Rapanos v. United States – Oral Argument – February 21, 2006

Media for Rapanos v. United States

Audio Transcription for Opinion Announcement – June 19, 2006 in Rapanos v. United States

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John G. Roberts, Jr.:

We’ll hear argument first this morning in Rapanos v. United States and Carabell v. the United States Army Corps of Engineers.

Mr. Hopper.

M. Reed Hopper:

Mr. Chief Justice, may it please the Court.

This is a case of agency overreaching. In this case, the Corps and EPA pushed the very limits of congressional authority, contrary to the plain text of the act and without any clear indication Congress intended that result. They claim 404(a) jurisdiction over the entire tributary system, from the smallest [*2] trickle to the largest watershed, swapping in — sweeping in remote, non-navigable wetlands 20 miles from the traditional navigable water. This limitless claim of jurisdiction shifts the Federal/State balance and raises significant constitutional questions. We believe this boundless interpretation is inconsistent with this Court’s reading of the act in Solid Waste Agency.

Antonin Scalia:

It goes somewhat beyond the smallest trickle?

Doesn’t it?

Doesn’t it also include ditches that currently don’t have any trickle if they obtain a trickle during a rainstorm?

M. Reed Hopper:

Yes, Your Honor.

They actually argued that it… it makes no difference whether there… what the substantiality is or the directness of the connection is.

It’s irrelevant to the jurisdictional determination.

And as I said, they… the… the agencies assert jurisdiction over even the entire watershed.

For example, the Mississippi watershed, the largest in the Nation, covers 1 million square acre… 1 million square miles and reaches from the Rockies to the Appalachians and drains 41 percent of the 48 lower States.

Ruth Bader Ginsburg:

So where would you… where would… where would you put the line?

M. Reed Hopper:

I’d put the line where Congress put the line, Your Honor.

Congress declared in 404(a) that it would prohibit the discharge of fill and dredged material into the navigable waters.

So the… these agencies can permit or prohibit any discharge, no matter where it occurs, so long as it reaches a navigable water.

That would be the–

Ruth Bader Ginsburg:

But then… but you were… you are including at least wetlands that abut–

M. Reed Hopper:

–Yes.

Ruth Bader Ginsburg:

–navigable water.

M. Reed Hopper:

Yes.

Traditional navigable waters plus abutting wetlands inseparably bound up.

Ruth Bader Ginsburg:

What about major tributaries?

M. Reed Hopper:

Congress cannot regulate all tributaries.

It could regulate some tributaries–

Ruth Bader Ginsburg:

Which ones?

M. Reed Hopper:

–but would have to do so on a case-by-case basis.

The regulation of all tributaries raises significant constitutional questions and contrary to the regulation of… of wetlands that are inseparably bound up.

And there’s no clear indication that Congress intended to regulate any tributaries, let alone the entire tributary system.

Ruth Bader Ginsburg:

Well, is your position no tributaries or some tributaries?

M. Reed Hopper:

The… the act, by its terms, does not recognize the… the regulation of any tributary.

It does–

Samuel A. Alito, Jr.:

Does it make sense to say that any wetlands that it abuts a traditionally navigable water is covered, but a tributary that leads right into a traditionally navigable water is not necessarily covered?

M. Reed Hopper:

–I think… I think it’s fair to say that under this Court’s determination in Solid Waste Agency that the only wetlands that are covered are those that are abutting and inseparably bound up.

It makes sense to do so because by regulating those types of wetlands, the Government is essentially declaring them the equivalent of the navigable waterway.

David H. Souter:

Yes, but they’re doing it for a functional reason.

The functional reason is that if you put the poison in the adjacent wetland, it’s going to get into the navigable water.

Exactly the same argument can be made as you go further and further up the tributaries, and it seems to me that once you concede, as I think you have to, that there can be a regulation that goes beyond literally navigable water at the point at which the… the pollutant is added, then you have to follow the same logic right up through the watershed to… to any point at which a pollutant, once added, will eventually get into the navigable water.

M. Reed Hopper:

The reason that logic does not apply, Your Honor, is because the regulation of… of tributaries raises significant constitutional questions that are not implicated by the regulation of a wetland inseparably–

David H. Souter:

Then… then you have to accept the fact that… that Congress cannot effectively regulate the navigable… the… the condition of the navigable water itself because if all the… the… let’s… let’s assume there’s a class of… of evil polluters out there who just want to wreck the… the navigable waters of the United States.

All they have to do is get far enough upstream and they can dump anything they want to.

It will eventually get into the navigable water, and Congress can’t do anything about it on your theory.

M. Reed Hopper:

–That’s incorrect, Your Honor.

We acknowledge that under the… the act, the Government can regulate any discharge that actually reaches the navigable water.

David H. Souter:

So you’re… you’re going to… you… you then want to draw a distinction between the dredge and fill addition and, let’s say, a… a conventional synthetic poison.

M. Reed Hopper:

No.

Either… in either case, if… if the… if the discharge of dredged material actually enters into a navigable water, regardless of where it’s discharged, it would be covered.

Same for a conventional toxin.

David H. Souter:

You mean on… on… in every… in every case then, I mean, Congress would have to… I’m sorry… a scientist would have to analyze the molecules and… and trace them up, and so long as they could… could trace it to a specific discharge, they could get at it, but otherwise they couldn’t?

I mean, that… you know, you know what I’m getting at.

That obviously would… would totally thwart the regulation.

M. Reed Hopper:

I don’t… I don’t believe it would, Your Honor.

The… the… certainly Congress did not think so in section–

Antonin Scalia:

Well, I… couldn’t you simply assume that anything that is discharged into a tributary ultimately goes where the tributary goes?

Wouldn’t it be enough to prove the discharge?

M. Reed Hopper:

–Well, it certainly wasn’t true in this case, Your Honor.

The–

Antonin Scalia:

So you don’t think it would be enough for the… for the Government to prove the discharge into a tributary in order to prove that the act has been violated.

M. Reed Hopper:

–No, Your Honor, I do not.

Antonin Scalia:

You really think it has to trace the molecules.

M. Reed Hopper:

Absolutely.

That’s… that’s what the terms of the act require.

John G. Roberts, Jr.:

How do you… how do you define a tributary?

M. Reed Hopper:

Well, the… that’s one of the problems here, Your Honor, is that… is that the agency has… has established a moving target for… for tributaries.

John G. Roberts, Jr.:

So what’s your definition?

M. Reed Hopper:

Well, the… the definitions we’re working with here, to which we object, is that… is that it includes anything in the hydrological connection.

John G. Roberts, Jr.:

I know what you object to, and I know that you think your client isn’t covered.

But I don’t know what test you would have us adopt for what constitutes a tributary.

M. Reed Hopper:

Well, we’re suggesting that… that this Court need not define tributary because under the act all tributaries are excluded.

The only… the only prohibited act–

John G. Roberts, Jr.:

Well, okay, but we still don’t know what you’re excluding.

I mean, the Missouri is a tributary of the Mississippi, but I assume it’s still covered.

M. Reed Hopper:

–Those… anything that is not of a… anything does not constitute the channel, the traditional navigable water, and anything not abutting as a… as a inseparably bound up wetland would constitute a tributary.

Anthony M. Kennedy:

Well, it… it seems to me that what works in your favor is… is it SWANCC?

I don’t… I’m not quite sure how to pronounce the case.

M. Reed Hopper:

Yes.

Anthony M. Kennedy:

The Migratory Bird Rule case where we said there had to be a significant nexus.

But I think what the Court is asking you is… is how to define significant nexus.

We’re… if you want us just to say, well, this case is too much, but then the Corps of Engineers should use its expertise to come up with a new regulation, that’s rather an odd opinion for us to write.

M. Reed Hopper:

Well, this Court did not–

Anthony M. Kennedy:

And it seems to me that that’s what you’re asking us to do here.

M. Reed Hopper:

–This Court did not suggest in… in SWANCC that a significant nexus constitutes the jurisdictional standard for all… for all waters.

That standard only applies to wetlands that are adjacent to traditional navigable waters.

The jurisdictional standard is determined by the terms of the act.

In… in SWANCC, this Court determined that the act was clear and should be read as written to avoid the constitutional questions raised by a broad interpretation of the act.

As written–

Ruth Bader Ginsburg:

From everything… from everything you said, it sounds like you’re… you’re taking issue with Riverside Bayview because if a wetland adjacent to the river counts, then why not a stream that goes right into it?

What sense does that distinction make?

M. Reed Hopper:

–It makes perfect sense, Your Honor, because the regulation of those tributaries and streams, all of them in the entire tributary system, raise significant constitutional questions that are not implicated by regulating wetlands that are inseparably bound up with traditional navigable water.

Antonin Scalia:

More than that, Mr. Hopper.

Antonin Scalia:

I thought and I had expected you to… to respond to Justice Souter’s question this way, his question about how come putting poison in… in the wetlands is bad, but it’s okay to put it in the tributary.

But they… as I understand it, the reason we held wetlands were included within the waters of the United States was not… not that, that you could poison the waters by poisoning the wetlands, but rather, it was that it’s very hard to tell where the navigable water ends and the wetland begins.

And… and we said, you know, we’re not going to parse that.

If it’s… if it’s adjacent to a navigable water and it’s wet, we’re going to say it’s part of a navigable water.

