Amicus Curiae Brief — Rapanos v. United States

otherwise dry land where rain falls and runs off. Dry land is

not a water of the United States.

These concerns are not merely hypothetical. Federal

agencies routinely classify dry land in the arid West as waters

within the jurisdiction of the Clean Water Act. For example,

the Corps of Engineers takes the position that all natural

drainage features, including dry desert washes and dry eroded

cuis high up on a mountain ridge, are waters of the United

States so long as ‘he dry land includes any perceptible mark

left by flowing water. (See 33 CFR §§ 328.4, 328.3(e).)

Second, this Court has effectively excluded dry land

from the scope of regulated waters in its previous wetland

cases, which explain that wetlands within the jurisdiction of

the Clean Water Act have a “significant nexus” with

navigable waters, and are “inseparably bound up” with them.

(Solid Waste Agency af Northern Cook County v. United

States, 531 U.S. 159, 167 (2001) (“SWANCC’”), citing United

States v. Riverside Bayview Homes, 474 U.S. 121, 134

1985).) The Sixth Circuit, however, has not respected the

word “significant” in the phrase “significant nexus”. Instead,

it has asserted that any nexus—any hydrological

connection—is sufficient. (Rapanos 1], 376 F.3d at 639

(“What is required for CWA jurisdiction . . . is a ‘significant

See , which cau be satisfied by the presence of a

hydrological connection”).) The Fifth Circuit, in comparison,

has properly held that dry land and intermittent creeks are not

waters of the United States. (Rice v. Harken Exploration

Company, 250 F.3d 264, 270-271 (5 Cir. 2001); see In re

Needham, 354 F.3d 340, 345 (5" Cir. 2003) (no jurisdiction |

over “puddles, sewers, roadside ditches and the like”’).)

Tributary waters should be treated as within the jurisdiction

of the Clean Water Act only when they are so “inseparably

bound up” that a discharge into the tributary will produce

imminent, actual, identifiable, and significant contamination

in a navigable water. (See Rice at 272.)

Third, the decisions improperly extending Clean

Water Act jurisdiction to tributaries rest on the mistaken

notion that jurisdiction must be extended to protect the truly

navigable waters. In the words of the Fourth Circuit, a

discharge into a tributary has “the potential to move

downstream and degrade the quality of the navigable waters”.

(Deaton, 332 F.3d at 707.) But anything deposited almost

anywhere on dry land has the potential io be washed into

navigable waters. Rain undoubtedly washes into navigable

waters some droppings of bears in the woods, cows in the

fields uad dogs on city streets, but Congress could hardly

have intended “navigable waters” to include every wood,

field, and street. The Clean Water Act simply does not

regulate discharges with nothing more than the potential to

be carried into navigable waters. It regulates only actual

discharges into navigable waters.

And that is enough. When point-source discharges

into tributaries flow far enough to reach a navigable water,

they are regulated directly as discharges into navigable

waters. (See e.g. Needham, 354 F.3d at 346 (proper inquiry

is whether farthest traverse of spill reached navigable or

/adjacent-waters); Eidson, 108 F.3d at 1340 (discharge

flowing through storm drain treated as discharge to navigable

water).) Discharges eventually carried to navigable water by

stormwater runoff are regulated indirectly through the

permitting of stormwater discharges. (See Clean Water Act

§ 402(p), 33 U.S.C. § 1342(p).) Both are also within the

_ jurisdiction of state and local governments, which regulate

the discharge of wastes into water and the dumping of wastes

onto the ground. Therefore, navigable waters can be

protected without categorizing dry land as waters of the

United States. =~

For these reasons, the decisions of the Sixth Circuit in

the Rapanos II and Carabe./ cases should be reversed.

ARGUMENT

I. Courts And Federal Agencies Have Defined

“Tributary” To Include Dry Land

Corps regulations define “waters of the United States”

to include wetlands adjacent to tributaries of navigable

waters. (Carabell, 391 F.3d at 708, citing 33 C.F.R.

§ 328.1(a).) Here the wetlands at issue in both Rapanos II

and Carabell were determined to be within the jurisdiction of

the Clean Water Act because they were adjacent to non-

navigable tributaries. (/d.; Rapanos I] at 641-642.) The

proper definition of “tributary” is therefore an issue fairly

subsumed within the questions presented by petitioners.

