus briefs in support of

either party was filed by counsel for the Rapanos petitioners on

November |, 2005, and by counsel for the Carabell petitioners

on November 25, 2005. Counsel for respondents has consented

to the filing of this brief, and a letter reflecting that consent is

submitted to the clerk's office with this brief.

? Public water systems must either provide filtration or must

demonstrate that they meet the rigorous requirements for

filtration avoidance. 42 U.S.C. § 300g-1; 40 CFR §§ 141.71 and

141.171.

2

i Delaware water supply systems.’ ‘Together, the

atskill and Delaware systems supply approximately 90%

of the City’s drinking water. The watcr in the oldest of the

City’s three interconnected watcr supply sysicms, the

Cfdion system, is scheduled to be filtered by 2011, but ~

gencrally mects all applicable watcr quality requirements

and is currently unfiltercd.*

The extremely high quality of the City’s water thus

derives not from mechanical trcatment but rather from the

protection and ircatment provided naturally within the

nearly 2000 square miles of land that drain into the City’s

ninctcen colliccting reservoirs, including the cxicnsive

wetlands — approximately 25,800 acres — in that watershed

arca.

Within a watershed (the land area that drains into an

ultimate receiving water), wetlands provide multiple

functions that benefit the receiving water body. They

ameliorate non-point source pollution by removing

sediment, nutrients, and other pollutants from influent

water sources.” They absorb water during high surface

* See United States Environmental Protection Agency, New York

City Filtration Avoidance Determination, (November 2002),

available at = http://www.epa.gov/Region2/water/nycshed/

fad2002 pdf.

* Unlike the watersheds of the Catskill and Delaware supply

systems, which consist largely of forested land west of the

Hudson River, the Croton watershed is in more densely

developed counties close to the City. Accordingly, the quality of

Croton water has been adversely affected by development.

* Wetland vegetation (“hydrophytic vegetation”) absorbs

nutrients through biotic uptake, and slows the flow of surface

waters, promoting sedimentation. The low oxygen conditions in

3

flow events storms and snowmelt, which decreases the

volume and velocity of watcr cnicring streams and thus

prevents or rcduccs downstream flooding and crosion.

Wetlands also rcicasc stored watcr slowly back into

streams, through surface outflows or groundwater recharge,

maintaining stream flow within the watershed even under

dry conditions.

Wetlands may occur in a varicty of scttings within a

watcrshed. Many wetlands are within riparian zoncs along

intcrmiticnt and perennial waicrcourscs. Others arc

geographically remote from sircams, surrounded by

uplands, with discernable surface watcr connections to

tributary systems only during periods of high flows, if ever.

The benefits described above, which are critical to

maintaining water quality in the City’s watershed in

particular, and in navigable waters in general, are provided

by all wetlands within a watershed, regardless of how direct

or frequent the.r surface connections to streams may be.”

The invaluable benefits provided by wetlands are

particularly important in watersheds in which there has

’ been significant land development, where stormwater

runoff from impervious surfaces (i.¢e., surfaces which do

not allow water to be absorbed into the ground, such as

buildings and paved surfaces) may be a serious cause of

wetland soils (“hydric soils”), resulting from their periodic

saturation or inundation, promote biogeochemical

transformations, such as denitrification. Thus, a variety of

physical and biogeochemical mechanisms allow wetlands to

remove nutrients, sediments, and other pollutants.

* A more detailed description of the functions of wetlands

throughout a particular watershed is provided below.

4

pollution and degradation of surface watcrs. Stormwater

runoff from devcloped arcus transports pollutants,

including nutrients from fertilizers, oil and grease from

roadways, and scdimenis from improperly managed

construction sitcs, to surface waters. Similarly,

impervious surfaccs associated with devclopment incrcasc

the volume and velocity of stormwater runoff." Wetlands,

as further described below, offer a valuable and natural

means for dealing with these issucs. Yct, devclopment and

associated land usc changes arc primary causcs of loss and

degradation of wetlands.

The protection of wetlands through regulation is

therefore critical. Wetlands protection regulations afford

expert agencies, and the public, the opportunity to review

and consider the value of wetlands in guarding against

pollution, and the impacts of land use activities that will

disturb, impair, or destroy wetlands.

The extensive freshwater wetlands in the City’s

watershed are protected pursuant to a variety of federal,

” See, e.g. UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, WHAT IS NONPOINT SOURCE (NPS) POLLUTION,

QUESTIONS AND ANSWERS (August 18, 2003), available at

http://www.epa.gov/OWOW/NPS/qga. html.

* See, e.g., UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, MANAGING URBAN RUNOFF: POINTER NO. 7, (May

20, 2004), available at http://www.epa.gov/owow/nps/facts/

point7.htm.

* See, e.g., UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, WETLANDS: STATUS AND TRENDS (March 23, 2005),

available at http://www.epa.gov/OWOW/wetlands/vital/

status.htmi.