Amicus Curiae Brief — Bersani v. United States Environmental Protection Agency

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CF v0. 88-902 °

In the

Supreme Court of the Wnited States

OCTOBER TERM, 1988

JOHN A. BERSANI, NEWPORT GALLERIA GROUP,

ROBERT J. CONGEL AND THE PYRAMID COMPANIES,

Petitioners,

v

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al,

Respondents.

AND

No. 88-929

JOSEPH ROBICHAUD AND CITIZENS IN SUPPORT

OF ATTLEBORO MALL,

Petitioners,

Vv

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

MOTION OF THE LOUISIANA LANDOWNERS ASSOCIATION,

INC. FOR LEAVE TO FILE THE ATTACHED BRIEF AMICUS

CURIAE IN SUPPORT OF PETITIONERS’ APPLICATION FOR

WRIT OF CERTIORARI

Newman Trowbridge, Jr. Joseph E. LeBlanc, Jr.

Darnall, Biggs, Counsel of Record

Trowbridge, Supple & Cremaldi § Nesser, King & LeBlanc

Lawless Building Suite 3800

P. O. Drawer 565 201 St. Charles Ave.

Franklin, Louisiana 70538-0565 New Orleans, Louisiana 70170

Telephone: (318) 828-5480 Telephone: (504) 582-3800

Counsel for Amicus Curiae, Louisiana

Landowners Association, Inc.

RACES Re cine ma RIE, ER OT ITA SANTI SN IB HAO sceneunsneeetiineediiininteaaeeeneaaeaaaiaal

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

No. 88-902

JOHN A. BERSANI, NEWPORT GALLERIA GROUP,

ROBERT J. CONGEL AND THE PYRAMID COMPANIES,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al,

Respondents.

AND

No. 88-929

JOSEPH ROBICHAUD AND CITIZENS IN SUPPORT

OF ATTLEBORO MALL,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

MOTION OF THE LOUISIANA LANDOWNERS ASSOCIATION,

INC. FOR LEAVE TO FILE THE ATTACHED BRIEF AMICUS

CURIAE IN SUPPORT OF PETITIONERS’ APPLICATION FOR

WRIT OF CERTIORARI

The Louisiana Landowners Association, Inc. (““LLA”’)

respectfully moves the Court for leave to file the attached

brief amicus curiae in support of the petition of John A. Ber-

sani, Newport Galleria Group, Robert J. Congel and the

Pyramid Companies and the petition of Joseph Robichaud

and Citizens in Support of Attleboro Mall for writs of cer-

tiorari to the United States Court of Appeals for the Second

Circuit. The LLA has received consent to the filing of this

ii

brief from petitioners, from the respondent United States,

and from intervenor - appellants below, Joseph Robichaud

and Citizens in Support of Attleboro Mall. Intervenor - ap-

pellees below, the environmental groups listed in the cer-

tificate of service filed by the clerk, have declined to grant

consent. This brief is timely filed within the extension of

time granted to respondents until January 27, 1989 in

which to file their opposition to the petitions for certiorari.

The LLA is an association composed of approximate-

ly 500 landowners in the State of Louisiana. It is the prin-

cipal landowners association in the State which has been

organized for the purpose of representing and protecting

the interests and property rights of its members.

The involvement of LLA members in the permit pro-

cess under Sec. 404 of the Clean Water Act (“CWA”’), 33

U.S.C. 1344, is extensive. The wetland basins of Louisiana

comprise about 25% of the total wetlands of the United

States. See Randall A. Fish, ‘“‘The Coastal Wetlands En-

vironmental Levy: An Analysis Under the Commerce and

Supremacy Clauses,” 29 Loy. L. Rev. 153, 154 (1982); and

Ralph W. Tiner, Jr., ‘Wetlands of the United States: Cur-

rent Status and Recent Trends,” National Wetlands Inven-

tory, Department of the Interior, U. S. Fish and Wildlife

Service (March 1984), p. 28, fig. 25. LLA members hold ti-

tle to thousands of acres of land which have been - or may

be - classified as ‘‘wetlands’’, either because the land is af-

fected by tidal waters or because the land might arguably

be considered ‘‘wetland’’ by either the U. S. Army Corps of

Engineers (‘‘COE’’) or the U. S. Environmental Protection

Agency (‘“‘EPA’’) in the administration of the 404 permit |

program. The need to obtain a permit for uses of wetland |

property involving the discharge of dredged or fill material

directly involves LLA members in this permit process. The

LLA is vitally concerned that the 404 program be ad-

Pa SS eS Oe os

iii

ministered in a sound and fair manner consistent with the

balance between conservation and development intended

by Congress in its passage of the CWA.