When determining which tributaries are within the

jurisdiction of the Clean Water Act, the Sixth Circuit has

used expansive language. It has held that jurisdiction extends

to “any branch of a tributary system that eventually flows

into a navigable body of water”. (Rapanos IJ, 376 F.3d at

639, citing United States v. Rapanos, 339 F.3d 447, 452-53

(6" Cir. 2003), cert. denied, 541 U.S. 972 (2004)

(“Rapanos I°).) In Carabell, it quoted the Fourth Circuit's

conclusion that the Corps could properly determine that the

ugency had jurisdiction “over the whole tributary system of

any navigable waterway”. (Carabell at 710, quoting

Rapanos I at 452, quoting Deaton, 332 F.3d at 712.) Because

the Fourth Circuit rejected the argument that tributary

jurisdiction ends at the “headwaters” of a tributary, where

there is a minimum flow, these cases can fairly be read as

extending jurisdiction to dry land. (See Deaton at 710.)

In addition to the Fourth and Sixth Circuits, the Ninth

Circuit has given the word “tributary” an expansive

interpretation, as has the Tenth and Eleventh Circuits in cases

decided before SWANCC. For these courts, a tributary does

not need to be a natural body of water, but can instead be an

artificial construct such as a drain or roadside ditch.

(Rapanos II at 642-43; Rapanos I at 453; Carabell at 708;

Deaton at 708-12; Headwaters, 243 F.3d at 533 (9" Cir.,

irrigation canal); Eidson, 108 F.3d at 1342 (11" Cir., man-

made ditches and canals); Quivira, 765 F.2d at 130 (10" Cir.,

gullies and arroyos).) The “hydrological connection” need

not be an actual hydrological connection in which water is

flowing at the time of the discharge; instead, the connection

is established even if water flows only intermittently or

seasonally, or only during significant or intense rainfall.

(Headwaters at 534 (intermittent); Rapanos II at 643

(seasonal); Eidson at 1342 (significant rainfall); Quivira at

130 (intense rainfall).) In the 10" Circuit, the hydrological

connection can be underground, and so slow that the travel

time is “a lengthy period, perhaps centuries”. (Quivera at

129-30.)

10

These definitions confuse a tributary with a

drainage basin (also called a “watershed”). According to the

U.S. Geological Survey, which monitors streamflows in the

United States, a tributary is “a smaller river or stream that

flows into a larger river or stream.” (Water Science Glossary

of Terms, http://ga.water.usgs.gov/edu/dictionary.html.) A

drainage basin is the “land area where precipitation runs off

into streams, rivers, lakes, and reservoirs.” (/d.) The

Mississippi River drainage basin, for example, extends from

the Rockies to the Appalachians, covers more than a million

square miles, and drains 41 percent-of the 48 contiguous

states. (Corps, The Mississippi River and Tributaries Project,

h

Potomac River basin, although much smaller, stretches across

://www.mvyn.usace.army.mil/pao/bro/misstrib.htm.) The

parts of four states and drains more than 14,000 square miles.

(Interstate Commission on the Poiomac River Basin, Basin

Facts, http://www.potomacriver.org/about_potomac/basin-

facts.htm.)

When cases such as Eidson and Quivira define

“tributary” by a wet connection with a navigable river during

times of substantial rain, they include the entire drainage

basin. The necessary hydrological connection is formed

whenever rain falls anywhere in a drainage basin and flows to

the navigable river draining the basin. Because almost all the

land in the United States is drained by a navigable river, these

1]

cases would define almost all the land in the United States as

a “water of the United States”.

And not just the land. If these cases mean what they

say, the roc f of the Supreme Court Building is a water of the

United States, because the roof maintains an intermittent

hydrological connection with navigable waters. Rain falling

on the roof undoubtedly flows to a drain, down the drain to

the sewers of Washington DC, through the sewers to the

Anacostia or Potomac River, and down the river to

Chesapeake Bay and the Atlantic Ocean.

The Corps recognizes that a tributary must be less

than the entire drainage basin, but still defines the word to

include dry land. According to the Corps, “The upstream

limit of waters of the United States is the point where the

[ordinary high water mark] is no longer perceptible”. (65

Fed.Reg. 12818, 12823; accord 33 CFR § 328.4.) The

phrase “ordinary high water mark” means “that line on the

shore established by the fluctuations of water”. (33 CFR

§ 328.3(e).) Unfortunately, the Corps interprets this

definition to mean only that a mark must be present, and

brushes aside comments suggesting that water must

ordinarily be present. (65 Fed.Reg. at 12823.) In the arid

West, marks left by flowing water are quite common,

because they are not obscured by vegetation. They are

particularly evident in deserts, where drainage patterns can be

12

seen over large barren areas. Marks left by flowing water

extend to the very tops of mountain ridges. The drier the

landscape, the more likely one is to find upland “waters of

the United States”.

