# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A44

## Record

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

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A44. Public record. Not legal advice.