WOUS Interstate Waters Attachment

Interstate Waters are "Waters of the United States" Under Section (a)(2) of the Agencies' Regulations

I. Summary

Environmental Protection Agency (EPA) and U. S. Army Corps of Engineers (the Corps) regulations define “waters of the United States” to include “interst ate waters.” Interstate waters were defined by the federal water pollution contro l statutes prior to the Clean Water Act (CWA) as “all rivers, lakes, and other waters that flow across, or form a part of, State boundaries.”

The language of the CWA is clear that Congr ess intended the term “navigable waters” to

include interstate waters. While EPA and the Co rps believe congressional intent is clear, the agencies' interpretation of the CWA to include interstate waters within the scope of CWA jurisdiction also is reasonable and entitled to deference. The agencies' interpretation was promulgated contemporaneously with the passage of the CWA, it is consistent with the statutory and legislative history of the Act, and is the t ype of interpretation which is particularly due deference under principles of administrative law. Furthermore, the Supreme Court’s decisions in

SWANCC and Rapanos do not impose additional jurisdictional requirements on interstate waters.

II. Congress Clearly Intended the Term “Navigable Waters” to Include Interstate

Waters

A. The Language of the Clean Water Act, the Statute as a Whole, and the Statutory History Demonstrate Congress’ Clear Inte nt to Include Interstate Waters as “Navigable Waters” Subject to the Clean Water Act

Under Chevron , when interpreting a statute, the firs t inquiry is whether “the intent of Congress is clear” as to “the precise question at issue.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 842 (1984). If so, “that is the end of the matter.” Id. In making the threshold determination under Chevron , “‘a reviewing court should not confine itself to examining a particular statutor y provision in isolation.’ Rather , ‘[t]he meaning - or ambiguity - of certain words or phrases may only become evident when placed in context.....It is a fundamental canon of statutory cons truction that the words of a st atute must be read in their context and with a view to their plac e in the overall statutory scheme.'” Nat'l Ass'n of Home Builders v. Defenders of Wildlife , 127 S. Ct. 2518, 2534 (2007) ( quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000)).

While as a general matter, the scope of the terms “navigable waters” and “waters of the United States” is ambiguous, the language of the CWA, particularly when read as a whole, demonstrates that Congress clearl y intended to continue to subject interstate waters to federal regulation. The statutory histor y of federal water pollution cont rol place the terms of the CWA in context and provide further ev idence of Congressional intent to include interstate waters within the scope of the “navigable waters” prot ected by the Act. Congr ess clearly intended to subject interstate waters to CWA jurisdiction without imposing a requirement that they be

1WOUS Interstate Waters Attachment

2 traditional navigable waters themselves or be connected to traditional navigable waters. 1 The

CWA itself is clear that interstate waters that were previously subject to federal regulation remain subject to federal regulation. The text of the CWA, specifically the CWA’s provision with respect to interstate waters and their wa ter quality standards, in conjunction with the definition of navigable waters, provides clear indi cation of Congress’ intent. Thus, interstate waters are “navigable waters” protected by the CWA.

(1) The Plain Language of the Clean Water Act and the Statute as a Whole Clearly Indicate Congress’ In tent to Include Interstate Wa ters within the Scope of “Navigable Waters” for Purpos es of the Clean Water Act

Under well settled principles , the phrase “navigable wate rs” should not be read in

isolation from the remainder of the statut e. As the Supreme Court has explained:

The definition of words in isolation, howev er, is not necessarily controlling in statutory construction. A word in a stat ute may or may not extend to the outer limits of its definitional possibilities. In terpretation of a word or phrase depends upon reading the whole statut ory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.

Dolan v. U.S. Postal Service , 546 U.S. 481, 486 (2006) ; see also United States Nat’l. Bank of Oregon v. Indep. Ins. Agents of Am., Inc. , 508 U.S. 439, 455 (1993).

While the term “navigable waters” is, in ge neral, ambiguous, intersta te waters are waters that are clearly covered by th e plain language of the defini tion of “navigable waters.” 2 Congress defined “navigable waters” to mean “the waters of the United States, including the territorial

seas.” Interstate waters are th e waters of the several States and, thus, the United States. While the 1972 Act was clearly not limited to interstate waters, it was clearl y intended to include

interstate waters.

Furthermore, the CWA does not simply define “navigable waters.” Other provisions of the statute provide additional text ual evidence of the scope of the primary jurisdictional term of the Act. Most importantly, there is a sp ecific provision in th e 1972 CWA establishing requirements for those interstate waters which we re subject to the prio r Water Pollution Control

acts.

1 For purposes of the CWA, EPA and the Corps have interpreted the term “traditional navigable waters” to include all of the “navigable waters of the United States,” defined in 33 C.F.R. Part 329 and by numerous decisions of the federal courts, plus all other waters that are navigable- in-fact (e.g., the Great Salt Lake, UT and Lake Minnetonka MN). This Section II explains why EPA and the Corps do not interpret the CWA or the Supreme Court’s decisions

in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001)

and Rapanos v. United States , 547 U.S. 715 (2006), to restrict CWA jurisdiction over interstate waters to only those interstate waters that are traditional navigable wate rs or that connect to traditional navigable waters.

2 The Supreme Court has found that th e term “waters of the United States” is ambiguous in some respects. Rapanos

, 547 U.S.at 752 (plurality opinion), 804 (dissent).WOUS Interstate Waters Attachment

The CWA requires States to establish water quality standards for navigable waters and

submit them to the Administrator for review. 3 Under section 3 03(a) of the Act:

In order to carry out the purpose of this Act , any water quality st andard applicable

to interstate waters which was adopted by any State and submitted to, and approved by, or is awaiting approval by, the Administrator pursuant to this Act as in effect immediately prior to the da te of enactment of the Federal Water Pollution Control Act Amendments of 1972, shall remain in effect unless the Administrator determined that such standard is not consistent with the applicable requirements of this Act as in effect immedi ately prior to the da te of enactment of

the Federal Water Pollution Control Act Amendments of 1972. If the

Administrator makes such a determination he shall, within three months after the

date of enactment of the Federal Wate r Pollution Control Ac t Amendments of 1972, notify the State and specify the changes needed to meet such requirements. If such changes are not adopted by the State within ninety days after the date of such notification, the Administrator shall promulgate such changes in accordance with subsection (b) of this section.