According to the Corps, its jurisdiction reaches

beyond natural channels to drainage ditches that “extend the

[ordinary high water mark] of an existing water of the United

States” and that “connect two waters of the United States”.

(/d.) Whatever these phrases may mean—the Corps seems

unsure itself—they allow the Corps to assert jurisdiction over

ordinary roadside ditches. (Deaton at 704, 710-711.)

By extending its jurisdiction to artificial channels, the

Corps raises an important issue for Western municipalities:

Are storm drains waters of the United States? In the arid

West, stormwater is often managed by a system of

aboveground channels, which may be sophisticated concrete

structures or simple ditches. If these storm drains are waters

of the United States, then they are not point sources, and do

not need NPDES permits. (See South Florida Water

Management District v. Miccosukee Tribe Of Indians, 54}

U.S. 95, 112 (2004) (no NPDES permit needed for transfer of

water between two water bodies that are not “meaningfully

distinct”).) If the storm drains are not waters of the United

States, they may be regulated as point sources. (See Clean

Water Act § 402(p), 33 U.S.C. § 1342(p); 40 CFR § 122.26.)

13

The Corps recognizes this problem, but leaves it unresolved:

“Stormwater management facilities constructed in waters of

the United States may, under certain circumstances, be

considered waters of the United States.” (65 Fed.Reg. at

12824.) No circumstances are identified.

The Fourth and Sixth Circuits do not have the

restraint of the Corps. The Fourth Circuit held that

“jurisdiction extends to any branch of a tributary system that

eventually flows into a navigable body of water”, and

adopted a dictionary definition of “tributary” that “would

encompass the entire feeder system”. (Deaton at 710-711.)

Taken literally, the “entire feeder system” would include not

only natural tributaries and artificial roadside ditches, but

also wholly underground storm sewers and the system that

feeds those sewcrs, including roof gutters, downspouts, and

roadside gutters. With decisions like these, we should not

wonder that the State of California has concluded that “a

Municipal Separate Storm Sewer System (MS4) is always

considered a Waters of the United States”, and that a

municipal system includes “roads with drainage systems,

municipal streets, catch basins, curbs, gutters, ditches, natural

drainage features or channels, modified natural channels,

man-made channels, or storm drains”. (California Regional

Water Quality Control Board, San Diego Region, Order No.

2001-01, NPDES No. CAS0108758, Waste Discharge

14

Requirements For Discharges Of Urban Runoff From The

Municipal Separate Storm Sewer Systems (MS4s) Draining

The Watersheds Of The County Of San Diego, The

Incorporated Cities Of San Diego County, And The San

Diego Unified Port District, at D-4, D-8 (February 21, 2001)

http://www _.waterboards.ca.gov/sandiego/programs/stormwat

/sd% it/ ™ %202001-

01%20Final%20with”o20attachmentss.pdf.) Despite this

characterization of municipal storm-sewer systems as waters

of the United States, California regulates them as point

sources. (/d.)

The classification of dry channels and municipal

storm drains as waters of the United States threatens

municipalities with exorbitant costs that will produce little or

no environmental benefit. Because stormwater is not

centrally collected and treated like sanitary wastewater,

municipalities have only limited control over stormwater

quality. Ensuring that dry channels comply with water-

quality standards may be impossible at any cost. And what

will be gained from all this regulation and expense? Even if

municipalities discharged Perrier water instead of

stormwater, the dry channels would return to their dry

condition soon after the rain ended, and would remain unfit

for swimming and fishing because of the lack of water.

15

In summary, the definition of “tributary” has

improperly been extended to include all the land extending

from a navigable river to the tops of the mountain ridges at

the edges of its drainage basin, and to artificial structures

including urban streets and gutters.

Il. Tributary Jurisdiction Should Be Limited To Waters

Inseparably Bound Up With Navigable Waters

The problems caused by an overexpansive definition

of “tributary” can be solved by applying the concepts of

SWANCC and limiting tributary jurisdiction to those waters

that have a “significant nexus” and are “inseparably bound

up” with navigable waters. (See SWANCC at 167.)

Unfortunately, in extending tributary jurisdiction to any

hydrological connection, the Fourth and Sixth Circuits have

changed the standard from “significant nexus” to any nexus.

(See Deaton at 710-711; Rapanos I] at 639 (“a ‘significant

WD css ees can be satisfied by the presence of a

hydrological connection” .)