M. Reed Hopper:

That’s right.

Antonin Scalia:

I thought that was our basis.

M. Reed Hopper:

That’s exactly right.

Antonin Scalia:

And, of course, that basis doesn’t apply to tributaries, does it?

You… you can always tell where the tributary ends.

It ends at the point where it goes into the main river.

M. Reed Hopper:

I think that’s correct, Your Honor.

Ruth Bader Ginsburg:

You think that’s correct about what the Court said in Bayview when it phrased the question as before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries.

That’s what the Court thought it was deciding in Riverside Bayview.

M. Reed Hopper:

The Court did frame the question that way, Your Honor.

However, the Court’s commentary about tributaries was not germane to its… to its holding.

Tributaries was not a question before the Court.

Ruth Bader Ginsburg:

At any rate, they could not have been making the distinction Justice Scalia suggested if, at least in the Court’s thinking, the tributaries rolled right into the navigable body.

M. Reed Hopper:

Well, as I said, the… the Court’s commentary in Riverside Bayview is not good law because the… the Court was not addressing the… a tributary’s question in that case, and it was not faced with a Commerce Clause challenge as it is in this case.

And at that time, the agency did not interpret tributaries to include every hydrological reach of the… of the tributary system.

David H. Souter:

Yes, but doesn’t the reference to tributary make it relatively plain that what the Court was getting at was the impossibility of drawing a functional distinction between wetlands and tributaries on the one hand, navigable waters on the other, when the purpose of the regulation is to protect the purity of the ultimate navigable water?

And isn’t the inclusion of the reference to tributaries an indication that it said if we want to attain the objective, which is clearly constitutional, then we have got to recognize these means, i.e., regulation of… of pollution in wetlands and tributaries, in order to reach that objective?

Isn’t that the reasoning that is apparent from what Justice Ginsburg just… just read to you?

M. Reed Hopper:

I don’t believe so, Your Honor.

The… the problem that… that the agencies have in this case, which was underscored in Solid Waste Agency, is that the Government cannot show any clear indication that Congress intended to regulate the entire tributary system.

In Solid Waste Agency, this Court did recognize that because of congressional acquiescence, Congress intended to regulate wetlands adjacent to navigable waters, but as to other waters, this Court could come to no conclusion because the Congress had never defined other waters.

David H. Souter:

Well, it’s… except for the… it seems to me except for… for your… your argument is… is fine except for one problem.

And that is, if we… if we assume that Congress was being as… as cautious as you suggest, then Congress’ caution, in effect, was… was allowing an end run around the regulation for the reasons we went into a moment ago.

All you’ve got to do is… is dump the pollutant further… far enough upstream in the watershed and you get away scot-free.

And it’s very difficult to believe that Congress could have intended that.

M. Reed Hopper:

I don’t think it’s difficult to believe that at all, Your Honor.

M. Reed Hopper:

We simply look at… at the goals and objectives that Congress itself adopted in furtherance of this mission to protect the waters.

If we look at 1251(a), Congress declares that its purpose is to protect the integrity of the Nation’s waters.

It used that term, Nation’s waters.

And then in… in 1251(a)(1), it says it will accomplish this by eliminating the discharge of pollutants into the navigable waters, showing that it knows how to distinguish between all waters and navigable waters.

And then in 1251(b), Congress says we will respect and defer to the States’ primary responsibility to address local water pollution and to manage local land and water use.

So the way that Congress intended to address this issue as to defer to the States to regulate pollutants upstream while Congress… or while the Federal Government regulates downstream.

That’s a perfectly rational approach to this national problem.

John G. Roberts, Jr.:

But if… but your… but your answer earlier to Justice Souter’s earlier question was that if you dump the pollutants anywhere and they make their way to the navigable water, you’re covered.

Right?

M. Reed Hopper:

Are covered if they make it… their way all the way there.

If they don’t, then the States have that responsibility.

And every State in the Nation has antipollution regulation.

If there are no further questions, I’d like to reserve my time.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Stoepker.

Timothy A. Stoepker:

Mr. Chief Justice, may it please the Court: After years of review by the State of Michigan and the respondent, the record is very clear. Petitioners’ wetland is hydrologically isolated from any navigable water of the United States. Further, the State of Michigan, exercising the power specifically and traditionally reserved to it, undertook responsibility to regulate the waters at issue and pollution and, in doing so, issued petitioner a wetland permit. It is clear from the record in this case that there is no hydrological connection between the petitioners’ wetland and navigable waters of the United States. Referring to the appendix filed, the joint appendix filed in this case, specifically beginning with the EPA letters dating back to 1994, as this property has been under years of review, [*15] do not reference any such connection.

John G. Roberts, Jr.:

Did we talk about a hydrological connection in Riverside Bayview?

Timothy A. Stoepker:

The… the connection there was… in essence, yes, Your Honor, based upon the inseparable, bound-up nature of those wetlands which were immediately adjacent to the navigable water.

There was nothing that separated those wetlands from that specific body of water.

They were immediately adjacent and intersected with that body of water.

Antonin Scalia:

I’m not sure what you mean by a hydrological connection.

Do you mean a constant… a constant body of water between the two, or do you mean simply a… a drain that at some times might carry off rainwater from… from this land?

And… would that… would that suffice to be a hydrological connection?

Timothy A. Stoepker:

In… in this case, Your Honor, there was no connection at all.

In this case, there was no connection identified.

It was speculated that there might be a potential–

Antonin Scalia:

Water never ran off of this… of this land.

Timothy A. Stoepker:

–No.

If you look… that is correct.

If you look at the circuit court opinion, it… and even the district court opinion and the findings made, there is no finding that any water has ever left the petitioners’ wetland into the ditch.

David H. Souter:

Well, do they have to make this on a plot-by-plot basis, or can they make a categorical judgment that even in cases in which, you know, there’s a berm, as there is here, when the water is high, it spills over?

And if the categorical judgment is sound, do you have an exception because they haven’t proven it with respect to your particular lot?

Timothy A. Stoepker:

Yes.

Yes, Your Honor.

In… in this case–

David H. Souter:

Where do you get that exception?

Timothy A. Stoepker:

–In the respondents’ brief on page 18, they acknowledge that the traditional test has been hydrological connection, that that’s what they have looked towards.

David H. Souter:

And the… and the… but I mean, what I’m getting at is the traditional test is the basis for a categorical judgment.

Your land falls within the general category.

Your argument is I should not be subject to it, to the statute, because of the general category.

I should be subject to it only if they prove specifically that the water spills over in rainy periods in my particular lot.

In other words, you’re saying there’s got to be a specific connection as opposed to a categorical judgment.

And my question is what under the act supports that view.

Timothy A. Stoepker:

Under the act, it talks about the issue of discharge.

That is the… that is the matter that is being regulated by the statute, an actual discharge into the navigable body of water.

If you have an hydrologically isolated body of water, you cannot physically have a discharge into the navigable stream.

It is an impossibility.

And therefore, the act does not allow the speculation that the Court is referring to here.

David H. Souter:

So… so your… maybe what you’re saying is we have shown or the record shows that this doesn’t fit within the category because it never spills over or whatever.

Is that your argument?

Timothy A. Stoepker:

That is correct.

The record in this case does not identify a connection between this wetland and this non-navigable ditch.

John Paul Stevens:

Am I correct–

Antonin Scalia:

But, Mr. Stoepker, your friend, Mr. Hopper, would certainly not agree with you that… that a… a hydrological connection is the, quote, traditional test.

What… what is your definition of tradition?

Timothy A. Stoepker:

Our definition–

Antonin Scalia:

How long has this test been established?

Timothy A. Stoepker:

–If you look at respondents’ brief in their arguments to this Court, they first state, page 18, that in fact traditionally they’ve looked at hydrological connection.

Second, they–

Antonin Scalia:

Traditionally.

Timothy A. Stoepker:

–Traditionally.

Antonin Scalia:

Yes–

Timothy A. Stoepker:

From the inception of the rules.

Antonin Scalia:

–From the inception of the rules.

Timothy A. Stoepker:

Inception of the rules, that they have looked at hydrological connection.

Antonin Scalia:

That that alone has been enough.

Timothy A. Stoepker:

No.

They state that that is the… the beginning point.

The beginning point.

They then state that they have historically undertook a interrelationship analysis of the wetland to the tributary or body of water and that they then defer that to the permit review.

Antonin Scalia:

I see.

So you’re… you’re not conceding that… that hydrologic… hydrological connection is adequate.

You’re just… is sufficient.

You’re just saying it’s necessary.

Timothy A. Stoepker:

We’re… that is correct, Your Honor.

Antonin Scalia:

Okay.

John G. Roberts, Jr.:

Can I get back to the question earlier?

What is a hydrological connection?

Is it enough if the water seeps through the ground and underground is connected with the navigable water, or does there have to be a ditch or… or a culvert that you can see the water flowing through?

Timothy A. Stoepker:

Yes, Your Honor.

The–

John G. Roberts, Jr.:

Yes?

Timothy A. Stoepker:

–Mr. Chief Justice, in… in response to that question, both potentially.

In this case, again, there was no surface water connection, and due to the nature of the clay soils, it was found that there was no groundwater connection–

Anthony M. Kennedy:

Was it… was it also clear that after the improvement, there would be no drainage?

