Petition for Writ of Certiorari — Bersani v. United States Environmental Protection Agency

IN THE

Supreme Court of the United States

October Term, 1988

JOSEPH ROBICHAUD AND CITIZENS IN SUPPORT

OF ATTLEBORO MALL,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

DANIEL J. POPEO

PAUL D. KAMENAR*

WASHINGTON LEGAL FOUNDATION

1705 N Street, N.W.

Washington, D.C. 20036

(202) 857-0240

*Counsel of Record

Date: December 1, 1988

CASILLAS PRESS INC. — 1717 K ST NW WASHINGTON DC 20036 — 223-1220

QUESTION PRESENTED

Whether the Second Circuit ignored the plain meaning

of Section 404(c) of the Clean Water Act by allowing the En-

vironmental Protection Agency toexceed its statutory authority

when it vetoed a fill permit on the basis of the state or condi-

tion of wetlands regionally or nationwide rather than basing its

decision on the environmental effects solely at the specific

proposed site in question as required by Section 404(c) and as

Congress intended?

LIST OF PARTIES

Petitioners, Joseph Robichaud and Citizens in Support

of Attleboro Mall, intervened as plaintiffs-appellants below.

Government respondents, United States Environmental Protec-

tion Agency, United States Army Corps of Engineers, Lee

Thomas, in his official capacity as Administrator of the United

States Environmental Protection Agency, Richard K. Dawson,

in his official capacity as Assistant Secretary for Civil Works,

United States Army, and Jennifer Joy Wilson, in her official

capacity as Assistant Administrator for External Affairs, United

States Environmental Protection Agency, were defendants-ap-

pellees below. Respondents, Sierra Club, Environmental

Defense Fund, National Wildlife Federation, National

Audubon Society, Conservation Law Foundation of New

England, Inc., Massachusetts Audubon Society, Citizens for

Responsible Environmental Management, Massachusetts

Society for Conservation Professionals, Audubon Society of

Rhode Island, Rhode Island Association of Conservation Com-

missioners and Natural Resources Defense Council intervened

as defendants-appellees on behalf of government respondents

in the courts below.

The Home Building Association of Massachusetts in-

tervened on behalf of respondents Bersani, et al., in the district

court but did not appear as a party in the Second Circuit.

Respondents John A. Bersani, Newport Galleria Group,

Robert J. Congel, and the Pyramid Companies were plaintiffs-

appellants below and have filed a separate petition for writ of

certiorari in this Court on the same day as this petition was filed.

li

TABLE OF CONTENTS

QUESTION PRESENTED .............

MN PEO go

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

oe

SESS

STATUTES AND REGULATIONS INVOLVED .

STATEMENT OF THECASE ...........

THE SECOND CIRCUIT IGNORED THE PLAIN

MEANING OF SECTION 404(C) OF THE CLEAN

WATER ACT WHICH LIMITS THE EPA’S

AUTHORITY TO DENY A FILL PERMIT ON

THE BASIS OF ENVIRONMENTAL EFFECTS OF

A DISCHARGE AT THE PROPOSED SITE IN

QUESTION RATHER THAN AT UNRELATED

SITES, THEREBY VIOLATING BASIC RULES

OF STATUTORY CONSTRUCTION AND CON-

COMITANTLY, ALLOWING THE EPA TO EX-

CEED ITS STATUTORY AUTHORITY .......

PEE 5 ve hk oS te ee es

lil

TABLE OF AUTHORITIES

CASES PAGE

Amoco Production Co. v. Village of

Gamell, Alaska, 107 S. Ct. 1396 (1987) = 11, 12

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984) . 8, 9,10

Manchester Environmental Coalition v.

Enironmental Protection Agency, 612 F.2d

- i > re a ae 10

McMahon v. Califano, 605 F.2d 49 (2d Cir.

och ee eae awa d 80S Vo 11

Middle South Energy, Inc. v. F.E.R.C., 747

oe lee Bo: eee 9

Moore v. Harris, 623 F.2d 908 (4th Cir.

a eo re ae 11

State of Connecticut v. EPA, 696 F.2d 147

Ee er ae 11

Transbrasil S.A. Linhas v. Dep’ t of Transp.,

791 F.2d 202 (D.C. Cir. 1986) ..... 11

TVA v. Hill, 437 U.S. 153 (1978) ..... 10

United States v. Perdue Farms Inc., 680

F.2d 277 (2d Cir. 1982) ........ 11

Statutory and Regulatory Provisions

Administrative Procedures Act

ER Tey! | re 7

RIE Teme. i a 7

p SS nk, ir 2

iv

TABLE OF AUTHORITIES --Continued

PAGE

Clean Water Act

pig te a rs passim

Clean Air Act

42 U.S.C. 7410(a)(5)(A)@iii) 2... 10

a 2

Final Determination of the EPA’s Assistant

Administrator For External Affairs Concern-

ing The Sweedens Swamp Site ...... 2, 4, 5, 6

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioners, Joseph Robichaud and Citizens in Support

of Attleboro Mall, who were intervenor-appellants below,

respectfully pray that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Appeals for

the Second Circuit, entered in this proceeding on June 8, 1988,

rehearing and suggestion for rehearing en banc denied, Septem-

ber 2, 1988. Petitioners also support the petition for certiorari

filed by respondents John A. Bersani, et al., and suggest that

these two petitions be consolidated.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Second Circuit, with the dissenting opinion of Judge Pratt,

is reported at 850 F.2d 36 (2d Cir. 1988), and reproduced in the

Appendix annexed to the Petition for Writ of Certiorari filed by

John A. Bersani, et al., who were the appellants below. App.

