Amicus Curiae Brief — Rapanos v. United States

5

and its habitat, blue-ribbon fisheries and air and water

quality.

Iowa Farmers Union represents family farmers and is

an affiliate of the National Farmers Union.

Minera! County businesses rely heavily upon the

ability of residents and tourists to use Walker Lake for

recreational purposes. Walker Lake is a closed-basin

desert lake that supports a tremendous fishery.

+

SUMMARY OF THE ARGUMENT

The Sixth Circuit decisions should be affirmed based

upon the comprehensive statutory structure of the Federal

Water Pollution Control Act (commonly known as the

Clean Water Act), the legislative history of the Act, and

this Court’s previous holdings under the Clean Water Act

and its predecessor acts. While the Court need not reach

the constitutional issues presented by the Petitioners, the

Commerce Clause authority given to Congress to regulate

pollution of the waterways in this country has been upheld

by this Court based upon far less comprehensive statutes

than the Clean Water Act, and thus Congress’ authority to

eliminate pollution under the Clean Water Act should

similarly be upheld.’

* This brief is not intended to analyze in depth the plain language

or legislative history of the Clean Water Act, nor the Commerce Clause

tests of this Court. It is intended to highlight the comprehensive nature

of the Clean Water Act and the connections of tributary streams and

wetlands to the economic viability of small family farms and ranches

and recreational interests unique to the West.

6

At the time that the Clean Water Act was passed, our

Nation’s waters were used for open sewage and industrial

waste disposal. Congress recognized the overarching need

to legislate federal protections to deal with rampant

pollution. Let us not forget the setting: Lake Erie had been

declared dead; the Cuyahoga River had caught fire; and

waterways throughout the country were choked with

pollution. Simple principles of hydrology that water and

pollution flow downhill required that wetlands and inland

streams could no longer be filled in or used for unregu-

lated discharge if our Nation’s waters were to be made

healthy again and our economic structure was to be

sustainable.

Tributary streams and adjacent wetlands act as do

capillaries in the blood stream by regulating both the

quality and quantity of water that reaches navigable-in-

fact waters. Congress recognized that without these

tributaries and wetlands, the perennial rivers would carry

less, but more polluted, water, severely interfering with

navigation and the channels of commerce supported by our

Nation’s waters. Without the capillary water systems,

some perennial waters might themselves become intermit-

tent streams, which would devastate local communities

dependent on them.

Without minimum federal protections as established

by the Clean Water Act, waters in all states, particularly

those in the West, would be at peril of losing both water

quality and quantity. Water users of the West, including

family farmers and ranchers, recreationists, and outdoor

enthusiasts, depend upon the important ecological and

hydrological functions performed by wetlands and inter-

mittent streams that are geographically distant from

navigable-in-fact waters for their livelihood and overall

7

quality of life. Limiting Clean Water Act jurisdiction to

navigable-in-fact waters and only immediate tributaries

and adjacent wetlands would remove from regulation up to

96% of river miles from certain Western states. Such a

ruling would allow the continued degradation and destruc-

tion of the Nation’s waters in direct contradiction of the

principles and structure of the Clean Water Act.

+

ARGUMENT

I. -THE COMPREHENSIVE NATURE OF THE

CLEAN WATER ACT AND PRIOR PRECEDENT

GIVES CONGRESS THE POWER TO REGU-

LATE INLAND WATERS TO PREVENT POL-

LUTION AT ITS SOURCE.

Almost 34 years ago, Congress comprehensively

addressed our countrys approach to controlling and,

ultimately, eliminating water pollution, when it enacted

wide-ranging reforms to the Federal Water Pollution

Control Act. 33 U.S.C. § 1251, et seg. The vision of the

92nd Congress in enacting what is now known as the

Clean Water Act stands as one of the legislative pinnacles

in the history of this Congress and our country.

Congress clearly stated that its objective was “to

restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To

that end, Congress declared the ambitious goal of elimi-

nating the discharge of pollutants into national waters by

1985. 33 U.S.C. § 1251(a)(1). It was the intent of Congress

to give the Act’s jurisdictional scope “the broadest possible

constitutional interpretation unencumbered by agency

determinations which have been made or may be made for

8

administrative purposes.” S. Conf. Rep. No. 92-1236, at

144 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3776,

3822, 118 Cong. Rec. 33756-33757 (1972) (statement of

Rep. Dingell).

The central issue in these two cases is the interpreta-

tion of the term “navigable waters” as it was intended by

Congress. “Navigable waters” are defined in the Act as

“waters of the United States ... ” 33 U.S.C. § 1362(7);

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

(1985) (“Riverside Bayview”). At the outset, it is important

to put the present cases in the context of prior decisions of

this Court. As noted in Milwaukee v. Illinois, 451 U.S. 304

(1981) (“Milwaukee IT”), there was no question that Clean

Water Act of 1972 was “‘the most comprehensive and far

reaching water pollution bill’” that Congress ever had

passed. 451 U.S. at 317-318 (citations omitted). The term

“waters of the United States” has been construed broadly

to cover waters that are not navigable in the traditional

sense. See Int'l Paper Co. v: Oullette, 479 U.S. 481, 486 n. 6

(1987) (citations omitted). This broad construction is

consistent with Congress’ intent to get away from potential

limits imposed by the term “navigable waters” that were

present in prior, ineffective statutes dealing with pollution

of the Nation’s waters. Riverside Bayview, 474 U.S. at 133;

see also Rodgers, William H. Jr., Environmental Law,

§ 4.12 (1st ed. 1986) (“The extension of ‘navigable waters’

inland is unmistakable... ”).