The Final Determination under review in this case

represents a dramatic departure from the authority

granted EPA in Sec. 404(c) of the CWA. EPA’s “‘weto”’ of

the permit which COE proposed to issue for construction of

a shopping mall at Sweedens Swamp was based*upon a

flawed application of’ Sec. 404(c) and the guidelines

developed by EPA, in conjunction with the COE, under

Sec. 404(b)(1) of the CWA. Petitioners’ request for a writ of

certiorari should be granted to restore much-needed direc-

tion to a permit program that affects not only members of

the LLA, but major planning and development interests on

which the future growth of this country depends. In the at-

tached amicus curiae brief, the LLA addresses the quan-

dary and confusion now facing its members as a result of

the ruling below; the need for EPA to have used rule

making to announce its new ‘market entry’’ theory for

determining the availability of “practical alternatives’;

and EPA’s failure to respect the limitations of Sec. 404(c)

and its own regulations in making the crucial determina-

tion of “unacceptability”’ required by the statute. EPA’s

departure from the authorized scope of the 404 program is

so widespread that it desperately calls for correction by

this Court.

For the above reasons, the LLA respectfully submits

that the Court should grant this Motion for leave to file the

iv

attached amicus curiae brief.

January 18, 1989

0337Q

Respectfully submitted,

Joseph E. LeBlanc, Jr.

Counsel of Record

Nesser, King & LeBlanc,

201 St. Charles Avenue

Suite 3800

New Orleans, La. 70170

Telephone: (504) 582-3800

Newman Trowbridge, Jr.

Darnall, Biggs, Trowbridge,

Supple & Cremaldi

Lawless Building

P. O. Drawer 565

Franklin, La. 70538-0565

Telephone: (318) 828-5480

Attorneys for Amicus Curiae,

Louisiana Landowners

Association, Inc.

ne ee ep

MOTION OF THE. LOUISIANA LANDOWNERS

ASSOCIATION, INC., FOR LEAVE TO FILE

AMICUS CURIAE BRIEF ...................... i

pee v

TABLE OF AUTHORITIES ...................... vi

I. INTEREST OF AMICUS CURIAE...............

II. STATEMENT OF THE CASE .................. 2

SERs PEE NS UES AUR owas cscs ve coweed 2

A. The Petition for Certiorari Should Be Granted

Because EPA’s Market Entry Theory Provides

No Guidance To Affected Landowners and Is

RS ree 2

B. The Petition for Certiorari Should Be Granted

Because EPA’s New Market Entry Theory

Has the Effect of a Rule But Was Announced

Without Adherence to Rulemaking

C. The Petition for Certiorari Should Be Granted

Because EPA’s “‘Unacceptability’’ Determina-

tion Failed to Make the Findings Required by

Re ct a eee Cees bak oo atia 5

SEE oe Glass 00 ae bs a emanate ae bike meee 9

vi

TABLE OF AUTHORITIES

CASES: Page

Appalachian Power Co. v. Train, 566 F.2d 451, 455

RRA seit Fs or Pr Ee eee 4

Bersani v. Robichaud, 850 F.2d 36, 44 (2d Cir.

SE oo bd c bob ade eee bids ke hb aan: ° 3

First Evangelical Lutheran Church v. Los Angeles,

County,107 S.Ct. 2878 (1967) ..............200005. 6

Hill v. Federal Power Commission, 335 F.2d 355,

fF fF ee ee ee 3

Knutzen v. Eben Ezer Lutheran Housing Center,

815 F.2d 1343, 1351 (10th Cir. 1987) .............. 4

Morton v. Ruiz, 415 U.S. 199, 231-233, 94 S.Ct.

SE, I Cnn 20s vd cs bab diese ssc cccc. 5

NI Industries, Inc. v. U.S., 841 F.2d 1104, 1107

Aa nl A i 7 ng 4

N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759,

764-766, 89 S.Ct. 1426, 1429 (1969)................ 5

Nollan v. California Coastal Commission, 107 S.Ct.

