Amicus Curiae Brief — William L. Huntress, et al., Petitioners v. United States

No. 20-426

In The

Supreme Court of the United States

WILLIAM L. HUNTRESS AND ACQUEST

DEVELOPMENT, LLC,

Petitioners,

v.

UNITED STATES OF AMERICA.

Respondent.

On Petition for A Writ of Certiorari to

the United States Court of Appeals

for the Second Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME

BUILDERS OF THE UNITED STATES IN

SUPPORT OF PETITIONERS

THOMAS J. WARD*

JEFFREY B. AUGELLO

NATIONAL ASSOCIATION

OF HOME BUILDERS

OF THE U.S.

1201 15th Street, N.W.

Washington, D.C. 20005

(202) 266-8200

tward@nahb.org

* Counsel of Record

i

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Amicus

National Association of Home Builders of the United

States (“NAHB”) states that it is a non-profit

501(c)(6) corporation incorporated in the State of

Nevada, with its principal place of business in

Washington, D.C. NAHB has no corporate parents,

subsidiaries or affiliates, and no publicly traded

stock. No publicly traded company has a ten percent

or greater ownership interest in NAHB.

ii

TABLE OF CONTENTS

Page(s)

INTEREST OF AMICUS CURIAE ....................... i

ARGUMENT ........................................................... 1

I. PETITIONERS CHOOSE TO DISAGREE

WITH EPA AND MET ITS WRATH .............. 1

II. THE CLEAN WATER ACT DOES NOT

COVER “POTENTIAL WETLANDS”............ 6

CONCLUSION ..................................................... 11

APPENDIX A .................................................. App. 1

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Acquest Wehrle LLC v. U.S., 567 F.Supp.2d 402

(W.D.N.Y. 2008) .................................................... 3

Hawkes Co. v. U.S. Army Corps of Eng’rs,

963 F.Supp. 2d 868 (D. Minn. 2013)..................... 5

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) ............................................... 4

National Pork Producers Council v. U.S. EPA,

635 F.3d 738 (5th Cir. 2011) ................................. 9

Rapanos v. U.S., 547 U.S. 715 (2006) ............ passim

Sackett v. EPA, 566 U.S. 120 (2012).................... 1, 3

United States v. Acquest Transit LLC,

No. 09CV55S, 2020 WL 3042673

(W.D.N.Y. June 4, 2020) ....................................... 4

United States v. Acquest Dev., LLC, 932 F. Supp.

2d 453 (W.D.N.Y. 2013) ........................................ 6

U.S. Army Corps of Eng’rs v. Hawkes Co., Inc.,

136 S.Ct 1807 (2016) .......................................... 5-6

iv

TABLE OF AUTHORITIES (cont.)

Page(s)

Waterkeeper Alliance, Inc. v. U.S. EPA,

399 F.3d. 486 (2d Cir. 2005) ........................8, 9, 10

STATUTORY &

CONSTITUTIONAL PROVISIONS

33 U.S.C. § 1362(7)................................................... 8

33 U.S.C. § 1362(12)................................................. 9

33 U.S.C. § 1362(14)................................................. 9

33 C.F.R. § 328.3(a) ................................................... i

40 C.F.R. § 122.2 ....................................................... i

OTHER

Petition for A Writ of Certiorari,

William L. Huntress, et al. v. U.S.,

No. 20-426 (Sept. 30, 2020) ................................... 5

Indictment, The United States of America

v. William L. Huntress, Acquest Dev., et al.,

No 1:13-cr-00199 (W.D.N.Y. Sept. 19, 2013) ........ 7

Decision and Order, USA v. Acquest Wehrle, LLC,

No. 1:09-cv-00637 (W.D.N.Y. Nov. 1, 2017) ......... 4

Order, Suchyna, et al. v. U.S. Army Corps

of Eng’rs, et al., No. 1:01-cv-00763

(W.D.N.Y. June 24, 2002) ..................................... 2

v

TABLE OF AUTHORITIES (cont.)

Page(s)

Complaint, Suchyna, et al. v. U.S. Army Corps

of Eng’rs, et al., No. 1:01-cv-00763

(W.D.N.Y. Oct. 26, 2001)....................................... 2

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ............ 10

Letter from Arthur K. Marks, Army Corps of Eng’rs

Chief, New York Application, Evaluation Section

to Wayne I. Eisenbaum, Acquest Dev. (June 29,

2001), Acquest Wehrle v. U.S., No. 1:06-cv-00654

(W.D.N.Y. Sept. 29, 2006) .................................. 1-2

Steven Spielberg, 2002. Minority Report [Film],

20th Century Fox & DreamWorks Pictures......... 8

vi

TABLE OF APPENDICES

Page(s)

APPENDIX A,

Memorandum from Mario A. Paula,

Environmental Scientist, USEPA

Region 2 “Jurisdictional Determination

and Special Case Designation” (Nov. 21, 2002)

(original on file with author) ........................ App. 1

i

INTEREST OF AMICUS CURIAE 1

The National Association of Home Builders of the

United States (“NAHB”) is a Washington, D.C.based trade association whose mission is to enhance

the climate for housing and the building industry.

Chief among NAHB’s goals is providing and

expanding opportunities for all people to have safe,

decent, and affordable housing. Founded in 1942,

NAHB is a federation of more than 700 state and

local associations. About one-third of NAHB’s

approximately 140,000 members are home builders

or remodelers and construct approximately 80% of

all new housing units in the United States.

A large part of building and selling homes consists

of securing and preparing the land for construction.