Accepting this inclusive construction, this Court

further found “in Milwaukee II, that Congress intended

the 1972 Act amendments to ‘establish an _ all-

encompassing program of water pollution regulation’, and

that congressional ‘views on the comprehensive nature of

the legislation were practically universal.’ An examination

9

of [the Act of 1972) amply supports these views. The Act

applies to all point sources and virtually all bodies of

water.” Int'l Paper Co., 479 U.S. at 492 (citations omitted);

see also Solid Waste Agency of N. Cook County v. United

States Army Corps of Eng’rs, 531 U.S. 159, 179 (2001)

(“SWANCC”) (Stevens, J., dissenting) (“This Court was

therefore undoubtedly correct when it described the 1972

amendments as establishing ‘a comprehensive program for

controlling and abating water pollution.’” (Citing Thain v. City

of New York, 420 U.S. 35, 37 (1975)). The EPA has primary

jurisdiction to work with the Corps to define waters of the

United Staves and they have done so in identical language

that reflects Congress’ intent for a broad meaning of “waters of

the United States.” 33 CFR. §3283; 40 CFR. § 122.2.

(defining waters of the United States “as intrastate lakes,

rivers, streams (including intermittent streams), mudflats,

sandflats, wetlands, sloughs, prairie potholes, wet meadows,

playa lakes, or natural ponds ... ”). This Court properly

deferred to the Corps’ (and necessarily the EPA's) interpreta-

tion of waters of the United States in Riverside Bayview, 474

U.S. at 133, and should do the same here. The wetlands at

issue either contribute surface flow to tributary streams, and

thus are themselves tributaries, or are, at the very least,

directly adjacent to tributaries covered by the Act. In

keeping with the Clean Water Act’s intention to take into

account the hydrological and ecological connectivity of all

waters, EPA has acknowledged these principles since it

began interpreting the statute, and it’s determination is

entitled to deference.’ The Act remains as it was intended

* EPA's initial Policy Statement noted: “Freshwater wetlands

support the adjacent or downstream aquatic ecosystem in addition to

the complex web of life that has developed within the wetland environ-

ment. The relationship of the freshwater wetland to the subsurface

(Continued on following page)

10

in 1972 and as it was reinforced in its amendments of

1977.‘

The reasons for comprehensive federal action to

restore the condition of waters of the United States were

manifold. See Rodgers, Environmental Law, § 4.1. Based

on decades of water pollution problems and failed legisla-

tive actions, Congress recognized in 1972 that relying on

states to fund, implement and enforce effective water

pollution control (and resource protection) policies, with-

out the financial, technical, and political assistance of a

strong federal program was doomed to cor:tinued failure.

States’ rights were carefully maintained throughout the

statute, however, including requirements of consultation

and partnership. See, eg., 33 U.S.C. §§1251(b), (g),

1252(a), and 1253. Congress created a broad but flexible

federal floor of clean water safeguards, a mandatory but

innovative system for protecting the Nation’s waters and

the public’s health. States are able to be more restrictive

than federal law, but must at least meet the federal

minimums in order to be allowed to administer the federal

requirements. See 33 U.S.C. § 1342(b) (state requirements

to administer § 402 national pollutant discharge elimina-

tion system permit program); 33 U.S.C. § 1344(g) (state

requirements to administer § 404 dredge and fill permit

program); and 33 U.S.C. § 1370 (state authority to be

stricter than federal law).

environment is symbiotic, intricate and fragile.” Protection of Wetlands-

EPA Policy Statement, 38 Fed. Reg. 10834 (1973).

‘ The 1977 amendments as ultimately passed, and according to

Senater Baker, “‘retain{ed) the comprehensive jurisdiction over the

Nation’s waters exercised in the 1972 Federal Water Pollution Control

Act.’” Riverside Bayview, 474 U.S. at 136-37 (citations omitted).

il

While Congress found the Rivers and Harbors Act of

1899, 33 U.S.C. § 403, (along with its successor statutes) to

be inadequate to protect our Nation’s waters from pollu-

tion, this Court has long construed even that statute

broadly. See, e.g., United States v. Alaska, 503 U.S. 569,

578-83 (1992) (discussing the history of the Rivers and

Harbors Act and quoting Justice Holmes: “‘A River is more

than an amenity, it is a treasure.’” New Jersey v. New

York, 283 U.S. 336, 342 (1931)). In fact, thirty years before

the far more comprehensive Clean Water Act was passed,

Justice Douglas wrote for a unanimous court that

there is no constitutional reason why Congress or

the courts should be blind to the engineering

prospects of protecting the nation’s arteries of

commerce through control of the watersheds.

There is no constitutional reason why Congress

cannot under the commerce power treat the wa-

tersheds as a key to flood control on navigable

streams and their tributaries. Nor is there a con-

stitutional necessity for viewing each reservoir

_ project in isolation from a comprehensive plan

covering the entire basin of a particular river.

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S.

508, 525 (1941) (construing the Flood Control Act of 1938;

flood control is now covered in 33 U.S.C. § 1252(a)). Justice

Douglas went on to say: “For just as control over the non-

navigable parts of a river may be essential or desirable in

the interests of the navigable portions, so may the key to

flood control on a navigable stream be found in whole or in

part in flood control on its tributaries.” Jd. at 525-26. No

more prophetic and directly applicable statement of law

could be found to apply in the cases presently before this

Court. As the holdings in Alaska and Atkinson dictate, the

constitutional and jurisdictional underpinnings of Congress’

12

ability to regulate pollution and flood control of water-

sheds, including wetlands and tributaries that are part of

the watersheds, in the far more comprehensive Clean

Water Act should not be in question.