Timothy A. Stoepker:

–After the improvement, there could be drainage.

Ironically the respondent in this case actually recommends that the barriers between this site and the ditch be removed.

John Paul Stevens:

–May I just ask one clarifying question?

Was it found that there was no connection, or was it not found that there was a connection?

Timothy A. Stoepker:

It was found that there was not a connection.

John Paul Stevens:

It was.

I didn’t read it that way.

Timothy A. Stoepker:

If you… referring the Court to the respondents’ report dated May 5th of 2000, it specifically states–

David H. Souter:

Where are you reading from?

Timothy A. Stoepker:

–This is from appendix page 81 and 83.

This is a report that starts with the term jurisdictional at the top.

David H. Souter:

Right.

Timothy A. Stoepker:

It notes a number of issues or classifications there or points.

First, that the wetland is not adjacent to navigable water.

It then notes the wetland is not adjacent to headwater.

And then it makes a comment.

It says, to a tributary to navigable water, and it says, no.

The sole basis for jurisdiction in that report is the Migratory Bird Rule.

The respondent took out to the property who they believed to be the most credible expert they had on migratory birds and then state that the–

John Paul Stevens:

I’m sorry.

I want to be sure I follow you.

You say that somewhere on page 82 there is a finding that there was no hydrological connection?

Timothy A. Stoepker:

–They do not reference a… I’m… this–

John Paul Stevens:

They don’t find a–

Timothy A. Stoepker:

–Right.

They do… they do not.

John Paul Stevens:

–I agree with that.

I’m asking you if they found there was no hydrological connection.

Timothy A. Stoepker:

Yes, they make that in a subsequent report.

John Paul Stevens:

But not on page 82.

Timothy A. Stoepker:

Not… not in this first report.

David H. Souter:

Is the report in the… is the subsequent report in the record somewhere?

Timothy A. Stoepker:

Yes.

The next report is issued September 11th of 2000.

In that report–

David H. Souter:

And again, where–

John Paul Stevens:

What page are you on?

David H. Souter:

–Where are you?

Timothy A. Stoepker:

–I’m going to refer you to the specific pages.

They first referenced clay soils on page 93.

These are the same clay soils that the State administrative law judge, after much hearing on the record, found were impermeable to prevent groundwater and surface water discharge.

Then at page 97 of the appendix, the respondent finds that due to site conditions… I will quote… this wetland has been obstructed from receiving runoff from surrounding area and from circulation by flooding into the drain.

End of quote.

Then referring to page 99 of the same appendix, I quote.

The parcel is not currently a part of the S-O Drain watershed, being the Sutherland-Oemig watershed.

Then referring to page 100 where they comment on navigation, they state, no impact on navigation.

And then finally at page 106 of the appendix, the features on this site… and again I quote… presently isolate the wetland from the S-O Drain and receiving waters.

So it receives none and it gives none.

They used the term in their report isolated.

There is no finding anywhere to the contrary in any reports issued, or thereafter at the public hearing that was conducted by the respondent, that there is any connection.

In fact, the Sixth Circuit noted there was no connection.

Ruth Bader Ginsburg:

Then what was the reason they gave for rejecting the permit?

Timothy A. Stoepker:

The… the sole reason claimed for jurisdiction at the agency hearing was adjacency to this non-navigable, unnamed ditch, which was dug by the county for a sewer system.

That’s the sole reason.

The same argument appeared at the district court level, adjacency to the unnamed, unnavigable ditch.

Anthony M. Kennedy:

I’m–

Ruth Bader Ginsburg:

Suppose–

Anthony M. Kennedy:

–I’m still not clear as to what the findings were, if there were findings, as to what the condition would be after the improvement.

Would there be an increased likelihood of drainage into the ditch after the improvement?

Timothy A. Stoepker:

The… it… it could occur in two different ways.

Anthony M. Kennedy:

And… and if that were so, would that be sufficient for jurisdiction?

Timothy A. Stoepker:

They… that… that was not their finding because in this case they actually recommended, whether or not anything occurred on the property, that the berms or barriers be removed.

They actually recommend there be an interaction between the wetland and the ditch.

That’s the irony of this.

Anthony M. Kennedy:

But, well… suppose the interaction were automatic.

Anthony M. Kennedy:

Would that suffice to make this a wetlands after the improvement?

Timothy A. Stoepker:

It… it is our position in this case no because the ditch next to the site has not been regulated under the rules adopted by the respondent and… nor under the statute adopted by Congress.

The ditch is… has been historically designated as a point source or a source point, as has been the drain under the statute.

In 1975, after the district court ruled that the respondent’s rules were too narrow from a jurisdictional standpoint, the respondent then expanded its rules in 1975.

In the preamble to those rules, it specifically stated that ditches… ditches of this nature, drainage ditches, were specifically exempted as waters of the United States.

That is in the preamble.

We then go to–

John G. Roberts, Jr.:

Counsel, what… what is the test that you would have us adopt for a significant nexus?

Timothy A. Stoepker:

–Our… our test for significant nexus would start with the… the basis that there must be an established, existing hydrological connection between the wetland and the body of water adjacent–

John G. Roberts, Jr.:

By that, you mean either a ditch or underground seepage?

Timothy A. Stoepker:

–Yes.

John G. Roberts, Jr.:

Okay.

So there has… there has to be any… and any hydrological connection works.

Timothy A. Stoepker:

Based–

John G. Roberts, Jr.:

Mr. Hopper won’t like that, but for–

Timothy A. Stoepker:

–No.

[Laughter]

Using this Court’s definition in… in SWANCC, it’s… it is our position that it needs to be a substantial nexus or interrelationship.

We’re saying–

Antonin Scalia:

Well, you don’t… you don’t have to define what… everything that’s necessary.

All you have to define is one indispensable element.

And all you’re arguing is that a hydrological connection is an indispensable element, whatever additional elements–

Timothy A. Stoepker:

–That is correct.

Antonin Scalia:

–there may be.

So you may agree with your friend, Mr. Hopper.

Timothy A. Stoepker:

We’re–

Antonin Scalia:

You… you just haven’t reached that point.

Right?

Timothy A. Stoepker:

–We don’t… we do not believe that this case needs to reach that–

John Paul Stevens:

But I’m still puzzled–

Antonin Scalia:

I don’t want to set you two to fighting with each other.

John Paul Stevens:

–by your answer to Justice–

[Laughter]

–Justice Kennedy.

What if there’s no hydrological connection today, but there would be after you… after you built your project?

Timothy A. Stoepker:

–At that point, then maybe the respondent could determine there would be some form of regulation if, in fact, the discharge was into a ditch that was, in fact, regulated.

And–

John Paul Stevens:

But it… would it be a sufficient reason to deny a permit based on the judgment that after the project is completed, there will be a… a hydrological connection?

Timothy A. Stoepker:

–The test is from the outset, Your Honor.

John Paul Stevens:

No.

It seems to me you could answer that yes or no.

Timothy A. Stoepker:

Yes.

No.

John Paul Stevens:

Perhaps you don’t want to but–

[Laughter]

Timothy A. Stoepker:

The… the resulting impact… I would say no.

The resulting impact has not been determined for jurisdiction.

John Paul Stevens:

But isn’t it sort of foolish to say that we’re concerned about pollution, but only if you… only if you catch it in advance?

That doesn’t make sense because if the problem would arise when you did what you’re seeking a permit to do, why shouldn’t you be denied the permit?

Timothy A. Stoepker:

The application for the permit does not automatically equate to a request to discharge.

The fill of a wetland does not automatically discharge into the ditch.

John Paul Stevens:

No, but my hypothesis is that we know it would happen, or they… they would find it would happen after the project is completed.

And it seems to me that… that that’s what you should focus on rather than what’s… you know, rather than what happens before.

Timothy A. Stoepker:

This Court’s test in SWANCC is based upon the before, and also based upon Riverside, it examined the before condition and the impact on that navigable water.

And what is to be prevented is the discharge into that navigable water.

And that is the initial test that is conducted.

If the Court examines the respondent’s actual test data, what they examined here was the jurisdictional determination from the beginning.

Is there a connection?

Is it isolated?

Is it not isolated?

Timothy A. Stoepker:

They didn’t look at the after-effect.

They looked at the after-effect in relationship to issuing or not issuing the permit.

Antonin Scalia:

What we’re talking about here is… is at… at most, whether this is a water of the United States.

The condition for requiring permits is that it… it be a water of the United States.

Isn’t that right?

Timothy A. Stoepker:

That is correct.

Antonin Scalia:

And it either is or it isn’t, not… not that it will be.

It either is or it isn’t.

If it is, you… you need a permit; if it isn’t, you don’t need a permit.

Timothy A. Stoepker:

That is correct.

David H. Souter:

And Justice Stevens’ question I think in… in that framework is… is this.

If it will result in discharge after the project, is it a water of the United States now?

Timothy A. Stoepker:

Under the Court’s definition in SWANCC and Riverside, the answer again is no.

David H. Souter:

Then… then Congress has passed a statute that says we’ll lock the barn after the horse is stolen.

I mean, that… maybe that’s what it did, but that’s… that would be a very odd thing for it to do, wouldn’t it?