CWA section 303(a)(1) ( emphasis added ).

Under the 1965 Act, as discussed in more deta il below, States were directed to develop water quality standards es tablishing water quality goals for inte rstate waters. By the early 1970s, all the States had adopted su ch water quality standards. Advanced Notice of Proposed Rulemaking, Water Quality Standards Regul ation, 63 Fed. Reg. 36742, 36745 (July 7, 1998). In section 303(a), Congress clearly in tended for existing federal regula tion of interstate waters to continue under the amended CWA. Water qualit y standards for interstate waters were not merely to remain in effect, but EPA was require d to actively assess those water quality standards and even promulgate revised sta ndards for interstate waters if States did not make necessary changes. By the plain language of the statute, th ese water quality standards for interstate waters

were to remain in effect “in or der to carry out the purpose of this Act.” The purpose of the Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” CWA section 101(a). It would cont ravene Congress’ clearly stated intent for a court to impose an additional jurisdictional requirement on all rivers , lakes, and other waters that flow across, or form a part of, State boundaries (“interstate waters” as defi ned by the 1948 Act, § 10, 62 Stat. 1161), such that interstate waters that were previously protected we re no longer protected because they lacked a connection to a traditional navigable water. Nor would the existing water quality standards be “carry[ing] out the purpos e of this Act,” if onl y those water quality

standards established for interstate waters that are also traditional navigable waters or that connect to traditional naviga ble waters could be implemented under the Act through, for

3 Section 303 of the Act requires the States to submit revised and new water quality standards to the Administrator for review. CWA section 303(c)(2)(A). Such revised or new water quality standards “shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters.” Id . If the

Administrator determines that a revised or new standard is not consistent with the Act’s requirements, or determines that a revised or new standard is necessary to meet th e Act’s requirements, and the State does not make required changes, “[t]he Administrator shall promptly prepare and publish proposed regulations setting forth a revised or new water quality standard for the navigable waters involved.” CWA section 303(c)(4).

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4 example, National Pollutant Disc harge Elimination System permits under Section 402 of the Act. Nowhere in Section 303(a) does Cong ress make such a distinction.

(2) The Federal Water Pollution Control St atute That Became the Clean Water Act

Covered Interstate Waters

In 1972, when Congress rewrote the law govern ing water pollution, two federal statutes addressed discharges of pollutant s into interstate waters and tr aditional navigable waters, and

tributaries of each: the Water Pollution Control Act of 1948, as amended, and Section 13 of the Rivers and Harbors Act of 1899 (known as the “R efuse Act”). Of the two, the Water Pollution

Control Act extended federal author ity over interstate waters and th eir tributaries. In contrast, the Refuse Act extended federal jurisdiction over the “navigable waters of the United States” and their tributaries. These two sepa rate statutes demonstrate that C ongress recognized that interstate waters and “navigable waters of the United Stat es” were independent lawful bases of federal jurisdiction.

a . The Federal Water Pollu tion Control Act Prior to 1972

From the outset, and through all the am endments pre-dating the 1972 Amendments, the federal authority to abate wate r pollution under the Wa ter Pollution Control Act, and the Federal Water Pollution Control Act (FWPCA ) as it was renamed in 1956, extend ed to interstate waters. In addition, since first enacted in 1948, and throughout all the amendments, the purpose of the Act has been, inter alia, to prot ect public water supplies, propag ation of fish and aquatic life, recreation, agricultural, industrial, and other legitimate uses. See 62 Stat. 1155 and 33 U.S.C. § 466 (1952), 33 U.S.C. § 466 (1958), 33 U.S. C. § 466 (1964), 33 U.S.C. § 1151 (1970).

In 1948, Congress enacted the Water Polluti on Control Act “in connection with the exercise of jurisdiction over the waterways of th e Nation and in the conse quence of the benefits to public health and welfare by th e abatement of stream pollution.” See Pub. L. No. 80-845, 62 Stat. 1155 (June 30, 1948). The Act authorized tec hnical assistance and fina ncial aid to States for stream pollution abatement programs, and made discharges of pollutants into interstate waters and their tributaries a nuisance, subj ect to abatement and prosecution by the United

States. See § 2(d)(1),(4), 62 Stat. at 1156-1157 (declaring the polluti on of interstate waters, “whether the matter causing or co ntributing to such pollution is discharge directly into such

waters or reaches such waters af ter discharge into a tr ibutary of such waters,” which endangers the health or welfare of persons to be a public nuisance, subject to abatement provided by the Act, including suit by the United States); § 2(a), 62 Stat. 1155 (requiring comprehensive programs for “interstate waters a nd tributaries thereof”); § 5, 62 Stat. 1158 (authorizing loans for sewage treatment to abate discharges into “interstat e waters or into a tributary of such waters”). Under the statute, “interstate wate rs” were defined as all rivers, la kes, and other waters that flow across, or form a part of, Stat e boundaries. § 10, 62 Stat. 1161.

In 1956, Congress strengthened measures for co ntrolling pollution of interstate waters and their tributaries. Pub. L. No. 84-660, 70 Stat. 498 (1956) (direc ting further cooperation

between the federal and State governments in development of “comprehensive programs forWOUS Interstate Waters Attachment

5 eliminating or reducing the pollution of interstate waters and tributaries . . . and improving the sanitary condition of surface and underground waters ,” and authorizing the Surgeon General to make joint investigations with States into the conditions of and discharg es into “any waters of any State or States.”).

