Amicus Curiae Brief — Rapanos v. United States

2

the federal government should regulate intrastate activity only

when important national interests are at stake, the filling of or

other discharge of pollutants into wetlands adjacent to the

nation’s tributaries presents such an occasion. Amivi therefore

urge this Court to affirm the Sixth Circuit’s decisions in these

consolidated cases.

The issues presented by these cases are important to amici

for three reasons. First, water flows downhill, and each of the

lower 48 States has water bodies that are downstream of one or

more other States. As set forth in the Appendix to this brief,

every State in the continental United States has at least one

traditional navigable water with a portion of that river or lake

within one or more other States; many have several such waters.

Because wetlands adjacent to non-navigable tributaries

profoundly influence the quantity, quality, and biological

integrity of downstream waters, amici strongly support federal

protection for these wetlands.

Petitioners are mistaken in suggesting that the regulation

of wedlands adjacent to tributaries has no bearing on the

regulation of either navigable waters or their non-navigable

tributaries. Wetlands generally drain into the tributaries or other

waters to which they are adjacent, and the vitality of the lower

reaches of watersheds is inseparably connected with the vitality

of tributaries and their adjacent wetlands. The federal agencies

have thus properly applied the Act to both non-navigable

tributaries and to the wetlands adjacent to them for over thirty

years, and a contrary interpretation would frustrate the Act’s

purpose of restoring and maintaining the physical, chemical and

biological integrity of the nation’s waters.

Second, maintaining consistency among water pollution

programs throughout the nation is essential. The Clean Water

Act is key to achieving this relative parity, because it creates. a

federal “floor” for water pollution control.

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Third, over the past three decades, the States have come to

rely on the Clean Water Act’s core provisions and have structured

their own water pollution programs accordingly. The States

already play a vita! role in administering parts of the Clean Water

Act, but they would be heavily burdened, both administratively

and financially, if forced to assume sole responsibility for

regulating fill activities in wetlands adjacent to non-navigable

tributaries.‘

SUMMARY OF ARGUMENT

1. Wetlands are both practically and ecologically

inseparable from the waters they abut. Because the Clean Water

Act plainly covers the tributaries of traditional navigable waters,

it covers the wetlands adjacent to those tributaries as well. Even

if the primary goal of the Clean Water Act is viewed narrowly

as merely controlling pollution in traditional navigabie waters,

coverage of wetlands adjacent to non-navigable tributaries is

essential because a large portion of the pollution in traditional

navigable waters is originally discharged into non-navigable

tributaries and their adjacent wetlands.

Federal regulation is particularly important because

discharges into non-navigable tributaries or their adjacent

wetlands in one State often affect the waters of a downstream

State. Without federal standards, the downstream State would

find itself significantly hampered in protecting its own wa.er

quality and preventing harmful fluctuations in water quantity.

4. This is true even for the two States — Michigan and New Jersey

— that administer the wetland program under section 404(g) of the

Act. See 40 C.F.R. §§ 233.70, 233.71. While these States have assumed

primery authority for permitting and enforcement, federal agencies retain

the right to review and veto permit applications and to bring enforcement

actions. The state and federal agencies act as partners, sharing

information, resources, and enforcement responsibilities. Loss of

jurisdiction under the Act would not only eviscerate state section 404

programs but would leave these States without this federal backstop.

4

It is not enough for the Clean Water Act to be invoked only

when there is proof that a specific discharge is connected to

navigation or interstate movement. Even if the chances are small

that any particular discharge will reach a downstream State or a

traditional navigable waterway, collectively such discharges

have an enormous effect — often the dominant effect — on

water quality and quantity. Furthermore, a case-by-case approach

would be inherently unpredictable, costly, and immensely

burdensome both for public agencies and for property owners

needing permits from them. For this reason, in enacting the Clean

Water Act, Congress explicitly rejected the case-by-case

approach that the Act’s predecessor, the Rivers and Harbors

Act, had taken.

2. Comprehensive coverage under the Clean Water Act is

necessary to maintain the balance between federal and State

authority established by the Act. The Act preempts certain

common-law remedies traditionally used to address interstate

water pollution, leaving the federal statutory provisions as the

primary mechanism for protecting downstream States from the

effects of upstream pollution. Curtailing the Act’s coverage

would also unfairly require States to impose disproportionate

limits on in-state sources to offset unregulated upstream

discharges.

Coverage of wetlands adjacent to non-navigable tributaries

also gives force to a provision of the Act, section 404(g), that

allows States to assume administration of the federal program

for discharges of fill material into wetlands except for those

wetlands that are adjacent to traditional navigable waters. If

those were the only wetlands covered by the Clean Water Act,

then the statutory provision would be practically meaningless.

3. Respondents’ reading of the Clean Water Act does not

raise any serious question about the Act’s constitutionality under

the Commerce Clause. The Act is a necessary and proper

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regulation of activity that threatens traditional navigable waters,

which are channels of interstate commerce. It likewise properly

regulates a class of activity that substantially affects interstate

commerce.

ARGUMENT

I. WETLANDS ADJACENT TO TRIBUTARIES OF

NAVIGABLE WATERS ARE “WATERS OF

THE UNITED STATES” UNDER THE ACT

The core provision of the Clean Water Act — the prohibition

of “discharge of any rollutant,” including fill material, without

a permit, 33 U.S.C. § 1311(a) — applies to discharges into

“navigable waters,” which the Act defines as the “waters of the

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

§ 1362(7), (12)(A). For the last thirty years, the federal agencies

charged with implementing the Act have interpreted the phrase

“waters of the United States” to include “traditional”

navigable waters; all tributaries of those waters, including those

that are intermittent and ephemeral; and wetlands

“adjacent” to traditional navigable waters or their tributaries.°

33 C.ER. § 328.3(a)(1),(5),(7) (Corps definition); 40 C.ER.

§ 230.3(s)(1),(5),(7) (EPA definition); 40 Fed. Reg. 31,320,

31,324-25 (July 25, 1975). State agencies and courts have done

the same. This longstanding interpretation is correct and should

be affirmed.