Timothy A. Stoepker:

It did not do so, Your Honor, because specifically under section 1251(b), it reserved to the States the primary responsibility of regulating pollution within its waters.

The primary responsibility.

Their primary responsibility is not designated to the respondent in this case.

A shift would… in… in that framework would shift the primary responsibility to the respondent and take that primary responsibility away from the State.

David H. Souter:

Well, it… it would do so in… in cases of… I guess, of the… the sorts of… of new proposed actions that require the… the Corps to get into it in the first place.

But I also assume that it would leave lots of… of water pollution regulation to the States.

I don’t see that it would displace the States.

Timothy A. Stoepker:

In this case, it actually… the decision of the respondent did displace the State.

The State, after years of examination and determination of impact, made a decision to issue a wetland permit to this project and, in doing so, found specifically that the issuance of the permit would be better, effective method of dealing with pollution than not issuing the permit.

That was the specific finding made by the administrative law judge in that appendix, and those findings are the first part of the appendix in this case, detailed findings after a 2-week administrative trial where witnesses were cross-examined and examined.

In this case, the respondent has ignored those State powers given to its traditional waters and has said, we’re going to ignore, number one, your claim of jurisdiction, and number two, we’re going to ignore your finding of no impact and completely disregard that.

So, in fact, the framework in this case did shift.

The State did what it was supposed to do under 1251(b) and the… the respondent in this case usurped that responsibility and those traditional powers granted to it traditionally and both by this statute, and then determined that what the State of Michigan did had no relevance.

It was unwarranted.

So the framework in this case did specifically change.

Timothy A. Stoepker:

And in doing so, we get back to those same factual findings they’ve made.

We are here only today because they found that it is adjacent to a ditch which they have said is not a waters of the United States.

So in this case, the–

Antonin Scalia:

And the only reason it’s a water of the United States is that there are some puddles on this land.

Right?

And if there were no puddles, it… it wouldn’t be a water of the United States.

It would just be land of the United States.

Timothy A. Stoepker:

–That’s correct, because there’s some puddles on the land occasionally.

Antonin Scalia:

So it… it becomes waters of the United States because there are puddles on it, and you assert because those puddles have some hydrological connection or if it is… if it is water of the United States, those puddles have some hydrological connections with the navigable waters.

Timothy A. Stoepker:

To… to be waters of the United States, they would have to have a hydrological connection as a minimum test to be a part of the waters of the United States.

Antonin Scalia:

And… and the… the statute only prohibits the discharge of dredged or fill material, which is what is going on here, into the navigable waters, right, at specified disposal sites.

I’m sorry.

The… the permits that… that are required here–

Timothy A. Stoepker:

That is correct.

Antonin Scalia:

–permit discharge into waters, not… not into lands that aren’t waters.

Timothy A. Stoepker:

No.

The… that is correct.

The permit permits the discharge into a navigable water of the United States.

That is the object of the permit.

Again, the rules that the respondent has adopted since 1975 have specifically excluded the Nundane ditch, as well as the drain next to that ditch, as being defined as waters of the United States.

So therefore, even if they could show a connection, which is a question that has been raised, would in fact the wetland be regulated, by the… by the respondents’ own definitions and by the statutory definition which excludes a ditch and a drain under section 1262(12) and (14), neither the ditch or the Sutherland-Oemig drain by definition is a water of the United States.

It is a point source and therefore not a water.

So even if they could–

Ruth Bader Ginsburg:

–May I ask one question about your… your not… no hydrological connection?

If this berm were next to a wetland that would otherwise be adjacent to a river, the situation that was presented in Riverside Bayview, is it the berm that prevents there being a hydrological connection?

Timothy A. Stoepker:

–In this case, there are two things.

The first, the berm segregates the surface water connection between the two, and then second, the nature of the soils being clay, which are not permeable soils, create the additional segregation between that and the body of water.

Ruth Bader Ginsburg:

So it could… there could be a situation where the wetlands would be right next to the river, but there’s a berm in between, and that would break the hydrological connection?

Timothy A. Stoepker:

It would break the hydrological connection.

However, this Court has ruled in the Riverside case that those wetlands which are adjacent to navigable waters… it did not reach the issue whether they were not adjacent to non-navigable waters.

Timothy A. Stoepker:

They only addressed the… this Court only addressed the issue of relationship to navigable waters.

In that case, this Court specifically found that wetlands adjacent to navigable waters were regulated.

The Court specifically reserved the–

Antonin Scalia:

Do you think it… do you think it meant adjacent with a berm in between?

I… I thought the reason they… they reached that conclusion was you can’t tell where the navigable water ends and where the wetland begins.

I… I thought they assumed a connection between the two.

Timothy A. Stoepker:

–In reading the opinion… Your Honor, my time is up.

John G. Roberts, Jr.:

–You may respond briefly.

Timothy A. Stoepker:

Yes.

In reading the opinion, it… it appears that this Court found, because it actually went to the water’s edge, there was an inseparable, bound-up attachment between the wetland and the navigable water.

John G. Roberts, Jr.:

Thank you, counsel.

Timothy A. Stoepker:

Thank you.

John G. Roberts, Jr.:

General Clement.

Paul D. Clement:

Mr. Chief Justice, and may it please the Court:

In United States against Riverside Bayview Homes, this Court unanimously upheld the Corps’ jurisdiction over wetlands that were not themselves navigable, but were adjacent to waters otherwise within the Corps’ jurisdiction.

The principal difference between the Rapanos wetlands and the wetlands at issue in Riverside Bayview are that the Rapanos wetlands are adjacent to a non-navigable tributary, while the wetlands at issue in Riverside Bayview were adjacent to a navigable creek.

John G. Roberts, Jr.:

How do you define tributary?

Paul D. Clement:

Mr. Chief–

John G. Roberts, Jr.:

The tributary… you say they’re adjacent to a nonnavigable tributary.

That’s a… a culvert, a ditch.

Right?

Paul D. Clement:

–Well, not in all these cases, Mr. Chief Justice.

John G. Roberts, Jr.:

But in the Rapanos’ case.

Paul D. Clement:

No, not… not… that’s actually not true.

There are three specific wetlands that are at issue in the Rapanos case.

One of those, the Pine River site, as its name suggests, is adjacent to the Pine River, which is a body of water that has water flowing through it all year-round.

It’s a river.

I don’t think anybody would look at that and say that’s not a tributary of the downstream navigable rivers.

And I think that’s why, in fairness–

John G. Roberts, Jr.:

What about… what about the other… the other sites?

Paul D. Clement:

–The… the other sites are… are adjacent to man-made ditches that also drain in.

If I just… can I just say, though, I think the fact that the Pine River site is so obviously a tributary under… under any definition is one of the reasons, along with the theory that you heard advanced by petitioners, that this case–

John G. Roberts, Jr.:

But your argument assumes that the ditches that go to the other two sites are also tributaries.

Paul D. Clement:

–Absolutely, Mr. Chief Justice.

I just want to make the point that this case, because of the theory petitioners have advanced, has not really unearthed or focused on the definition of a tributary, but let me get to it because the Corps has defined the definition of a tributary.

And the definition of a tributary is basically any channelized body of water that takes water in a flow down to the traditional navigable water–

Antonin Scalia:

Even when it’s not a body of water.

Paul D. Clement:

–Even–

Antonin Scalia:

A storm drain, even… even when it’s not filled with water, is a tributary.

Right?

Paul D. Clement:

–Justice Scalia, absolutely.

Antonin Scalia:

Okay.

Paul D. Clement:

The Corps has not drawn a distinction between man-made channels or ditches and natural channels or ditches.

And, of course, it would be very absurd for the Corps to do that since the Erie Canal is a ditch.

Antonin Scalia:

I suggest it’s very absurd to call that waters of the United States.

It’s a drainage ditch dug… you know, dug by the municipality or… you know, or a gutter in a street.

To call that waters of the United States seems to me extravagant.

Paul D. Clement:

Well, let me say two things, Justice Scalia.

First of all, this case has not been litigated under the theory that the key difference is whether it’s man-made or natural, and that defines somehow the scope of a tributary.

And I think there’s a good reason for that, which is the second point, which is as the Corps experts… from the experts, the Corps will tell you the process of making the natural rivers navigable has all been about the process of channelizing them and creating man-made, artificial channels in them to the point where the difference between that which is a man-made channel and that which is a natural channel is both difficult to discern and utterly beside the point for purposes of this regulatory scheme.

Antonin Scalia:

What… what percentage of the… of the territory of the United States do you believe is… is subjected to permits from the Corps of Engineers on your theory whenever you want to move dirt, whenever you want to deposit sand?

What… what percentage of the total land mass of the United States, if you define tributary as broadly as you define it to include?

Every storm drain?

I mean, it’s the whole country, isn’t it?

Paul D. Clement:

Well–

Antonin Scalia:

All the water goes down to the sea and there’s some kind of a drain or… or a bed that takes the water down there.

Paul D. Clement:

–Well, I think the precise answer to your question being none of the land mass… none of the land itself would be regulated.

But in terms of… you want to talk about the–

Antonin Scalia:

You’re calling empty ditches… not unless you call empty ditches land, which I do.

Paul D. Clement:

–Well, the… the Corps doesn’t.

Paul D. Clement:

They treat those as water bodies.