In 1961, Congress amended the FWPCA to subs titute the term “interstate or navigable

waters” for “interstate waters.” See Pub. L. No. 87-88, 75 Stat. 208 (1961). Accordingly, beginning in 1961, the provisions of the FWPCA applied to all interstate waters and navigable

waters and the tributaries of each, see 33 U.S.C. §§ 466a, 466g(a) (1964). 4

In 1965, Congress approved a second set of major legislative changes, requiring each State to develop water quality standards for inte rstate waters within its boundaries by 1967. Pub. L. No. 89-234, 79 Stat. 908 (1965). 5 Failing establishment of ade quate standards by the State,

the Act authorized establis hment of water quality standa rds by federal regulation. Id. at 908. The 1965 Amendments provided that the “discharge of matter into such in terstate waters or portions thereof, which reduces the quality of such waters below the water quality standards

established under this subs ection (whether the matter causing or contributing to such reduction is discharged directly into such waters or reaches such waters after discharge into tributaries of such waters), is subject to abatement” through pr ocedures specified in th e Act, including (after conferences and negotiations and co nsideration by a Hearing Board) legal action in the courts.

Id. at 909. 6

b . The Refuse Act

Since its original enactment in 1899, the Re fuse Act has prohibited the discharge of refuse matter “into any navigable water of the United States, or into any tributary of any navigable water.” Ch. 425, 30 Stat. 1152 (1899). It also has prohibited the discharge of such material on the bank of any tributary where it is liable to be washed into a navigable water. Id. Violators are subject to fines and imprisonment. Id. at 1153 (codified at 33 U.S.C. § 412). In 1966, the Supreme Court upheld the Corps’ interp retation of the Refuse Act as prohibiting discharges that pollute the na vigable waters, and not just t hose discharges that obstruct navigation. United States v. Standard Oil Co ., 384 U.S. 224, 230 (1966). In 1970, President Nixon signed an Executive Order directing the Corps (in consultation with the Federal Water

Pollution Control Administration 7 ) to implement a permit program under Section 13 of the RHA

4 Congress did not define the term “navigable waters” in the 1961 Amendments, or in subsequent FWPCA Amendments, until 1972.

5 In 1967, the State of Arizona created the Water Quality Control Council (Council) to implement the requirements of the 1965 FWPCA. The Council adopted water quality sta ndards for those waters that were considered “interstate waters” pursuant to the existing federal law. The Council identified the Santa Cruz River as an interstate water and promulgated water quality standards for the river in accordance with federal law.

6 The 1966 Amendments authorized civil fines for failing to provide information about an alleged discharge causing or contributing to water pollution. Pub. L. No. 89-753, 80 Stat. 1250 (1966); see also S. Rep. No. 414, 92d Congress, 1st Sess. 10 (1972) (describing the history of the FWPCA).

7 In December 1970, administration of the Federal Water Pollution Control Ad ministration was transferred from the Secretary of the Interior to EPA. S. Rep. No. 414, 92d Congress, 1st Sess. (1972).WOUS Interstate Waters Attachment

6 “to regulate the discharge of po llutants and other refuse matter in to the navigable waters of the

United States or their tributar ies and the placing of such ma tter upon their banks.” E.O. 11574, 35 Fed. Reg. 19,627 (Dec. 25, 1970). In 1971, the Corp s promulgated regulations establishing the Refuse Act Permit Program. 36 Fed. Reg. 6564, 6565 (April 7, 1971). The regulations made it unlawful to discharge a ny pollutant (except those flowing fr om streets and sewers in a liquid state) “into a navigable waterway or tributary,” except pursuant to a permit. Under the permit program, EPA advised the Corps regarding the co nsistency of a proposed discharge with water quality standards and considerations, and the Co rps evaluated a permit application for impacts on anchorage, navigation, and fish and wildlife resources. Id . at 6566.

c. The Federal Water Pollution Control Act of 1972

When Congress passed the Federal Water Pollution Control Act amendments of 1972 (referred to hereinafter as the CWA or CWA) , it was not acting on a blank slate. It was amending existing law that provided for a federa l/state program to address water pollution. The Supreme Court has recognized that Congress, in enacting the CWA in 1972, “intended to repudiate limits that had been placed on federa l regulation by earlier water pollution control statutes and to exercise its powers under the Comm erce Clause to regulate at least some waters that would not be deemed ‘navigable’ under the classical understan ding of that term.” Riverside Bayview Homes, 474 U.S. at 133; see also International Paper Co. v. Ouellette , 479 U.S. 481, 486, n.6 (1987).

The amendments of 1972 defined the term “nav igable waters” to mean “the waters of the United States, including the terr itorial seas.” 33 U.S.C. § 1362(7). While earlier versions of the 1972 legislation defined the term to mean “the navigable waters of the United States,” the Conference Committee deleted the word “navigabl e” and expressed the inte nt to reject prior geographic limits on the scope of federal water- protection measures. Compare S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972), with H.R. Rep. No. 911, 92 Cong., 2d Sess. 356 (1972) (bill reported by the House Comm ittee provided that “[t]he term ‘navigable waters’ means the navigable waters of the United States , including the territorial seas”); see also S. Rep. No. 414, 92d Cong., 1 st Sess. 77 (“Through a narrow interpretation of the definition of interstate waters the implementation of the 1965 Act was severely lim ited. . . . Therefore, reference to the control requirements must be made to the navigable wate rs, portions thereof, and their tributaries.”). Thus, Congress intended the scope of the 1972 Act to include, at a minimum, the waters already subject to federal water pollution control law – bo th interstate waters and traditional navigable

waters. Those statutes covered in terstate waters, defined interstate waters without requiring that they be traditional navigable waters or be connected to traditional navigable waters, and demonstrated that Congress knew that there are interstate waters that are not traditional navigable waters. In fact, Congress amende d the Water Pollution C ontrol Act in 1961 to

substitute the term “interstate or navigable waters” for “interst ate waters,” demonstrating that Congress wanted to be very clear that it was asserting jurisdic tion over both types of waters: interstate waters even if they were not tradit ional navigable waters, a nd traditional navigable waters even if they were not interstate waters. At no point were the in terstate waters already subject to federal water pollution control authority required to be navigable or to connect to a traditional navigable water. Further, as disc ussed above, the legislative history clearly demonstrates that Congress believed it was expa nding jurisdiction – not narrowing it – with theWOUS Interstate Waters Attachment

7 1972 amendments. Thus, it is reasonable to conclude that by defining “navigable waters” as “the

waters of the United States” in the 1972 amen dments, Congress intended to include not just traditionally navigable waters, but all waters previously regulated under the FWPCA, including non-navigable interstate waters.