A. The Experience of the States in Implementing the

Act Confirms the Importance of Headwaters to

Downstream “Navigable” Waters.

These cases are not about the regulation of hydrologically

isolated wetlands, as petitioners suggest. The wetlands at issue

in these cases are those that this Court has recognized are

5. The Corps defines intermittent streams as those that have “flowing

water during certain times of the year .. .,” and ephemeral streams as those

with “flowing water only during, and for a short duration after, precipitation

events in a typical year.” 65 Fed. Reg. 12,818, 12,897-98 (Mar. 9, 2000).

6

“inseparably bound up” with the open waters to which they are

adjacent. United States v. Riverside Bayview Homes, Inc., 474

U.S. 121, 134 (1985). Wetlands tend to drain into adjacent

waters, either constantly or intermittently, so that discharges

into the wetlands are effectively the same as discharges into the

waters. Id. The Clean Water Act would be eviscerated if it apnlied

only to tributaries of navigable waters and not to the wetlands

adjacent to those tributaries.

Coverage under the Act of wetlands adjacent to tributaries

is essential because those waters strongly influence the quantity

and quality of water entering traditional navigable waters. They

retain sediment that otherwise would be transported

downstream, where it might block the flow of water or release

other pollutants.® They also play a major role in the regulation

of downstream water chemistry, as, for example, by transforming

excess nitrate leaking from septic systems and agricultural fields

into harmless gases through the natural process of

denitrification.’ And headwater wetlands also reduce flood peaks

6. See, e.g., Thomas F. Waters, Sediment in Streams: Sources,

Biological Effects and Control (1995); Cliff R. Hupp & David E.

Bazemore, “Spatial and Temporal Aspects of Sediment Deposition in

West Tennessee Forested Wetlands,” 141 J. Hydrology 179 (1993); Mark

R. Walbridge & Judith P. Struthers, “Phosphorus Retention in Non-Tidal

Palustrine Forested Wetlands of the Mid-Atlantic Region,” 13 Wetlands

84 (1993); Carol A. Johnston, “Sediment and Nutrient Retention by

Freshwater Wetlands: Effects on Surface Water Quality,” 21 Critical

Revs. Envtl. Control 491 (1991).

7. See, e.g., Bruce J. Peterson et al., “Control of Nitrogen Export

from Watersheds by Headwater Streams,” 292 Sci. 86 (2001) (small

headwater stream in Michigan and others elsewhere throughout the

United States); Lars O. Hedin et al., “Thermodynamic Constraints on

Nitrogen Transformations and Other Biogeochemical Processes at Soil-

Stream Interfaces,” 79 Ecology 684 (1998) (small Michigan stream);

Robert M. Holmes et al., “Denitrification in a Nitrogen-Limited Stream

Ecosystem,” 33 Biogeochemistry 125 (1996) (small Arizona stream);

Peter M. Groffman et al., “Nitrate Dynamics in Riparian Forests:

Microbial Studies,” 21 J. Envtl. Quality 666 (1992) (small Rhode Island

streams).

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in navigable rivers and streams by temporarily storing water

and gradually releasing it to maintain normal flow.*

The States’ own studies confirm the importance of

tributaries and their adjacent wetlands for downstream water

quality. For example, an analysis of Lake Champlain by Vermont

and New York concluded that of the estimated 647 metric tons

of phosphorus (which tends to deplete dissolved oxygen and

thereby create “dead zones” in which most marine life cannot

survive) entering the lake from all sources each year, 573 tons

— 89% — entered the lake through its tributaries, most of which

are non-navigable and intrastate.’ Similarly, Rhode Island’s

studies have shown that “small, non-navigable tributary streams

[are] important contributors of pollutant loadings in nearly every

case.” Comments of Jan H. Reitsma, Director, Rhode Island

Department of Environmental Management on the ANPRM 2

(Apr. 16, 2003)."°

The States’ studies also confirm that this is an interstate

issue, because pollutants discharged in one State may contribute

significantly to the impairment of water quality in a traditional

navigable water in another State. For example, a study of Long

Island Sound by New York and Connecticut found that 13.5%

of the estimated 100,436 tons of nitrogen entering the Sound

8. See, e.g., Mark M. Brinson et al., U.S. Army Corps of Engineers,

A Guidebook for Application of Hydrogeomorphic Assessments to

Riverine Wetlands 15, 21, 24, 27 (1995); National Research Council,

Wetlands: Characteristics and Boundaries 34-5, 40-1 (1995).

_ 9. Vt. Dep’t of Envtl. Conservation & N.Y. State Dep’t of Envtl.

Conservation, A Phosphorus Budget, Model, and Load Reduction

Strategy for Lake Champlain 95 tbl. 28 (1997), http://

www.anr.state. vt.us/dec/waterq/lakes/docs/Ip_icdfsfinalreport.pdf.

10. These comments, as well as other States’ comments cited in

this brief, are available at http://www.asiwpca.org/statecomments.htm.

each year came from headwater tributary watersheds north of

Connecticut."

The biological links between headwaters and traditional

navigable waters, and the connection between these waters’

biological health and their role in interstate commerce, are

illustrated by the life cycles of anadromous fish — those that

live at sea but spawn in freshwater — such as the pacific salmon

and steelhead trout of California and the Northwest and the

alewifes of the East Coast. These fish need tributaries with

specific water quantity and quality in which to spawn and rear

their young. The salmon and trout of the Great Lakes — which

as adults live in the lakes but spawn and live as fry in the

tributaries— have similar requirements. The presence of these

fish in the nation’s waterways directly or indirectly supports

commercial and recreational activities that generate at least

hundreds of millions of dollars of economic activity annually.'?

Coverage of headwaters is also consistent with the long

history of federal regulation in this area. Congress recognized

the necessity of regulating tributaries to protect traditional

navigable waters under Section 13 of the Rivers and Harbors

11. 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 16-18

(Dec. 2000), available at http://www.dec.state.ny.us/website/dow/

tmdllis.pdf.