Consistent with this Court’s recognition of Congress’

right to legislate to protect watersheds, the protection of

the wetlands at issue in Rapanos and Carabell provide

important protections to the watersheds in which they

exist. These protections include not only flood control, but

also pollutant filtration, nutrient storage, and plant and

wildlife habitat. See Malcolm Newson, Hydrology and the

River Environment 153 (Oxford UK: Clarendon Press

1994) (“[W)etlands both reduce the river-flood hazard and

help to purify polluted water.”). Congress gave the EPA the

power to protect the Nation’s waters, at all levels through-

out the watersheds, without being bound to navigability

per se. EPA and the Corps are bound to account for the

effects on all downstream waters, all of which eventually

become navigable, either as rivers or as the territorial

seas. The principles of protecting upstream tributaries and

wetlands that provide multiple ecological and hydrological

functions have been upheld by the Courts, and reaffirmed

by Congress, for decades.°

The cases at issue here provide an opportunity for this

Court to reaffirm the scope of protection of waters intended

* This Court, again unanimously, has previously recognized that

“the Clean Water Act vests in the EPA and the States broad authority to

develop long-range, area-wide programs to alleviate and eliminate

existing pollution.” Arkansas v. Oklahoma, 503 U.S. 91, 108 (1992)

(citing 33 U.S.C. § 1288(b)(2)). Wetlands protection serves as part of the

area-wide program and the agencies’ implementation of this policy

deserves deference by the Court.

13

by Congress and necessary. to protect the quality of our

Nation’s waters. For over 60 years, this Court has upheld

the constitutional ability of Congress to regulate water-

sheds in the context of water pollution laws. See Atkinson,

313 U.S. at 525. A holding to the contrary would violate

the principle of stare decisis by overturning an extensive

body of case law upholding Congress’ power to regulate

pollution of our Nation’s waters. Furthermore, scientific

studies have repeatediy confirmed the wisdom of Congress

in legislating, and EPA and the Corps in administratively

implementing, protections against pollution at the source.°

It. TRIBUTARY STREAMS AND WETLANDS ADJA-

CENT TO OR CONNECTED WITH TRIBUTARY

STREAMS ARE THE CAPILLARIES OF THE

NAVIGABLE-IN-FACT ARTERIAL WATERWAYS.

While the webs of life found in aquatic systems may

be complex, hydrological and ecological principles are

relatively quite simple.’ “It is clear from the ecological

literature that isolated wetlands are not completely

isolated. Interactions between such wetlands and other

waters do occur hydrologically, through ground-water and

intermittent surface-water flows, and biologically through

dispersal of plants and animals.” Scott G. Leibowitz,

* The current Clean Water Act rules, proposed in 1975 and

finalized in 1977, fully reflect Congress’ intent, by extending protection

to those intrastate waters, “the use, degradation or destruction of which

could affect interstate or foreign commerce .. .” 33 C.F_R. § 328.3(aX3).

” The eminent Theodor Geisel, known to all as Dr. Seuss, has

captured for all ages this concept well. In McElligot’s Pool, he shows

that a fishing boy is no fool. Even a small pond with little action is

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

14

Isolated Wetlands and Their Functions: An Ecological

Perspective, 23 WETLANDS 517, 528 (2003). Protecting the

integrity of hydrological and ecological principles is recog-

nized and anticipated throughout the Clean Water Act,

which is founded on the understanding of the need to

protect our Nation’s waters from pollution.

As the Court reasoned in Riverside Bayview, both EPA

and the Corps appropriately sought to protect wetlands

adjacent to waters of the United States “as integral parts

of the aquatic environment ... ” Riverside Bayview, 474

U.S. at 134, 135-139. In this context, the Court recognized

that the regulation of wetlands by the Corps was properly

“‘implementing congressional policy rather than embark-

ing on a frolic of its own.’” Id. at 139 (quoting Red Lion

Broad. Co. v. Fed. Communications Comm’n, 395 U.S. 367,

375 (1969)).

Just as this Court recognized that the Corps deserves

deference over regulation of adjacent wetlands as a class,

the Corps and EPA regulations over wetlands that exist

deserve deference. See Riverside Bayview, 474 U.S. at 131

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

467 U.S. 837, 842-45 (1984)); 135 n.9 (“If it is reasonable

for 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.”). The

agencies recognize and understand the role of surface

waters, whether they be wetlands or streams, intermittent

or perennial, to provide flow (and other important contri-

butions) to navigable waters. This Court should not

15

The scientific literature further reinforces the agen-

cies’ regulatory system. Many perennial streams get

significant contributions from ground waters that are

recharged by wetlands and tributary streams. Flow

contributions occur in two primary ways: through surface

contribution and through groundwater recharge that

ultimately feeds navigable waters downstream. See, e.g.,

Thomas C. Winter & James W. LaBaugh, Hydrologic

Considerations in Defining Isolated Wetlands, 23 WET-

LANDS 532, 533 (2003) (“Isolated lakes and wetlands (for

brevity, wetlands will be used herein to represent lakes

and wetlands) located in this type of setting are equivalent

to shunt-bars in the flow field. That is, ground water

discharges to the wetland on the up-gradient side and the

wetland recharges ground water on the down-gradient

side []. Wetlands in this type of hydrogeologic setting are

not isolated because the ground-water flow field is a

hydrologic continuum.”); Jd. at 538 (“[I]t can be said that

nearly all wetlands are connected to some degree through

either surface water or ground-water flow systems and

that, over time, impacts in one part of a hydrologic system

will be felt in other parts.”); Dennis F. Whigham & Tho-

mas E. Jordan, Isolated Wetlands and Water Quality, 23

WETLANDS 541, 541-44, 547-48 (2003). In order “to restore

rity of the Nation’s waters,” 33 U.S.C. 1251(a), regulation

of wetlands adjacent to tributaries is crucial.