Thus, based on the statutory definition of navigable waters, Section 303(a)’s requirement for water quality standards for interstate waters to remain in effect, the purposes of the Act, and the more than three decades of federal water pol lution control regulation th at provides a context for reading those provisions of the statute, the intent of Congress is clear that the term “navigable

waters” includes “interstate waters” as an inde pendent basis for CWA jurisdiction, whether or not they themselves are traditional navigable wate rs or are connected to traditional navigable

waters.

B . Supreme Court Precedent Supports CWA Jurisdiction Over Interstate Waters Without Respect to Navigability

In two seminal decisions, the Supreme Court established that resolving interstate water pollution issues was a matter of federal law and that the CWA was the comprehensive regulatory scheme for addressing inte rstate water pollution. Illinois v. Milwaukee , 406 U.S. 91 (1972); City of Milwaukee v. Illinois , 451 U.S. 304 (1981). In both of th ese decisions, the Court held that federal law applied to interstate waters. Moreov er, these cases analyzed the applicable federal statutory schemes and determined that the provi sions of the Federal Water Pollution Control Act and the Clean Water Act regulating water pollution applied generally to interstate waters. EPA and the Corps interpret the holdings of these cases as together recognizing the federal interest in interstate water quality pollution; and, in City of Milwaukee , recognizing that CWA jurisdiction

extends to interstate waters w ithout regard to navigability.

In Illinois v. Milwaukee , the Court considered a pub lic nuisance claim brought by the State of Illinois against the City of Milwaukee to address the adverse effects of Milwaukee’s discharges of poorly treated sewa ge into Lake Michigan, “a body of interstate water.” 406 U.S. at 93. In relevant part, the Court held th at the federal common law of nuisance was an appropriate mechanism to resolve disputes involv ing interstate water pollution. 406 U.S. at 107 (“federal courts will be empowere d to appraise the equities of suits alleging creation of a public nuisance by water pollution”). The Court further noted that in such actions the Court could consider a State’ interest in pr otecting its high water qu ality standards from “the more degrading standards of a neighbor.” Id

.

In reaching this conclusion, the Court exam ined in detail the scope of the federal regulatory scheme as it existed prior to the October, 1972 CWA amendments. In its April, 1972 decision, the Court concluded that the Federal Water Pollution Control Act “makes clear that it is federal, not state, law that in the end control the pollution of interstate or navigable waters .” 406 U.S. at 102 ( emphasis added ). The Court, in this case, conc luded that the re gulatory provisions of the Federal Water Pollution Control Act did not address the right of a state to file suit to protect water quality. However, this was not becaus e this statute did not reach interstate waters. The Court specifically noted that Section 10(a) of the Federal Water Pollution Control Act “makes pollution of interstate or navigable waters subject ‘to abatement’” 406 U.S. at 102WOUS Interstate Waters Attachment

( emphasis added ). Rather, the Court noted that the plaintiff in this action was seeking relief outside the scope of the Federal Water Pollution Control Act and th at statute explicitly provided that independent “‘state and inters tate action to abate pollution of interstate or navigable waters shall be encouraged and shall not ... be displaced by Federal enforcement action.” 406 U.S. at 104 (citing section 10(b) of the Federal Water Pollution Control Act).

In addition, in Illinois v. Milwaukee , the Court acknowledged that it was essential for federal law to resolve interstate water pollution disputes, citing with approval the following

discussion from Texas v. Pankey :

Federal common law and not the varying common law of the individual states is, we think, entitled and necessary to be recognized as a basis for dealing in uniform standard with the environmental rights of State agains t improper impairment by sources outside its

domain... Until the field has been made the subject of comprehensive legislation or

authorized administrative st andards, only a federal common law basis can provide an adequate means for dealing with such claims as alleged federal rights.

406 U.S. at 107 n. 9, citing Texas v. Pankey , 441 F.2d 236, 241-242.

In City of Milwaukee , the Court revisited this dis pute and addressed the expanded statutory provisions of the CW A regulating water pollution. The scope of the CWA amendments

led the Court to reverse its decision in Illinois v. Milwaukee . In reaching this result, the Court concluded that Congress had elected to exercise its authority under federal law to occupy the field of water pollution regulation. As a result, the Court conclude d that there was no basis for maintaining a federal co mmon law of nuisance.

Congress has not left the formulation of a ppropriate federal standards to the courts through application of often vague and indete rminate nuisance concepts and maxims of equity jurisprudence, but rath er has occupied the field th rough the establishment of a comprehensive regulatory program supervised by an expert administrative agency. The

1972 Amendments to the Federal Water Polluti on Control Act were not merely another law “touching interstate waters”... Rather, the Amendments were viewed by Congress as a “total restructuring” and “complete re writing” of the existing water pollution legislation considered in that case.

451 U.S. at 317.

The Court’s analysis in Illinois v. Milwaukee made clear that federal common law was necessary to protect “the envi ronmental rights of States agai nst improper impairment by sources outside its domain”. 406 U.S. at 107, n. 9. In the context of interstate wa ter pollution, nothing in the Court’s language or logic limits the reach of this conclusion to only navigable interstate

waters. In City of Milwaukee , the Court found that the CWA wa s the “comprehensive regulatory program” that “occupied the field” (451 U.S. 317) with regard to inte rstate water pollution, eliminating the basis for an independent common law of nuisance to address interstate water pollution. Since the federal common law of nui sance (as well as the statutory provisions regulating water pollution in the Federal Water Pollution Control Act) applied to interstate

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9 waters whether navigable or not, the CWA coul d only occupy the field of interstate water pollution if it too extended to nonnavigable as well as navigable interstate waters.