That land often contains “waters of the United

States,” as the federal government has defined and

interpreted that term. See 33 C.F.R. § 328.3(a); 40

C.F.R. § 122.2. Due to the Environmental Protection

Agency and Corps of Engineers’ long-time policy

opposing judicial review of Clean Water Act

jurisdictional determinations landowners were

“entirely at the mercy of Environmental Protection

Agency

(“EPA”)

employees.”

Sackett

v.

Environmental Protection Agency, 566 U.S. 120, 132

Counsel of record for all parties received notice at least

10 days prior to the due date of the amicus curiae’s intention to

file this brief. Letters of consent are on file with the Clerk. No

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person

other than amicus curiae, its members, or its counsel made a

monetary contribution to its preparation or submission.

1

ii

(2012) (J. Alito concurring). The Petitioners, like

many of NAHB’s members, found themselves at this

mercy.

NAHB is a vigilant advocate in the nation’s courts.

It frequently participates as a party litigant and

amicus curiae to safeguard the constitutional and

statutory rights and business interests of its

members and those similarly situated.

1

ARGUMENT

I.

PETITIONERS CHOOSE TO DISAGREE

WITH EPA AND MET ITS WRATH.

The Petitioners’ desire to develop private property

epitomizes the struggle between regulatory agencies

and regulated landowners over the “notoriously

unclear” reach of the Clean Water Act (“CWA”).

Sackett v. EPA, 566 U.S. 120, 132 (2012) (Alito J.,

concurring). In 1997, when a Huntress-owned

company, Acquest Wehrle LLC, entered into a

purchase agreement for a commercially zoned

property on Wehrle Drive in Amherst, New York, it

had a solid understanding that jurisdictional

“waters of the United States” were not present on

the site. Its own pre-acquisition due diligence and a

1997 “negative” jurisdictional determination (“JD”)

from the Army Corp of Engineers (“Corps”) helped to

inform its purchase decision. 2 Out of an abundance

of caution, following its purchase Acquest sought a

permit for the discharge of fill material in connection

with its proposed development project. In a letter

dated June 29, 2001 the Corps’ Regulatory Branch

communicated that a permit was not necessary. It

confirmed that wetland areas on the parcel “are

isolated, non-navigable, intrastate waters that are

not subject to regulation under Section 404 of the

Clean Water Act.” Letter from Arthur K. Marks,

Army Corps of Eng’rs Chief, New York Application,

Evaluation Section to Wayne I. Eisenbaum, Acquest

A “negative” JD, as used by the Corps and EPA, is an

approved JD stating that a parcel does not contain

jurisdictional waters.

2

2

Dev. (June 29, 2001), Acquest Wehrle v. U.S., No.

1:06-cv-00654 (W.D.N.Y. Sept. 29, 2006).

In 2001, a group of individuals from the town of

Amherst brought an action under the CWA’s citizensuit provision challenging the Corps negative JD. 3

At the governments’ request the District Court

agreed to vacate the JD and voluntarily remand the

issue for reconsideration. 4 From here the

jurisdictional call was transferred to the EPA.

The EPA issued a Memorandum from Mario A.

Paula, Environmental Scientist, USEPA Region 2

“Jurisdictional Determination and Special Case

Designation”, APP. A (Nov. 21, 2002) (original on file

with author) finding a jurisdictional wetland of

approximately 9.5 acres on the Wehrle Drive site.

The attenuated hydrological connection supporting

the EPA’s JD involved an onsite “watercourse”

flowing from the wetland “through the underground

ditch along Wehrle Drive, through a culvert under

the road, and into the town ditch, from which it flows

via Ellicott Creek to the Niagara River, a

traditionally navigable water.” Id. at 9. Serious

debate surrounds the question of whether a nonnavigable tributary consisting of “man-made”

structures can help form the basis of a JD. See e.g.,

Rapanos v. U.S., 547 U.S. 715, 735-36 (2006)

Complaint, Suchyna, et al. v. U.S. Army Corps of

Eng’rs, et al., No. 1:01-cv-00763 (W.D.N.Y. Oct. 26, 2001).

3

4

Order, Suchyna, et al. v. U.S. Army Corps of Eng’rs, et

al., No. 1:01-cv-00763 (W.D.N.Y. Jun. 24, 2002).

3

(discussing that a ditch cannot be a navigable water

because a ditch is a “point source”).

Acquest disagreed with the EPA’s JD and

challenged it in 2006. The District Court dismissed

the claim, citing federal courts that have “repeatedly

confirmed” that a JD does not constitute final agency

action under the Administrative Procedure Act

(“APA”). Acquest Wehrle LLC v. U.S., 567 F.Supp.2d

402, 410 (W.D.N.Y. 2008).

Thus, despite the

agencies flip-flop on their jurisdictional positions,

the questionable basis of the EPA’s final JD and the

District Court’s entertainment of a jurisdictional

challenge raised by a group of local citizens, the

owner of the site at issue was denied its day in court.

“In a Nation that values due process, not to mention

private property, such treatment is unthinkable.”

Sackett, 566 U.S. at 132 (Alito, J., concurring).

The District Court decision forced Petitioners into a

dilemma—the same dilemma (at that time) faced by

all landowners that disagree with a JD stating that

the CWA applies. First, they could have abandoned

their development plans and steered clear of any

future land-use activities that might irk federal

regulators. Second, they could comply with the timeconsuming and expensive CWA permit application

process. 5 Thereafter, if the agency denied its permit

The average cost and time an applicant spends

preparing a CWA section 404 individual “dredge or fill” permit

application (excluding the significant losses and costs

associated with avoidance, minimization and mitigation

5

4

application and if Petitioners exhausted all

administrative remedies it could then challenge the

basis of the permit that it believes was not required.

