Amicus Curiae Brief — Rapanos v. United States

5

Static, and local laws and regulations. The City has

unusual, extraterritorial authority to revicw and approve

certain activitics in and adjacent to certain wetlands within

the watershed of its drinking watcr supply. N.Y. Pub.

Health Law § 1100(1) (McKinney 2005); N.Y. Comp.

Codes R. & Regs. tit. 10, Part 128 (2005). The City’s

rcgulatory authority, however, like New York State's, is

generally limited to wetlands exceeding 12.4 acres. N.Y.

Comp. Codes R. & Regs. tit. 10, § 128-1.6(a)(1 16) (2005);

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

Based on the City’s inventory of wetlands in the watershed

of its water supply, nearly 10,000 acres, or 40 percent of

these wetlands are not subject to regulation by New York

State or the City because they do not meet the size

threshold. Moreover, of these smaller wetlands, which

nonetheless provide significant water quality benefits,

approximately 4,300 acres, or 43 percent, lack regular,

obvious surface connections to surface waters.

In contrast, the federal Clean Water Act regulates

wetlands based on hydrology, soils, and vegetation rather

than on size. See, e.g., 33 C.F.R. § 328.3(b) (2006). The

City thus relies on federal protection of smaller wetlands

within its watershed. Indeed, recognizing the essential

importance of small wetlands in the portion of the City’s

water supply system most affected by development, the

ACOE has designated the City’s Croton watershed as a

Critical Resource Water. As a consequence, many of the

“Nationwide Permits” that generally authorize projects

disturbing less than half an acre of wetlands, subject to

certain categorical conditions, do not apply in the Croton

watershed, and thus any activity that will disturb a wetland

— regardless of the size of the wetland or extent of

disturbance — requires an individual permit. See Issuance

of Nationwide Permits; Notice, Part II, 67 Fed. Reg. 2020,

2093 (Jan. 15, 2002).

6

The functioning of wetlands including wetlands

that lack discernable surface conncctions to sircams - in a

typical sub-watershed within the City’s water supply

system is described bclow. Because of the critical

importance of such wetlands, the City respectfully urges

this Court to affirm that the Clean Water Act cstablishes

jurisdiction over all wetlands with a significant nexus to the

quality and quantity of the Nation's navigable watcrs.

SUMMARY OF ARGUMENT

Since 1972, the Federal Water Pollution Control

Act, or “Clean Water Act,” has provided a comprchensive

framework for federal efforts to protect waters of the

United States. 33 U.S.C. § 1251 ef seg. Its objective is to

“restore and maintain the chemical, physical, and biological

integrity of the Nation's waters.” /d. § 1251(a). Pursuant

to Section 404(a) of the Act, any person must obtain a

permit from the Army Corps of Engineers before

discharging “dredged or fill material” into navigable

waters. 33 U.S.C. § 1344(a). The Army Corps’ regulations

implementing Section 404(a) specify that permits are

required for all fill activities that affect navigable waters,

either directly or indirectly via tributary water bodies or

wetlands. 33 C.F.R. §§ 320-29.

In United States v. Riverside Bayview Homes, this

Court upheld the Army Corps’ jurisdiction over wetlands

adjacent to navigable waters, deferring to “the Corps’

ecological judgment about the relationship between waters

and their adjacent weilands.” 474 U.S. 121, 134 (1985)

(“Riverside Bayview”). In Solid Waste Agency of Northern

Cook County v. United States Army Corps of Engineers,

this Court clarified the scope of federal Clean Water Act

jurisdiction by requiring a “significant nexus” between the

regulated wetland and traditionally navigable waters. 531

7

U.S. 159, 167 (2001) (“SWANCC”). Several appclilate

courts, including the United States Court of Appcals for the

Sixth Circuit in the instant cases, have uscd this type of

analysis to sustain federal jurisdiction over wetlands that

affect the quantity and quality of surrounding navigable

waters, cven when their hydrological connections to the

navigable waters are intermittent or circuitous. See, ¢.g.,

United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004);

Carabhell v. United States Army Corps of Engineers; 39\

F.3d 704 (6th Cir. 2004); United States v. Gerke

Excavating, 412 F.3d 804 (7th Cir. 2005); Treacy v.

Newdunn Associates, 344 F.3d 407, 417 (4th Cir. 2003).

Federal authority to restrict filling of such wetlands stems

from the power to regulate activities which, particularly in

the aggregate, “substantially impact interstate commerce,”

as discussed in United States v. Lopez 514 U.S. 549, 557

(1995). See also Gonzalez v. Raich, 125 S.Ct. 2195, 2205-

08 (2005).

The City of New York, as the manager of a large

and complex drinking water system and a regulator of

certain land use activities in its watershed, shares the Army

Corps’ considered view that protecting hydrologically and

ecologically connected wetlands is essential to protecting

the quality and quantity of navigable waters. In fact, it

would not be possible to achieve the stated purpose of the

Clean Water Act if federal agencies lacked authority to

regulate wetlands that satisfy the “significant nexus” test.