With regard to the specifics of interstate water pollution, the City of Milwaukee Court noted that, in Illinois v. Milwaukee , it had been concerned that I llinois did not have a forum in which it could protect its interests in abating water pollution from out of state, absent the recognition of federal common law remedies. 451 U.S. at 325. The Court then went on to analyze in detail the specific procedures created by the CWA “for a State affected by decisions of a neighboring State’s permit-granting agency to seek redress.” 451 U.S. at 326. The Court noted that “any State whose waters may be affect ed by the issuance of a permit” is to receive notice and the opportunity to comment on the permit. Id (citing to CWA § 402(b)(3)(5)); In addition the Court noted provision s giving EPA the authority to ve to and issue its own permits

“if a stalemate between an issui ng and objecting state develops.” Id (citing to CWA §§ 402(d)(2)(A),(4)). In light of these protections for States affected by interstate water pollution,

the court concluded that

[t]he statutory scheme established by Congr ess provides a forum for the pursuit of such claims before expert agencies by means of th e permit-granting process. It would be quite

inconsistent with this scheme if federal courts were in effect to "w rite their own ticket" under the guise of federal common law after permits have already been issued and permittees have been planning a nd operating in reliance on them.

451 U.S. at 326.

Nothing in the language or the reasoning of this discussion limits the applicability of these protections of interstate waters to navigable interstate waters or interstate waters connected to navigable waters. If these protections onl y applied to navigable interstate waters, a downstream State would unable to protect many of its waters from out of state water pollution. This would hardly constitute a comprehensive regulatory scheme that occupied the field of interstate water pollution.

For these reasons, EPA and the Corps interp ret the holdings and the reasoning of these decisions as necessarily concludi ng that the regulatory reach of th e CWA extends to all interstate waters without regard to navigability. 8

C. The Supreme Court’s Decisions in SWANCC and Rapanos Do Not Limit Further Constrain Clean Water Act Jurisdiction Over Nonnavigable Interstate Waters

.

8 Nothing in subsequent Supreme Court case law regarding interstate waters in any way conflicts with the agencies' interpretation. See International Paper v. Ouellette , 479 U.S. 481 (1987); Arkansas v. Oklahoma , 503 U.S. 91 (1992). In both of these cases, the Court detailed how the CWA had supplanted the federal common law of nuisance to establish the controlling statutory scheme for addressing interstate water pollution disputes. Nothing in either decision limits the applicability of the CWA to interstate water pollution disputes involving navigable interstate waters or interstate waters connected to navigable waters.WOUS Interstate Waters Attachment

10 As noted above, the Supreme Court has recogn ized that Congress, in enacting the CWA, “intended to repudiate limits that had been placed on federal regulation by earlier water pollution

control statutes and to exercise its powers under the Commerce Clau se to regulate at least some waters that would not be deemed ‘navigable’ un der the classical understa nding of that term.” Riverside Bayview , 474 U.S. at 133; see also International Paper Co. v. Ouellette , 479 U.S. 481, 486 n.6, (1987). In Riverside Bayview , and subsequently in SWANCC and Rapanos , the Court addressed the proper construction of the CWA terms “navigable wa ters” and “the waters of the

United States.” In none of these cases did the Supreme Court address inte rstate waters, nor did it overrule prior Supreme Court precedent whic h addressed the interaction between the CWA and federal common law to address pollution of inte rstate waters. Therefore, EPA and the Corps reasonably do not interpret the statute, even in light of SWANCC and Rapanos, to impose an additional requirement that interstate waters must be traditiona l navigable waters or connected to traditional navigable waters to be jurisdictional waters for purposes of the CWA.

At the outset, it is worth noting that neither the SWANCC case nor the Rapanos case dealt with the jurisdictional status of inte rstate waters. Repeatedly in the SWANCC decision the Court emphasized that the question presented concer ned the jurisdiction st atus of nonnavigable

intrastate waters located in tw o Illinois counties. SWANCC 531 U.S. at 165-166, 171 (“we thus

decline to... hold that isolated ponds, some only seasonal, wholly located within two Illinois

counties fall under § 404(a) definition of navigable waters...”) ( emphasis added ). Nowhere in Justice Rehnquist’s majority opinion in SWANCC does the Court discuss the Court’s interstate

water case law. 9 The Court does not even discuss the f act that CWA jurisd ictional regulations identify interstate waters as regulated waters of the United States. In fa ct, the repeated emphasis on the intrastate nature of the waters at issue can be read as an attempt to distinguish SWANCC from the Court’s interstate water jurisprudence.

In Rapanos , the properties at issue were located entirely within the State of Michigan. 547 U.S. 715, 762-764. Thus, the Court had no occas ion to address the te xt of the CWA with respect to interstate waters or the agencies’ regu latory provisions concer ning interstate waters. In addition, neither Justice Kennedy nor the plura lity discusses the impact of their opinions on the Court’s interstate waters jurisprudence. The plurality decision acknowledges that CWA jurisdictional regulations include interstate waters. 547 U.S. 715, 724. However, the plurality did not discuss in any detail its views as to the continued vitality of regulations concerning such

waters.

Moreover, one of the analyt ical underpinnings of the SWANCC and Rapanos decisions is irrelevant to analysis of re gulations asserting jurisdiction over interstate waters. In SWANCC

, the Court declined to defer to agency regulations asserting juri sdiction over isolated waters

because

[w]here an administrative inte rpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indi cation that Congress intended that result...This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually au thorize administrative agencies to push the limit of Congressional authority... This conc ern is heightened where the administrative

9 It is worth noting the Justice Rehnquist was also the author of City of Milwaukee

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11 interpretation alerts the fe deral-state framework by permitting federal encroachment upon a traditional state power.

531 U.S. at 172-173 (citations omitted).

However, the Court’s analysis in Illinois v. Milwaukee and City of Milwaukee makes clear that Congress has broad authority to create federal law to resolve interstate water pollution disputes. As discussed above, the Court in Illinois v. Milwaukee , invited further federal legislation to address interstate water pollution, and in so doing concluded that state law was not an appropriate basis for addre ssing interstate water pollution issues. 406 U.S. at 107 n. 9(citing Texas v. Pankey , 441 F.2d 236, 241-242). In City of Milwaukee , the Court indicated that central to its holding in Illinois v. Milwaukee was its concern “that Illinois did not have any forum to protect its interests [in the matte rs involving interstate water pollution].” 451 U.S. 325. As discussed above, the Court cited with approval the statutory provisions of the CWA regulating water pollution as an appropriate means to address that concern.