In Carabell, the wetlands are not isolated either in

terms of proximity or hydrological or ecological connec-

tivity. First, the wetlands are “bordering, contiguous, or

adjacent to” a tributary to a navigable water. 33 C.FR.

§ 328.3(c). Second, while the record is not clear just how much

the wetlands are hydrologically connected underground, this

16

Court has already deferred to the agencies’ decision to

regulate wetlands as a class. Riverside Bayview, 474 U.S.

at 135 n.9 (“That the definition may include some wet-

lands that are not significantly intertwined with the

ecosystem of adjacent waterways is of little moment”

because the Corps has the discretion to issue a permit).

The Corps should not be required to expend extensive

resources scientifically affirming a connectivity on a case-

by-case basis that is a generally accepted scientific fact. As

one scientist summarizes:

To have an impact on water quality in other eco-

systems, isolated wetlands would need to be hy-

drologically connected to them. Several studies

(e.g., McNamara et al. 1992, Winter and Rosen-

berry 1995, Rosenberry and Winter 1997, Podni-

esinski and Leopold 1998, Winter et al., 2001,

Winter and LaBaugh 2003) have demonstrated

that isolated wetlands have complex but direct

hydrologic interactions with other wetlands and

uplands. Based on the studies just cited, we as-

sume that most isolated wetlands are, in fact, not

hydrologically isolated from other waters and

wetlands and, thus, have the potential to impact

water quality in downstream ecosystems.

Whigham & Jordan, Isolated Wetlands and Water Quality,

23 WETLANDS at 542. A wetland adjacent to a tributary is

by no means isolated.’

* Wetlands were presumed by EPA in 1973 to be hydrologically

connected, either through surface or underground connections. See note

3, supra. This presumption is overwhelmingly confirmed in the

scientific literature. See, e.g., Winter & LaBaugh, Hydrologic Consid-

erations in Defining Isolated Wetlands, 23 WETLANDS at 533-34, 538

(stream or wetland may appear isolated by surface characteristics but it

(Continued on following page)

17

If an applicant believes that a wetland is not hy-

drologically connected, then the burden should be on the

applicant to prove there is no hydrological connection. This

would then be one factor, albeit not a determinative factor,

for the agency to consider when reviewing an application

for a permit to fill or alter an existing wetland area.

SWANCC does not require a different result because it

dealt only with the issue of the Migratory Bird Rule relied

upon by the government. In that case, this Court found

that the Migratory Bird Rule by itself was not enough to

give Clean Water Act jurisdiction to the courts. SWANCC,

531 U.S. at 174. In the two cases presently at issue, there

are numerous factors that provide Clean Water Act juris-

diction, including hydrological and ecological connectivity,

adjacency to tributaries of navigable waters, flood control,

pollution filtration’, and migratory bird habitat. In Ra-

panos, there are uncontested surface water connections

is not hydrologically isolated from a groundwater perspective); Whigham &

Jordan, Isolated Wetlands and Water Quality, 23 WETLANDS at 547-48

(“Isolation is a relative term and not a very good term from an ecosystems

perspective. Most isolated wetlands appear to be continuously or

intermittently linked hydrologically to other ecosystems, and distur-

bances would result in negative effects on water quality within and

external to the wetlands.”).

* Whigham & Jordan, Isolated Wetlands and Water Quality, 23

WETLANDS at 543-44 (“Prairie pothole wetlands have also been shown to

improve water quality and to efficiently retain nutrients (e.g., Magner

et al. 1995). Many pothole wetlands have enriched nutrient conditions

as a result of agricultural inputs (Neely and Baker 1989), and enrich-

ment of N [nitrogen] and P [phosphorus] in surface waters often results

in nutrient enrichment of interstitial water. Unaltered prairie pothole

wetlands thus have a high potential for downstream discharge of

nutrients if they are connected to other potholes by surface or ground-

water discharges and drainage or ditching has the potential to signifi-

cantly increase the amounts of nutrients discharged to downstream

systems. Winter et al. (2001).”).

18

between the wetlands and tributaries that eventually

reach navigable-in-fact waters, United States v. Rapanos,

376 F.3d 629, 635 (6th Cir. 2004), while in Carabell the

wetlands likely have intermittent surface connections with

tributaries in addition to their adjacency to the tributar-

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

F.3d 704, 705-06, 708 (6th Cir. 2004). Fundamentally, since

the wetlands at issue are not isolated, the narrow holding

in SWANCC is not applicable to these cases.

Perhaps determinative of its case, Carabell concedes

that “[iJn general, the federal government may regulate

the intrastate non-navigable tributaries of navigable

waters but only insofar as it is necessary to protect the

integrity of the aquatic system that constitutes the navi-

gable waters.” Carabell Brief at 19 (citing United States v.