WETLAND FUNCTIONS WITHIN A WATERSHED

To illustrate the nexus of wetland protection to the

protection of navigable waters, and particularly to

emphasize the importance of small and remotely connected

wetlands in protecting water quality, the City describes the

water quality benefits provided by various wetlands within

&

the watershed of the City’s West Branch reservoir. The

West Branch reservoir is located within the City’s Croton

watcr supply system which, as notcd above, is the most

affected by development of the City’s three interconnected

water supply systems. It is a critical reservoir to the City, ©

as it gencrally reccives water from the City’s Delaware

Aqueduct, which carrics approximately 50% of the City’s

entire water supply from four rescrvoirs to the west of the

Hudson River, as well as from its own watershed.

Streams in the lowest portions of the watershed of

the West Branch reservoir have the largest drainage arcas,

highest flows, and arc typically navigable by canoe or

kayak. Wetlands along these mainstem waters comprise

roughly 40% of the wetland arca in the West Branch

reservoir watershed. When thc flows in these streams

exceed channel capacity — when the streams reach flood

stage - adjacent wetlands detain and remove sediments,

nutrients, and other pollutants from the floodwaters,

minimizing flood damage and maintaining water quality.

Data collected by the City from wetlands along Gipsy Trail

Creek, a large stream in the West Branch reservoir

watershed, show a net retention of flow, dissolved

phosphorus, and suspended solids during the highest stream

flows. In addition to the obvious benefit of such reduced

flooding to riparian lands, the lower stream velocities

produced by these wetlands mitigate against the erosion

and suspension of sediments associated with high and rapid

waters.

A system of “headwater” wetlands occurs in the

upper reaches of the West Branch basin stream network,

often at the sources of streams. These headwater wetlands

comprise over 50% of the wetlands in the West Branch

reservoir watershed, and all have intermittent or ephemeral

surface connections to the mainstem channels that are

9

tributary to the West Branch reservoir. These headwater

wetlands perform a multitude of functions and arc among

the most important for the quality of surface waters, despitc

their typical lack of perennial connections.

Headwatcr wetlands have the greatest opportunity .

of all wetland types to ameliorate non-point source

pollution as they remove nutrients, sediment, and other

pollutants from surface runoff before it is transported

through the upstream tributaries into the mainstems of the

watershed.” Of the wetlands predicted by the United

States Fish and Wildlife Service (“USFWS”), in its

functional assessment of wetlands in the City’s Croton

watershed, to be significant for nutrient transformation and

sediment retention in the West Branch reservoir basin, 49%

and 67%, respectively, are along headwater tributarics.''

Headwater wetlands slow the velocity of surface runoff,

which stabilizes stream banks and prevents erosion and

associated water quality degradation. Forty percent of the

wetlands predicted by the USFWS to be significant for

shoreline stabilization in the West Branch watershed are in

headwater positions.

"© NATIONAL RESEARCH COUNCIL, COMPENSATING FOR

WETLAND LOSSES UNDER THE CLEAN WATER ACT (2001)

available at http://books.nap.edu/catalog/10134.html.

'' 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 CITY WATER SUPPLY SYSTEM (2004), prepared for

and available from the New York City Department of

Environmental Protection, Valhalla, NY. Subsequent references

in this section to USFWS predictions also refer to this report.

10

In addition to these water quality benefits,

headwater wetlands detain surface water from their

catchment arcas, which reduces and delays peak stream

flows, thus reducing the frequency and severity of floods.

In its watershed-scale functional assessment, USFWS

cstimatcd that approximatcly half of the wetlands that arc

significant for surface water detention in the West Branch

reservoir watershed arc located in headwater positions.

Another study of the Croton Watershed found decreased

peak flow and increased lay time between the period of

maximum rainfall and maximum runoff in a sub-basin that

contained a headwater wetland when compared to a similar

sub-basin without such wetlands.”

Headwater wetlands are also important for

maintaining stream flow, as detained stormwater is released

slowly to stream channels during times of low flow.

Ninety percent of wetlands predicted by the USFWS to be

highly significant for streamflow maintenance in the West

Branch Reservoir Watershed are along headwater

tributaries. In addition, many of these headwater wetlands

replenish groundwater, which forms the base flow for

tributaries during dry periods.

Finally, a number of wetlands lack regular surface

connections to tributary systems. These geographically

isolated wetlands comprise approximately 4% of the

wetland area in the West Branch reservoir watershed.

Despite their lack of discernable surface water connections,

these wetlands, like those in headwater wetland positions,

are important for detaining surface waters and ameliorating

'2 JaMES HASSETT, STATE UNIVERSITY OF NEW YORK COLLEGE

OF ENVIRONMENTAL SCIENCE AND FORESTRY, THE CROTON

PROCESS STUDIES PROJECT (2003).

non-point source pollution from their local catchment arcas.

Because they lack outflows, these wetlands scrvc as

permanent “sinks” for precipitation, overland flow and any

associated nutricnits and pollutants that would othcrwisc

flow to downgradicnt waters in surface runoff. Thesc

“isolated” wetlands also restore groundwatcr rcsourccs and

thus contribute to the base flows of downgradient surface

waters.

The wetlands in the West Branch reservoir

watershed thus all have a significant nexus to watcr quality

and quantity in the West Branch reservoir, among other

navigable water bodies.