The City of Milwaukee and Illinois v. Milwaukee decisions make clea r that assertion of federal authority to resolve dis putes involving interstate waters does not alter “the federal-state framework by permitting federal encroachment on a traditional state power.” 531 U.S. at 173. “Our decisions concerning interstate waters contain the same theme. Rights in interstate streams, like questions of boundaries, have been recogn ized as presenting fe deral questions.” Illinois v.

Milwaukee , 406 U.S. at 105 (internal quota tions and citations omitted).

The Supreme Court’s analysis in SWANCC and Rapanos materially altered the criteria for analyzing CWA jurisdictional issues for wholly intrastate waters. However, these decisions by their terms did not affect the body of case law de veloped to address inte rstate waters. The holdings in the Supreme Court’s interstate waters jurisprudence, in particular City of Milwaukee

, apply CWA jurisdiction to interstate waters without regard to, or discussi on of, navigability. In City of Milwaukee , the Court held that the CWA provided a comprehensive statutory scheme for addressing the consequences of interstate wate r pollution. Based on this analysis, the Court expressly overruled its holding in Illinois v. Milwaukee that the Federal co mmon law of nuisance would apply to resolving interstate water pollutio n disputes. Instead, the Court held that such disputes would now be resolved through application of the statutory provisions of the CWA regulating water pollution.

It would be unreasonable to interpret SWANCC or Rapanos as overruling City of

Milwaukee with respect to CWA jurisdiction over nonna vigable interstate waters. Such an interpretation would result in no law to apply to water pollution disputes with regard to such waters, unless one were to assume that the C ourt intended (without disc ussion or analysis) to

restore the Federal common law of nuisance as the law to apply in such matters. Moreover,

SWANCC and Rapanos acknowledge that CWA regulatory jurisd iction extends to at least some nonnavigable waters. See, e.g. , 547 U.S. at 779 (Kennedy, J.). Neither the SWANCC Court nor the plurality or Kennedy opinions in Rapanos purports to set out the complete boundaries of CWA jurisdiction. See, e.g. , 547 U.S. at 731 (“[w]e need not d ecide the precise extent to which the qualifiers ‘navigable’ and ‘of the United States’ restrict the coverage of the Act.”) (plurality opinion).WOUS Interstate Waters Attachment

12 In addition, as the Supreme Court has re peatedly admonished, if a Supreme Court precedent has direct application in a case yet appears to rest on a rationale rejected in some other line of decisions, lower courts should follow th e case which directly co ntrols, leaving to the Supreme Court the prerogative of overruling its precedents. Agostino v. Felton , 521 U.S. 203, 237 (1997); United States v. Hatter , 532 U.S. 557, 566-567(1981). Moreover, when the Supreme Court overturns established precedent, it is explicit. See

, Lawrence v. Texas, 539 U.S. 558, 578 (“ Bowers was not correct when it was decided, an d it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”).

III. The Agencies' Interpretati on of the Term “Navigable Wa ters” to Include “Interstate

Waters” is Reasonable and Entitled to Deference

While EPA and the Corps believe the CW A unambiguously includes interstate waters within the scope of “navigable waters,” the agencies also believe their interpretation is reasonable “in light of the goals and purpos es of the statute,” and is entitled to Chevron

deference.

EPA, the agency charged with implementi ng the CWA, has always interpreted the 1972

Act to cover interstate waters. Final Ru les, 38 Fed. Reg. 13528 (May 22, 1973) (the term

“waters of the United States” includes “interstate waters and their tributar ies, including adjacent wetlands”). While the Corps of Engineers initially limited the scope of coverage for purposes of

section 404 of the CWA to those waters that were subject to the Rivers and Harbors Act of 1899, after a lawsuit, the Corps amended its regulations to provide for the same definition of “waters of the United States” that EPA’s regulations had al ways established. In 1975, the Corps’ revised regulations defined “navigable wate rs” to include “[i]nterstate wate rs landward to their ordinary high water mark and up to their headwaters.” In their final ru les promulgated in 1977, the Corps adopted EPA’s definition and included within the definition of “water s of the United States” “interstate waters and their tributaries, includ ing adjacent wetlands.” The preamble provided an explanation for the inclusion of interstate waters:

The affects [sic] of water pollution in one state can adversely a ffect the quality of the waters in another, particularly if the waters involved are interstate. Prior to the FWPCA amendments of 1972, most fe deral statutes pertaining to water quality were limited to interstate waters. We have, therefore, included this third category consistent with the Federal governme nt’s traditional role to protect these waters from the standpoint of water qual ity and the obvious effects on interstate commerce that will occur through polluti on of interstate waters and their

tributaries.

Final Rules, 42 Fed. Reg. 37122 (July 19, 1977).

“The view of the agency charged with admini stering the statute is entitled to considerable deference,” Chemical Mfrs. Ass'n v. NRDC , 470 U.S. 116, 125 (1985), and “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency,” Chevron U.S.A. Inc. v. NRDC , 467 U.S. 837, 844 (1984). TheWOUS Interstate Waters Attachment

13 term “waters of the United States” is not an established term of art. The choice among

reasonable alternative constructi ons is therefore the province of EPA, the executive agency charged with the Act's administration. In Riverside Bayview , for example, the Supreme Court held that in light of the well-e stablished rule of deference to administrative judgments, judicial “review [wa]s limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act for the Corps to exercise jurisdiction over wetlands adjacent to but not regularly flooded by rivers, stream s, and other hydrographic features more conventionally identifiable as ‘waters.’” 474 U. S. at 131. n.19. The Court observed that “faced with such a problem of defining the bounds of its regulatory authority, an agency may appropriately look to the legislat ive history and underlying policie s of its statutory grants of authority.” Id. at 132. Furthermore, the Supreme C ourt has repeatedly recognized that Congress, in enacting the CWA, “evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution contro l statutes and to exercise its powers under the Commerce Clause to regulat e at least some waters that would not be deemed ‘navigable’ under

the classical understandi ng of that term.” Riverside Bayview , 474 U.S. at 133; see also

SWANCC , 531 U.S. at 172 (CWA’s coverage extends beyond waters that ar e “navigable” in the traditional sense). In Rapanos , all Members of the Court agreed that the term “waters of the United States” encompasses some wa ters that are not navigable in the traditional se nse. 547 U.S. at 731 (plurality opinion); id. at 767-768 (Kennedy, J., conc urring in the judgment); id . at 793 (Stevens, J., dissenting).