Finally, Acquest Wehrle could have proceeded with

development activities without obtaining a CWA

permit and incur the risk of serious civil and

criminal penalties. Only after being hauled into

federal court could it then present its version of the

facts and law. To require landowners to “bet the

farm…by taking violative action” before “testing the

validity of the law” finds no support in Article III.

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,

129 (2007).

Petitioners took the last option and were met with

the wrath of the EPA. In 2009, the EPA first sued

Aquest Wehrle for alleged unlawful activities that

occurred on the Wehrle site. The government

voluntarily dismissed that lawsuit with prejudice.

Decision and Order, USA v. Acquest Wehrle, LLC,

No. 1:09-cv-00637 (W.D.N.Y. Nov. 1, 2017).

Similarly, in 2009, the EPA brought a civil suit

against Acquest Transit for actions it took on its

Transit Road property that it claims were farming

activities. To date, there has been no judicial

determination that jurisdictional wetlands are

present at that site. United States v. Acquest Transit

LLC, No. 09CV55S, 2020 WL 3042673, at *31

(W.D.N.Y. June 4, 2020).

requirements) is $271,596 and 788 days. Rapanos, 547 U.S. at

719 (plurality opinion).

5

The EPA, however, was not satisfied with just civil

lawsuits. In 2011, the EPA filed a criminal

indictment against the Petitioners for the activities

that occurred on the Transit Road site. That

indictment was dismissed, and the government then

re-indicted the Petitioners in 2013. Cert. Pet. 6.

The EPA’s retaliation was all in response to the

Petitioners’ decision not to accept the EPA’s

determination that wetlands were present on their

properties. And that was a decision forced upon

them due to the EPA’s insistence that JDs could not

be challenged in court.

However, this court unanimously ruled that

approved JD’s are “final agency action” subject to

judicial review under the APA. U.S. Army Corps of

Engineers v. Hawkes Co., Inc., 136 S.Ct 1807 (2016).

Similar to Petitioners’ case, Hawkes involved a

landowner that had its land-use plans stymied after

the Corps issued a JD stating that its property

contained jurisdictional wetlands with a “significant

nexus” to a distant traditionally navigable water.

Hawkes challenged the JD and the case was

dismissed on the grounds that the JD was “not ‘final

agency action’” under the APA. Hawkes Co. v. U.S.

Army Corps of Eng’rs, 963 F.Supp. 2d 868, 877-78

(D. Minn. 2013). This Court affirmed the Eight

Circuit and found that the JD was reviewable. The

Court explained that:

As we have long held, parties need not await

enforcement proceedings before challenging

final agency action where such proceedings

carry the risk of “serious criminal and civil

6

penalties.” [citation omitted]. If respondents

discharged fill material without a permit, in

the mistaken belief that their property did not

contain jurisdictional waters, they would

expose themselves to civil penalties of up to

$37,500 for each day they violated the Act, to

say nothing of potential criminal liability.

[citations omitted]. Respondents need not

assume such risk while waiting for EPA to

“drop the hammer” in order to have their day

in court. [citations omitted]. Nor is it an

adequate alternative to APA review for a

landowner to apply for a permit and then seek

judicial review in the event of an unfavorable

decision.

Hawkes Co., Inc., 136 S.Ct at 1815 (2016).

Unfortunately for Petitioners this Court’s ruling in

Hawkes has come ten years too late. They have

essentially bet the farm and their freedom defending

their property rights and the “enlightened despot”

made them pay for it. Rapanos, 547 U.S. at 721

(2006).

II. THE CLEAN WATER ACT DOES NOT

COVER “POTENTIAL WETLANDS.”

As explained, in 2011, the EPA indicted the

Petitioners for “various crimes in connection with an

alleged wetlands site in the Town of Amherst, New

York.” United States v. Acquest Dev., LLC, 932 F.

Supp. 2d 453, 456 (W.D.N.Y. 2013). That indictment

was dismissed “due to the government’s interference

with the grand jury’s independence . . ..” Id. at 463.

7

In 2013, the EPA again indicted Mr. Huntress and

Acquest. In this indictment the government charged

the Petitioners with discharging dredge and fill

material into “potential wetlands” located on the

Transit Road site. Indictment, The United States of

America v. William L. Huntress, Acquest Dev., et al.,

No. 1:13-cr-00199 (W.D.N.Y. Sept. 19, 2013). The

government did not simply make a passing reference

to “potential wetlands.” It referred to “potential

wetlands” at least 10 times in the Indictment. Thus,

the 2011 indictment charged the Petitioners with

taking unlawful activities in wetlands, but in 2013

the government charged them with violations that

revolved around “potential wetlands.” Under the

CWA, this is a considerable change. The Petitioners

should be allowed to explore why it occurred.