12. See, e.g., U.S. EPA, “Great Lakes Strategy 2002 - A Plan for

the New Millennium,” http://www.epa.gov.gInpo/gls (last visited Jan.

12, 2006) (the annual value of the commercial and sport fishery of the

Great Lakes is estimated at over $4.5 billion); U.S. Fish & Wildlife

Service & U.S. Census Bureau, 200] National Survey of Fishing,

Hunting, and Wildlife - Associated Recreation 58, tb|.4 (2002) (33% of

Great Lakes recreational fishing targeted salmon or steelhead trout);

U.S. Nat] Marine Fisheries Service, Fisheries of the United States 2004

1-3 (2005) (listing the value of the 2004 commercial harvest for pacific

salmon, alewife, striped bass, and bluefish (the last two of which prey

on alewifes) at $287 million).

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Act of 1899 (sometimes also called the Refuse Act), ch. 425,

§ 13, 30 Stat. 1121, 1152 (codified at 33 U.S.C. § 407). Among

other things, this provision prohibited certain discharges “into

any tributary of any navigable water” and even “on the bank of

any tributary of any navigable water.” 33 U.S.C. § 407. Congress

intended the Clean Water Act’s broader language to cover more

than the Rivers and Harbors Act did, not less. See S. Rep. No.

92-414, at 70 (1971) (explaining that “the Refuse Act authority

has significant gaps . . . that render it seriously inadequate as a

means of implementation of a water pollution control program”),

reprinted in 1972 U.S.C.C.A.N. 3668, 3736. As Congress stated,

the Clean Water Act is meant to continue federal coverage of

non-navigable tributaries of traditional navigable waters. /d. at

77 (noting that the broad definition of “navigable waters” is

intended to include “tributaries thereof’), reprinted in 1972

U.S.C.C.A.N, at 3742.

Moreover, the headwaters are vital in their own right. For

example, the EPA found that non-navigable tributaries in the

mid-Atlantic region contain 558 separate sources of drinking

water and serve a population of 5.2 million.'’ Similarly, certain

_ non-navigable bodies of water and wetlands in the New York

City Water Supply Watershed have been designated Critical

Resource Waters because of their importance in assuring the

purity of the city’s water.'*

Non-navigable tributaries comprise at least 75% of the

nation’s stream and river miles, see Judy L. Meyer et al., Where

13. See 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.

14. 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.

10 )

Rivers Are Born: The Scientific Imperative for Defending Small

Streams and Wetlands 6-7 (2003), and it is these tributaries that

adjacent wetlands mostly abut. The Delaware Department of

Natural Resources and Environmental Control has determined

that fewer than 10% of the freshwater wetlands in that State are

directly adjacent to traditional navigable waters. '* Similarly, the

Tennessee Wildlife Resources Agency has found that the

majority of the State’s wetlands are not adjacent to navigable

streams.’ The predominance of non-navigable tributaries and

their adjacent wetlands led the federal agencies to reasonably

conclude that they are covered by the Act, which this Court has

repeatedly characterized as comprehensive, e.g., City of

Milwaukee v. Iliinois, 451 U.S. 304, 317-19 (1981), and has

described as covering “virtually all surface water in the country,”

Int'l Paper Co. v. Ouellette, 479 U.S. 481, 486, 492 (1987).

See 33 C.F.R. § 328.3(a)(1),(5),(7) (Corps definition); 40 C.F.R.

§ 230.3(s)(1),(5),(7) (EPA definition). ;

The contrasting interpretation of the Act urged by Amici

American Petroleum Institute (“APT”) and National Association

of Homebuilders (“Homebuilders”) has nothing to recommend

it. They argue that decades-old drainage ditches, such as the

county drainages next to the Carabell wetland, and other non-

navigable tributaries that drain several or many areas ought to

be regarded not as tributaries but as “point sources”— i.e.,

original sources of discharges — that require permits under the

Act. Homebuilders Br. at 2-12; API Br. at 16-18."’ If true,

15. Comments of the Delaware Department of Natural Resources

and Environmental Control (Apr. 16, 2003), at 2.

16. Comments of the Tennessee Wildlife Resources Agency on

the ANPRM (Feb. 26, 2003), at 2.

17. Homebuilders mistakenly claims that the Sutherland-Oemig

drain at issue in Carabell is treated as a point source rather than a

tributary under the relevant permit. Homebuilders Br. at 8-9. In fact,

the permit authorizes the discharge of storm water to the drain, which

indicates that the drain is being treated as a tributary, not a point source.

Homebuilders Br. at App. 3b, 6b.

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whenever a tributary merges with another stream it could be

called a discharge point. But such a reading has no support in

the structure of the Act, which aims to control pollution at its

source rather than permitting pollutants to enter the water and

dealing with them at some downstream location. See S. Rep.

No. 92-414, at 77 (1972) (“[I}t is essential that discharge of

pollutants be controlled at the source.”). That reading of the

statute would also impose enormous new burdens on landowners

who do not add pollution to water but happen to own the site at

which a tributary flows into navigable water, and who would

SRS PY NE NS Caen ae

navigable tributary."*

B. Requiring a Case-by-Case Determination of a

Significant Effect for Each Wetland Would

Undermine State and Federal Efforts to Control

Waiter Pollution.

Perhaps recognizing the importance of wetlands adjacent

to headwater tributaries, some of petitioners’ amici (including

the States of Alaska and Utah) argue that the Act can be invoked

only after a case-by-case assessment of whether any particular

wetland “significantly affect[s]” the flow or condition of a

traditional navigable waterway. Alaska Br. at 10. This

18. Moreover, since many state laws do not distinguish between

man-made drains and natural streams, treating them differently under

federal law would unnecessarily complicate the administration of state

programs. See, e.g., Mich. Comp. Laws. § 324.30101(f) (defining

“{ijniand lake or stream” to include “a river, stream, or creek which

may Or may not be serving as a drain” and “any other body of water that

has definite banks, a bed, and visible evidence of a continued flow or

continued occurrence of water”); id. § 324.3101(g) (defining “{w)aters

of the state” as “groundwaters, lakes, rivers, and streams and all other

watercourses and waters .. . within the jurisdiction of this state”); N.Y.