As explained in Section II, the CWA’s stat utory provisions, stat utory history, and the history of federal jurisdiction over interstate waters prior to the 1972 CW A provide support for the reasonableness of the agencies’ interpretation in cluding interstate waters within the scope of the CWA’s protected waters. This is particul arly true when the Supreme Court has already determined that Congress’ intent in enacting the CWA was to “repudiate limits that had been placed on federal regulati on by earlier water pollution control statutes.” Riverside Bayview , 474

U.S. at 133. It would subvert that intent to interpret the term “navigable wa ters” not to include

interstate waters when those waters had been subject to regulation unde r the statutes Congress thought were too limited in their scope.

The legislative history similarly provides support for the agencies’ interpretation. Congress in 1972 concluded that the mechanism fo r controlling discharges and, thereby abating pollution, under the FWPCA and Refuse Act “has b een inadequate in every vital aspect.” S. Rep. No. 414, 92d Cong., 1 st Sess. 7 (1972). The Senate Committee on Public Works reported that development of water quality standards, assigned to the Stat es under the 1965 FWPCA Amendments, “is lagging” and the “1948 abatement procedures, and the almost total lack of enforcement,” prompted the search for “more direct avenues of action against water polluters and water pollution.” Id. at 5. The Committee further conclude d that although the Refuse Act permit program created in 1970 “seeks to establish this direct approac h,” it was too weak because it applied only to industrial polluters and too unwieldy because the au thority over each permit application was divided betw een two Federal agencies. See id . at 5; see also id. at 70-72 (discussing inadequacies of Refuse Act program).

In light of the poor success of those programs, the Committee recommended a more direct and comprehensive approach which, after amendment in conference, was adopted in theWOUS Interstate Waters Attachment

14 1972 Act. The text, legislative history and purpose of the 1972 Amendments all show an intent – through the revisions – to broaden, improve and st rengthen, not to curtai l, the federal water pollution control program that had exis ted under the Refuse Act and FWPCA. 10 The 1972 FWPCA Amendments were “not merely another law ‘touching interstate waters’” but was “viewed by Congress as a ‘total restructuring’ and ‘complete rewriting’ of the existing water pollution legislation.” 11

As the legislative history of the 1972 Act conf irms, Congress’ use of the term “waters of

the United States” was intended to repudiate earlier limits on the reach of federal water pollution efforts: “The conferees fully intend that the term ‘navigable waters’ be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.” See S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972). The House and Senate Committ ee Reports further eluc idate the Conference Committee’s rationale for removing the word “n avigable” from the definition of “navigable waters,” in 33 U.S.C. § 1362(7) . The Senate report stated:

The control strategy of the Act extends to navi gable waters. The defi nition of this term means the navigable waters of the United States , portions thereof, tributaries thereof, and

includes the territorial seas and the Great Lakes. Thr ough a narrow interpretation of the definition of interstate waters the implem entation of the 1965 Act was severely limited. Water moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source. Therefore, referen ce to the control requirements must be made the navigable waters, portions th ereof, and their tributaries.

See S. Rep. 414, 92d Cong., 1 st Sess. 77 (1971); see also H.R. Rep. No. 911, 92d Cong., 2d Sess. 131 (1972) (“The Committee fully inte nds that the term "navigable waters" be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purpos es.”). These passages strongly suggest that Congress intended to expand federal protection of waters. There is no evidence that Congress

intended to exclude interstate waters which were protected under federal law if they were not traditional navigable waters or connected to trad itional navigable waters. Such an exclusion would be contrary to all the stated goals of Congress in enacting the sweeping amendments

which became the CWA.

Not only is the agencies' interpretation cons istent with the langua ge of the CWA and its legislative history, its longstanding interpre tation is due deference under established

10 See id. at 9 (“The scope of the 1899 Refuse Act is broadened; the administrative capability is strengthened.”);

id. at 43 (“Much of the Committee’s time devoted to this Act centered on an effort to resolve the existing water quality program and the separate pollution program developing under the 1899 Refuse Act.”). Congress made an effort “to weave” the Refuse Act permit program into the 1972 Amendments, id. at 71, as the statutory text shows.

See 33 U.S.C. 1342(a) (providing that each application for a permit under 33 U.S.C. 407, pending on October 18, 1972, shall be deemed an application fo r a permit under 33 U.S.C. 1342(a)).

11 City of Milwaukee v. Illinois , 451 U.S. at 317; see also id. at 318 (holding that the CWA precluded federal common-law claims because “Congress’ intent in enacting the [CWA] was clear ly to establish an all-encompassing program of water pollution regulation”); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n , 453 U.S. 1, 22 (1981) (existing statutory scheme “was completely revised” by enactment of the CWA).WOUS Interstate Waters Attachment

15 administrative law principles. Th e courts have identified a numb er of factors which generally support giving an agency deference: the interpre tation is by the regulatory agency charged with administering the statute; the interpretation is issued contemporaneously with passage of the statute; the agency interpretation has been consis tent; the statute requires, and the interpretation reflects, the agency’s particular expertise; ther e is a thorough record of the interpretation; and there has been congressional acqui escence to the interpre tation. In this ca se, all the factors support granting substantial defere nce to EPA's interpretation of the CWA in its regulatory

definition of “waters of the United States.”

The CWA was enacted in 1972. EPA’s regulat ory definition of “w aters of the United

States” which included interstate waters wa s promulgated in 1973. Such contemporaneous

construction is entitled to increased deference. Gorsuch , 693 F.2d at 167; Commodity Futures Trading Commission v. Schor , 106 S.Ct. 3245 (1986) (“as the CFTC’s contemporaneous interpretation of the statute it is entrusted to administer, considerable weight must be accorded the CFTC’s position”).

The definition has been the Agency’s interp retation of the geographi c jurisdictional scope of the CWA for more than 35 years. The cons istency of EPA’s position also entitles its interpretation to deference. Gorsuch , 693 F.2d at 167 (citing Zenith Radio Corp. v. United

States , 437 U.S. 443, 450 (1978)).