ARGUMENT

I

THE CLEAN WATER ACT PROVIDES

FEDERAL JURISDICTION OVER ANY

WETLAND WITH A “SIGNIFICANT

NEXUS” TO NAVIGABLE WATERS.

It is well established that protection of wetlands was

integral to Congress’ efforts to preserve water quality on a

broad scale under the Clean Water Act. United States v.

Riverside Bayview Ilomes, 474 U.S. 121 (1985). In

Riverside Bayview, respondents challenged the Army

Corps’ jurisdiction over Michigan wetlands they sought to

fill in preparation for construction of housing, arguing that

jurisdiction under the Clean Water Act did not extend to an

area of “low-lying, marshy land” adjacent to a navigable

lake. Jd. at 124. The Court rejected that argument,

concluding that “the language, policies, and history of the

Clean Water Act” supported the Army Corps’

determination that wetlands adjacent to navigable waters

were subject to Clean Water Act regulation. /d. at 139. In

12

unanimously upholding federal jurisdiction over these

wetlands, the Court observed:

In view of the breadth of federal regulatory

authority contemplated by the Act itsclf and

the inherent difficultics of defining precise

bounds to rcgulable watcrs, the Corps’

ccological judgment about the relationship

between watcrs and their adjacent wetlands

provides an adequatc basis for a legal

judgment that adjacent wetlands may be

defined as waters under the Act.

474 U.S. at 134. The Court did not define or limit the

application of the term “adjacent” in Riverside Bayview.

Rather, the decision emphasized the ecological necessity of

protecting nearby wetlands in order to protect the navigable

waters with which thcy were connected. /d.

Significantly, the Court based its Riverside Bayview

holding largely on deference to the Army Corps’ scientific

conclusions about the role of adjacent wetlands in

preserving the quality of navigable waters. The Army

Corps had determined that adjacent wetlands “may affect

the water quality of adjacent lakes, rivers, and streams”

because the wetlands may “drain into” the larger water

bodies, and that they “may serve to filter and purify water

draining into adjacent bodies of water ... and to ... prevent

flooding and erosion....” /d. at 134. The Court concluded

that these determinations, rooted in “the Corps’ and EPA's

technical expertise,” were reasonable. /d. See also United

States v. Deaton, 332 F.3d 698, 712 (4th Cir. 2001)

(“breadth of congressional concern for protection of water

quality and aquatic ecosystems” justifies federal Clean

Water Act jurisdiction over headwater wetlands whose

waters sometimes flow through drainage ditches into the

13

natural tributary system of a navigable river), cert. denied,

541 U.S. 972 (2004), United States v. Pozsgai, 999 F.2d

719, 727-34 (3rd Cir. 1999) (citing broad jurisdictional

scope cnvisionced in Icyislative history of Clean Water Act

in upholding federal rcgulation of wetland adjacent to

- Navigable watcrs).

This Court next addressed the issuc of Clean Watcr

Act jurisdiction over wetlands in Solid Waste Agency of

Northern Cook County v. United States Army Corps of

Engineers. 53\ U.S. 159 (2000). Under SWANCC, which

affirmed Riverside Bayview, federal regulators must

demonstratc a “significant nexus” between the wetland in

question and traditionally navigable waters in order to

establish jurisdiction under Scction 404(b) of the Cican

Water Act.'* /d. at 167.

" This test has also been used to justify Clean Water Act

junsdiction over water bodies other than wetlands that are not

navigable in fact, but which affect navigable waters. In

Headwaters v. Talent Irrigation District, 243 F 34 526 (9th Cir.

2001), for example, the Ninth Circuit held that certain irrigation

canals were subject to federal Clean Water Act jurisdiction. /d.

at 528-29. Although a system of mechanical gates separated the

artificial canals from nearby natural streams under normal

' circumstances, the court found that occasional water leaks from

the canals into the streams were sufficient to render them

“connected” and to establish Army Corps jurisdiction over the

canals. Jd. at 533-34. Cf United States v. Eidson, 108 F.3d

1336, 1342 (llth Cir. 1997) (upholding Clean Water Act

jurisdiction over artificial drainage ditches, which intermittently

fed into larger conduits which in turn emptied into Tampa Bay,

noting that polluted water need not flow “immediately or

continuously” from a non-navigable tributary into navigable

waters “in order to inflict serious environmental damages”).

14

In SWANCC, the Court ruled that a significant

nexus to navigable watcrs did not cxist where the only

asscricd basis for Army Corps jurisdiction over the

wetlands in qucstion was their serving as habitat for

migratory birds. /d. Because the Army Corps’ claim to

jurisdiction was based cxclusivcly on the “Migratory Bird

Rule,” the SWANCC Court focused on the inadequacy of

that rule rather than on the question of the requisitc

hydrological connection between wetlands and navigable

waitcrs.

Thus, the specific holding in SWANCC has little

bearing on the cases now before this Court, where

hydrological connections between the wetlands at issue and

navigable waterways have been demonstrated. In

establishing the “significant nexus” test, however, the

Court signaled that the determination of Clean Water Act

jurisdiction over wetlands is appropriatcly made by

agencies with technical expertise to evaluate the nature of

the hydrological connections between wetlands and

navigable waters.