Some, but not all wetlands fall under the jurisdiction

of the CWA. Rapanos, 547 U.S. at 742. (Scalia, J.,

plurality) (“[O]nly those wetlands with a continuous

surface connection to bodies that are 'waters of the

United States' in their own right, so that there is no

clear demarcation between 'waters' and wetlands,

are 'adjacent to' such waters and covered by the

Act.”); Id. at 779 (J. Kennedy concurring) (“[T]he

Corps’ jurisdiction over wetlands depends upon the

existence of a significant nexus between the

wetlands in question and navigable waters in the

traditional sense.”). By referencing “potential

wetlands” the government may have been referring

to areas that are wetlands, but do not currently fall

under the jurisdiction of the CWA—but may in the

future. Thus, they are “potential” because Congress

could redefine the term “navigable waters” or the

EPA or Corps could develop a new rule that

8

reinterprets the term “waters of the United States”

in a way that covers these wetlands. Equally,

“potential wetlands” could be areas that are not

currently wetlands (i.e. uplands) but due to the

climate and/or geography could turn into wetlands

in the future. Either way, it is not a CWA violation

to conduct activity in areas that are not currently

jurisdictional or are currently uplands. 6

The CWA provides that “‘navigable waters’ means

the waters of the United States . . ..” 33 U.S.C. §

1362 (7). Congress did not speak in terms of areas

that may become “waters of the United States” or

will be “waters of the United States.” To violate the

CWA, a person must add pollutants to a geographic

area that is currently a “water of the United States.”

And the government knows this because there is a

leading case from the Court of Appeals for the

Second Circuit that deals with a similar situation.

Just as Congress intended only for the regulation of

areas that are currently “navigable waters,” the

Second Circuit’s interpretation of the term

“discharge” also dictates that only actual, not

potential navigable waters are covered by the CWA.

In Waterkeeper Alliance, Inc. v. U.S. Environmental

Protection Agency, 399 F.3d. 486 (2d Cir. 2005),

petitioners challenged an EPA rule that required all

Maybe the government was predicting that the

Petitioners would commit a crime in the future. Steven

Spielberg, 2002. Minority Report [Film], 20th Century Fox &

DreamWorks Pictures.

6

9

“CAFOs 7 to either apply for NPDES permits or

otherwise demonstrate that they have no potential

to discharge.” Waterkeeper Alliance, 399 F.3d at 504

(emphasis added). The Second Circuit held that

EPA’s CAFO Rule violated the CWA because it

imposed “obligations on all CAFOs regardless of

whether or not they have, in fact, added any

pollutants to the navigable waters, i.e. discharged

any pollutants.” Id. at 505. The court sharpened its

point by explaining that “the Clean Water Act gives

the EPA jurisdiction to regulate and control only

actual discharges—not potential discharges . . ..” Id.

(emphasis in the original); see also National Pork

Producers Council v. U.S. Environmental Protection

Agency, 635 F.3d 738, 751 (5th Cir. 2011) (explaining

that the “cases leave no doubt that there must be an

actual discharge into navigable waters to trigger the

CWA’s requirements and the EPA’s authority.”).

The CWA defines discharge as “any addition of any

pollutant to navigable waters from any point source

. . ..” 33 U.S.C. § 1362(12) 8. Thus, under Waterkeeper

Alliance a person cannot violate the act unless she

causes an actual “addition of any pollutant to

navigable waters from any point source.” Id.

A CAFO is a concentrated animal feeding operation.

The CWA defines CAFOs as “point sources.” 33 U.S.C. §

1362(14).

7

In 33 U.S.C. §1362(14) Congress clearly explained that

“point sources” do not have to actually add pollutants as it

defined them as discrete conveyances “from which pollutants

are or may be discharged.”

8

10

Further, the series qualifier canon 9 of construction

advances that the adjective “actual” should be

applied to each word in the series that defines

discharge—addition, pollutant and navigable water.

Thus, because Waterkeeper Alliance holds that the

EPA may only assert CWA authority over actual

discharges, it only has jurisdiction over the actual

addition of actual pollutants to actual navigable

waters.

By inserting the word “potential” before the word

“wetland” in Count 1 of the 2013 indictment, the

government failed to allege any CWA violation

occurred in jurisdictional wetlands. Whether the

government did so intentionally or mistakenly, the

Petitioners deserve their day in court to determine

why they were charged with a crime for taking

actions in geographic areas that are not covered by

the CWA.

“When there is a straightforward, parallel construction

that involves all nouns or verbs in a series, a prepositive or

postpositive modifier normally applies to the entire series.”

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 127 (2012).

9

11

CONCLUSION

For the foregoing reasons, Amicus respectfully

requests that the petition for writ of certiorari be

granted.

Dated: November 2, 2020

THOMAS J. WARD*

JEFFREY B. AUGELLO

NATIONAL ASSOCIATION

OF HOME BUILDERS

OF THE U.S.

1201 15th Street, N.W.

Washington, D.C. 20005

(202) 266-8200

tward@nahb.org

* Counsel of Record

1

TABLE OF APPENDICES

Page(s)

APPENDIX A,

Memorandum from Mario A. Paula,

Environmental Scientist, USEPA Region 2

“Jurisdictional Determination and Special

Case Designation” (Nov. 21, 2002)

(original on file with author) ........................ App. 1

App. 1

APPENDIX A

Memorandum for the Record

Special Case Designation for 2220 Wehrle

Drive Site

On June 29, 2001, the Buffalo District of the US

Army Corps of Engineers (Corps) made a

determination that certain wetlands on a site known

as 2220 Wehrle Drive in Amherst, New York, were

isolated and non-jurisdictional pursuant to Section

404 of the Clean Water Act (CWA). Because of

ongoing litigation brought by neighboring

landowners challenging that non-jurisdiction

determination, a federal district court judge vacated

the Corps’ original determination at the

government’s request. The case was remanded for

reconsideration, with a new determination to be

completed no later than November 22, 2002. Region

2 has designated the parcel as a “special case” under

an existing Memorandum of Agreement (MOA) with

the Corps, allowing EPA to make the final

determination of geographic jurisdiction. The Corps

does not oppose such a designation.