The Fifth Circuit, however, has properly interpreted

the concepts established in SWANCC. It has concluded that

jurisdiction “is not so broad as to permit the federal

government to impose regulations over ‘tributaries’ that are

neither themselves navigable nor truly adjacent to navigable

waters”, and that “the United States may not simply impose

16

regulations over puddles, sewers, roadside ditches and the

like”. (Needham, 354 F.3d at 345; see Needham at 344

(jurisdiction under Oil Pollution Act same as Clean Water

Act).) Jurisdiction should not be extended to regulate

discharges “that have only an indirect, remote, and attenuated

connection with an identifiable body of ‘navigable waters.””

(Rice, 250 F.3d at 272.) Discharges are subject to regulation

only if there is a “close, direct, and proximate link” between

the discharges and “resulting actual, identifiable . . .

contamination of a particular body of natural surface water”

that satisfies jurisdictional requirements. (/d.)

This Court should adopt the Fifth Circuit’s

application of the SWANCC standard, and hold that tributary

waters are within the jurisdiction of the Clean Water Act only

when they are so inseparably bound up with a truly navigable

water that a discharge into the tributary will produce

imminent, actual, identifiable, and significant contamination

in the navigable water.

Ill. The Overextended Definition of “Tributary”

Is Not Needed To Protect Navigable Waters

Natural water is never pure H»O. Even normal

rainwater has an acidic pH of 5.5, rather than a neutral pH of

7.0, because carbon dioxide dissolves into the rain as it falls and

forms carbonic acid. (See http://www.epa.gov/acidrain/.) As

17

water runs over and through the land, it dissolves some of

what it comes into contact with, and washes some into

navigable waters. In agricultural areas, cow droppings may

fall directly into navigable waters, or be carried in by

stormwater. (See Oregon Natural Desert Association v.

Dombeck, 172 F.3d 1092, 1093, 1098-1099 (1998), cert.

denied, 528 U.S. 964 (1999).) No doubt bison droppings also

fell directly into navigable waters, and were carried in by

stormwater, when millions of bison roamed the Great Plains.

Because rain falls almost everywhere, and runs off the land

into navigable waters, almost anything exposed to rain has

some potential for affecting water quality in navigable

waters.

The courts of appeal are therefore wrong when they

suggest that the potential to affect navigable waters defines a

tributary. (See e.g. Deaton at 707 (“Any pollutant or fill

material that degrades water quality in a tributary has the

potential to move downstream and degrade the quality of the

navigable waters themselves”); Rapanos J at 451; Rapanos II

at 639-640; Headwaters at 534 (“‘as long as the tributary

would flow into the navigable body .. ., it is capable of

spreading environmental damage and is thus a ‘water of the

United States’ under the Act”), quoting Eidson at 1342.)

Nowhere does the Clean Water Act imply that “waters of the

United States” are to be determined by these standards of

18

“potential to move downstream” and “capable of spreading

environmental damage”. If these were truly the standards to

be applied, they would make Corps regulations meaningless,

because surely fill material placed on the bank of a navigable

water has more potential to move into the navigable water

and spread environmental damage than the same fill placed in

a wetland miles away and connected to the navigable water

only through a series of roadside ditches and drains.

The Sixth Circuit reads too much into the statement in

the Legislative History that “Water moves in hydrological

cycles and it is essential that discharge of pollutants be

controlled at the source.” (Rapanos I] at 451.) Regardless of

how water moves, Congress explicitly limited the reach of

the Clean Water Act to “point” sources, and imposed only

general planning requirements on nonpoint sources. (Clean

Water Act §§ 301(a), 502(12), 33 U.S.C. §§ 1311(a),

1362(12) (prohibiting point-source discharges into navigable

waters), §§ 208(b)(2)(F), (K), 33 U.S.C. §§ 1288(b)(2)(F),

(K) (planning process to consider control of “agriculturally

and silviculturally related nonpoint sources of pollution” and

“the disposal of pollutants on land”).) Congress therefore

excluded many sources, and many waters, from regulation

under the Clean Water Act.

The courts of appeal are also wrong to the extent that

they suggest that discharges to non-navigable waters cannot

19

be regulated under the Clean Water Act, even if they pollute

navigable waters. Discharges that reach navigable waters by

way of non-navigable waters and artificial conveyances such

as pipelines are routinely treated as discharges to navigable

waters. In Needham, for example, the Fifth Circuit held that

the proper inquiry in determining whether an oil spill violated

the Oil Pollution Act was not where the oil was initially

deposited, but whether it reached navigable waters or

jurisdictional adjacent waters. (Needham at 346; but cf. Rice

at 272 (generalized assertion that covered surface waters will

eventually be affected insufficient).) In Eidson, the

defendant discharged material to a storm sewer, and the

material apparently flowed through the sewer to a ditch.