Appalachian Elec. Power Co., 311 U.S. 377, 423-26 (1940)).

Carabells’ counsel also concedes that Congress had exer-

cised proper powers by enacting the Clean Water Act

because “water moves in hydrologic cycles and it is essen-

tial that the discharge of pollutants be controlled at the

source.” Carabell Brief at 24 (citing Riverside Bayview, 474

U.S. at 133 (quoting S. Rep. No. 92-414, p. 77 (1972), U.S.

Code Cong. & Admin. News 1972, pp. 3668, 3742)). These

two concessions, along with deference to the agencies’

regulations which are intended to protect the integrity of

the aquatic system, further reinforced by the scientific

literature, give this Court all it needs to affirm the Sixth

Circuit opinions.

Carabell further argues that federal deference to the

states over pollution is required because Congress in-

tended to defer to state water laws. Carabell Brief at 32.

The Clean Water Act does no such thing. Congress passed

the statute to deal with the failure of states to be able to

19

address the severe pollution of interstate waters that was

at least in part fed by intrastate waters. Congress pro-

vided a federal minimum under which the States could not

go. See 33 U.S.C. § 1370 (no restrictions less stringent

than federal law). As earlier noted, Congress recognized

the need for federal/state cooperation, but also saw a dire

need to address the problem at the federal level.” While

Congress opted not to limit states’ rights to address water

quantity use, 33 U.S.C. § 1251(g), it did impose on the

states an overarching scheme to address water quality

issues. See, e.g., 33 U.S.C. § 1312. Inclusion of wetlands

and tributaries under Clean Water Act jurisdiction pro-

vides the perfect opportunity to regulate flows to maintain

the integrity of the Nations’ waters. See 33 U.S.C.

§ 1251(a). Addressing water pollution of tributaries and

adjacent wetlands that act as the capillaries for the larger

bodies of water is essential to protecting the integrity of all

of the Nation’s waters.

Some states, such as Idaho and New Mexico, have not created

legislation protecting waters of the state from pollution and thus have

not been delegated authority to administer the Clean Water Act. Many

states, including Idaho, Montana, Colorado, Utah, and New Mexico also

have various forms of laws in place prohibiting them from being stricter

than federal laws that prevent pollution of surface waters. See, e.g.,

State Environmental Resource Center, “Issue: ‘No More Stringent’

Laws,” available at http://www.serconline.org/noMoreStringent. html

(last visited January 6, 2006); Jeanne Christie, “Overview of State

Efforts of [sic] Close the Gaps in Jurisdiction — Status and Trends in

State Wetland Programs,” available at http:/Awww.aswm.org/calendar/

legal/christie.pdf, slide 12 (last visited January 6, 2006). Thus, if federal

jurisdiction is taken away, there will be no protections for waters of the

United States in many areas of the country.

20

Ill, IN THE WEST, TRIBUTARY STREAMS, AND

THE WETLANDS AND OTHER WATERS THAT

HELP FEED THEM, ARE ESSENTIAL TO

ECONOMIC SURVIVAL AND QUALITY OF

LIFE.

In the West, the contribution of tributary streams,

most often intermittent streams, and wetlands to naviga-

ble waters is obvious. Perennial surface waters are rela-

tively rare in the West compared to the more ubiquitous

waters of the East. For example, the percentage of North-

east river miles that are non-perennial are as low as 30%,

while the non-perennial rivers in the interior West account

for 76% of river miles. See Comments of the Western

Water Alliance to the U.S. Environmental Protection

Agency, Docket ID OW-2002-0050, April 16, 2003, Table 2,

at pages 9-10 (attached hereto as Appendix 2). In Arizona,

non-perennial rivers account for 96% of all river miles in

the state. Jd.

Using a different gauge, the Corps of Engineers’

navigable rivers designations under Section 10 of the

Rivers and Harbors Act, only 1.73% of the river miles in

the entire West are navigable-in-fact. Id. at Table 1 (also

attached hereto as Appendix 1). In New Mexico, the

percent of navigable rivers is only 0.02%; in Nevada the

number is only 0.10%." Id. In eleven of the fifteen Western

" In the case of Mineral County, Nevada, one of the amici herein,

the county government is especially interested in making sure that

intermittent streams and wetlands that provide water for Walker Lake

are protected. Walker Lake is a unique, closed-basin desert lake that

provides substantial sport and recreational economic benefit to Mineral

Couty businesses. It is one of only five relatively fresh, deep water

desert lakes in the world supporting a substantial fishery. Pyramid

Lake, also in Nevada, and three lakes in Central Asia are the others.

See “Save Walker Lake, How Can It Be Saved?” available at http://

(Continued on following page)

21

states listed in the table, fewer than 1% of the rivers are

navigable-in-fact. Id. The already arid West would be

dramatically impacted by any reductions in Clean Water

Act federal jurisdiction. Intermittent streams would be

allowed to be used for waste disposal, thus imperiling

perennial streams during times of connected flow. The loss

of wetlands, already few, would lead to further depletion of

tributaries” and loss of critical habitat for species depend-

ent on the scarce water and plants provided by such oases.

Courts in the West, both district and appellate, have

consistently upheld federal jurisdiction over non-perennial

tributary waters. See, e.g., Quivira Mining Co. v. United

States Envtl. Prot. Agency, 765 F.2d 126, 130 (10th Cir.