Antonin Scalia:

I understand that.

Paul D. Clement:

And that’s not the gravamen of the complaint here.

But just to be responsive to your question, I think it’s important to understand that the Corps and the EPA’s view of wetlands would cover about 80 percent of the wetlands in the country.

And that shows that the impact of this Court’s decision in SWANCC was real and substantial because about 20 percent of the Nation’s wetlands are isolated.

Antonin Scalia:

But… but you… that’s just because this statute happens to refer to wetlands.

But under your theory, the Corps of Engineers would have jurisdiction over any land that is part of that tributary system as well.

If any of that land has a deposit of… of some materials that could leach into or… or drain into the… the tributary system, which is to say any gutter, in theory, the… the Federal Government can regulate it all.

No?

Paul D. Clement:

I don’t think that’s right, Justice Scalia.

The Corps has regulated this channelized tributary system.

It has done it without regard to whether those channels are seasonally dry in some areas, and I think that’s a rational judgment.

It’s not been the gravamen of this case, though.

And what’s important is while the Corps and the Federal Government regulate that channelized system of tributaries, non-point source pollution is still something that’s in the primary providence of the States.

And so it’s not true that the Corps is asserting an authority to regulate land as such.

But to also get it on the table, if the Federal Government wanted to… if Congress changed its mind and said that, say, the banks of the navigable rivers or their tributaries are within the scope of this program, as it did in 1899 in section 13 of the Rivers and Harbors Act, we’d be here defending that as a valid exercise of Congress’ authority not just under the Commerce Clause, but under the navigation power of the–

Antonin Scalia:

But in 1899, it just said navigable rivers, not… not every… every tributary defined to include even storm drains.

Paul D. Clement:

–No.

With respect, Justice Scalia, in 1899 in section 13 of the Rivers and Harbors Act, the so-called Refuse Act, Congress regulated the navigable waters and their tributaries.

Now, in fairness, the focus there was this idea that they only regulated the tributaries if they could show that it flowed into the navigable waters themselves, but they asserted right in the text of the statute in 1899 the authority to regulate the tributaries and the banks.

And that shows what I think is a very important difference between this case and SWANCC.

Anthony M. Kennedy:

But your… your theory is there is regulatory authority because there’s an interaction between the wetlands or the lands in question and the navigable waters.

Paul D. Clement:

Justice Kennedy, that’s not precisely accurate.

The way it would describe it is this.

As to the first question you have to ask, which is are the tributaries covered, we think an important component of describing the reach of the tributary system is whether there’s a hydrological connection.

On the second… and that’s subsection 5 of the regulatory definition that brings within the scope of waters of the United States tributaries.

Then you get to the second question which actually implicates another subsection of the definition, subsection (7), which is the adjacent wetlands.

And as to the adjacent wetlands, as the Carabell case illustrates, the definition does not turn on hydrological connection for purposes of asserting the Corps’ jurisdiction.

Anthony M. Kennedy:

Well, but… but wasn’t… wasn’t the reason for including the adjacent wetlands because of… of the likelihood of an interaction?

Paul D. Clement:

I think they… they were included for the likelihood of an interaction both hydrologically and otherwise.

Paul D. Clement:

I would say two important things, though.

Anthony M. Kennedy:

Well, let… well, please finish.

Paul D. Clement:

The two points I would make is, first of all, I think the Corps’ regulations, which for 30 years have ignored the premise… the… the presence of a berm, are rational because in the vast, vast majority of cases, that berm is not going to prevent a hydrological connection, so to speak.

And so a test that focuses, first and foremost, on physical proximity is a very rational jurisdictional test.

The second thing I would say, though, is it’s simply not true that even in the rare case where a berm or a dike prevents all hydrological connection, that an adjacent wetland will not perform an important function for the adjacent water body.

And the most obvious one is the flood control possibility of the wetland.

John G. Roberts, Jr.:

Well… well, as you mention that, you cited subsection (7), and there’s a… what struck me anyway as a very interesting provision in there.

It covers wetlands adjacent to waters other than waters that are themselves wetlands.

Now, everything that you’ve said today and in your brief would lead me to think you would contend that wetlands that are adjacent to wetlands ought to be covered as well, and yet, the regulation leaves them out.

And I want to know why do you think the regulation leaves those wetlands out.

Paul D. Clement:

I… I think, Mr. Chief Justice, my own view is the reason that that caveat is in subsection (7) is actually a vestige of the pre-SWANCC scope of the regulation.

And specifically, if you look at subsection (3) of the definition which is the isolated waters provision that was at issue, I think, through the Migratory Bird Rule in SWANCC, that includes wetlands in the available isolated waters.

And I think–

John G. Roberts, Jr.:

To me it… it suggests that even the Corps recognized that at some point you’ve got to say stop because logically any drop of water anywhere is going to have some sort of connection through drainage.

And they’re… they’re stopping there, and I wonder if we ought to take that same instinct that… that you see in subsection (7) and apply it to your definition of tributary and say, at some point, the definition of tributary has to have an end.

Otherwise, you’re going to go and reach too far, beyond what Congress reasonably intended.

Paul D. Clement:

–Well, several thoughts on that, Mr. Chief Justice.

I think the problem with that approach is that the reason why it makes sense to regulate that very first tributary that flows into the Mississippi is the reason that it makes sense to regulate the entire tributary system.

All of that water is going to flow down into the navigable waters, and if there’s going to be–

John G. Roberts, Jr.:

But that’s true of the wetland that is adjacent to the wetland that is adjacent to the tributary, and yet, the Corps says we’re not going to reach the wetland that is adjacent to another wetland.

Paul D. Clement:

–Well, with respect, Mr. Chief Justice, the way that I would read that and the way I understand the Corps reads that is that was really just trying to exclude a wetland adjacent to a wetland that was a water of the United States only because of the application of subsection (3).

Anthony M. Kennedy:

Your assumption–

Paul D. Clement:

And I think that’s… that’s supported by the–

Anthony M. Kennedy:

–but this… this is preliminary to my question.

In SWANCC, we said there has to be a significant nexus.

It seems to me that you have to show that there’s some significant relation between the wetlands you’re regulating or seeking to regulate and the navigable water.

Paul D. Clement:

–I agree with that, Justice Kennedy.

Anthony M. Kennedy:

And I… and that’s just, it seemed to me, so far been missing from the discussion.

Paul D. Clement:

Well, and I… I guess there are two ways to look at this.

You can start with the significant nexus test and see if it’s met.

Paul D. Clement:

I guess the way that the Corps would naturally proceed is to start with their definitions, and they would say section… subsection (5) covers tributaries.

And you can ask the question, is there a significant nexus between the tributaries and the navigable waters in which they flow into?

And I think the answer to that is yes.

And then there’s the secondary question, as to subsection (7) of the regulatory definition.

Is there a significant nexus between wetlands that are adjacent to waters otherwise within the Corps’ jurisdiction, be they the traditional navigable waters or their tributaries?

And I think Riverside Bayview answered that question and said, yes, there is a significant nexus between adjacent wetlands and any otherwise regulable water body to which they are adjacent.

So that’s the way we would ultimately satisfy what this Court required, which is a significant nexus.

I wouldn’t have understood this Court’s decision to transplant the significant nexus test and say, that’s what the Corps should administer, because whatever ambiguity there is in waters of the United States, I think significant nexus is precisely the kind of test you’d want the Corps–

Anthony M. Kennedy:

What… what about the Chief Justice’s question, wetlands next to wetlands?

Paul D. Clement:

–Well, I… I think that… as I said, I think what… what the definition meant to get at was to exclude wetlands adjacent to isolated wetlands under subsection (3).

I think if you ask the question more broadly, what about wetlands next to wetlands, I guess it depends on what you mean by that because the one thing we know from Riverside Bayview is that it’s not a requirement that the parcel and its wetlands be immediately adjacent.

John G. Roberts, Jr.:

Well, but we didn’t come up with the idea of wetlands next to wetlands.

The Corps of Engineers has it in their regulations.

Paul D. Clement:

And–

John G. Roberts, Jr.:

So what do they mean by it?

Paul D. Clement:

–They meant wetlands adjacent to waters that would otherwise not be in the statute which are isolated wetlands under subsection (3).

It’s the only application it has in… in the regulatory structure, as they understand it.

John G. Roberts, Jr.:

What… what is an example of an insignificant nexus under the SWANCC test?

Paul D. Clement:

Under insignificant nexus?

Well, I think it’s the waters at issue in SWANCC, and I think it’s–

John G. Roberts, Jr.:

No.

There’s no nexus there.

Paul D. Clement:

–Well, no–

John G. Roberts, Jr.:

They’re isolated.

There’s no nexus.

The… the notion in SWANCC of a significant nexus suggests that there are some bodies of water or puddles that are going to have a nexus, but it’s not going to be significant enough.

We didn’t just say any nexus.

It said significant nexus.

So what are you leaving out to give meaning to the test that we articulated in SWANCC?

Paul D. Clement:

–I’m leaving out everything that this Court excluded in SWANCC, and I wouldn’t have thought that the… that the Court necessarily suggested there was going to be some subset that had a further insignificant nexus because it wasn’t… the argument of the Government in those cases was obviously… we didn’t just concede that those bodies of water were utterly isolated.