In applying this Court’s decisions in Riverside

Bayview and SWANCC, courts have generally deferred to

expert agencies when they have found a “significant nexus”

between wetlands and navigable waters, even where the

hydrological connections have been seemingly remote. In

Treacy v. Newdunn Associates, for example, the Fourth

Circuit upheld federal jurisdiction over wetlands connected

to a traditionally navigable river through natural and

artificial waterways, even though water flowed from the

wetlands only “intermittently” and traveled along a

convoluted 2.4 mile path, including a ditch running under

an interstate highway, before reaching the river. 344 F.3d

407, 417 (4th Cir. 2003), cert. denied, Newdunn Assocs. v.

United States Army Corps of Engineers, 541 U.S. 972

1S

(2004). in United States v. Deaton, supra, the Fourth

Circuit also found Clean Water Act jurisdiction over a

wetland arca whose path of hydrological connection to a

navigable river stretched morc than cight miles and

consisicd in part of a human-made roadside ditch.

Similarly, in Northern California River Watch v.

City of Healdsburg, a district court found a significant

nexus between an artificial gravel pit and the nearby

Russian River, where “the wetlands in question help[cd]}

filter pollutants cntcring the aquifer and hence the river

proper.” No. C01-04686, 2004 U.S. Dist. LEXIS 1008,

*29 (N.D. Cal. Jan. 23, 2004), No. 04-15442 (9th Cir.

argued Nov. 16, 2005). Based on this finding of a direct

water quality benefit provided by the wetland, the court

held that fedcral jurisdiction was appropriate even though

the water was exchanged through an underground aquifer

rather than a surface connection. ‘In United States v.

Lamplight Equestrian Center, the Northern District of

Illinois found Clean Water Act jurisdiction appropriate

where seasonally saturated ground adjacent to a drainage

ditch created an intermittent hydrological connection to a

navigable river, observing that “[w]ater need not flow in an

unbroken line at all times to constitute a sufficient

connection to navigable water or its tributaries” for federal

Clean Water Act jurisdiction. No. 00 C 6486, 2002 US.

Dist. LEXIS 3694 at *20-*23 (N.D. Ill. Mar. 8, 2002).

In the cases now before the Court, the government

has reasonably determined that the wetlands at issue are

hydrologically connected to navigable waters and have a

Significant nexus to water quality and quantity in those

waters. Rapanos, 376 F.3d at 634, 639-40; Carabell, 391

F.3d at 708-10. The Rapanos petitioners, whose wetlands

bear an important hydrological connection to navigable

waters, Rapanos at 642-43, challenge federal jurisdiction

16

becausc of the artificial naturc of portions of the connection

and the length and circuity of the route water travels

between the wetlands and navigable watcrs. Where the

agency with authority and cxpertisc has found a significant

nexus, however, these arguments must fail. Deaton, 332

F.3d 698; Northern California River Watch v. City of

Healdsburg, 2004 U.S. Dist. LEXIS 1008.

Similarly, in Carabell, the court focused on the

Army Corps’ finding that the wetlands at issue provided

“water storage functions that, if destroyed, could result in

an increased risk of crosion and degradation of water

quality in” downgradicnt navigable waters. 391 F.3d at

706. As in Treacy, 344 F.3d 407, and Lamplight

Equestrian Center, 2002 U.S. Dist. LEXIS 3694, the

intermittent nature of a connection does not destroy its

ecological significance during the seasons when flooding or

secpage occur."

Petitioners ask this Court to evaluate the

hydrological connections between the particular wetlands at

issue in the instant cascs and navigable waters, and to make

a determination that these connections are insufficient to

give rise to Clean Water Act jurisdiction. As this Court has

appropriately recognized, however, such determinations

must be made by experts, based on site-specific

information about the effects wetlands have on their

receiving waters. See Riverside Bayview, 474 U.S. at 133-

134; SWANCC 531 U.S. at 167.

Wetlands within a watershed may contribute

significant base flow to, attenuate erosive flows in, and

'* Indeed, as noted above, wetlands perform many important

17

remove excessive nutricnis, scdiments, and other

contaminants from downgradicnt navigable watcrs. Such

wetlands thus have a significant nexus to navigable watcrs,

and should thercfore be regulated under the Clean Waitcr

Act.

PRESERVATION OF WATER

QUALITY. BY REGULATING

WETLANDS WITH A SIGNIFICANT

NEXUS TO NAVIGABLE WATERS IS

AN APPROPRIATE FEDERAL

FUNCTION UNDER THE COMMERCE

CLAUSE.

Contrary to the petitioners’ protestations, federal

jurisdiction over wetlands sharing a “significant nexus”

with navigable waters of the United States is entirely

appropriate under the Commerce Clause of the United

States Constitution. Congress may properly assert

jurisdiction pursuant to the Commerce Clause when it has a

rational basis for believing that the regulated activity

affects interstate commerce “sufficiently” to justify federal

regulation. United States v. Lopez, 514 U.S. 549, 557

(1995).