SU TS hc b's 5 ca Sede bo 0 beaches Shee eae cece 6

Satellite Broadcasting Co., Inc. v. FCC, 824 F.2d 1,

NG 1 3 0s oh bo bedkdbe Ceddehiscncveces 3

United States v. Riverside Bayview Homes, Inc.,

106 S.Ct. 466, 468 n.9 (19066) .... 1... ee eee eee. 6

United States Department of Labor v. Kast Metals

Corp., 744 F.2d 1145, 1149 (4th Cir. 1977).......... 4

FEDERAL STATUTES:

Administrative Procedures Act

Le a a's co oe b 0.0806 oe eheeN arene 4

Sia scccancansoctceebnaseanbaee nua 4

vii

TABLE OF AUTHORITIES (continued)

Page

Federal Water Polution Control Act

Section 404, 33 U.S.C. §1344 ..... Bite b oc wah tee ee

Section 404(bM1), 33 U.S.C. $1344(b\1) .......... 6,7,8

Section 404(c), 33 U.S.C. §1344(c) ........... 2,5,6,7,8

FEDERAL REGULATIONS:

errs occ kccacccencaccasued 6

EE 6,7

I kas. cote sean ee ccd sccscscce'e 7

44 Fed Reg. 54222 (September 18, 1979) ............. 6

45 Fed. Reg. 85336 (December 24, 1980) .............. 6

45 Fed.Reg. 85338 (December 24, 1980) .............. 7

LEGISLATIVE HISTORY:

Legislative History of the Federal Water Pollution

Control Act of 1972, Vol. 1 at 236 and 816 (Comm.

EE Mee ss cae ob bbbbee oe te. bs 0'62 6

MISCELLANEOUS

I ee ae re ee 6

vi

TABLE OF AUTHORITIES

CASES: Page

Appalachian Power Co. v. Train, 566 F.2d 451, 455

62s. cgi Coat tei b's won «6k 4

Bersani v. Robichaud, 850 F.2d 36, 44 (2d Cir.

tam aati Sa esate oni eller ch eet Ri rag aI 3

First Evangelical Lutheran Church v. Los Angeles,

County, 107 S.Ct. 2878 (1967)... 2... cece. 6

Hill v. Federal Power Commission, 335 F.2d 355,

FS a 3

Knutzen v. Eben Ezer Lutheran Housing Center,

815 F.2d 1343, 1351 (10th Cir. 1987) .............. 4

Morton v. Ruiz, 415 U.S. 199, 231-233, 94 S.Ct.

ee ne SR PS Wd whe 4 500s 5

NI Industries, Inc. v. U.S., 841 F.2d 1104, 1107

I a a oes 4

N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759,

764-766, 89 S.Ct. 1426, 1429 (1969)................ 5

Nollan v. California Coastal Commission, 107 S.Ct.

REO ET ee Lea ok Seb ee Eee 6

Satellite Broadcasting Co., Inc. v. FCC, 824 F.2d.1,

ERISA a Sp ai eae here 3

United States v. Riverside Bayview Homes, Inc.,

106 S.Ct. 455, 463 n.9 (1985) ..................... 6

United States Department of Labor v. Kast Metals

Corp., 744 F.2d 1145, 1149 (4th Cir. 1977).......... 4

FEDERAL STATUTES:

Administrative Procedures Act

ee orgs a 6 4b sess sabibseeeush e's 4

ne ris nck b ans skewae candss bewas ean 4

|

|

|

vii

TABLE OF AUTHORITIES (continued)

Page

Federal Water Polution Control Act

Section 404, 33 U.S.C. $1344 ..... ES ESR eA

Section 404(b)(1), 33 U.S.C. §1344(b\(1) .......... 6,7,8

Section 404(c), 33 U.S.C. $1344(c) ........... 2,5,6,7,8

FEDERAL REGULATIONS:

MD ccc ccc cect ccc cece cece 6

ME eis cee cece cen cnccctas 6,7

GD occ ccc ccc cece ees 7

44 Fed.Reg. 54222 (September 18, 1979) ............. 6

45 Fed.Reg. 85336 (December 24, 1980) .............. 6

45 Fed.Reg. 85338 (December 24, 1980) .............. 7

LEGISLATIVE HISTORY:

Legislative History of the Federal Water Pollution

Control Act of 1972, Vol. 1 at 236 and 816 (Comm.

peo tS ec okaseecec 6

MISCELLANEOUS

Ee a 6

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

No. 88-902

JOHN A. BERSANI, NEWPORT GALLERIA GROUP,

ROBERT J. CONGEL AND THE PYRAMID COMPANIES,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al,

Respondents.