(Eidson at 1340.) In upholding the conviction, the Eleventh

Circuit never stopped to consider whether the storm sewer

was a water of the United States. It treated the discharge as a

discharge to the ditch, which it found to be a navigable water.

(Id. at 1342-1343.) In this way, point-source discharges that -

reach navigable waters are routinely subject to Clean Water

Act requirements.

Discharges that reach navigable waters indirectly,

when they are carried downstream by rain, are regulated as

stormwater discharges. (See Clean Water Act § 402(p), 33

U.S.C. § 1342(p); 40 CFR § 122.26.) They are also regulated

by state and local governments. (See e.g. California Water

20

Code § 13050(e) (defining “waters of the state” to include all

surface water and groundwater), § 13260 (requiring report of

waste discharges that could affect waters of state), § 13263

(authorizing state agency to issue waste-discharge

requirements), § 13264 (prohibiting discharge of waste

before filing report with state agency), §13304 (authorizing

State agency to issue cleanup and abatement order for wastes

deposited where they may create a condition of pollution or

nuisance); Fish & Game Code § 5650 (prohibiting deposit of

substances deleterious to fish where they may pass into the

waters of the state).) Navigable waters can therefore be well

protected without categorizing all tributaries and dry land as

waters of the United States.

In summary, by misusing the concept of a tributary,

several courts of appeals have defined “waters of the United

States” so broadly that the phrase covers virtually all the land

in the United States. Clean Water Act jurisdiction should

extend only to those tributaries that are so inseparably bound

up with a truly navigable water that a discharge into the

tributary will produce imminent, actual, identifiable, and

significant contamination in the navigable water. A more

expansive definition would be inconsistent with Corps

regulations and the specific provisions of the Clean Water

Act.

CONCLUSION

For these reasons, the decisions of the Sixth Circuit in

the Rapanos IT and Carabell cases should be reversed.

Respectfully submitted,

LAWRENCE S. BAZEL

Counsel of Record

JOHN BRISCOE

Briscoe Ivester & Bazel LLP

Attorneys for Amicus Curiae

Western Coalition of Arid States (“WESTCAS”)

December 2, 2005

Supreme Court of the Gnited States

JOHN A. sani et ux., cc. al.,

Petitioners,

Vv.

UNITED STATES,

Respondent.

°

JUNE CARABELL, et al.,

Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Respondents.

°

On Writ Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

¢

BRIEF OF AMICI CURIAZ WESTERN ORGANIZATION OF

RESOURCE COUNCILS, IDAHO RURAL COUNCIL,

NORTHERN PLAINS RESOURCE COUNCIL, POWDER

RIVER BASIN COUNCIL, DAKOTA RESOURCE COUNCIL,

OREGON RURAL ACTION, WESTERN COLORADO

CONGRESS, COMMUNITY ASSOCIATION FOR

RESTORATION OF THE ENVIRONMENT, CONCERNED

CITIZENS FOR CLEAN WATER, AMIGOS BRAVOS, NEW

WALKER LAKE WORKING GROUP, WYOMING OUTDOOR

COUNCIL, IOWA FARMERS UNION and MINERAL

COUNTY IN SUPPORT OF RESPONDENTS

°

CHARLES M. TEBBUTT

Counsel of Record

Western Environmental Law Center

1216 Lincoln St.

Eugene, OR 97401

541-485-2471

January 13, 2006

COCKLE LAW BRIEF PRINTING CO (800) 235-4964

OR CALL COLLECT (402: 942-2831

QUESTIONS PRESENTED

(as presented by Petitioners)

No. 04-1034

Rapanos v. United States

1. Does the Clean Water Act prohibition on unpermitted

discharges to “navigable waters” extend to nonnavigable

wetlands that do not even abut a navigable water?

2. Does extension of Clean Water Act jurisdiction to every

intrastate wetland with any sort of hydrological connec-

tion to navigable waters, no matter how tenuous or remote

the connection, exceed Congress’ constitutional power to

regulate commerce among the states?

No. 04-1384

Carabell v. United States Army Corps of Engineers

1. Does the Clean Water Act extend to wetlands that are

hydrologically isolated from any of the “waters of the

United States”?