Field investigations done by an interagency team led

by the Corps and Region 2 in July 2002 showed that

a large wetland of approximately 9.5 acres exists on

the project site. EPA Region 2 believes that this

wetland delineation is accurate. Additionally, EPA

Region 2 has determined that this wetland is subject

to jurisdiction under the CWA because it has a

surface hydrological connection through a

watercourse originating in the wetland, through

App. 2

ditches and culvert and into Ellicott Creek, to a

traditional navigable water. Further, the wetland

can be considered to be adjacent to Town Ditch 18

and subject to CWA jurisdiction on this basis as well.

The technical basis for this decision is contained in

the attached “Jurisdictional Determination and

Special Case Designation for Wetlands and Aquatic

Areas at 2220 Wehrle Drive, Amherst, NY.”

Based on these conclusions, EPA Region 2 has

determined that there are approximately 9.5 acres

of CWA jurisdictional wetlands on the parcel at 2220

Wehrle Drive.

/s/ Jane M Kenny

Jane M. Kenney

Regional Administrator

Nov 22, 2002

Date

USEPA Region 2

Attachment

-1-

App. 3

Memorandum for the Record

Nov. 21, 2002

Jurisdictional Determination and Special

Case Designation for Wetlands and Aquatic

Areas at 2220 Wehrle Drive, Amherst, NY

1. Executive Summary

On June 29, 2001, the Buffalo District of the US

Army Corps of Engineers (Corps) made a

determination that certain wetlands on a site known

as 2220 Wehrle Drive in Amherst, New York, were

isolated and non-jurisdictional. Pursuant to ongoing

litigation brought by neighboring landowners

challenging that non-jurisdiction determination, the

federal district court judge vacated the Corps’

original determination at the government’s request.

The case was remanded for reconsideration, with a

new determination to be completed no later than

November 22, 2002. Region 2 designated the parcel

as a “special case” under an existing Memorandum

of Agreement (MOA), allowing the Environmental

Protection Agency (EPA) to make the final

determination of geographic jurisdiction. The Corps

does not oppose such a designation.

Field investigations done by the Corps and EPA in

July 2002 showed that a large wetland of

approximately 9.5 acres exists on the project site.

EPA concludes that this wetland delineation is

accurate. EPA has determined that this wetland is

subject to jurisdiction under the Clean Water Act

(CWA) because it has a surface hydrological

connection through a watercourse originating in the

App. 4

wetland, through ditches and a culvert into Ellicott

Creek, to the Niagara River, a traditional navigable

water. Further, the wetland can be considered to be

adjacent to Town Ditch 18 and subject to CWA

jurisdiction on this basis a well. Based on these

conclusions, EPA has determined that there are

approximately 9.5 acres of CWA jurisdictional

wetlands on the parcel at 2220 Wehrle Drive.

2. Project background

This document is EPA’s CWA geographic

jurisdictional determination concerning wetlands

located on an approximately 20-acre parcel at 2220

Wehrle Drive, Amherst, NY, a suburb of Buffalo.

EPA

has

performed

this

jurisdictional

determination pursuant to the 1989 Memorandum

of Agreement Between the Department of the Army

and the Environmental Protection Agency

Concerning the Determination of the Geographic

Jurisdiction of the Section 404 Program and the

Application of the Exemptions Under Section 404(f)

of the Clean Water Act (January 19, 1989)(MOA)

-2In 1983, when EPA funded the Southeast AmherstYoungs

Road

Interceptor

project,

an

environmentally sensitive area (ESA) grant

condition was placed on the construction grant by

EPA, restricting sewer hookups from new

construction in ESAs. The wetlands on site were

specifically identified as ESAs.

App. 5

The current landowner wants to build an office park

on the site. The Town of Amherst applied for a

waiver from sewer hookup restriction for the site in

January 2002. Region 2 is currently evaluating this

waiver application.

Because the planned project would involve placing

fill in the wetlands, the Buffalo District Corps of

Engineers evaluated the jurisdictional status of the

wetlands. On June 29, 2001, the Corps of Engineers

determined that the wetlands on this site are

isolated, non-navigable, intrastate waters not

regulated under Section 404, and therefore that a

Section 404 permit would not be required to place fill

in the wetlands. This determination did not affect

the construction grant restriction; if the property

owners wish to construct sewage-generating

structures in the wetlands on site, a waiver from

EPA is still required.

Homeowners who live adjacent to the site filed a

lawsuit suit against the Corps, challenging their

“non-jurisdiction” determination. (Suchyna v. U.S.

Army Corps of Engineers, No. 01 CV 0763 S (F)(W.D.

NY)). During preliminary states of the litigation, the

plaintiffs provided new data concerning the

hydrology of the site. To enable the government to

consider this new information, the parties to the

litigation asked the court to vacate the Corps “nonjurisdictional determination” and remand the

jurisdiction decision to the government to allow

review of jurisdiction in light of the new information.

On June 24, 2002, the district court issued an order

vacating

the

Corps

“non-jurisdictional

App. 6

determination” and remanding the jurisdictional

decision to the government, with the understanding

that a final determination would be made by

November 22, 2002. In July 2002, an EPA-Corps

team visited the site to gather information about the

extent of wetlands on the site as well as their

connection to other waters. At the end of the

fieldwork, a preliminary determination was made by

the Corps that approximately 9.5 acres of wetlands

exist on the site. 1 EPA believes that the Corps

delineation of wetlands is accurate. As explained

below, EPA has concluded that the large onsite

wetland is a water of the United States subject to the

CWA.