AND

No. 88-929

JOSEPH ROBICHAUD AND CITIZENS IN SUPPORT

OF ATTLEBORO MALL,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE ON BEHALF OF

THE LOUISIANA LANDOWNERS ASSOCIATION, INC.

IN SUPPORT OF PETITIONERS’ APPLICATION

FOR WRIT OF CERTIORARI

I.

INTEREST OF AMICUS CURIAE

The interest of amicus curiae is set forth in the preceding

motion for leave to file this brief.

2

II.

STATEMENT OF THE CASE

The Louisiana Landowners Association, Inc.

(“LLA”’) adopts the Statement of the Case in the petition

filed by petitioners Bersani, et al.

III.

ARGUMENT

This case raises fundamental issues relating to the

exercise of EPA’s “‘veto’’ authority under Sec. 404(c) of the

Clean Water Act (‘“‘CWA”’), 33 U.S.C. 1344(c). In the Final

Determination under review in this case, EPA went far

beyond the limits of the statute, and action by this Court

is necessary to stop the agency error before it goes further.

A. The Petition for Certiorari Should be Granted Because

EPA’s Market Entry Theory Provides No Guidance to Af-

fected Landowners and is Impossible to Apply.

The petition for certiorari of Bersani, et al and the

brief amici curiae submitted by the National Homebuilders

Association, et al, point out in telling detail the absence of

standards inherent in the market entry theory announced

by EPA in this case, the lack of guidance which it provides

to the regulated community, its conflict with planning and

development processes in the real world, and its general un-

suitability as a regulatory tool. In this amicus submission,

the LLA shows that these uncertainties are compounded

for landowners, large and small, who hold property with

the thought and hope of future development. In the Final

Determination, EPA concedes that it has no answers as to

how its new market entry theory would apply to such

landowners:

3

The issue addressed here relates particularly to

circumstances where a developer or developers

are entering a market area for the

ment of a specific project. I need not, and do not

decide here what the relevant time period would

be in other circumstances - e.g., where an appli-

cant wishes to build on property inherited or ac-

quired long ago.

Petition of Bersani, et al for Writ of Certiorari, Appendix

D, p. 93a, note 14.

This leaves the matter in hopeless confusion and

presents a threatening ‘‘unknown’”’ for owners of wetland

properties who may envision a future use of their land. No

guidance is given the landowner as to how the market entry

theory may be applied to him, despite the fact that the Se-

cond Circuit Court of Appeals has declared that the market

entry theory is the only reasonable interpretation of the

regulations. Bersani v. Robichaud, 850 F.2d 36, 44 (2d Cir.

1988). The result is that landowners must wonder and

guess at what will be required of them and face the risk of

finding out only through a decision by EPA that they have

not done enough. This is the dilemma that faced peti-

tioners, who learned of the market entry theory only

through EPA’s decision that they had not satisfied it. This

is fundamentally wrong and unfair. “‘[I}t is too late for an

Agency to declare the standards to be met by its decision

holding that they have not been met... ’’. Hill v Federal

Power Commission, 335 F.2d 355, 356 (5th Cir. 1964). See,

Also, Satellite Broadcasting Co., wate FCC, 824 F.2d 1, 3

(D.C. Cir. 1987).

Certiorari should be granted to prevent EPA from

using such an elusive and undiscernible standard against

landowners and others in the regulated community.

4

B. The Petition for Certiorari Should be Granted Because

EPA’s New Market Entry Theory Has the Effect of a Rule

But Was Announced Without Adherence to Rulemaking

Proceedings.

The effect of the market entry theory announced for

the first time in this case will be widespread. This is evident |

from the numerous petitions for leave to submit briefs

amici curiae in support of the Bersani, et al petition for cer-

tiorari. The impact of EPA’s Final Determination will be

felt by planners, developers, port authorities, landowners,

local and state governments and all other persons con-

templating activities in wetlands. Such impact has been

virtually assured by the Second Circuit’s holding that the

market entry theory is the only reasonable interpretation

of the regulation to determine the availability of “‘prac-

ticable alternatives’’.

| When agency action is of such general applicability

and will have such substantive impact upon an entire

regulated community who must thereafter comply, the

agency is required to follow the notice and comment pro-

cedures for rulemaking specified in the Administrative Pro-

cedures Act, 5 U.S.C. 552, 553. This is especially true when

the agency announces a new standard that departs from

past construction of the regulation. Knutzen v. Eben Ezer

Lutheran Housing Center, 815 F.2d 1343, 1351 (10th Cir.