Environmental Conservation Law § 17-0105(2) (defining “waters of

the state” to include natural or artificial water bodies); S.C. Code Ann.

§ 48-1-10(2) (same).

12

unworkable proposal is contrary to the history and structure of

the Act.

Requiring wetland-by-wetland analysis would make

administration of the Clean Water Act cumbersome and wildly

unpredictable.'? Without extensive studies, it is often unclear

whether a particular wetland “significantly affects” traditional

navigable waters, and thus whether state or federal authorities

have jurisdiction. Property owners would be uncertain whether

they need a permit and, if so, from which agency they could

obtain one. And because discharges often have significant

downstream effects only in the aggregate, a wetland-specific

analysis will be largely meaningless.

That is why Congress in the Clean Water Act squarely

rejected the effects-based approach of earlier federal water-

pollution-control laws that were widely regarded as having

failed. See, e.g., EPA v. California, 426 U.S. 200, 202-06 (1976)

(discussing the categorical approach to controlling water

pollution adopted in the 1972 amendments in contrast to the

ambient water-quality-based discharge-by-discharge approach

taken by the Federal Water Pollution Control Act before 1972);

Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1042-43 (D.C. Cir.

1978) (discussing the scientific and administrative difficulties

of tying water pollution controls to discharge-by-discharge

effects). This Court likewise rejected a wetland-by-wetland

approach to Clean Water Act jurisdiction, noting that while

“it may well be that not every adjacent wetland is of great

19. See Comments of David R. Cox, Technical Guidance

Supervisor, North Carolina Wildlife Resources Commission on the

ANPRM 5 (Apr. 15, 2003) (“Without this type of presumptive foundation

for jurisdiction, a wetland-by wetland demonstration of hydrologic

relationships would make enforcement of the [Act] impossible.”);

Comments of Jeffrey R. Vonk, Director, lowa Department of Natural

Resources on the ANPRM (Mar. 31, 2003), at 3 (“The burden of

requiring regulatory agencies to make wetiand by wetland determinations

based on physical linkages to streams is unreasonable and will make

CWA regulation ineffective.”).

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importance to the environment of adjoining bodies of water,”

the Corps nonetheless properly asserted jurisdiction over all

such wetlands since they often have a significant effect on

adjacent bodies of open water. Riverside Bayview, 474 U.S. at

135 n.9. As the Court explained, if a particular wetland turns

out not to be important to the adjacent waterway, “the Corps

may always allow development of the wetland for other uses

simply by issuing a permit.” Jd.

The same is true here: If a wetland adjacent to a non-

navigable tributary in fact has little ecological value and

discharges into it are unlikely to affect downstream waters, the

appropriate agency may permit the discharges. But the proper

place for this inquiry is as part of the decision whether to * ssue

a particular permit, not the decision whether the wetland is

covered by the statute in the first place. See 33 U.S.C.

§ 1344(e)(1) (authorizing dredge and fill discharge permits on

a state, regional, or nationwide basis for activities that alone

and cumulatively have only minimal adverse effect on the

environment).

Nothing in this Court’s decision in Solid Waste Agency v.

U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC),

requires a wetland-by-wetland analysis of connection to

traditional navigable water to determine jurisdiction under the

Act. SWANCC merely held that the Act does not cover non-

navigable, intrastate waters just because those waters are used

by migratory birds. 531 U.S. at 162, 174. But flooded mine pits

whose sole connection to traditional navigable waters is their

use by migratory birds are a far cry from wetlands that are

adjacent to tributaries flowing into traditional navigable waters.

As a general matter, these wetlands affect the quantity, quality,

and biological integrity of downstream traditional navigable

waters, and for that reason are squarely covered by the Act

without the need for a wetland-by-wetland analysis. See

Riverside Bayview, 474 U.S. at 135 n.9 (“Tf it is reasonable for

14

the Corps to conclude that in the majority of cases, adjacent

wetlands have significant effects on water quality and the aquatic

ecosystem, its definition can stand.”); see also Cont’! T.V., Inc.

v. GTE Sylvania Inc., 433 U.S. 36, 50 n.16 (1977) (noting that

general rules “tend to provide guidance” and “minimize the

burdens on litigants and the judicial system”).

Il. COVERAGE OF WETLANDS ADJACENT TO

TRIBUTARIES IS NECESSARY TO MAINTAIN THE

RESPECTIVE ROLES ASSIGNED BY THE ACT TO

THE FEDERAL AND STATE GOVERNMENTS

Construing the Clean Water Act as narrowly as petitioners

and amici urge would deprive the Act of the broad coverage

that Congress intended. The nation’s system of waters, though

broad in geographic scope, is highly interconnected. Pollutants

discharged into the Mississippi River in Minnesota can affect

the waters of nine downstream States as far away as the Gulf of

Mexico. See Ouellette, 479 U.S. at 497 n.17; see also Arkansas

v. Oklahoma, 503 U.S. 91 (1992) (considering the effect of

effluent discharged into an unnamed tributary in Arkansas

connected through a series of three creeks before entering the

Illinois River, 22 miles upstream of the Arkansas-Oklahoma

border).