1985) (affirming EPA’s determination that CWA permit

required for discharges into surface arroyos that, during

storms, channeled rainwater both directly to streams and

into underground aquifers that connected with such

streams); Headwaters, Inc. v. Talent Irrigation Dist., 243

F.3d 526, 534 (9th Cir. 2001) (“[E]ven tributaries that flow

intermittently are ‘waters of the United States’.”). The

reasoning for including intermittent tributaries within the

jurisdiction of the Act is clear: “‘[A]s long as the tributary

would flow into the navigabie body [], it is capable of

web0.greatbasin.net/~frankly/walker.html (last visited January 6,

2006).

" The capacity of wetlands to temporarily store and later release

water plays a critical role in supplying water to streams and rivers

during dry seasons of the year. See Virginia Carter, Technical Aspects of

.. Wetlands: Wetland Hydrology, Water Quality, and Associated Functions,

United States Geological Survey Water Supply Paper 2425, available

at http//water.usgs.gov/nwsum/WSP2425/hydrology.html (last visited

January 10, 2006); United States EPA, Functions and Values of

Wetlands, EPA 843-F-01-002c (Sept. 2001) available at www.epa.gov/

owow/wetlands/pdf/fun_val.pdf (last visited January 10, 2006).

22

spreading environmental damage and is thus a ‘water of

the United States’ under the Act.’” Jd. at 534 (quoting

United States v. Eidson, 108 F.3d 1336, 1342 (11th Cir.

1997)).

Intermittent and ephemeral streams feed downstream

perennial waters by overland flow during times when

streams carry groundwater contribution, snowmelt, and

other precipitation runoff. Intermittent and ephemeral

streams also provide a means to filter pollutants along the

way. At other times streams may disappear into the

ground as ground water recharge or reemerge as whole

rivers.” Virtually all rivers gain water from tributaries as

they proceed downstream, but in areas of the West,

streams or rivers dry up at times either from ground

infiltration, evaporation, over appropriation, or a combina-

tion of these factors. These so-called “losing reaches” still

require the same protections as streams with constant

surface connections. Without them, ground water would be

further depleted, thereby reducing, or in some cases

eliminating, ground water used for supplying people with

drinking water and irrigation water for crops and live-

stock. These losing streams also may again “daylight,”

either through springs or from being fed by other down-

stream tributaries. If protections are taken away from any

parts of these streams they might never again see the light of

day. The elimination of federal protections for such waters

will ultimately lead to lower flows in the downstream

“ The famous McKenzie River in Oregon actually disappears

underground through a lava field only to reemerge some two miles

downstream. See “A Tale of Two Rivers” available at http://www.4j.

lane.edu/partners/eweb/ttr/mckenzie/cdr.html (last visited January 2,

2006).

23

perennial waters that rely on ground water flow to make

them perennial. In other words, without these upland

waters, some perennial streams might themselves become

intermittent streams.

-In a series of Clean Water Act enforcement cases

where the plaintiff group, CARE, one of the amici on this

brief, consisted of life-long residents, mostly farmers and

orchardists, in the Yakima Valley in south-central Wash-

ington, industrial dairies were using natural drains and

ditches“ to dispose of manure-contaminated wastewater

and to convey it to holding pits, as well as over-irrigating

with manure wastewater that then ran off into the natural

drains. In some cases, the drains are intermittent or

ephemeral streams. They are all tributaries to the Yakima

River, located two to five miles downstream from the

facilities. See Community Ass’n for Restoration of the Env't

(“CARE”) v. Henry Bosma Dairy, 65 F. Supp. 2d 1129,

1138, 1144 (E.D. Wa. 1999) (liability phase), aff’d, 305

F.3d 943, 947 (9th Cir. 2002). These are just the types of

waters that Petitioners and their amici argue should not

receive Clean Water Act protections, even though they

contain water that eventually flows into a navigable water

body.

One of the CARE cases involved the then-largest dairy

in the State of Washington (over 5,000 milking cows

contained in pens totaling about 50 acres)." High fecal

* Many ditches are actually natural waters that have been

diverted, straightened, and ditched to promote agriculture, align with

property boundaries, or drain wetlands.

” Large industrial dairies, with over 700 confined mature dairy

cows, are called Concentrated Animal Feeding Operations, or CAFOs,

(Continued on following page)

24

coliform (bacteria associated with animal manure that

present public health risks) readings were found in the

drain that ran through the dairy’s property. See CARE v.

Henry Bosma Dairy, 2001 WL 1704240 at *10 (E.D. Wa.

2001) (penalty phase), aff’d, 305 F.3d 943. The drain,

which at times was only inches deep, carried natural run-

off and man-induced discharges that ran for miles through

many people’s properties to the Yakima River. CARE, 65

F. Supp. 2d at 1138, 1144. The drain became part of the

dairys NPDES permit and was identified in the permit as

waters of the State of Washington.” Jd. at 1145. Another

drain next to which manure waste was placed ran about

seven miles through farmland to the Yakima River. 7d. at

1150. These drains highlight the situation that exists in

much of the arid West. While the drains are not navigable

themselves, they contribute significant quantities of water

(and at times pollutants) to the waters downstream, in

this case the Yakima River which flows into the defini-

tively navigable-in-fact Columbia River.

These drains and ditches may be considered point

sources where they are entirely within one person’s prop-

erty, but when they flow through multiple properties and

give rise to opportunities for many individual discharges

and are defined as point sources under the Clean Water Act. 33 U.S.C.