1987); NI Industries, Inc. v. U.S., 841 F.2d 1104, 1107 (Fed.

Cir. 1988); United States Department of Labor v. Kast

Metals Corp., 744 F.2d 1145, 1149, (5th Cir. 1984); and Ap-

palachian Power Co. v. Train, 566 F.2d 451, 455 (4th Cir.

1977).

Although EPA has some flexibility in determining

whether to proceed by rulemaking or adjudication, when

the results of its action amount to a “substantive rule’’, the

a a eS ew

5

notice and comment procedures of the APA must be follow-

ed. Morton v. Ruiz, 415 U.S. 199, 231 - 233, 94 S.Ct. 1055,

1072 - 1073 (1974); and N.L.R.B. v. Wyman-Gordon Co.,

394 U.S. 759, 764 - 766, 89 S.Ct. 1426, 1429 (1969). Rule-

making in this case would have allowed affected persons to

raise the myriad of questions about the market entry

theory that have arisen and would have forced EPA to

develop sound responses to these concerns or abandon the

theory as impractical and unworkable. In either case, the

regulatory process would have benefited and the

regulatory community would know in advance the stan-

dards with which it must comply.

It is necessary that certiorari issue in this case to re-

quire EPA to follow the rulemaking procedures specified in

the APA before adopting or attempting to apply the

market entry theory.

C. The Petition for Certiorari Should be Granted

Because EPA’s “Unacceptability” Determination Failed

to Make the Findings Required by Sec. 404(c).

EPA’s Sec. 404(c) authority is limited. It can be exer-

cised only upon a determination by EPA that a proposed

discharge will have an “unacceptable adverse effect” on

municipal water supplies, shellfish beds and fisheries (in-

cluding spawning and breeding areas), wildlife or recrea-

wen genet resi cerype tien tetanic

““unacceptability”’.

This requires, first, a finding of adverse effects upon

the environmental values listed in the statute and, second-

ly, a further determination of whether the impacts are

“unacceptable”. This involves a weighing and balancing of

the impacts in light of such factors as the project purpose

and need, the availability of practicable alternatives, the

6

significance of the environmental values at issue, the effec-

tiveness of mitigation measure, and the “‘takings”’ implica-

tions of the agency action.*

In its 404(c) regulations, EPA has defined “‘unaccep- !

table adverse effect’ as involving only ‘significant

degradation of municipal water supplies (including surface

or groundwater) or significant loss of or damage to

fisheries, shellfishing or wildlife habitat or recreation

areas.”’ (emphasis added). 40 C.F.R. 231.2(e). Sec. 404(c) is

not concerned with “‘insignificant’’ effects. Section 404(c) is

also not concerned with protecting all wetland areas. The

404(b)(1) guidelines recognize that waters of the United

States ‘‘vary greatly” (44 Fed. Reg. 54222, September 18,

1979, and 45 Fed. Reg. 85336, December 24, 1980), and it

is only ‘‘important”’ wetlands that are intended for 404 pro-

tection. See 33 C.F.R. 320.4(b) and United States v. River-

side Bayview Homes, Inc., 106 S.Ct. 455, 463 n. 9 (1985).

Section 404(c) is even more limited. It is to be used only

when necessary to protect “critical areas.’’ Legislative

History of the Federal Water Pollution Control Act of

1972, Vol. 1 at 236 and 816 (Comm. Print 1973). If a

wetland is not of “critical importance” to the aquatic

ecosystem, it is not a fit subject of Sec. 404(c).

To sustain a veto under Sec. 404(c), EPA must have

before it wetlands of critical importance to the aquatic en-

vironment whose destruction will result in significant and

unacceptable adverse effects upon one of the values listed

in the statute. Such findings are missing from the Final

* On March 15, 1988, President Ronald Reagan affirmed the need for

federal agencies to consider the “‘takings’’ implications of their actions

- especially in light of the recent decisions of thie Court in Nollan v.

California Coastal Commission, 107 S.Ct. 3141 (1987) and First English

Evangelical Lutheran Church v. Los Angeles County, 107 S.Ct. 2378

(1987) - in his signing of Executive Order 12630.

7

Determination. There is nothing to indicate that Sweedens

Swamp is a “critical area’’, nor is there any question of :

adverse impacts upon municipal water supplies, shellfish :

beds or fisheries (including spawning and breeding areas), ;

or recreational areas. There are only passing references to

significant habitat values which are in stark contrast to

EPA's characterization of Sweedens Swamp as an “or-

dinary swamp”’ (Bersani, et al, Petition, Appendix D. p.