2. Do the limits on Congress’ authority to regulate

interstate commerce preclude an interpretation of the

Clean Water Act that would extend federal authority to

wetlands that are hydrologically isolated from any of the

“waters of the United States”?

i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............cececcscsseseseeeeeeees i

INTERESTS OF AMICI CURIAE ............:.0cc00e0ese000 1

SUMMARY OF THE ARGUMENT..............-::0000000000+: 5

RPE REE IEMA 1 OO PEON 7

I. THE COMPREHENSIVE NATURE OF THE

CLEAN WATER ACT AND PRIOR PRECE-

DENT GIVES CONGRESS THE POWER TO

REGULATE INLAND WATERS TO PRE-

VENT POLLUTION AT ITS SOURCE ........... 7

Il. TRIBUTARY STREAMS AND WETLANDS

ADJACENT TO OR CONNECTED WITH

TRIBUTARY STREAMS ARE THE CAPIL-

LARIES OF THE NAVIGABLE-IN-FACT

ARTERIAL WATERWAYS ..............c.cceeseseeeeees 13

Ill. IN THE WEST, TRIBUTARY STREAMS,

AND THE WETLANDS AND OTHER WA-

TERS THAT HELP FEED THEM, ARE ES-

SENTIAL TO ECONOMIC SURVIVAL AND

QUALITY OF LIPE................ccccccccccsrsecessessees 20

CORBCLIIGION ...0000cc0ccsececscessccsccccesosscccccccsecsvvvssosossooes 28

ill

TABLE OF AUTHORITIES

Page

CASES:

Arkansas v. Oklahoma, 503 U.S. 91 (1992) ...............cc00008 12

Carabell v. United States Army Corps of Eng’rs, 391

ee ee I sietsiniamiaemniglianseabidiasqsore 18

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Oe Ce CIE ccncccitistictincrunsitibeiisdnicndidiniiciduiniiinmones 14

Community Ass’n for Restoration of the Env't v. Henry

Bosma Dairy, 65 F. Supp. 2d 1129 (E.D. Wa. 1999),

aff'd, 305 F.3d 943 (9th Cir. 2002)............:c0cccceees 23, 24, 25

Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d

IE, Si cinenitacnissibendicesadigheindibediatiebemmebad 21, 22

Idaho Rural Council v. Bosma, 143 F. Supp. 2d

A ATE A ES AE Oe ae CO 25, 26

Int'l Paper Co. v. Oullette, 479 U.S. 481 (1987).............. 8,9

Milwaukee v. Illinois, 451 U.S. 304 (1981) ..................000000 8

New Jersey v. New York, 283 U.S. 336 (1931)................... 11

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

Be I I nici cclidiisisinchacicdacumantnapetiidinadaduideaisbline 11, 13

Red Lion Broad. Co. v. Fed. Communications

Comm'n, 395 U.S. 367 (1969)...........ccccrcsrorccoccccessvcceseess 14

Solid Waste Agency of N. Cook County v. United

States Army Corps of Eng’rs, 531 U.S. 159 (2001)....9, 17

Quivira Mining Co. v. United States Envtl. Prot.

Agency, 765 F.2d 126 (10th Cir. 1985)............-..-.ccceeeeeeee 21

Train v. City of New York, 420 U.S. 35 (1975) ............000000 9

United States v. Alaska, 503 U.S. 569 (1992) .............:000+ 11

iv

TABLE OF AUTHORITIES - Continued

Page

United States v. Appalachian Elec. Power Co., 311

BEE Ie CMD ccisisnsntinnsscicinnesachgumepesnipuicnsiagpiaiighietatias dest 18

United States v. Eidson, 108 F.3d 1336 (11th Cir.

DED ocistccnecesiinneapbecneutetesceseiinbepininddsnacniineinadtidinasitetettaiie 22

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

IUD ..cstnsintcscviitenipinsecessontsstiiatineniiitainbateiienaneilaiieimiadalile 18

United States v. Riverside Bayview Homes, 474 US.