3. Regulatory Background.

-3Under the CWA, a section 404 permit is required for

a discharge of dredge or fill material into “waters of

the United States.” The applicable regulations

define “waters of the United Sates” to include:

(1) All waters which are currently used, or

were used in the past, or may be susceptible to use

in interstate or foreign commerce, including all

waters which are subject to the ebb and flow of the

tide;

1 There is also a small depressional wetland, approximately

0.23 acres, on the northern border of the site, as well as two

very small “satellite” wetlands west of the large jurisdictional

wetland area. These three wetland areas are not considered

jurisdictional, as explained below.

App. 7

* * *

(5) Tributaries of waters identified in

paragraphs (s)(1) through (4) of this section;

* * *

(7) Wetlands adjacent to waters (other than

waters that are themselves wetlands) identified

in paragraphs (s)(1) through (6) of this section . . .

[40 CFR 230.3(s)(1), (5) and (7)]:

Wetlands are defined by regulation as: “those areas

that are inundated or saturated by surface or ground

water at a frequency and duration sufficient to

support, and that under normal circumstances do

support, a prevalence of vegetation typically adapted

for life in saturated soil conditions. Wetlands

generally include swamps, marshes, bogs and

similar areas” (40 CFR 230.3(t))

The term “adjacent” is defined by regulation as

“bordering, contiguous, or neighboring. Wetlands

separated from other waters of the United States by

man-made dikes or barriers, natural river berms,

beach dunes, and the like are ‘adjacent wetlands’”

(40 CFR 230.3(b)).

EPA has the ultimate authority to determine the

geographic scope of jurisdiction under Section 404 of

the CWA (1979 opinion of Attorney General

Benjamin Civiletti, 43 Op. Att’y Gen.15). In order to

implement this opinion, EPA and the Corps in 1989

entered into the MOA mentioned above which

outlines each agency’s responsibility regarding CWA

jurisdictional determinations. The MOA gives the

Corps primary responsibility for determining the

App. 8

extent of CWA jurisdiction when making decisions

to issue or deny permits under Section 404 of the

CWA. But EPA reserved the authority to designate

certain jurisdictional determinations as “special

cases” where EPA will make the determination as to

extent of waters of the United States. Such special

cases include project-specific situations where

significant

issues

exist

concerning

the

determination of the geographic jurisdictional scope

of waters of the US for purposes of Section 404.

The Corps’ disclaimer of jurisdiction was based in

part on its belief that there was no discrete

watercourse draining the wetland, as well as its

belief that flow through the portion of the storm

drain would in any event sever jurisdiction. Because

of the lack of clear guidance on those issues, and

because significant new information has been made

available, the

-4Corps had no objection to EPA’s declaring this a

special case and making a new jurisdictional

determination.

4. Extent of Wetlands on the Site

The Wehrle Drive site had been the subject of

several wetland delineations with disagreements on

the exact extent of wetlands. Therefore, the Buffalo

Corps requested assistance from their technical

group, the Waterways Experiment Station (WES) to

help resolve the wetland delineation boundary. WES

App. 9

forwarded the request to the Army’s Cold Region

Research and Engineering Laboratory (CRREL) for

evaluation and assistance. An interagency team was

assembled on July 16-17, 2002 to perform the

wetland delineation on the site. The team was

comprised of CRREL, Buffalo Corps, EPA and

Natural Resources Conservation Service personnel.

Prior to the site visit, all past wetland delineation

boundaries were digitized and developed into a

Geographic Information System (GIS) coverage by

CRRL personnel for viewing in the field. This

allowed the delineation field team to evaluate other

delineators’ boundaries to determine the level of

accuracy of the various delineations. Using this

baseline, the team decided to establish an

independent boundary that accurately depicted the

extent of the wetlands.

The methods and procedures applied at the Wehrle

Drive site follow current federal wetland delineation

methods required by the Corps and described in the

Environmental Laboratory Corps of Engineers

Wetland

Delineation

Manual

(1987)

and

appropriate delineation guidance and clarifications

presented in subsequent memoranda from Corps

Headquarters.

The interagency delineation team evaluated the

soils, vegetation and hydrology at various sampling

locations on the site. It was found that some of the

previous delineators (including those representing

the current property owners) had misinterpreted

hydric soil indicators and/or were uninformed about

App. 10

recent guidance regarding hydric soil interpretation.

Furthermore, it was found that some of the previous

delineators misinterpreted or misapplied the

methodologies used to determine the existence of

wetland vegetation and hydrology. Additionally,

many of the previous delineators did not survey the

boundary or use Global Positioning System (GPS) to

accurately determine its location.

The delineation boundary was first flagged by the

interagency team at 10 meter intervals along its

entire length. A GPS unit was then used to survey

the boundary, and that boundary was subsequently

compared to the previous delineations. The resulting

wetland determination indicates that a large

wetland of approximately 9.5 acres exists on the

2220 Wehrle Drive site. Near the northern border of

the site is a small (approx. 0.23 acre) depressional

wetland that was not

-5evaluated by the interagency team because previous

delineators agreed on its occurrence and location.

EPA has reviewed the site delineation done by the

interagency team in July 2002 and concurs with the

conclusion that approximately 9.5 acres of wetlands

exist on the site (see Fig. 1). This acreage value is

greater than some of the previous delineations but

the shape and form of the wetland area is similar to

the most recent previous delineation done by the

property owner’s consultant. It should be noted that

there was never a disagreement among the parties

App. 11

as to the occurrence of wetlands on site, even if the

acreage calculations have varied somewhat; rather

the disagreement was about the extent of wetlands.

These past acreage differences are not relevant for

the purpose of deciding whether the site wetlands

are jurisdictional.