The Court has recognized three permissible

categories of regulation under the Commerce Clause:

regulation of channels of interstate commerce; protection of

instrumentalities of interstate commerce, including persons

or things traveling interstate; and regulation of activities

“having a substantial relation to” or “substantially

affecting” interstate commerce. Jd. at 558-59. While

federal Clean Water Act jurisdiction includes direct

regulation of waters that are navigable in fact and thus

constitute “channels of commerce,” Congress appropriately

assumed jurisdiction ovcr a much broader range of waters,

tributary to or otherwise influcncing navigable watcrs,

because they “substantially affect” interstate commerce. '*

In order “to restore and maintain the chemical, .

physical, and biological integrity of the Nation's waters,”

33 U.S.C. §1251(a), regulation of more than waters that arc

navigable in fact is thus required. To achieve the statcd

purpose of the Clean Water Act, agencics need the

flexibility to regulate tributarics to the Nation's watcrs,

wetlands with consistcnt or intermittent surface connections

to such watcrs and, in some instances, wetlands which arc

hydrologically “isolated,” but which nevertheless have a

significant nexus to the commercial and ecological value of

navigable waters.

In United States v. Gerke Excavating, 412 F.3d 804

(7th Cir. 2005), the Seventh Circuit rejected the argument

that federal jurisdiction over privately owned wetlands

exceeded the scope of federal Commerce Clause authority.

Like the wetlands at issue in Rapanos and Carabell, and

like many in the watershed of New York City’s drinking

water supply, the wetland at issue in Gerke was connected

'S In SWANCC, this Court considered whether Congress relied

solely upon the “channels of commerce” basis of jurisdiction for

the Clean Water Act but declined to reach a holding. 531 U.S. at

169 n.3, 172. Indeed, recognizing that the Clean Water Act

covers activities well beyond the use of channels of commerce,

the Court noted that to determine the extent of Clean Water Act

regulation permissible under the Commerce Clause, it “would

have to evaluate the precise object or activity that, in the

aggregate, substantially affects interstate commerce.” Id. at 173

(emphasis added). See also Rancho Viejo, LLC v. Norton, 323

F.3d 1062, 1071 (D.C. Cir. 2003).

19

only indirectly via a ditch, a creck, and then a

nonnavigable “river” to a river that was navigable in fact.

Jd. at 805. The court held first that by restricting the filling

of wetlands that “supply some of the water in navigable

watcrways,” federal regulators were protecting channcls of

interstate commerce. The Seventh Circuit went on to notc

that federal jurisdiction is appropriate “even if the pollution

has no [physical] effect on navigability” and the impact on

navigable watcrs’ quality is the sole basis for asserting

federal jurisdiction. /d. at 807.

Although filling a single wetland might sccm

attenuated from interstate commerce, through aggregation

such fill activities can “substantially affect interstate

commerce” and thus trigger federal jurisdiction under the

Commerce Clause. See Gerke, 412 F.3d at 806-07; see

also Citizens Bank v. Alafabco, 539 U.S. 52, 56-57 (2003)

(Commerce Clause power ‘may be exercised in individual

cases without showing any specific effect upon interstate

commerce’ if in the aggregate the economic activity in

question would represent ‘a general practice . . . subject to

federal control.’”); Gonzales v. Raich, _ US. _, 125

S.Ct. 2195, 2205-08 (2005).

As noted above, SWANCC and its subsequent

interpretations have established that a “significant nexus”

between a wetland and navigable waters is sufficient to

justify federal regulation of the wetland. Where there is a

significant nexus between wetlands and navigable waters,

impairment of the wetlands significantly threatens water

quality in the navigable body. This represents a

“substantial relation” between the regulated activity (filling

or other impairment of hydrologically connected wetlands)

and interstate commerce (as practiced via navigable

waters), and thus fulfills the tcst for Commerce Clause

jurisdiction. United States v. Lopez, 514 U.S. 549; United

20

States v. Gerke Excavating, 412 F.3d at 806. See also

United States v. Cortes, 299 F.3d 1030, 1036 (9th Cir.

2002); United States v. Kung-Shou Ho, 311 F.3d 589, 600-

04 (Sth Cir. 2002).

The functions of wetlands in the New York City

watershed illustrate the substantial relationship between

federal regulation of wetlands and interstate commerce.

Ensuring that plans to dredge or fill wetlands are subject to

appropriate revicws and approvals supports thc

maintenance of a clean drinking watcr supply - a service

the absence of which would substantially affect interstatc

commerce. Protecting wetlands from fill and other

impairments also helps wetlands store and discharge water

when appropriatc, thus ensuring a sicady quantity and

velocity of water flow in navigable bodies (in contrast to

flood or drougm conditions which can impair drinking

water supplies). See, e.g., Gerke, 412 F.3d at 806.

eimai 2)

CONCLUSION

For all the forcgoing rcasons, amicus the City of

New York respectfully urges this Court to affirm the

decisions of the Court of Appcals for the Sixth Circuit in

order to avoid scrious negative conscquences for the many

public agencics and authoritics nationwide involved in

maintaining clean and safe water supplics.