I CIO cccctintcisccccsusssinccttiasscssihdéapeniiniiiasisnaiicinal passim

STATUTES:

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Te er ara ee 10, 19

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SE ITE. BBD ic cctcaciccicccntinittennintiilinaicdiunasiaciasiiegishaiiin 10

BB UAGAC. 6 SII cecctccatnncrncsitittntscinitinnasiinaschienisnsnaniiiaiaii 12

SB TGA. 6 BIB ccicccivcens cscssssanicetipniastivtintenistaaniana 19

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BS U.B.C. § 1IB4AIHIMA) ...0ccccerecccorcccssrsscrsoncesteseorscsscnssenes 25

BB UBC. § 1960) .000000csccces00cesscccesrsscccsssceovensssenssncsssnseuses 10

33 U.S.C. § 1962(7)..........csecrrcserseseesseererensesserersssensssnnserns 8 °

TABLE OF AUTHORITIES — Continued

Ge es © Se iP nace snccnseczsvznecusanszvscnaccnnnsevensveapounnsn

ee OP Be enhccecescanssnnantenssescngveseemnnedunescnesapapuaes

FEDERAL REGISTER:

ee Be CD ccectnneccsscececcsescesstvevscccccssensens

REGULATIONS:

IE eS eon Oe

NID scxinssenidicsthaptesiimmmisinsisabtnennintintntsian

SS RAS in SR

FERRERS IONE Set Sapeeeapee ae

LEGISLATIVE HISTORY:

S. Conf. Rep. No. 92-1236, at 144 (1972), reprinted

in 1972 US.C.CAN. 3668, 3776, 3822, 118

Cong. Rec. 33756-33757 (1972) (statement of

EEE ea

OTHER AUTHORITIES:

“A Tale of Two Rivers” available at http://www.

4).lane.edu/partners/eweb/ttr/mckenzie/cdr. html

(last visited January 2, 2006).................cccccccceeceeeees

Comments of the Western Water Alliance to the

U.S. Environmental Protection Agency, Docket

ID OW-2002-0050, April 16, 2003 .00..........ececee

— 9

.. 9, 24

vi

TABLE OF AUTHORITIES -— Continued

Page

Dennis F. Whigham & Thomas E. Jordan, Isolated

Wetlands and Water Quality, 23 WETLANDS 541

ee cnnsntiastieciichiesnnsiesinintitnisishtnecinctinindiniiedsndianit 15, 16, 17, 26

Dr. Seuss, McElligot’s Pool (Random House 1947)........... 13

Jeanne Christie, “Overview of State Efforts of [sic]

Close the Gaps in Jurisdiction - Status and

Trends in State Wetland Programs,” available at

http://www.aswm.org/calendar/legal/christie. pdf,

slide 12 (last visited January 6, 2006) ...................00000+ 19

Malcolm Newson, Hydrology and the River Envi-

ronment 153 (Oxford UK: Clarendon Press 1994)........ 12

Rodgers, William H. Jr., Environmental Law, § 4.12

2 aS nee Se 8, 10

“Save Walker Lake, How Can It Be Saved?” available

at http:/Aveb0 greatbasin.net/~frankly/walker. html

(last visited January 6, 2006).................cccecceeeerenreeneeeee 20

Scott G. Leibowitz, Isolated Wetlands and Their

Functions: An Ecological Perspective, 23 WET-

|) ee 13

State Environmental Resource Center, “Issue: ‘No

More Stringent’ Laws,” available at http//www.

serconline.org/noMoreStringent.htm] (last visited

Thomas C. Winter & James W. LaBaugh, Hydro-

logic Considerations in Defining Isolated Wet-

lands, 23 WETLANDS 532 (2003) ..............ccecccseeeeeeeee 15, 16

United States EPA, Functions and Values of Wet-

lands, EPA 843-F-01-002c (Sept. 2001) available

at www.epa.gov/owow/wetlands/pdf/fun_val.pdf

ast visited January 10, 2006)................c.cceccsereeeeeneeeees 21

TABLE OF AUTHORITIES - Continued

Page

Virginia Carter, Technical Aspects of Wetlands:

Wetland Hydrology, Water Quality, and Associ-

ated Functions, United States Geological Survey

Water Supply Paper 2425, available at http://

water.usgs.gov/nwsum/WSP2425/hydrology.html

(last visited January 10, 2006)...............:cccccccceeseeeereeees 21

Wash. Admin. Code § 173-220-030(21) ..............cccccceseeeenes 24

1

INTERESTS OF AMICI CURIAE’