5. CWA Jurisdiction Over the Site Wetlands

Physical description

The record shows that, at various times of the year,

surface water drains from the large wetland on the

site through a small watercourse, through a storm

drain grate into an underground ditch that runs for

approximately 200 feet along Wehrle Drive, then

flows under Wehrle Drive via a box culvert into

Amherst Town Ditch 18. Town Ditch 18 flows

southward for several hundred feet until it empties

into Ellicott Creek, a tributary of a navigable water,

and ultimately into the Niagara River. The Niagara

River is a traditional navigable river (The sequence

described is presented in Fig. 2).

EPA paid particular attention to the new evidence of

a watercourse connecting the large forested

wetlands to the storm drain. 2 (Fig. 3) The existence

of an ordinary high water mark is a factor which

may be used to identify and delineate a watercourse.

The Corps defines the ordinary high water mark

(OHWM) as the line on the shores established by the

2 The Corps, in its decision memorandum of June 29, 2001,

based on the more limited information then available to it, had

stated that “water only leaves the site via overland [emphasis

added] flow during storm events and spring snow melt.”

App. 12

fluctuations of water and indicated by physical

characteristics such as:

* a clear natural line impressed on the bank;

* shelving;

* changes in the character of the soil;

* destruction of terrestrial vegetation;

-6* the presence of litter and debris;

* or other appropriate means that consider the

characteristics of the surrounding areas. (33 CFR

328.3(e))

The site inspection in July 2002 revealed that the

watercourse draining the wetland at the southern

end of the site has several of the above

characteristics (a clear natural line impressed on the

bank, changes in the character of the soil,

destruction of terrestrial vegetation and the

presence of litter and debris) which indicate that it

contains an OHWM (See Fig. 3).

While rainfall in the vicinity and snowmelt are likely

major contributors to the flow in the watercourse,

the evidence (dated videotape and still photographs

provided by plaintiffs/adjacent homeowners) shows

flow throughout various times of the year, and not

just

immediately

after

rainfall.

This

videotape/photographic evidence indicates flow

through the water and down through Ditch 18 for 20

dates from February 11, 2001 to April 14, 2002; flow

through the watercourse was not found on one date;

App. 13

ice cover in the watercourse obscured flow for

another of the dates. The extended drought of 2001

stopped the flow through the watercourse for a

number of the warmer months, and no observations

were recorded.

In order to place these flow observations in context,

EPA reviewed existing rainfall data from the

National Weather Service at Buffalo Airport (NWS,

Buffalo, NY 2002) and daily streamflow statistics for

a station in Ellicott Creek (USGS #04218518),

downstream of the project site and Ditch 18 (USGS

Daily Streamflow Statistics, NY). Evaluating these

data for the dates of the videotaped events, it

appears that except for a few time periods (Feb. 11,

2001 and Feb. 21, 2002), the recorded precipitation

and downstream flow data are consistent with

normal climatological data for the time of the year.

Therefore, it appears that flow in the watercourse

did not occur just during extreme climatological

events (i.e, extremely heavy rainfall or snowmelt).

Moreover, the watercourse begins inside the large

forested wetland, where observations have shown

that standing water occurs during significant

portions of the year, including during the early

portion of the growing season (the previous

delineators reported standing water on portions of

the site during the growing season). EPA personnel

observed standing water during the site visits of

May 7, 2001 and July 16-17, 2002. Both site visits

occurred after periods of below average rainfall; the

May 2001 observation came after the driest April in

66 years and the 4th driest in 100 years (National

App. 14

Weather Service, Climate Summary for April 2001).

This information indicates that the watercourse may

begin at, or slightly below, the water table in the

forested wetland. Fig. 4, taken on May 7, 2001,

shows standing water in the forested wetlands

onsite. In any event, whether the watercourse flows

continually throughout the year, only in response to

-7significant rainfall, or something in between is

immaterial under the regulations; EPA’s regulations

do not define tributaries in terms of flow nor does 40

CFR 230.3(s)(5) distinguish between tributaries that

flow perennially and those that flow intermittently

or ephemerally.

We also reviewed data concerning the historical

hydrology of the area. The plaintiffs provided

detailed information, including aerial photos,

blueprints and US Geological Survey maps of the

site dating from the 1920s to the present. Many of

the maps and photos were apparently not available

to the Corps when it was makings its determination

as to whether there was an historic surface

connection between the site wetlands and navigable

waters. This information (in particular a 1927 aerial

photograph of the site and adjacent areas) appears

to show that a “feeder” stream entered the site on

the central-western portion, passed through the

wetland complex, then exited (as an “outlet” stream)

from the southeast portion of the site. That outlet

stream then flowed in a southerly direction until it

emptied into a tributary to Ellicott Creek. Figure 3,

App. 15

an USGS map from 1948 also clearly shows a stream

entering the site, flowing through the site, then

exiting and flowing south until it empties into

Ellicott Creek. During the July 2002 site visit,

portions of the remnant outlet stream, now

surrounded by development, were observed. (It

should be noted that this outlet stream is not in the

same location as the present watercourse draining

the wetland to the south.)

The information provided shows that development

over the past 40-50 years truncated both the feeder

and outlet channel and Ditch 18 may have been

constructed in part to remove drainage from the site.

From the information reviewed, it appears that the

site wetlands were historically connected via surface

water flow to a “water of the U.S.” and that the

current ditch along Wehrle Drive and Town Ditch 18

effectively reroute that historical flow for a short

distance before returning it to Ellicott Creek.