67a) which “. . .is neither a unique wetland nor habitat for

endangered species.”’ (Id. at 76a).

The crux of EPA’s veto was that “practicable alter-

natives” were available to petitioners even if there was no

significant degradation. (Id. at 67a-68a.) Under Sec. 404(c),

however, this is not enough. A finding of “‘significance’’

and “unacceptable degradation” is the touchstone of the

statute. Moreover, EPA’s “practicable alternatives”’

analysis was itself skewed, based as it was upon an ar-

bitrary and standardless ‘market entry” theory. The

analysis was further flawed by EPA’s impermissible shif-

ting of the burden of proof to petitioners to prove that prac-

ticable alternatives were not available. This was done when

EPA applied 40 C.F.R. 230.10(aX3) of the 404(b)(1)

guidelines, which presumes that less damaging practicable

alternatives are available for non water-dependent ac-

tivities, to the 404(c) determination. EPA itself has

recognized, in the Preamble to the 404(b)(1) guidelines, that

‘. . .fi]f the Administrator nses his 404(c) ‘veto’, then he

does have the burden to justify his action, but that burden

does not come into play until he begins a 404(c) proceeding

(See, 40 C.F.R Part 231).”’ (45 Fea. Reg. 85338, December

24, 1980).

In the Final Determination, EPA also disregarded

the good faith project investment made by petitioners on

the basis of COE’s past construction of the practicable

8

alternatives requirement, COE’s finding of compliance

with the 404(b)(1) guidelines, the project approval given by

the State of Massachusetts, and COE’s judgment as to the

sufficiency of the mitigation measures agreed to by peti-

tioners. EPA further exceeded its authority in considering

the cumulative loss of wetlands in other areas of the State

when it found that Sweedens Swamp was “‘an isolated or

‘island’ wildlife habitat.’’ (Id. at 74a). Wetland losses in

other areas can not be considered without an ecological con-

nection to the swamp and can not make up for a lack of

significant unacceptable effects upon the swamp site itself.

If allowed to stand, the Final Determination would

allow EPA to establish a virtual ‘standing veto’”’ whenever

there are any adverse effects on the most ordinary of

wetlands. This is not the standard of Sec. 404(c). It

disregards the limitations of the statute, the provisions of

the regulations, and the serious and impartial weighing and

balancing of factors inherent in the determinations of

“‘unacceptability” and “significance’’.

Certiorari should be granted to set aside EPA’s

disregard of the limitations upon its authority under Sec.

404(c).

9

CONCLUSION

For the reasons stated above, the LLA submits that

the Court should issue a writ of certiorari to review the

judgment and opinion of the Second Circuit Court of

Appeals.

Joseph E. LeBlanc, Jr.

Counsel of Record

Nesser, King & LeBlanc

201 St. Charles Avenue

Suite 3800

New Orleans, Louisiana 70170

Telephone: (504) 582-3800

Newman Trowbridge, Jr.

Darnall, Biggs,

Trowbriage. Supple & Cremaldi

Lawless Building

P. O. Drawer 565

Franklin, Louisiana 70538-0565

Telephone: (318) 828-5480

0338Q

January 18, 1989

10

CERTIFICATE OF SERVICE

The undersigned member of the Bar of this Court

hereby certifies that the foregoing motion for leave to file

amicis brief, and attached amicus brief, has been served

upon all parties required to be served by depositing copies

of the motion and brief in the United States mail, with first-

class postage prepaid, addressed to the following counsel of

record:

Gary H. Baise Paul D. Kamenar

Beveridge & Diamond, P.C. Washington Legal Foundation

1333 New Hampshire Avenue, N.W. 1705 N. Street, N.W.

Washington, D.C. 20036 Washington, D.C. 20036

Counsel for Petitioners, Counsel of record for

Bersani, et al Petitioners, Robichaud, et al

Charles Fried Robert Dreher

Solicitor General Sierra Club Legal Defense Fund

U.S. Department of Justice 1531 P. Street, N.W.

Washington, D.C. 20530 Suite 200

Counsel for U.S. Environmental § Washington, D.C. 20005

Protection Agency, et ai, Counsel for Intervenor- Appellee

Respondents Environmental Groups,

Respondents

Joseph E. LeBlanc, Jr.

Counsel for the Louisiana,

Landowners Association, Inc.,

Amicus Curiae