Respectfully submitted,

MICHAEL A. CARDOZO

Corporation Counscl of the

City of New York

Attomcy for Amicus Curiae

The City of New York

100 Church Street

New York, New York 10007

(212) 788-1585

LEONARD J. KOERNER,*

HILARY MELTZER,

AMANDA GOAD,**

of Counsel.

*Counsel of Record

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

Gd @

Nos. 04-1034, 04-1384

IN THE

Supreme Court of the nited States

JOHN A. RAPANOS, et ai.,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

JUNE CARABELL, et ai.,

Petitioners,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, et ai.,

Respondents.

On Waits or CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE SIXTH CIRCUIT

——————————————————

Brier Or Tue States Or New York, MICHIGAN, ARIZONA, ARKANSAS,

CALIFORNIA, CONNECTICUT, DELAWARE, FLoripDA, Hawaii, ILLINOIS,

Iowa, Kentucky, Louisiana, Maine, MARYLAND, MASSACHUSETTS,

Minnesota, Mississippi, Missouri, MONTANA, New HampsuHire, New

Jersey, New Mexico, Nortu Carouina, On10, OKLAHOMA, OREGON,

Ruope Is_tanp, SoutH CAROLINA, TENNESSEE, VERMONT,

WASHINGTON, AND Wisconsin, THe District Or CoLumsia, THE

PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND

Tue INTERNATIONAL ASSOCIATION OF Fish AND WILDLIFE AGENCIES

As Amici CuridE In Support Or RESPONDENTS

—— ————

MICHAEL A. Cox ELIoT SPITZER

Attorney General of the Attorney General of the

State of Michigan State of New York

THomas L. Casey CarTLN J. HALLIGAN*

Solicitor General Solicitor General

P.O. Box 30212 120 Broadway

T Lansing, MI 48909 New York, NY 10271

(517) 373-1124 (212) 416-8016

* Counsel of Record

Attorneys for Amici Curiae

(Additional Attorneys Listed on Signature Page)

TABLE OF CONTENTS |

TABLE OF AUTHORITIES ...................

INTEREST OF AMICICURIAE ...............

WETLANDS ADJACENT TO

TRIBUTARIES OF NAVIGABLE WATERS

ARE “WATERS OF THE UNITED STATES”

gE, SE rrr er re

A. The Experience of the States in

Implementing the Act Confirms the

Importance of Headwaters to

Downstream “Navigable” Waters. .....

B. Requiring a Case-by-Case Determination

of a Significant Effect for Each Wetland

Would Undermine State and Federal

Efforts to Control Water Pollution.

“er erneeeneneeeees eee eeeeeeeeeeeeee @ &

COVERAGE OF WETLANDS ADJACENT TO

TRIBUTARIES IS NECESSARY

TO MAINTAIN THE RESPECTIVE ROLES

ASSIGNED BY THE ACT TO THE

FEDERAL AND STATE GOVERNMENTS

I]

14

Contents

Page

Ill. FEDERAL POWER OVER INTERSTATE

COMMERCE INCLUDES THE POWER TO

REGULATE DISCHARGES INTO

WETLANDS ADJACENT TO NON-

NAVIGABLE TRIBUTARIES ........... 18

GEES 4 3 Saicewschnes chnesesaedeéedes 23

iii

TABLE OFAUTHORITIES

Page

CASES

Arkansas v. Oklahoma,

Pe ee ED Ss vedi e cas basoeebeueade’s 14

’ Baccarat Fremont Developers, LLC v.