§ 1362(14).

“ The Washington definition directly relies upon the federal

definition of waters of the United States. ““Surface waters of the state’

means all waters defined as ‘waters of the United States’ in 40 C.F.R.

§ 122.2 that are within the boundaries of the state of Washington. This

includes lakes, rivers, ponds, streams, inland waters, wetlands, ocean

bays, estuaries, sounds, and inlets.’” Wash. Admin. Code § 173-220-

030(21). It is the Clean Water Act that gives the state authority to

regulate the discharges as part of its federally approved program.

25

to contribute waste, they must be regulated as waters of

the United States. Otherwise, there would be no means to

eliminate the pollution that they carry to navigable

waters. In either case, the Clean Water Act gives the EPA

jurisdiction to regulate these sources. See 33 U.S.C.

§ 1362(14) (definition of “point source”); (7) (definition of

“navigable waters”). EPA uses its discretion as to how to

address the drains and ditches. The Act also has built-in

exemptions from discharge limitations for limited types of

activities, including “normal farming ... and ranching

activities such as plowing, seeding, [etc.].... ” 33 U.S.C.

§ 1344(f)(1)(A). Filling of wetlands for commercial pur-

poses, as in the Petitioners’ case facts, or for discharge of

wastes into drains as exemplified in the CARE cases, do

not fit within the narrow exceptions to permitting.

Another example involves a dairy in Idaho. In that

case the dairy (over 2000 cows) was located on a plateau

above two adjacent ranches. The plaintiff was the Idaho

Rural Council, one of the amici herein, whose members

included the ranch families. One ranch was homesteaded

by the Butler family nearly a century ago and the family

still ranches that property. Each ranch was dependent on

springs whose source was the shallow aquifer that ran

beneath the industrial dairy. The operator of the dairy had

for years simply bulldozed dead animals, calf fetuses,

medical waste, syringes, and manure into a ravine where

one of the springs surfaced. Idaho Rural Council v. Bosma,

143 F. Supp. 2d 1169, 1176 (D. Id. 2001). The spring ran

down through one rancher’s property (and was used for

watering free-ranging livestock) into an irrigation canal

that led to a nearby creek, a downstream recreational

reservoir, and then to the Snake River, a navigable water.

Id. at 1179. As the court itself noted, “whether pollution is

26

introduced by a visible, above-ground conduit or enters the

surface water through the aquifer matters little to the

fish, waterfowl, and recreational users which are affected

by the degradation of our nation’s rivers and streams.” /d.

at 1180.

The Idaho case also involved wet areas on slopes

known as “seeps.” These seeps are located in ravines and

form the beginning of the surface waters. See Whigham &

Jordan, Isolated Wetlands and Water Quality, 23 Wet-

LANDS at 544 (“Slope wetlands form where there is a

discharge of ground water to the land surface (Brinson

1993). The slope of the land surface associated with this

wetland class may be gentle or steep, and the sources of

water are predominantly ground water (shallow or deep)

and precipitation. Wetlands in this category are also called

‘seeps’, and they can support a wide variety of wetland

plant communities (Podniesinski and Leopold 1998, Crow

et al. 2000, Winter et al. 2001). Wetlands associated with

seeps have been shown to be important sites for regional

biodiversity because they often contain rare species

(Weakley and Schafale 1994).”). Springs such as the ones

described are used not only by the people who have home-

steaded the areas generations ago, but also by wildlife that

depend on them in these arid regions.

These small, intermittent streams are critical to the

economies of the arid West. If they were to be removed

from federal jurisdiction, the types of wanton pollution

exemplified above would potentially go unchecked and

would certainly cause further impairment to our Nation’s

waters, in violation of the Clean Water Act’s stated goal of

eliminating pollution. See 33 U.S.C. § 1251(a)(1). Each

polluter must be responsible for the discharges he creates

27

in order for the point source prohibition scheme to be

effective.

In New Mexico, amici New Mexico Acequia Associa-

tion members depend on intermittent streams to fill their

acequias, which have been used for generations to irrigate

crops and water livestock.” Pollution discharged into these

tributaries contaminates the acequias and the larger

bodies of water which receive waters not used for agricul-

tural purposes. If the tributaries are allowed to be de-

stroyed, it would reduce the already limited quantity of

surface water upon which people and wildlife depend.

Many of the members of the amici organizations on

this brief are ranchers or farmers whose direct livelihood

depends upon protection of the intrastate intermittent

streams, adjacent wetlands and similar and unique waters

that provide the arid West with its lifeblood - water. This

precious water supports their economic base in addition to

providing sustenance for wildlife and plants that enhance

the quality of life and the interests of all amici.

Destruction or pollution of seasonal streams, small

springs, wetlands and other waters inevitably leads to

greater degradation and pollution of the largest and most

treasured of our nation’s waters, including the Great

Lakes and St. Lawrence River, Chesapeake Bay, Ever-

glades, Gulf of Mexico, Puget Sound, and the Mississippi,

" An acequia is a community-based system of irrigation and water

governance and also refers to the community of farmers that coopera-

tively maintain the ditch and share water through custom and tradi-

tion. Acequias formed the basis for settlement of New Mexico's Indo-

Hispano communities between two and four hundred years ago and

continue to be vital to the cultural and economic survival of the

traditional communities of New Mexico.