While the Act gave downstream States “a strong voice in

regulating their own pollution,” it provided them with only an

advisory role in regulating pollution that originates outside

their borders. Ouellette, 479 U.S. at 490. A State may not

establish a separate permit system to regulate out-of-state

sources. /d. at 491. And this Court has held that the Act’s

comprehensive regulation of upstream sources preempts

traditional common-law remedies that downstream States might

otherwise have for upstream sources of pollution. See City of

Milwaukee, 451 U.S. at 317 (federal common law preempted);

Ouellette, 479 U.S. at 494 (common law of an affected State

preempted). The Court’s preemption decisions reflect the fact

that the Clean Water Act’s core provisions are the primary

15

bulwark protecting downstream States from upstream water

pollution. Given the Clean Water Act’s focus on controlling

pollution at its source, see 33 U.S.C. § 1251(a), the broad

geographic interconnection among waters, and the limited power

of downstream States to control pollution sources in upstream

States, the Act must be construed to protect waters in downstream

States by “expansively ... cover{ing] waters that are not

navigable in the traditional sense,” Ouellette, 479 U.S. at 486

n.6, but that are hydrologically connected with downstream

waters, even if only occasionally.

Petitioners’ narrow view of the Act, which excluded these

waters from federal regulation, would unavoidably impose

additional, unnecessary burdens on downstream States and their

citizens. Each such State, when dealing with waters within state

boundaries that fail water quality standards mandated by the

Clean Water Act, would be forced to impose disproportionate

limits on in-state sources to offset pollution from out-of-state

sources that the State cannot regulate.” This could produce

unfair differences not only between dischargers in different

States but also between dischargers in different areas of a single

State, since those areas downstream of other States might have

to be regulated more strictly than other areas — all contrary to

the primacy of evenhanded discharge standards under the Act.

See Oliver A. Houck, The Clean Water Act TMDL Program:

Law, Policy, and Implementation, 23-24 (2d ed. 2002) (standards

based on the quality of receiving water are relegated to a backup

role where technology-based standards are insufficient).

20. See Comments of Larry D. McKinney, Senior Director, Aquatic

Resources, Texas Parks and Wildlife Department on the ANPRM 7 (Apr.

15, 2003) (limiting Clean Water Act coverage to traditional navigable

waters “would most likely result in more restrictive discharge permit

limits to those discharging into the navigable waters to compensate for

those dischargers who would no longer be required to meet standards

set by” the Act); Comments of Lori F. Kaplan, Commissioner, Indiana

Department of Environmental Management 11 (April 16, 2003) (same).

16

Additionally, over the last thirty years, the States have relied

on broad Clean Water Act coverage to protect the health of their

citizens and environments. Indeed, federal and state agencies

for over 100 years have recognized federal jurisdiction over

non-navigable tributaries. See Rivers and Harbors Act of 1899,

ch. 425, § 13, 30 Stat. 1121, 1152 (codified at 33 U.S.C. § 407)

(prohibiting certain discharges into tributaries of navigable

waters or onto their banks). Many States rely on the Act as the

sole source of legal protection for adjacent wetlands. Other States

rely in part on the federal law and resources, augmenting them

with state laws and resources, including in some instances state

water-pollution-control laws.” If federal jurisdiction under the

Clean Water Act were restricted as petitioners propose, many

States will have to develop new regulatory programs to fill the

void. At a minimum, this would take time and money, and even

when operational, the substitute for the federal program would

be a messy patchwork of conflicting regulatory requirements

among the States.

Reading the Clean Water Act as covering wetlands adjacent

to non-navigable tributaries also is necessary to give meaning

to a provision of the Act that retains federal authority over

wetlands adjacent to traditional navigable waters while yielding

authority to the States to regulate discharges to other waters. In

1977, after the EPA and the Corps had adopted regulations

establishing the Act’s coverage of wetlands adjacent to

tributaries, Congress amended the Act to authorize States to

assume administration of the federal section 404 permit program

through their own permit programs. 33 U.S.C. § 1344(g)())

(section 404(g)(1) of the Act). Practically speaking, the vast

majority of permits issued under these programs concern

wetlands rather than open waters. The 1977 amendments reflect

21. Only twenty states have specific wetland protection statutes.

They are Connecticut, Florida, Indiana, Maine, Maryland,

Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey,

New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island,

Tennessee, Vermont, Virginia, and Wisconsin.

17

Congress’s decision not to remove wetlands adjacent to

tributaries from the Act’s coverage, but instead to provide

additional procedures to reduce the regulatory burden on the

Corps, and to give States a greater role in implementing the

wetlands program if they want one. See Riverside Bayview, 474

U.S. at 135-39 (discussing the focus on wetlands in the 1977

amendments); see also 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 Envil. L. Rep. 10,187, 10,214-15 (2004) (discussing the 1977

amendments to section 404).

Under this provision, however, the States may not

administer the section 404 program for “traditional” navigable

waters, waters that could be improved to sustain navigation,

and “wetlands adjacent” to those waters. See 33 U.S.C.

§ 1344(g)(1).” This means two things. First, this section clearly

contemplates coverage of wetlands and improvable tributaries,

not just traditional navigable waters. Second, if the Act covered

only wetlands adjacent to traditional navigable waters, as

Petitioners contend, this statutory provision would be practically

meaningless, since there would be no wetlands covered by the

Act over which States could assume permitting authority. When

Congress amends a statute, though, the Court “presume{s] it

intends its amendment to have real and substantial effect.” Stone

v. INS, 514 U.S. 386, 397 (1995); see also Moskal v. "!nited

States, 498 U.S. 103, 109-111 (1990) (Court must consu = a

22. In Michigan's case, after approval of its program the

State entered into a Memorandum of Understanding with the Corps

that defined the extent of traditional navigable waters. The Corps

estimates that less than 500 miles of Michigan’s approximately 54,006

miles of river and streams are “traditional” navigable waters.

See Memorandum from Diana Klemans, Chief, Surface Water

Assessment Section, Water Bureau, Mich. Dep’t of Envil. Quality, to S.

Peter Manning, Dep't of Attorney General (Jan. 10, 2006),

available at http://www.deq.state.mi.us/documents/degexe

issuestowatchRapanosmemo2006.pdf.

18

statute to give effect, if possible, to every provision). The natural

conclusion is that the Clean Water Act covers wetlands adjacent

to non-navigable tributaries, and that Congress intended to create

a process under which the States can assume primary

responsibility for fill operations in these wetlands.