Courts have acknowledged the need for defere nce to EPA in light of “the complexity and technical nature of the statutes and the subjec ts they regulate . . . a nd EPA’s unique experience and expertise.” E.I. du Pont de Nemours & Co. v. Train , 97 S.Ct. 965, 978 n.25 (1977) (internal quotes omitted). Such expertise is due deferenc e even when the question is one of statutory interpretation and jurisdiction. Schor , 106 S.Ct. at 3253 (“An agency’s expertise is superior to that of a court when a dispute centers on whethe r a particular regulation is reasonably necessary to effectuate any of the provisions or to accomplis h any of the purposes of the Act the agency is charged with enforcing; the agency’s position, in such circumstances, is th erefore due substantial deference.” (internal quotes omitted)).

The thoroughness of the Agency’s position is demonstrated by the fact that the Agency went through notice and comment procedures to examine the natu re of the regulatory provision. (The public had further opportunity for noti ce and comment when the Corps revised its regulations.)

Finally, Congress has been aware of and has supported the Agency’s longstanding interpretation of the CWA. “W here ‘an agency’s statutory construction has been fully brought to the attention of the public and the Congress, and the latter has not sought to alter that interpretation although it has amended the stat ute in other respects, then presumably the legislative intent has been correctly discerned.’” North Haven Board of Education v. Bell , 102 S. Ct. 1912, 1924 (1982) (quoting United States v. Rutherford , 99 S. Ct. 2470 (1979) (internal quotes omitted)).

The 1977 amendments to the CWA were the re sult of Congress’ thorough analysis of the scope of CWA jurisdiction in light of EPA and Corps regulations. The 1975 interim finalWOUS Interstate Waters Attachment

regulations promulgated by the Corps in response to NRDC v. Callaway , aroused considerable congressional interest. Hearings on the subject of Section 404 ju risdiction were he ld in both the

House and the Senate. 12 An amendment to limit the ge ographic reach of Section 404 to traditional navigable waters and their adjacent wetlands was passed by the House, 123 Cong. Rec. 10434 (1977), defeated on the floor of the Senate, 123 Cong. Rec. 26728 (1977), and eliminated by the Conference Committee, H. R. Conf. Rep. 95-830, 95th Cong., 1st Sess. 97-105 (1977). Congress rejected the proposal to limit the geographic reach of Section 404 because it wanted a permit system with “no gaps” in its protective sweep. 123 Cong. Rec. 26707 (1977) (remarks of Sen. Randolph). Rather than alter the geographic reach of Section 404, Congress amended the statute by exempting certain activities -- most notably cert ain agricultural and

silvicultural activities -- from Section 404's permit requirements. See 33 U.S.C. § 1344(f)

Other evidence abounds to support the conclu sion that when Congress rejected the attempt to limit the geographic reach of Section 404, it was well aware of the jurisdictional scope of EPA and the Corps' definition of “waters of the United States.” For example, Senator Baker stated (123 Cong. Rec. 26718 (1977)):

Interim final regulations were promulga ted by the corps [on] July 25, 1975. . . . Together the regulations and [EPA] gu idelines established a management program that focused the decisionmaking pr ocess on significant threats to aquatic areas while avoiding unnece ssary regulation of minor activities. On July 19, 1977, the corps revised its regulations to further streamline the program and correct several misunderstandings. . . .

Continuation of the comprehensive coverage of this program is essential for the protection of the aquatic environment. The once seemingly separable types of aquatic systems are, we now know, interr elated and interdependent. We cannot expect to preserve the remaining qua lities of our water resources without providing appropriate protecti on for the entire resource.

Earlier jurisdictional approaches under th e [Rivers and Harbors Act] established artificial and often arbitrary boundaries . . . .

This legislative history leaves no room for doubt that Congress was aware of the agencies’ definition of navigable waters. While there was controversy over the assertion of jurisdiction over all adjacent wetl ands and some isolated wetlands, the agencies’ assertion of CWA jurisdiction over interstate waters was uncontroversial.

Finally, the constitutional c oncerns which led the Supreme C ourt to decline to defer to agency regulations in SWANCC and Rapanos are not present here where the agency is asserting jurisdiction over interstate waters. In SWANCC , the Court declined to defer to agency regulations asserting jurisdiction over isolat ed waters because the Court felt such an

12 Section 404 of the Federal Water Pollution Control Act Am endments of 1972: Hearings Before the Senate Comm. on Public Works, 94th Cong., 2d Sess. (1976); Development of New Regulations by the Corps of Engineers, Implementing Section 404 of the Federal Water Pollution Control Act Concerning Permits for Disposal of Dredge or Fill Material: Hearings Before the Subcomm. on Wate r Resources of the House Comm. on Public Works and Transportation, 94th Cong., 1st Sess. (1975).

16WOUS Interstate Waters Attachment

17 interpretation of the statute invoked the outer li mits of Congress’ power . The Court’s concern “is heightened where the administrative interp retation alerts the federal-state framework by permitting federal encroachment upon a traditional state power.” 531 U.S. at 172-173 (citations omitted). Authority over interstate waters is squarely within the bounds of Congress’ Commerce Clause powers. 13 Further, the federal government is in the best position to address issues which may arise when waters cross Stat e boundaries, so this interpretation does not disrupt the federalstate framework in the manner the Supreme Court f eared that the assertion of jurisdiction over an isolated, intrastate body of wate r based on the presence of migratory birds did. Indeed, the Supreme Court’s analysis in Illinois v. Milwaukee and City of Milwaukee makes clear that Congress has broad authority to cr eate federal law to resolve inters tate water pollu tion disputes. Therefore, as discussed in Section II.B above, it is appropriate for the agencies to adopt an interpretation of the extent of CWA jurisdiction over interstate waters that gives full effect to City of Milwaukee unless and until the Supreme Court elects to revisit its hol ding in that case.

Thus, based on the language of the statute, the statutory history, th e legislative history, and the caselaw, the agencies' longstanding inte rpretation of “navigable waters” to include

interstate waters is reasonable and entitled to deference.

13 In Illinois v. Milwaukee , the Supreme Court noted that "Congress has enacted numerous laws touching interstate

waters." 406 U.S. at 101.