Ohio, Dlinois, Tennessee, Hudson, Missouri, Yellowstone,

Snake, Columbia, Colorado and Rio Grande Rivers, to

name just a few. The Clean Water Act prohibits such

degrading activities and this Court should uphold the

Clean Water Act and its regulatory definition of “waters of

the United States.”

¢

CONCLUSION

The decisions of the Sixth Circuit in Rapanos and

Carabell should be affirmed in their entirety.

Respectfully submitted,

CHARLES M. TEBBUTT

Counsel of Record

Western Environmental Law Center

1216 Lincoln St.

Eugene, OR 97401

541-485-2471

January 13, 2006

Table 1

Navigable River and Stream Mileage in the West

Total Miles COE Sec. 10 Navigable

90,373

211,513

107,403

115, 595

134,338

176,750

81,573

143,578

110,741

34,373

114,823

9,937

85,916

70, 439

108,767

1,616,119

EEE VER EF

Total miles from 1998 EPA 305b report. http://www.epa.gov/305b/98report/appenda.pdf

Navigability determined by Corps of Engineers for purposes of Section 10 of the Rivers and Harbors Act

a. Some navigable mileage estimated.

b. Nav. Rivers: Sacramento Dist. http:/www_spk.usace.mil/cespk-co/regulatory/navigable htm).

c. Nav. Rivers: San Francisco District Spreadsheet, 8/2/71

d. Nav. Rivers: LA District Pers. Comm. 2/18/03

e. Nav. Rivers: Walls Walla Dist., bttp://www.nww.usace.army.mil/html/offices/op/rf/Pamphlet/webpam.htm

f. Nav. Rivers: Portland District, Navigable Riverways, Oregon , October 1993

g. Nav. Rivers: Seattle District, Navigable Waters, Washington May 5, 2000

h. Nav. Rivers: Section 10 Waters of the Omaha District, undated.

OY TOIY TOR) DIOCOUTSS DUT

Toul. Perenmal and Nonperenmal (except as noted) from 1998 EPA 305b repor.

hup//www epa. gow/305b/98reporv appenda pdf

a Nonpereanmal milage ox reponed. calculated by subtracung Perenmal from Total

b Nopperenmal muleage not meaningful/data inconsisicacy

River Miles by

Perennial Nonperenniat Percentage Percentage

Region Jurectction | Yotst mies | ties _| sites | Notes | Nonperennial | Nenperennia!

Midwest Minors 87,110 30,246 $4,741 63%

Midwest Indiana 35,673 20,365 15,308 | a 43%

Midwesi lowa 71,665 26,630 42.957 60%

Midwesi Michigan 51.438 28,719 22,719 | « ll Oo

Midwest Minnesouw 91,944 32,196 59,748 | a 65%

Midwest Missour: $1,978 21,978 30,000 58%

Midwest Omo 29,113 27,825 1,288 4%

Midwest Wisconsin 57,698 32,010 23,777 41%

Midwest 476,619 219,969 250,538 53%

Northeast Connecucut 5,830 5,484 344 6%

Northeasi Detaware 2,509 1,778 405 16%

Northeast Maine 31,752 23,457 8.295 | a 26%

Northeast Massachusetts 8,229 6,808 1421 1a 17%

New

Northeast Hampshuve 10,881 8,636 2,238 21%

Northeast New Jersey 6,450 6,450 Ola O%

Northeast New York $2,337 46,266 5,075 10%

Northeast Pennsylvania 83,260 39,179 44,081 | a 53%

Northeast Rhode Isiand 1,392 887 505} a 36%

Northeast Vermont 7,099 6,958 i4ija 2%

Northeast 209,739 145,903 62,505 0

Pacific Califorma 211,513 64,438 124,615 59%

Pacific Oregon 114,823 51,695 59,299 52%

Pacific _ Washington _ 70,439 39,483 30,956 | a “ES

Pacific 396,775 155,616 214,870 54%

South Alabama 77,274 47,072 30,170 39%

South Arkansas 87,617 28,408 53,465 61%

South Flonda 51,858 22,993 2,956 6%

South Georgia 70,150 44,056 23,906 34%

South Kentucky 49,105 34,152 14,953 | a 30%

South Lousiana 66.294 32,955 20,667 31%

South Maryland 17,000 12,343 2,104 12%

South Mississippi 84,003 26,454 54,862 65%

South North Carolina 37,853 45,571 b OF

South Oklahoma 78,778 22,386 $5,413 70%

South South Carolina 29,898 24,115 5,783 | « 19%

South Tennessee 61,075 53.872 7,203 | « 12%

South Texas 191,228 40,194 144,603 16%

South Virguua 49,350 49,350 0 0%

South Wesi Vurguua 32,278 21,114 11,164 35%

South 983,761 | __505.035 | 43% |

West Kansas 134,338 23,731 110,225 82%

West Nebraska 81,573 17,783 62,958 717%

West North Dakota $4,373 5,483 48,890 W0%

West South Dakota 9,937 1,932 8,005 81%

West Anzona 90,373 3,528 86,845 IO%

Wesi Colorado 107,403 29,553 77850 | a 12%

West Idaho 115,595 54.948 52,704 46%

West Mootana 176,750 $3,221 116,608 06%

West Nevada 143,578 14,988 126,257 88%

West New Mexico 110,741 8,682 99,332 90%

West Utah 85,916 16,457 65,442 16%

West W yornung 108,767 35,151 73,616 68%

West L212 + 265.457 | 928.732 16% .

_National Total 3.286.238. S1%..

Notes:

2 ddy