Finally, and contrary to the unsupported assertions of the

Rapanos petitioners and some of their amici, applying the Act

to wetlands adjacent to non-navigable tributaries does not unduly

intrude on the traditional and primary-power of States and their

municipal subdivisions over land and water use. Brief for

Petitioners in No. 04-1034 at 28-31; Brief of Amici Curiae

Foundation for Environmenta! and Economic Progress, et. al.,

at 14-19. This argument, which is advanced mostly by the

leading commercial interests whose activities are subject to

regulation under the Act rather than by States or municipalities

themselves, fails to show that a handful of permit denials by

the Corps constitutes a significant conflict. The argument also

fails to recognize the benefits that a consistent national program

provides to the States. Congress has given the States a major

role in implementing the Act’s programs and goals, and has left

the States and their subdivisions ample room to exercise control

over land and water use. Ai the same time, however, Congress

learned from experience that only a comprehensive approach

to water-pollution regulation at the federal level can achieve

the Nation’s hopes for clean water.

fl. FEDERAL POWER OVER INTERSTATE

COMMERCE INCLUDES THE POWER TO

REGULATE DISCHARGES INTO WETLANDS

ADJACENT TO NON-NAVIGABLE TRIBUTARIES

Construing the Clean Water Act to cover wetlands adjacent

to non-navigable tributaries does not raise any serious — or

even close — constitutional questions. To the contrary, the Clean

Water Act falls comfortably within the federal commerce power.

U.S. Const. art. I, § 8. Under this provision and the Constitution’s

“necessary and proper” clause, the federal government may

19

regulate purely intrastate activities that threaten the use of a

channel of interstate commerce or a class of activities that in

the aggregate substantially affect interstate commerce. United

States v. Lopez, 514 U.S. 549, 558 (1995); see also Gonzalez v.

Raich, 125 S. Ct. 2195, 2216 (2005) (Scalia, J., concurring)

“({T]Jhe authority to enact laws necessary and proper for the

regulation of interstate commerce is not limited to laws

governing intrastate activities that substantially affect interstate

commerce.”) The Clean Water Act can be upheld under both of

these categories. More importantly, the constitutional question

is not a close call. There is thus no need for this Court to adopt

a limiting construction of the Clean Water Act under the canon

of constitutional avoidance. See Harris v. United States, 536

U.S. 545, 555 (2002) (explaining that the canon applies “only

when there are serious concerns about the statute’s

constitutionality”).

Because traditional navigable waters are an important

channel of interstate commerce, the Commerce Clause

encompasses “such legislation as will insure the convenient and

safe navigation of all the navigable waters of the United States.”

including legislation that “requir[es] the removal of obstructions

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

_ Moreover, as noted above, many waters that are not

_ “traditionally” navigable are navigable in fact by recreational

vessels, which themselves engage in an important activity in

interstate commerce. The Commerce Clause also allows the

federal government to regulate activities outside of the traditional

navigable waters — for example, in non-navigable tributaries

— that potentially threaten navigation within those waters.

See United States v. Grand River Dam Auth., 363 U.S. 229, 232

(1960); United States v. Rio Grande Dam & Irrigation Co., 174

20

U.S. 690, 709-10 (1899); see also Oklahoma ex rel. Phillips v.

Guy F. Atkinson Co., 313 U.S. 508, 525 (1941) (“There is no

constitutional reason why Congress cannot, under the commerce

power, treat the watersheds as a key to flood control on navigable

Streams and their tributaries.”). As explained above, discharges

into wetlands adjacent to non-navigable tributaries may impair

navigation in a number of ways: by causing flooding

downstream, by allowing silt to run off and accumulate in a

downstream waterway, or (if the discharge contains toxic

chemicals that flow “ownstream) by making use of the waterway

dangerous. The federal government rationally may conclude that

pollution discharged into these wetlands substantially affects

downstream traditional navigable waters.

Nor is federal authority under the Commerce Clause limited

by any requirement that the Clean Water Act cover only those

specific discharges that by themselves can be proven to

substantially affect traditional navigable waters. Even when the

chances that any particular discharge will reach a traditional

navigable water are low, it is overwhelmingly likely that some

__ Of the pollutants discharged into wetlands adjacent to headwater

tributaries will be swept downstream into traditional navigable

waters, and collectively even a small percentage of all discharges

can impair navigability. An inability to control discharges into

non-navigable tributaries and adjacent wetlands would thus

leave the Clean Water Act with a “gaping hole.” Raich, 125 S.

Ct. at 2209.

The Clean Water Act is also constitutional as regulation of

a class of economic activity that in the aggregate substantially

affects interstate commerce. Petitioners and their amici do not

seriously dispute that the activities regulated by the Clean Water

Act, in the aggregate, substantially affect interstate commerce.

The polluting activities that are regulated by the Clean Water

Act are economic in nature. Point-source discharges are a means

to dispose of waste, which is the kind of commercial activity

that is subject to regulation under the Commerce Clause.

21 é

See, e.g., Chem. Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 340

n.3 (1992) (noting that solid waste, even if it has no value, is an

“article of commerce”). More specifically, discharging fill

material into a wetland — the precise activity that is at issue in

these cases — is almost always done for economic reasons.

This activity, which literally creates land that can be developed

where none was before, is inherently “economic.” See Raich,

125 S. Ct. at 2211 (noting that “economics” means “the

production, distribution, and consumption of commodities”

(emphasis added) (quotation marks and citations omitted)). The

activity also has direct economic effect in terms of downstream

flooding and water-quality impairment. Tellingly, virtually every

reported decision involving the discharge of fill material,

including both Rapanos and Carabell themselves, has involved

large-scale commercial development — construction of a

residential subdivision, an industrial building, or public works.”