Paul D. Clement:

We said they did have important ecological connections with the water.

And I think the way I read SWANCC is that we can’t make that–

John G. Roberts, Jr.:

So if you have a wetland, you would say a wetland with a hydrological connection to a tributary of navigable waters through one drop a year is a significant nexus to the waters of the United States?

Paul D. Clement:

–What I would say, Mr. Chief Justice, is that if the tributary flows in.

I would start with the tributary, and I’d say, now, there’s clearly a significant nexus between the tributary and the navigable waters to which it flows.

I would then look at the wetland, and I would say for purposes of the regulation of adjacent wetlands–

John G. Roberts, Jr.:

One drop.

Paul D. Clement:

–For purposes of the adjacent wetlands, it doesn’t look to hydrological connection per se.

The way I would resolve that is I would resolve it with reference to footnote 9 in this Court’s opinion in Riverside Bayview, and I would say, all right, one drop?

Fair enough.

It’s in the regulatory jurisdiction because it’s adjacent and that’s what the Corps looks to.

And I think that’s a rational judgment.

But if there’s one drop, grant the permit.

That solves the–

Antonin Scalia:

Adjacent to what?

Adjacent to a tributary.

Right?

Paul D. Clement:

–Adjacent to a tributary, absolutely.

Antonin Scalia:

But… but here’s… here’s the fly in the ointment.

You… you interpret tributary to include storm drains and ditches that only carry off rainwater.

I mean, it makes an immense difference to the scope of jurisdiction of the Corps of Engineers.

I mean, when you talk about adjacent to a tributary, I think, you know, maybe adjacent to the Missouri River or something like that.

No.

You’re talking about adjacent to a storm drain.

Paul D. Clement:

Well, Justice Scalia, I think if you had in mind a tributary, you’d probably have in mind the Pine River which is at issue in one of these sites.

And I think that’s why that’s not the way petitioners have presented this case.

Antonin Scalia:

Only because I don’t know how a storm drain is a water of the United States.

That’s all.

I mean, all of these terms that you’re throwing around somehow have to come within a reasonable usage of the term, waters of the United States, and I do not see how a storm drain under anybody’s concept is a water of the United States.

Paul D. Clement:

With respect, Justice Scalia, some things that you might classify as a storm drain are actually very deep channels that have a continuous flow of water that were–

Antonin Scalia:

No.

I was referring to a real storm drain.

[Laughter]

Paul D. Clement:

–Well–

[Laughter]

Antonin Scalia:

Okay?

Paul D. Clement:

But therein is the problem, which is some things that are part of the storm water drainage system of a city are actually things that were previous navigable natural waters.

I mean, so–

Antonin Scalia:

And some aren’t.

But… but you would sweep them all into the jurisdiction of the Corps of Engineers.

Paul D. Clement:

–We would, Justice Scalia, but I guess if we can start with the proposition that tributaries are covered and then some things that the Corps thinks are tributaries you disagree with, that would be fine.

But that would be a different case.

That hasn’t been the theory that this case has been presented.

As I understand, these drains here are actually, you know, substantial channels that do have water in them.

I have no doubt that the Pine River meets the test that it sounds like you would have for a tributary, and the difficulty I’m having is I’d be happy to defend what the Corps did if this court, in the… in the litigation of this case, had focused the court’s and the Corps’ attention on that issue.

John G. Roberts, Jr.:

Am I right that a tributary is not a defined term in the regulations?

Right?

Paul D. Clement:

That’s right.

It’s an undefined term.

The Corps has interpreted it in the 2000 preamble.

The best place to find the Corps’ teaching on this is 65 Fed. Reg. 12,823-4.

And they go through… it was part of a comment and they deal with comments about their treatment of ditches and the like and many of these issues.

And I guess what I would say is I think that for purposes of this case, I mean, you heard the petitioners’ argument.

They have obviously, based on the legal position they’ve advanced, not focused this Court or any other court’s attention on subdividing which tributaries count because their view is nothing counts.

Even the first tributary doesn’t count.

And I think in this case what I would urge you to do, if… if you have some concern with, you know, the extent of the definition of tributary, is to not make that a basis for invalidating this… the judgment of the Sixth Circuit here.

And that’s an issue that could be developed in other cases if… if the parties want to really focus the attention on that.

I think I would be comfortable defending the Corps’ judgment, even in those more finely focused challenges, because I get back to the point, which is that the same logic that has you regulate that first tributary also suggests that you want to regulate anything that’s a channel that brings large quantities of water into the navigable waterways.

Antonin Scalia:

Well, but that… but that doesn’t follow.

I mean, it is not a principle of law that so long as the object is… is lawful and within the power of the United States, all means to achieving that object are lawful.

Antonin Scalia:

That is simply not true.

There are various means of stopping that pollution, and it may well be that one of the means, which intrudes too deeply into the State’s power to regulate land within their jurisdiction, is not a permissible one.

That… that’s not an extraordinary proposition.

Paul D. Clement:

I absolutely agree with you, Justice Scalia, and that’s why I’m not up here asking for Federal regulation over non-point source pollution, although that obviously contributes to the… to the problem.

What I’m up here asking for is a recognition that the tributary system is something that Congress can validly regulate and did regulate in its broader definition of waters of the United States in the Clean Water Act.

And I think that’s something… the authority to regulate tributaries is something Congress regulated starting in 1899 and, importantly, this Court expressly upheld in 1941 in Oklahoma against Atkinson.

Antonin Scalia:

I don’t see how non-point source pollution is… is any more remote from what the Federal Government should be able to do to achieve its ends than is a point source pollution that… that consists of… of dumping sand on land that has some puddles on it.

I… that seems to me just as remote.

Paul D. Clement:

Well, I think one important thing to focus on, Justice Scalia, is this case is not just about the Corps’ 404 program because the 404 program by its terms does not permit anything.

As… as the permit word suggests, it’s a… it’s a process of granting permission.

The relevant provision here is section 301 of the statute which prohibits a discharge into the navigable waters without a permit.

And so whatever this Court decides for purposes of the 404 jurisdiction, it’s necessarily deciding for purposes of the 402 jurisdiction of the EPA.

And so what you’d be suggesting is that if some tributaries aren’t covered, then it’s perfectly okay to dump toxins in those tributaries even though you know that because they are a channelized system that directly connects with the navigable water–

John G. Roberts, Jr.:

Well, that’s not really fair.

The petitioners, as I understand it, both concede the discharges that make their way into the navigable waters would be covered.

Paul D. Clement:

–That’s right, Mr. Chief Justice, but there’s only two ways to do that.

One way of doing that and the one that I hear them advocating would be this impossible sort of process of trying to fingerprint or DNA test oil spills in a tributary to figure out, yes, that’s the guy that got it to the navigable waters.

And the one thing we know is that there were some efforts to try to regulate pollution that way before 1972 and they were a dismal failure.

The only other way to do it, as suggested by one or two amici, is to treat the last… treat the tributary as if it were a point source.

But I’d sure hate to be the guy who owns the… the land next to that tributary that’s dumping into the Mississippi who’s going to be responsible for the pollution of everybody upstream.

And what Congress recognized in 1972 is that they had to regulate beyond traditional navigable waters.

Anthony M. Kennedy:

But the Congress in 1972 also, in its statement of policy, said it’s a statement of policy to reserve to the States the power and the responsibility to plan land use and water resources.

And under your definition, I… I just see that we’re giving no scope at all to that clear statement of the congressional policy.

Paul D. Clement:

With respect, Justice Kennedy, the States still have plenary control over the non-point source pollution.

They still have an important cooperative role in… in the overall program, as you’ll hear more about in the second case today.

And I would actually ask you to focus on one particular provision that deals with the relationship between the Federal Government and the States under 404 in particular, and that’s section 404, subsection (g) of the statute.

And that was added to the statute in 1977.

Unless Congress is going to be construed to have given the States a virtual empty set, that provision makes crystal clear that the waters of the United States, for purposes of the Clean Water Act, extend beyond traditional navigable waters and their adjacent wetlands.

Antonin Scalia:

Though not necessarily as far as storm drains.

It would be enough to… to say navigable… you know, non-navigable tributaries that are real… real tributaries.

Paul D. Clement:

Absolutely, Justice Scalia.

I concede that.

But then you get to the question of defining real tributaries, and that’s neither been teed up in this litigation, nor is it something that I think, at the end of the day, you’d want to differ from the Corps’ judgment, which although you find it striking that some things that are ditches are actually included in the system, that is a product of the way that the tributary systems have worked, the way that certain cities have taken over a natural stream and channelized it and make it look like a ditch, but it’s part of the system that carries water down from the headwaters.

And again, maybe that’s an issue that we can try to divine the limits to in a subsequent case.

But I think what’s important, as… as your very comments suggest, is that trying to give meaning to that textual indication that Congress had clearly wanted to capture something beyond traditional navigable waterways and their adjacent wetlands.

Antonin Scalia:

It’s a very vague indication.

I mean, I… I agree with you that your argument based on 404(g) is a strong one, but it… it perhaps is weakened if you believe that in order to stretch to the… to the limit of Federal jurisdiction, you need a clear statement.

I certainly wouldn’t consider 404(g)… if… if the act did not previously include the kind of authority you’re arguing for, I would not… I would not consider 404(g) a clear statement of that… of that new… new authority.