The organizations, al] non-profit corporations, and one

county government represented in this brief represent

people who live throughout the arid West, the Pacific

Coast and parts of the Midwest. Many of the organiza-

tions’ members include farmers and ranchers whose

economic well-being and sustenance depends upon the

seasonal streams, wetlands, playa lakes, prairie potholes,

vernal pools and other aquatic features that also comprise

most of the aquatic habitat of the West. Many of the people

represented by these entities rely upon scarce surface

waters of the West and would be economically devastated

without the protections afforded by the Clean Water Act,

while the remainder would also have their quality of life

drastically diminished by the restrictions on federal Clean

Water Act jurisdiction sought by the Petitioners. Many

amici members rely upon surface waters to irrigate their

crops and provide drinking water for themselves and their

livestock, while others are dependent upon suiface waters

to provide recreational opportunities that support their

Western Organization «f Resource Councils is a

network of grassroots orge.zations from seven states

(Colorado, Idaho, Montana, North Dakota, Oregon, South

Dakota and Wyoming) that includes 9,500 members and

46 local community groups. With most of the region

' The Petitioners have filed blanket letters consenting to the

participation of amici. Respondent has consented by letter, a copy of

which has been filed with the Clerk, to participation by amici. No

counsel for any party authored any part of this brief and no one other

than amici curiae made any monetary contribution to the preparation

and submission of this brief.

receiving just 10-20 inches of rain a year, landowners rely

on access to clean, mountain-fed irrigation water and

groundwater to prosper.

Idaho Rural Counci] members are family farmers,

ranchers and rural] Idahoans committed to preserving the

economic well-being of their communities. Clean water is

an absolutely critical resource to sustain present and

future domestic, livestock and other agricultural uses

which are especially important in the high desert areas of

Southern Idaho where many members live and water is

scarce.

Northern Plains Resource Council is a grassroots

conservation and family agriculture group who works to

protect Montana’s water quality, family farms and

ranches, and unique quality of life.

The Powder River Basin Resource Council works to

preserve and enrich Wyoming's agricultural heritage and

rural lifestyle and to conserve Wyoming's unique land,

mineral, water, and clean air resources consistent with

responsible use of those resources. Approximately 60% of

its membership is involved in agriculture.

Dakota Resource Council is committed to preserving

sustainable agriculture and natural resources in North

Dakota. About 50% of DRC’s members are farmers who

rely on surface waters.

Oregon Rural Action works to promote social justice,

agricultural and economic sustainability, and stewardship

of the region’s land, air and water.

Western Colorado Congress’ community groups and

members work together to create healthy, sustainable

3

communities, social and economic justice, environmental

stewardship and a truly democratic society.

Community Association for Restoration of the Envi-

ronment supports family farms in the State of Washington

that operate in a sustainable manner, promoting both

personal and economic health, stewardship of the land,

and protection of air and water.

Concerned Citizens for Clean Water members in Texas

and New Mexico work together to preserve and protect the

Ogallala Aquifer, the major source of water for Eastern

New Mexico, much of West Texas, and parts of Colorado,

Oklahoma, Kansas, Nebraska, Wyoming, and South

Dakota, from pollution and depletion.

Amigos Bravos works to return New Mexico's rivers

and the Rio Grande watershed to drinkable quality appro-

priate for human contact; to see that natural flows are

maintained and, where flows have been disrupted by

human intervention, to seek regulation to protect and

reclaim the river ecosystem by approximating natural

flows; and to preserve and restore native riparian and

riverine biodiversity.

The New Mexico Acequia Association works to protect

and strengthen acequias through community education,

community organizing and policy advocacy and whose

members view water as the lifeblood of their communities

because water brings them together as a community and

water is essential] to the continued survival of their way of

life.

Headwaters (Oregon) works to rehabilitate watershed

ecosystems and promote biological diversity through

4

promoting a just, sustainable economy, grassroots organi-

zations, and education.

Oregon Natural Resources Council's mission is to

aggressively protect and restore Oregon’s wildlands,

wildlife and waters as an enduring legacy.

Snake Valley Citizens’ Alliance members reside in

Utah and Nevada and work on issues regarding the export

of groundwater resources from Snake and Spring Valleys.

Depletion of groundwater through loss of surface water

recharge further threatens the long-term economic basis

and rural life of the valleys.

Northern California River Watch’s purpose is to

protect, enhance and help restore the surface and ground

waters including all rivers, creeks and tributaries of

Northern California.

Arizona Wildlife Federation works to educate, inspire,

and assist individuals and organizations to value, con-

serve, enhance, manage, and protect wildlife and wildlife

habitat. Support of enforcement of all state and federal

conservation, game and fish laws is a priority. The AWF

has promoted maximum outdoor recreation through

scientific principles and the practice of multiple use of the

public lands of Arizona.

Walker Lake Working Group works toward the pres-

ervation of Walker Lake, a closed-basin ‘ake in western

Nevada.

Wyoming Outdoor Council, the state’s largest conser-

vation organization, works to safeguard the state’s spec-

tacular national parks and protected areas, vast national

forests and other public lands, world-renowned wildlife