23. See, e.g., SWANCC, 531 U.S. at 163 (construction of a disposal

site for baled nonhazardous solid waste); Riverside Bayview, 474 U.S.

at 124 (construction of residential housing development); Baccarat

Fremont Developers, LLC v. U.S. Army Corp of Eng’rs, 425 F.3d 1150,

1152 (9th Cir. 2005) (construction of a sixbuilding office, research, and

manufacturing facility); Save Our Sonoran, Inc. v. Flowers, 408 F.3d

1113, 1118 (9th Cir. 2005) (construction of an “upscale gated residential

community” containing 794 single-family houses); United States v.

Deaton, 209 F.3d 331, 333 (4th Cir. 2000) (construction of residential

housing development); Mich. Peat v. U.S. EPA, 175 F.3d 422, 425 (6th

Cir. 1999) (peat m.ning); Hill v. Boy, 144 F.3d 1446, 1448 (11th Cir.

1998) (construction of earthen dam and 650 acre reservoir); United

States v. Wilson, 133 F.3d 251, 254 (4th Cir. 1997) (construction of

planned unit development project serving 80,000 residents); United

States v. Brace, 41 F.3d 117, 120 (3d Cir. 1994) (commercial farming

operation); Hoffman Homes, Inc. v. U.S. EPA, 999 F.2d 256, 257-58

(7th Cir. 1993) (residential subdivision); United States v. Pozsgai, 999

F.2d 719, 722 (3d Cir. 1993) (construction of commercial truck repair

garage); Monongahela Power Co. v. Marsh, 809 F.2d 41, 42 (D.C. Cir.

1987) (construction of hydroelectric facility); Friends of the Earth v.

Hintz, 800 F.2d 822, 824 (9th Cir. 1986) (sawmill logging complex).

22

That economic aspect sets this case apart from Lopez and

Morrison, the only recent cases striking down federal legislation

on Commerce Clause grounds. The regulated activities in those

cases — possession of a gun in a school zone and gender-

motivated violence — were in no way economic in at least the

vast majority of circumstances. See Lopez, 514 U.S. at 561;

United States v. Morrison, 529 U.S. 598, 613 (2000). Whatever

motives someone might have for wandering by a school while

carrying a gun or for committing a brutal act of violence against

a fellow human being, those motives are unlikely to include

profit. Nor are the activities at issue in Lopez and Morrison

_ Closely associated with any traditional economic activities like

manufacturing or construction. The polluting activities covered

by te Clean Water Act, by contrast, are almost always directly

tied to traditional economic activity. They are undertaken

precisely because of the value that they provide, either by saving

on the costs of storage and disposal or by enabling new uses of

property. They thus fall within the core of activities that can be

regulated under the Commerce Clause.

23

CONCLUSION

The judgments of the Court of Appeals should be affirmed.

Respectfully submitted,

Micuaet A. Cox Eviot Sprrzer

Attorney General of the Attorney General of the

State of Michigan State of New York

Tuomas L. Casry Carmun J. HALLIGAN®

Solicitor General Solicitor General

P.O. Box 30212 Peter H. LEHNER

Lansing, MI 48909 Chief, Environmental

(517) 373-1124 Protection Bureau

Danie SMIRLOCK

Deputy Solicitor General

BeniaMin N. GuTMAN

Assistant Solicitor General

Lemuet M. Srovovic

Assistant Attorney General

120 Broadway, 25th Floor

New York, NY 10271

(212) 416-8020

* Counsel of Record

Attorneys for Amici Curiae

Terry GODDARD

Attorney General State

of Arizona

1275 West Washington Street

Phoenix, AZ 85007

(602) 542-4266

MIKE BEEBE

Attorney General

of Arkansas

323 Center St., Suite 200

Little Rock, AR 72201

(501) 682-20007

Bit Lockyer

Attorney General

State of California

1300 I Street, Suite 125

P.O. Box 944255

Sacramento, CA 94244

(916) 323-1996

RICHARD BLUMENTHAL

Attorney General

of Connecticut

24

Cuarces J. Crist, Jr.

Attorney General of Florida

The Capitol PL-01

Tallahassee, FL 32399-1050

(850) 414-3300

Mark J. Bennett

Attorney General of Hawaii

425 Queen St.

Honolulu, HI 96813

(808) 586-1500

Lisa MADIGAN

Attorney General of Illinois

Office of the Ilinois Attorney

General

100 West Randolph Street,

12th Floor

Chicago, IL 60601

(312) 814-3000

Tuomas J. MILLER

lowa Attorney General

1305 E. Walnut Street

Des Moines, IA 50319

Office of the Attorney General (515) 281-8373

55 Elm Street

Hartford, CT 06106

(860) 808-5250

Cari C. DANBERG

Attorney General

_ State of Delaware

820 N. French Street

Wilmington, DE 19801

(302) 577-8400

Grecory D. Stumso

Attorney General

Commonwealth of Kentucky

Suite 118

Capitol Building

700 Capitol Ave.

Frankfort, KY 40601

(502) 696-5300

25

Cuarces C. Foti, Jr.