Paul D. Clement:

Well, I think even you would concede it’s a clear statement that something else must be covered.

Otherwise, other than is completely meaningless in the statute.

And so… and… and I… I grant you that it might not be a clear statement as to the nth tributary, and maybe that’s a case on which we can litigate in the future.

But I think what I would say is, for those of your colleagues that want to look at the legislative history, it provides some additional context for 404(g) and makes it very clear that Congress, as this Court found in both Riverside Bayview and in SWANCC, was specifically focused on the coverage of adjacent wetlands.

And it’s very clear that they understood that whatever scope of jurisdiction was given to the Corps, that it would bring along with it the adjacent wetlands.

And so there was this long debate.

As I say, the legislative history I think makes it quite clear that they were meant to include the non-navigable tributaries and a substantial amount of the non-navigable tributaries.

And so, I mean, I would invite others to look at that.

I also think that, to get back to a point I made earlier, one thing that’s exceedingly clear from that legislative history is nobody in 1977, including those that were advocating restricting the scope of the 404(g) program, wanted to restrict the EPA’s jurisdiction under 402.

And so in the legislation that they proposed that eventually found form in 404(g), they expressly decoupled the 404 permitting process and its jurisdiction from the 402 process.

Petitioners’ argument, by contrast, necessarily restricts the scope of both of those programs because they are joined in the hip through 301.

And so if they’re right that they can dredge and fill in these wetlands, then it is equally true that they can dump toxic materials into those wetlands.

If I–

Stephen G. Breyer:

Could you just say a word about the… the ditch… sorry… the word about the wetland next to a tributary that’s separated by a man-made object like a ditch?

Are there many such instances?

It sounds to me like a scientific question.

Are there many such instances where there is no transfer of water?

And in those instances, is the presence of water in the wetland anything more than a coincidence?

Paul D. Clement:

–Well–

Stephen G. Breyer:

Insofar as it seeks to serve a purpose of the statute to regulate this.

Paul D. Clement:

–What I would say, Justice Breyer… I… I think I can answer the whole question… is in the vast majority of cases, as I understand it, a berm will not have the effect of actually preventing all hydrological connection.

Stephen G. Breyer:

And where do I look to verify that scientific matter?

Paul D. Clement:

I think a number of the amicus briefs have addressed that.

I wish I could point to you a specific one.

Stephen G. Breyer:

No.

I can’t find any quantitative assessment.

Paul D. Clement:

Oh, again, I didn’t mean to suggest a percentage.

I just think that… that… let me put it to you this way, and this is the argument we obviously make in the brief.

The best reason to think that a man-made… that a man-made berm or a natural berm is unlikely to prevent all hydrological flow is even those man-made structures that have as their express design to prevent water flow, like dikes and levees and dams, have seepage and leakage from them.

So–

Stephen G. Breyer:

Fine.

Now suppose we take a set, which you think exists as not the null set, of instances where there is no such transfer, which your opponents say is this case.

Now what’s the justification for regulating those?

If it’s simply flood control because water flows over the top and sits there, I guess you could say the same thing is true of any low depression, and therefore, the presence of water would be just a coincidence.

Now, what’s your… the fact that they’re wet doesn’t have anything to do with it.

It’s the fact that they’re next to a place that floods that has to do with it.

Now, what’s wrong with what I just said?

Paul D. Clement:

–What’s wrong with what you just said is that wetlands have unique characteristics that are different just from low-lying areas.

And I think this Court started to recognize that in the Riverside Bayview case.

And the image I would leave you with is the image that wetlands actually act something like a sponge, and because of that characteristic, they play two important roles in helping to regulate the flow of the adjacent water body.

Stephen G. Breyer:

Okay, I understand that.

Now, what specifically, since I think this is scientific, do I look at to verify what you just said, namely that a wet depression, even if there’s no interchange, has a lot to do with flood control that a dry depression wouldn’t have?

That’s a scientific statement.

Where do I verify it?

Paul D. Clement:

And, again, I mean, I would direct you to the amicus briefs that discuss in length the benefits of wetlands, but I understand you won’t find those–

Stephen G. Breyer:

I read them, and I… I just perhaps wasn’t reading them closely enough, but I just can’t find the verification directly there.

Paul D. Clement:

–And… and I sense that you found them lacking in that sense.

I guess what I would say is there’s certainly anecdotal evidence in those amicus briefs that I think is quite striking.

Stephen G. Breyer:

Well, what am I supposed to do with the case?

I read them quickly.

I don’t necessarily pick up everything.

I’ll read them again.

Stephen G. Breyer:

But if I don’t find empirical verification for that statement, what am I supposed to do with this case?

Paul D. Clement:

Well, not surprisingly, I would suggest that you defer to the agency in its exercise of expertise.

Stephen G. Breyer:

Fine.

And where did the agency, in its many, many proceedings over the course of 35 years, say what you just said, namely that a wetland acts as a sponge?

It’s very plausible to me.

It’s just that there may be a need to drop a citation somewhere.

[Laughter]

Paul D. Clement:

Well, you… and you could cite to the proceedings in this very case in the joint appendix because although they didn’t use the sponge word, there was a specific finding in this case that these wetlands played an important role in flood control and pollution control for the adjacent streams.

John G. Roberts, Jr.:

And if you wanted a cite for the opposite proposition, you could cite subsection (7) of the Corps’ regulations where they have no interest in wetlands that happen to be adjacent to other wetlands that are adjacent to the waters of the United States.

If they act in the way that you’ve been postulating, presumably they’d want to cover those adjacent wetlands just as much as they want to cover the wetlands that are next to the tributary, but they don’t.

Paul D. Clement:

With respect, I don’t think that follows because if you read subsection (7), as I do, as only excluding those wetlands that are adjacent to other isolated wetlands, then regulating those wetlands–

John G. Roberts, Jr.:

It doesn’t… it doesn’t say that.

It says other than waters that are themselves wetlands.

It excludes all wetlands that are adjacent to wetlands that are adjacent to waters of the United States.

Paul D. Clement:

–Well, and as I said, I think you have to read that in the context not just of the rest of the regulations but of this Court’s decision in Riverside Bayview.

The one thing we know from Riverside Bayview is that it’s not enough to simply say that your parcel of wetlands is not adjacent to the navigable waterway because in that case, as the Court remarked, it… the parcel ended before it got to the adjacent navigable body of water and there was another wetland.

There was a continuation of the same wetland.

Now, I don’t know whether you’d call that two adjacent wetlands.

I might as a common locution.

There might be some different way of referring to that.

But we know that the one wetland was covered because that was the holding of this Court in Riverside Bayview.

So I don’t think I would give undue weight to that reading of it especially when, if you read it as I do, it makes perfect sense because a wetland adjacent to an otherwise isolated wetland is not going to have the same role to play in flood control in terms of monitoring the stream volume as a wetland adjacent to an otherwise regulable water body as you have at issue here.

And so I think that that regulatory decision that the Corps has made is one that’s perfectly defensible and makes sense.

And I think that… again, I think one other point that I want to note that’s kind of specific to this case is part of the reason why it makes sense to regulate a wetland adjacent to an otherwise regulable water body, even if there is a berm present, is illustrated by this case because, as was alluded to, the specific development plan at issue here… and this is clear at joint appendix pages 95 and 160… would sever the berm and create the hydrological link between a smaller, deeper wetland and the adjacent navigable wetland… waterway system.

And so, I mean, it doesn’t make a lot of sense, as Justice Stevens suggested, to have a regulatory regime where you have a regulable wetland after but not before a construction project that has the effect of vastly reducing the size of the wetland.

Antonin Scalia:

So you say that the authority of… I don’t… I don’t even think the Corps has ever suggested this.

The authority of the Corps extends not only to all that you’ve… we’ve been talking about and that you’ve asserted, but also to lands that, if altered, could have some hydrological connection.

Paul D. Clement:

No, that’s not it, Justice Scalia.

What I’m saying is what the Corps has always done for 30 years is said they are going to regulate a physically proximate, adjacent wetland without regard to whether or not there’s a berm there.

I’m just making the subsidiary point that that makes sense because the very construction project that might be at issue might have the effect of changing the degree of the hydrological connection.

Paul D. Clement:

I want to be very clear, though.

The hydrological connection has never been the sine qua non of the assertion of regulation authority over the adjacent wetlands.

Antonin Scalia:

What is… what is the basis for their doing it?

If there is currently no hydrological connection, there is a berm, there is no… there is no connection to the navigable waters of the United… what could possibly be the basis for their asserting jurisdiction?

Paul D. Clement:

The short answer is flood control.

If there is that berm that… that allows the sponge to soak up water, either rainwater or waters from adjacent parcels, although I think in this case, it would largely be rainwater, that… the fact that there’s a berm actually helps in the flood control.

When you sever it, it changes the dynamic quite a bit because then it’s somewhat less helpful for flood control–

Antonin Scalia:

Yes, I–

Paul D. Clement:

–but actually is earlier in term… plays a better role–

Antonin Scalia:

–A statute could do that.

A statute could do that.

But this statute requires that it be a water of the United States.

Paul D. Clement:

–Absolutely.