U.S. Army Corp of Eng’rs,

425 F.3d 1150 (9th Cir. 2005) ............... 21

Chem. Waste Mgmt., Inc. v. Hunt,

PP Ce REDNESS wads cosceacucecvewiené 21

City of Milwaukee v, Illinois,

Se PP EUEED 6c ksh o ceed nce sasenkate 10, 14

Cont’! T.V., Inc. v. GTE Sylvania Inc.,

433 U.S. 36 (1977) eee eee ee ence eee ee eens 14

EPA v. California,

cans cae can dw ene ieinias 12

Friends of the Earth v. Hintz,

800 F.2d 822, 824 (9th Cir. 1986) ............ 21

Gonzalez v. Raich,

Ee es DOO GOED cee vcccsveccsavess 19, 20, 21

Harris v. United States,

PE a cchavesscbiosttaveasis 19

Hill v. Boy,

144 F.3d 1446 (llth Cir. 1998) .............. 21

iv

Cited Authorities

Page

Hoffman Homes, Inc. v. U.S. EPA,

999 F.2d 256 (7th Cir. 1993) ................ 21

Int'l Paper Co. v. Ouellette,

uk? SE , Be ey eee | 10, 14, 15

Mich. Peat v. U.S. EPA,

175 F.3d 422 (6th Cir. 1999) ..............-.. 21

Monongahela Power Co. v. Marsh,

809 F.2d 41 (D.C. Cir. 1987) ................ 21

Moskal v. United States,

SOS UD. TERED 0 ov vey ctcewsbevaseunen 17

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

DES UR. FOS CIPS) occ vcwecdvsvenedsenecs 20

Save Our Sonoran, Inc. v. Flowers,

408 F.3d 1113 (9th Cir. 2005) ............... 21

Solid Waste Agency v. U.S. Army Corps of Engineers,

SOE UB. BSD RSE 6 v.ve cies etinyedbeens 13, 21

Stone v. INS,

SiS UD. SOO CSOD aco ccvvvcuasenevsenstne 17

The Daniel Bail,

FIGS. TFC). vcvcwscedsciadesdetcses 19

United States v. Brace,

8 first te 3 Se ere 21

v

Cited Authorities

Page

United States v. Deaton,

209 F.3d 331 (4th Cir. 2000) ................ 21

United States v. Grand River Dam Auth.,

i i ¢aschineravéesdooeceess 19

United States v. Lopez,

ED .2 > Ok cin es otebue ced hee 19, 22

United States v. Morrison,

EE Pe ee 22

United States v. Pozsgai,

999 F.2d 719 (3d Cir. 1993) ............045.. 21

United States v. Rio Grande Dam & Irrigation Co.,

iD «io dweudedeudedeoceeces 19-20

United States v. Riverside Bayview Homes, Inc.,

PE ccc cchesevescésncce 6, 13, 17, 21

United States v. Wilson,

133 F.3d 251 (4th Cir. 1997) ................ 21

Weyerhaeuser Co. v. Costle,

590 F.2d 1011 (D.C. Cir. 1978) .............. 12

CONSTITUTION

Se ME OO ccctcceccccceeeseccecses 18

vi

Cited Authorities

Page

STATUTES

Rivers and Harbors Act of 1899, ch. 425, 30 Stat. 1121

(codified at 33 U.S.C. § 407) ............... 8-9, 16

PU EEE cocdvccéoductentsendeséuabes 15

PUG REE cdcebasddschomsdedee danawes 5

P URe OOD cbervccecechsceue cee seus 13, 16, 17

i f -S ) | EP rrrrrrey TT ery rer re 5

REGULATIONS

I BOS os 5 kd REESE OP 5, 10

Se ED ce ns 6ecenecsenndéesesesete 5, 10

SG DAD ceocccecaneccdusondcessener 3

2 5 > + Sper rrrr Trrir Tir 3

40 Fed. Reg. 31,320 (July 25, 1975) ............ 5

65 Fed. Reg. 12,818 (Mar. 9, 2000) ............. 5

vii

Cited Authorities

CONGRESSIONAL DOCUMENTS

S. Rep. No. 92-414 (1971), reprinted in

1972 UBLILAR, BEES cwccccccccccccess -

MISCELLANEOUS AUTHORITY

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

from Watersheds by Headwater Streams,”

PED Weucentosescodeeubanted<

Carol A. Johnston, “Sediment and Nutrient Retention

by Freshwater Wetlands: Effects on Surface Water

Quality,” 21 Critical Revs. Envtl. Control 491

DE £06 uve dbcknbedbedeckhoaddbanbekeceas

Charles A. Rhodes, Jr., Findings in the Mid-Atlantic

Region Concerning Implications for Clean Water

Act Jurisdiction for Various Interpretations of

SWANCC, at 10 (2005), available at http://

www.aswm.org/calendar/legal/rhodes.pdf. .....

Cliff R. Hupp & David E. Bazemore, “Spatial and

Temporal Aspects of Sediment Deposition in West

Tennessee Forested Wetlands,” 141 J. Hydrology

SEED awesdendcecdevcedveeeeeutenee«

Comments of David R. Cox, Technical Guidance

Supervisor, North Carolina Wildlife Resources

Commission on the ANPRM (Apr. 15, 2003) ...

Comments of Jan H. Reitsma, Director, Rhode Island

Department of Environmental Management on the

ST : CURA EEE S ceéedendisceciudes

Page

12

vill

Cited Authorities

Comments of Jeffrey R. Vonk, Director, Iowa

Department of Natural Resources on the ANPRM

SD SE odes csudecocswenbescubbecce

Comments of Larry D. McKinney, Senior Director,

Aquatic Resources, Texas Parks and Wildlife

Department on the ANPRM (Apr. 15, 2003) ....

Comments of Lori F. Kaplan, Commissioner, Indiana

Department of Environmental Management

DR DEAE 80 0d ockdéuntesecdsactandens

Comments of the Delaware Department of Natural

Resources and Environmental Control (Apr. 16,

DEE ¢.anissbdncks évndéhedhasabasnGenehes

Comments of the Tennessee Wildlife Resources

Agency on the ANPRM (Feb. 26, 2003) .......

Corps of Engineers, New York District, Public Notice:

Regional Conditions for Nationwide Permits

and Designation of Critical Resource Waters, at 2

(May 21, 2002), available at http://

www.nan.usace.army.mil/business/buslinks/

regulat/pnotices/nwp_pn.pdf. ................

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

Scientific Imperative for Defending Small Streams

and Wetlands 6-7 (2003) .........00eeeeeees

Lance D. Wood, “Don’t Be Misled: CWA Jurisdiction

Extends to All Non-Navigable Tributaries of the

Traditional Navigable Waters and to Their Adjacent

Wetlands,” 34 Envtl. L. Rep. 10,187 (2004) ....