Attorney General

Louisiana Department of Justice

P.O. Box 94005

Baton Rouge, LA 70804

(225) 326-6705

G Steven Rowe

Attorney General

State of Maine

Six State House Station

Augusta, ME 04333-0006

(207) 626-8599

J. Josepx Curran, Jr.

Attorney General

of Maryland

200 St. Paul Place

Baltimore, MD 21202

(410) 576-6300

Tuomas F. ReILLY

Attorney General of

Massachusetts

Office of the Attorney General

One Ashburton Place

Boston, MA 02108

(617) 727-2200

Mike Hatcu

Attorney General

of Minnesota

102 State Capitol

St. Paul, MN 55155-1002

(651) 297-4272

Ju Hoop

Attorney General

State of Mississippi

P.O. Box 220

Jackson, MS 39201

(601) 359-3680

JeRemiAH W. (Jay) Nixon

Attorney General of

Missouri

Supreme Court Building

207 West High Street

Jefferson City, MO 65101

(573) 751-3321

Mixe McGratu

Attorney General of

Montana

P.O. Box 201401

Helena, MT 50620

(406) 444-2026

Keiiy A. AYOTTE

Attorney General of

New Hampshire

33 Capitol Street

Concord, NH 03301

(603) 271-3658

Perer C. Harvey

Attorney General of

New Jersey

R.J. Hughes Justice Complex

25 Market Street

P.O. Box 080

Trenton, NJ 08625

(609) 292-8576

Patricia A. Maorip

Attorney General of

New Mexico

P.O. Drawer 1508

Sante Fe, NM 87504

(505) 827-6000

Roy Cooper

Attorney General of

North Carolina

North Carolina Department

of Justice

P.O. Box 629

Raleigh, NC 27602

(919) 716-6400

Jw Petro

Ohio Attorney General

30 E. Broad St., 17th Floor

Columbus, OH 43215

(614) 466-8980

W.A. Drew EDMONDSON

Attorney General of Oklahoma

2300 N. Lincoln Boulevard

Suite 112

Oklahoma City, OK 73105

(405) 521-3921

HarpDy Myers

Attorney General

State of Oregon

1162 Court St. N.E.

Salem, OR 97301

(503) 378-6002

Patrick LYNCH

Attorney General

State of Rhode Island

150 South Main Street

Providence, RI 02903

(401) 274-4400

Henry McMaster

Attorney General of

South Carolina

Robert C. Dennis Office Bidg.

Post Office Box 11549

Columbia, SC 29211-1549

(803) 734-3970

Paut G SUMMERS

Attorney General of the

State of Tennessee

P. O. Box 20207

Nashville, TN 37202

(615) 741-3491

WILLIAM H. SorreLr

Attorney General of Vermont

Office of the Attorney General

109 State Street

Montpelier, VT 05609

(802) 828-3173

Ros McKenna

Attorney General of Washington

1125 Washington Street

P.O. Box 40100

Olympia, WA 98504

(360) 753-6245

27

Peccy A. LAUTENSCHLAGER

Attorney General of Wisconsin

Wisconsin Department of Justice

17 West Main Street

Madison, WI 53707

(608) 266-1221

Rosert J. SPAGNOLETTI

Attorney General for the

District of Columbia

Wilson Building

1350 Pennsylvania Ave., NW

Washington, DC 20004

(202) 727-3400

SUSAN SHINKMAN

Chief Counsel

Marcaret O. Murpuy

Assistant Counsel

Pennsylvania Department of

Environmental Protection

400 Market Street

Harrisburg, PA 17101

(717) 787-6853

M. Caro. BAMBERY

Association Counsel

International Association of Fish

and Wildlife Agencies

444 N. Capitol Street, NW

Suite 725

Washington, DC 20001

(202) 624-3687

Navigable Water Within Each Continental U.S. State

With a Portion of the River or Lake

in One or More Other States'

:

Navigable

Water

States with

Upstream or

Border Portions

Chattahoochee

River

GA

Colorado River

CO, UT, NV, CA

Arkansas River

CO, KS, OK

Colorado River

CO, UT, AZ, NV

SiS|Z|R}| 2

9

NH, MA, VT

WV, VA, MD

Delaware River

NY, PA, NJ

Apalachicola

River

Savannah River

Snake River

Lake Michigan

‘This table lists only one water body for each State, although

most States have many such water bodies. For purposes of this

appendix, the District of Columbia is treated as a State.

A-1

State Navigable States with

Water Upstream or

Border Portions

IN Lake Michigan | Mi, Wi, IL

1A Missouri River | MT, ND, SD, NE

KS Missouri River | MT, ND, SD, NE,

lA, MO

KY Mississippi MN, WI, IA, iL,

River MO, TN

Lh Mississippi MN, WI, IA, IL,

River MO, KY, TN, AR,

MS

ME | Piscataqua NH

River

MD | Potomac River | WV, VA, DC

MA_ | Connecticut NH, VT

River

MI Lake Michigan | IN, Wi, IL

MN | Mississippi WI

River

MS _| Mississippi MN, WI, IA, IL,

River MO, KY, TN, AR,

LA

MO | Missouri River | MT, ND, SD, NE,

lA, KS

MT Yellowstone WwY

River

NE Missouri River | MT, ND, SO, IA,

MO

A-2

State Navigable States with Notes

Water Upstream or

Border Portions

NV | Colorado River | CO, UT, AZ 2

NH | Piscataqua ME

River

NJ Delawere River | NY, PA, DE

NM _ | Navejo co 2,3

Reservoir (San

Juan River)

NY Delaware River | PA 1

NC Roanoke River | VA 1

ND | Missouri River | MT 1

OH | Ohio River PA, WV, KY 1

OK | Arkansas River | CO, KS 1

OR | Snake River WY, ID 1

PA Delaware River | NY, NJ 1

RI Mount Hope MA 1

Bay

sc Savannah River | GA 1

SD Missouri River | MT, ND, NE 1

™ Mississippi MN, WI, IA, IL, 1

River MO, KY, AR

T™ Rio Grande CO, NM

UT Green River wy, co 2.4

A-3

State Navigable ~ States with Notes

Water Upstream or

Border Portions

VT | Lake NY 5

Champlain

VA_ | Potomac River | WV, MD, DC 1

WA | Columbia River | OR 1

WV | Ohio River PA, OH 1

WI Mississippi MN, IA 1

River

WY | Green River UT 2

(Flaming Gorge

Reservoir)

1. U.S. Army Corps of Engineers, Bridges Over the Navigable

Waters of the United States (1961).

2. Comments of the Western Water Alliance to the U.S. Environ-

mental Protection Agency, Docket ID OW-2002-0050, April 16, 2003.

3. Wreyford v. Amold, 477 P.2d 332 (N.M. 1970).

4. United States v. Utah, 283 U.S. 801 (1931).

5. U.S. Army Corps of Engineers, Navigation in Vermont,

(accessed January 11, 2006).