6. Functions and Values of Wetlands on the

Wehrle Drive Site

While it is not necessary to demonstrate the value of

a particular adjacent wetland in order to establish

jurisdiction (United States v. Riverside Bayview

Homes, 474 U.S. 121 (1985)), the record shows that

the wetlands onsite do have considerable ecological

value. They appear to provide a variety of functions,

including stormwater storage, water quality

improvement and habitat complexity. The filling of

these wetlands as a result of project construction

App. 16

would have a negative impact on the site and on

downstream waters of the US.

The following is a short description of the site’s

wetlands functions, as well as what impacts could be

expected if the project is constructed as currently

planned.

-8a. Stormwater Storage- Since the site wetlands (and

to some extent the undeveloped uplands) provide

floodwater storage, their filling would mean that

stormwater would go directly into the area’s storm

sewers, then into a ditch leading to Ellicott Creek

and further downstream to the Niagara River. This

could result in increased flooding downstream.

b. Water Quality- The stormwater storage function

of the project site allows pollutants and nutrients in

the received sediment to settle out and to be

removed by the system, maintaining and improving

downstream water quality.

c. Habitat Complexity- Mature forested wetlands,

which form the majority of the wetlands on-site, are

highly structured habitats which offer living space

for an abundance and diversity of organisms.

Specifically, forested wetlands provide a large area

of canopy which may be used by birds (especially

neotropical migrants), mammals, and insects; as

well as shrub and herb layers, leaf litter, and usually

numerous dead and decaying logs. These areas are

difficult to replace due to the large number of years

App. 17

required for late-successional tree species to reach

maturity. The loss of these wetlands would have a

negative effect on the area’s ecosystem, particularly

in light of the relatively rarity of this habitat in the

area, a heavily-developed suburb of Buffalo.

7. Conclusions About CWA Jurisdiction.

The record shows that the large wetland on the site

directly touches and flows into the onsite

watercourse. That is, it is adjacent to the onsite

watercourse, as well as functioning as a tributary to

the watercourse. The record additionally shows that

the onsite watercourse has the indicia of a regulated

watercourse. Its flow then goes, for a brief distance,

through the underground ditch along Wehrle Drive,

through a culvert under the road, and into the town

ditch, from which it flows via Ellicott Creek to the

Niagara River, a traditional navigable water. Thus,

the onsite watercourse is part of the tributary

system to navigable waters, and therefore the

wetland is adjacent to a tributary to navigable

waters, as well as functioning as part of that

tributary system. The courts have generally held

that the fact that a tributary is routed for part of its

length through a pipe or other manmade conveyance

does not destroy its character as a tributary.

Accordingly, under the facts here, where the wetland

has historically flowed to Ellicott Creek, and

continues to do so, and where that flow is capable of

transporting

pollutants downstream,

it is

appropriate to consider the onsite watercourse part

of the tributary system, notwithstanding the facts

App. 18

the flow is briefly routed through the underground

ditch and under the road.

Even if, for sake of argument, the underground ditch

and onsite watercourse were not considered to be

part of the tributary system, the wetland is still

adjacent to Town Ditch 18 because it is neighboring,

and hydrologically connected, to the

-9Ditch, and the Ditch is a tributary to navigable

waters.

For the reasons above, EPA accepts the results of the

wetland delineation done by the interagency team in

July 2002. EPA also concludes that the large

wetland on the 2220 Wehrle Dive site is adjacent to,

and is part of, the tributary system to traditional

navigable waters, and hence jurisdictional under

230.3(s)(1), (5), and (7), and that the watercourse

draining it is a jurisdictional tributary under

230.3(s)(1) and (5). 3 Accordingly, the large wetland

and the water course are “waters of the US” subject

to regulation under the CWA.

3 230.3(s)(7) excepts wetlands which are adjacent to waters

that are themselves wetlands. Therefore, since the only basis

in the record for asserting jurisdiction over the “satellite”

wetlands west of the large wetland and the small depressional

wetland on the northern part of the site would be their

adjacency to the large wetland, these small wetlands are not

included in this jurisdictional determination. They are,

however, still covered by the grant condition, as that is not

limited to CWA wetlands.

App. 19

/s/ Mario A. Paula

Mario A. Paula, Environmental

Scientist Wetlands Protection

Section, USEPA Region 2

-10-

11/21/02

Date

App. 20

References cited

Corps of Engineers, Buffalo District, June 29, 2001

File Memorandum.

Corps of Engineers. Nationwide Permits Federal

Register Notice. March 2000.

Environmental Laboratory. 1987. “Corps of

Engineers wetlands delineation manual,” Technical

Report Y-87-1. U.S. Army Engineer Waterways

Experiment Station, Vicksburg, MS.

National Weather Service. Monthly Climate

Summaries and Preliminary Climatological Data,

Buffalo, N.Y.

David J. Seeger.(Plaintiffs attorney). February 6,

2002 letter to US DOJ.

US Geological Survey. Daily Streamflow Statistics.

Ellicott Creek below Williamsville.

Waterways Experiments Station. Corps of

Engineers. 2002. WRAP request for Buffalo District

for determination of wetland boundary at Wehrle

Road, Amherst, New York. Aug. 28, 2002.

App. 21

List of Figures

1. Extent of jurisdictional wetland on site (from

WES 2002 report)

2. Path of surface water from Wehrle Drive to

Ellicott Creek

3. Picture of watercourse at southern end of site

and stormdrain into which it flows

4. Standing water in Wehrle Drive wetlands (May

7, 2001).

5. USGS map (1946) showing streams entering and

exiting wetland area on project site and ending in

Ellicott Creek.

*Listed images could not be reproduced.*