# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A47

## Record

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

## Text

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.
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STATUTES:
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SE TIARG, BRI cccicesccpsttevinisegnebcicdscniesttintuippeaaan 7, 26
BE UTE. 6 DE vs ecceicsnsnctncinssitinnnisicnpeitiiaiinaiipeeiel 10
Te er ara ee 10, 19
BB TG BB rciesccvcctccentdasincicssiittitantiinaniauindintinn 10, 11
SE ITE. BBD ic cctcaciccicccntinittennintiilinaicdiunasiaciasiiegishaiiin 10
BB UAGAC. 6 SII cecctccatnncrncsitittntscinitinnasiinaschienisnsnaniiiaiaii 12
SB TGA. 6 BIB ccicccivcens cscssssanicetipniastivtintenistaaniana 19
OE Oe 0 ES 10
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A47. Public record. Not legal advice.