Antonin Scalia:

And… and when… when there is nothing but puddles that are isolated by a berm, even from the storm drain which goes to tributaries, I can’t conceive of… of how you could consider that that’s… you know, at least where it leaks sometimes into the storm drain and went down to a tributary, I think it’s an exaggeration, but maybe you could call it a water of the United States.

But where there’s a berm that prevents any water from going even into the storm drain which then goes into a tributary, how can you possibly consider that a water of the United States?

Paul D. Clement:

Well, I think the way I would do it is you start with the tributary.

And if you’ll concede for purposes of the illustration or the argument that that’s a water of the United States, then what the Corps does as a jurisdictional regulation is treat the adjacent wetland as a water of the United States as well.

That makes sense for two principal reasons.

One, in the overwhelming majority of cases, there is going to be a hydrological connection.

Actually tracing out exactly what it is and how it works is very difficult and not the kind of thing you’d want to get into at the jurisdictional stage, and that’s why the Court said that was fine in footnote 9 of Riverside Bayview.

Antonin Scalia:

That’s not the argument I was addressing.

I’m addressing the argument that in changing the land, you may cause it to–

Paul D. Clement:

And that’s not an independent basis for jurisdiction.

It’s simply an illustration of why disregarding the berm makes sense.

Antonin Scalia:

–I’m happy to hear that.

That’s all I was trying to establish.

You… you don’t assert that that’s an independent basis.

Paul D. Clement:

It is not an independent basis.

It is part of the reason why, though, in the context of wetlands in particular, a focus on physical proximity and adjacency makes sense and a fixation on hydrological connection does not make sense.

Part of the reason you can look at the record here and find differing information about the extent of the hydrological connection is that is not a term that is relevant for the regulatory scheme.

Paul D. Clement:

And the same thing was equally true in Riverside Bayview itself.

In fact, in Riverside Bayview, the district court made a finding that the wetland there was hydrologically isolated from the adjacent streams.

Now, as the Solicitor General pointed out in the petition at footnote 7 in Riverside Bayview, we think the best understanding of what was meant there was that there was no overtopping and that there was some drainage.

But that just illustrates the point that hydrological connection is not a statutory term.

It’s not a regulatory term.

It’s a very loose term and it’s not a term the Corps has ever used in regulating adjacent wetlands.

It’s important to stress that the regulation for adjacent wetlands that is at issue here, subsection (7), is exactly the same regulation that was at issue in Riverside Bayview.

As Justice Ginsburg pointed out, the Court, when it framed the question presented, framed it in terms of whether or not the Corps could rationally regulate wetlands that were adjacent to navigable waters and their tributaries.

And when they got to the holding, this Court approved the regulation and approved the fact that it asserted jurisdiction over wetlands adjacent to otherwise regulable waters.

So if the tributaries are otherwise regulable because they are waters of the United States, it follows directly from Riverside Bayview that the adjacent wetlands are covered as well.

John G. Roberts, Jr.:

You… you put a lot of weight on the tributary question in your approach by giving up the hydrological connection.

Your response is you don’t need a hydrological connection because it’s right next to a tributary.

But for those of us who are having a little trouble with the concept of tributary, you don’t leave us much to fall back on.

Paul D. Clement:

Well, and… and I’m… I wish that weren’t the case, Mr. Chief Justice.

What I would say, though, is that this case has just not framed up the question of tributaries, and that’s because… I mean, to put it more favorably to my client, the other side has never taken issue with the fact that their wetlands are adjacent to tributaries.

And I think that’s… that’s obvious for a couple of reasons.

I mean, first of all, if you look at the property in Carabell, it’s just a mile from Lake St. Clair.

It’s right next to a substantial drainage ditch which connects to a navigable water, Auvase Creek, and then into Lake St. Clair.

In fact, it’s kind of ironic, but the property in Riverside Bayview was also a mile away from Lake St. Clair.

So it’s very similar.

If you look at the three sites at issue in Rapanos, one is right next to the Pine River.

One of the others… the whole point of the dredge and fill operation was to drain the wetland through the adjacent tributary systems so the water would go away.

And in the third one, there also isn’t an issue about whether or not those are tributaries.

In a different case, that might be an appropriate focus for inquiry.

The last thing, I would say a couple of points before I sit down.

I do think, first, that section 404(g) of the statute is very important because it is the clearest textual indication that Congress intended to regulate something beyond traditional navigable waterways and their adjacent wetlands.

And as this Court itself remarked in SWANCC, the single most likely candidate are the non-navigable tributaries.

The second point to emphasize is that the scope of the Corps’ 404 jurisdiction is the same as the EPA’s 402 jurisdiction.

They are joined at the hip through the basic prohibition under section 301.

So a conclusion that somehow certain tributaries are excised from the tributary system for purposes of 404 is likewise excising those tributaries and creating a situation where you can have a… a free dump zone at some point above the… above what somebody might put as the limits of the navigable waterway system or the tributary system.

Paul D. Clement:

And I think that is something that even the proponents of narrowing the Corps’ jurisdiction in 1977 could not countenance.

The last point I would make is that there are going to be real-world consequences to contracting the jurisdiction of the Corps and the EPA to pre-1972 or, really, pre-1899 levels, especially for the downstream States.

I think it’s a bit much to ask a legislator in Wisconsin or in Minnesota to stop local development in order to protect the water quality and flood control propensities of the Mississippi River in Mississippi.

That’s why it was manifest in 1972 that there was a need for a Federal solution to this problem.

That Federal solution includes as two of its most important components first getting at water pollution at its source, at the point source, and secondly, covering the tributary system without which the navigable waters will continue to be polluted.

Thank you.

John G. Roberts, Jr.:

Thank you, General.

Mr. Hopper, you have 4 minutes remaining.

M. Reed Hopper:

Thank you, Mr. Chief Justice.

Antonin Scalia:

Mr. Hopper, I hope you’re going to tell us what you make of section 404(g).

M. Reed Hopper:

I’d be happy to.

In… in Solid Waste Agency, this Court looked at 404(g) and determined that it had… it was not enlightening as to the meaning of navigable waters under 404(a) because Congress did not define other waters in any way.

And this Court likewise concluded that 404(g) was simply not before it and would not draw any conclusions from it.

So I submit that it is really irrelevant.

I note… I want to draw this Court’s attention to our footnote 1 in our reply where we point out that… that in every formal rulemaking, the Corps and the EPA have excluded drainage ditches from the definition of tributary.

It is here and now that these agencies are redefining the term tributary to include anything in the hydrological chain.

The Sixth Circuit decision says that any hydrological connection suffices as a significant nexus to bring in wetlands under Federal jurisdiction.

Of course, in… in page 31 of the opposition, the Government argues that neither the directness… excuse me… nor the substantiality of a tributary’s connection to traditional navigable waters is relevant to the jurisdictional inquiry.

It’s simply not true that the Government is only identifying channelized conduits as tributaries.

Anywhere water flows is a tributary in their book.

Let me also address something that this Court did in SWANCC.

It was not the lack of a hydrological connection in that case that informed this Court’s decision to exclude those isolated ponds from Federal jurisdiction.

It was the fact that those… that the regulation of those isolated ponds did not meet the terms of the act and there was no clear indication Congress intended to regulate isolated ponds.

I submit that’s this case.

In this case, there is no clear indication that Congress intended to regulate wetlands 20 miles from the nearest navigable water.

The–

Ruth Bader Ginsburg:

We’re told that one of them was much closer.

M. Reed Hopper:

–The… the record is silent as to the distance between–

Ruth Bader Ginsburg:

What about the Pine River?

Are you… that’s not 20 miles away, is it?

M. Reed Hopper:

–We don’t know how far that is because the record is silent as to the distance between those water bodies.

Ruth Bader Ginsburg:

Do you know?

The… the Solicitor General represented to us that it was very close.

Are you disputing that as a matter of fact?

M. Reed Hopper:

I don’t know what he means by very close.

The… the Solicitor General would agree with me that… that there’s nothing in the record to indicate what those distances are.

And it’s irrelevant in… in our opinion whether it’s… whether it’s a mile or 20 miles or 50 miles or 100 miles, and that’s the point.

There does… under the… under the Federal regulations a true, significant nexus is not required, just any hydrological connection.

This is a presumption on congressional authority.

This expansive interpretation destroys any distinction between what is national and what is local under… as… as has already been pointed out.

Under the Federal regulations, you can’t dig a ditch in this country without Federal approval.

You can’t fill it in.

You can’t clean it out without Federal approval.

This reads the term navigable right out of the statute.

We… we ask this Court not to allow these agencies–

John Paul Stevens:

Of course, when we’re talking about the scope of… of Federal power, we’re not merely concerned with dumping refuse in the creek, but also deliberate attempts to poison the water system.

M. Reed Hopper:

–Congress… Congress considered all this when it made its policy decision to defer to the States to address this.

The States have the ability and the will to… to protect their own waters from pollutants of any kind.

And as I indicated earlier, all the States have antipollution regulations.

John Paul Stevens:

No.

The fact that the States have the power and the interest does not necessarily mean that the Federal Government does not also have the power.

M. Reed Hopper:

My time is–

John G. Roberts, Jr.:

You may respond briefly.

M. Reed Hopper:

–Congress determined that it would defer to the States instead of exercising any further power beyond its channels authority.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.