Page

12

15

15

10 ~

10

9-10

17

ix

Cited Authorities

Lars O. Hedin et al., “Thermodynamic Constraints

on Nitrogen Transformations and Other

Biogeochemical Processes at Soil-Stream

Interfaces,” 79 Ecology 684 (1998) ...........

Mark M. Brinson et al., U.S. Army Corps of

Engineers, A Guidebook for Application of

Hydrogeomorphic Assessments to Riverine

PEDO <6 oc a cccccccccucdeuciowenc<

Mark R. Walbridge & Judith P. Struthers, “Phosphorus

Retention in Non-Tidal Palustrine Forested

Wetlands of the Mid-Atlantic Region,” 13 Wetlands

DEE oc anm ok pdcadekced ua eben caudanws

Memorandum from Diana Klemans, Chief, Surface

Water Assessment Section, Water Bureau, Mich.

Dep’t of Envtl. Quality, to S. Peter Manning, Dep’t

of Attorney General (Jan. 10, 2006) ...........

National Research Council, Wetlands: Characteristics

SIGE 0 066040 hu sses thn seein

N.Y. State Dep’t of Envtl. Conservation & Conn.

Dep’t of Envtl. Prot., A Total Maximum Daily

Load Analysis To Achieve Water Quality Standards

for Dissolved Oxygen in Long Island Sound

(Dec. 2000), available at http://www.dec.state.

ny.us/website/dow/tmdllis.pdf. ...............

Oliver A. Houck, The Clean Water Act TMDL

Program: Law, Policy, and Implementation (2d ed.

BE ah ecesdvivctcténesevuebanehabuenie<

Page

17

15

au

Cited Authorities

Peter M. Groffman et al., “Nitrate Dynamics in

Riparian Forests: Microbial Studies,” 21 J. Envetl.

Quality 666 (1992) ......... cc eee e ee eee eees

Robert M. Holmes et al., “Denitrification in a

Nitrogen-Limited Stream Ecosystem,”

33 Biogeochemistry 125 (1996) .............

Thomas F. Waters, Sediment in Streams: Sources,

Biological Effects and Control (1995) .........

U.S. EPA, “Great Lakes Strategy 2002 - A Plan for

the New Millennium,” http://www.epa.gov.gInpo/

gis (last visited Jan. 12, 2006) ...............

U.S. Fish & Wildlife Service & U.S. Census Bureau,

2001 National Survey of Fishing, Hunting, and

Wildlife - Associated Recreation (2002) ........

U.S. Nat’] Marine Fisheries Service, Fisheries of the

United States 2004 (2005) .... 2.6... eee ee eees

Vt. Dep't of Envti. Conservation & N.Y. State Dep't

of Envtl. Conservation, A Phosphorus Budget,

Model, and Load Reduction Strategy for Lake

Champlain (1997), http://www.anr.state.vt.us/dec/

waterq/lakes/docs/Ip_lIcdfs-finalreport.pdf. .....

Mich. Comp. Laws. § 324.30101 ...............

N.Y. Environmental Conservation Law § 17-0105 ...

i, Glee SI, BG bseccotccdceecesecess

Page

INTEREST OF AMICI CURIAE'

For three decades, federal and state agencies, courts, and

private parties have understood the federal Clean Water Act to

regulate the discharge of pollutants into “traditional” navigable

waters, their non-navigable tributaries, and wetlands adjacent

to these bodies.? These cases present the question of whether

the Act covers wetlands adjacent to non-navigable tributaries

of traditional navigable waters — in particular, whether section

404 of the Act requires a person to obtain a permit from the

U.S. Army Corps of Engineers before discharging dredge

or fill material into these wetlands. While amici curiae

States, the District of Columbia, the Pennsylvania Department

of Environmental Protection, and the International Association

of Fish and Wildlife Agencies (“IAFWA”)* agree that

1. Under Rule 37.4 of this Court, amici States and the District of

Columbia are not required to obtain consent for the filing of this brief. The

parties have consented to the filing of this brief by the Pennsylvania

Department of Environmental Protection, a State agency, and the

International Association of Fish and Wildlife Agencies. This brief was not

written in whole or part by counsel for a party, and no one other than

amici made a monetary contribution to its preparation and submission.

2. In this brief, the phrase “traditional navigable waters” refers to waters

that are used (or susceptible to use) in interstate or foreign commerce, and

the phrase “non-navigable” or “headwater” tributaries refers to tributaries

that are not traditional navigable waters. We note, however, that traditional

navigable waters include many tributaries that historically were used in

commerce by, for example, fur traders or timber companies floating

logs to their mills. Additionally, in some States, waters that can be used

by recreational vessels like canoes are considered “navigable.”

3. The IAFWA is a not-for-profit corporation whose members

include the fish and wildlife agencies of all fifty States, the

Commonwealth of Puerto Rico, and seven Canadian provinces and

territories, as well as federal and dominion agencies having jurisdiction

and responsibility for fish and wildlife resources. For over one hundred

years, the Association has coordinated efforts of public agencies

responsible for protection and management of North American fish and

wildlife resources, and it has participated as amicus curiae in more than

20 cases.