A. The Order of the United States Court of Appeals for the

Second Circuit, denying Petitioners’ Petition for a Rehearing

and Suggestion for Rehearing En Banc, dated September 2,

1988, is not reported and is reproduced in Respondent Bersani’s

Petition as App. D at 109a. The opinion of the United States

District Court for the Northern District of New York, is reported

at 674 F. Supp. 405 (N.D.N.Y. 1987) and reproduced as App.

2

B at 32a. The Final Determination of the Assistant Ad-

ministrator for External Affairs, United States Environmental

Protection Agency, Concerning the Sweedens Swamp Site in

Attleboro, Massachusetts Pursuant to Section 404(a) of the

Clean Water Act ("Final Determination"), dated May 13, 1986,

is not reported but is reproduced as App. C at 64a.

JURISDICTION

The date of the opinion sought to be reviewed was June

8, 1988. The Second Circuit denied Petitioners’ petition for

rehearing on September 2, 1988. Jurisdiction is conferred on

this Court by 28 U.S.C. 1254(1).

STATUTES AND REGULATIONS INVOLVED

The relevant statutory provision, Section 404 of the

Clean Water Act ("the Act"), 33 U.S.C. 1344, and regulatory

provision, 40 C.F.R. 230.10(a), are reproduced in the Appen-

dix as App. E to the petition for certiorari filed by John A. Ber-

sani, et al.

STATEMENT OF THE CASE

In the interest of judicial economy, petitioners adopt by

reference the Statement of the Case set forth in the petition for

writ of certiorari filed by respondents John A. Bersani, et al.,

on whose behalf petitioners intervened below. Nevertheless,

3

petitioners wish to emphasize certain facts as they relate to the

question presented.

John A. Bersani and The Pyramid Companies

("Pyramid") propose to build a shopping mall in Attleboro,

Massachusetts on land which they own. As the administrative

record demonstrates, the proposed shopping center would be a

significant economic boon for the citizens of Attleboro and the

economically depressed region. It would create 1,500 con-

struction jobs and some 2,250 permanent part-time and full-

time jobs. Over $500,000 in municipal tax revenues would be

generated each year and some $25,000,000 would be added to

the regional economy annually. This mall is enthusiastically

supported by the overwhelming majority of the citizens of At-

tleboro, whose views in this case are represented by petitioners

Citizens in Support of Attleboro Mall and its Chairman Joseph

Robichaud.

Not only would the mall provide a much needed

economic stimulus to Attleboro and the region, the proposed

project would also enhance the aesthetics of the area by filling

in 32 acres of Sweedens Swamp, the proposed site of the mall,

and enhancing 13 additional acres of the swamp. Four acres of

the swamp will be left undisturbed. Nine acres of upland will

be excavated to create wetlands on site. See District Court

opinion at App. 38a.

As petitioners and other residents of Attleboro have

long known, Sweedens Swamp is a wetland in name only, clas-

sified that way only because of the presence of some red maple

trees. In point of fact, the so-called "wetlands" is dry most of

the year. The swamp is highly degraded, the victim of years of

unauthorized, illegal dumping of solid waste. The swamp is

isolated and neither feeds into any other stream or river, nor

connects to any other wetland. A walking tour of the swamp

reveals a burial ground for animals, decaying tires,

4

refrigerators, roofing shingles and other debris. See District

Court Opinion at App. 42a. To the residents of Attleboro, who

have complained about the swamp for years, Sweedens Swamp

is a degraded eyesore, nothing more than a breeding ground for

mosquitoes and of use only to the teenagers who go there to

drive dirt bikes, drink, and experiment with drugs. In sum,

Sweedens Swamp as it presently exists is a highly degraded,

highly inefficient wetlands which fails to perform most of the

ecological or recreation benefits which make wetlands worth

preserving.

In addition to extensive on-site mitigation, Pyramid in-

formed the U.S. Army Corps of Engineers, the permitting

authority, that it would construct over 35 acres of diverse,

productive wetlands on an off-site parcel of land which present-

ly is of very low ecological value. Thus, in addition to improv-

ing the wildlife habitat which will be provided in the 26 acres

of enhanced wetland which will remain after construction,

Pyramid has agreed to create an additional 36 acres of wildlife

habitation consisting of open water, marsh meadow, and shrub

swamp. The off-site wetlands to be created by Pyramid will

cost the company several million dollars to construct. Pyramid

has agreed to post a performance bond, and if required by EPA,

would construct the off-site wetlands before undertaking to

build the mall. EPA Final Decision at App. 100a-101a.

The Corps found that Pyramid’s off-site wetlands crea-

tion plans would result in a substantial improvement in overall

wildlife habitat for the area. The Corps noted that Sweedens

Swamp is a red maple swamp, a very common wildlife habitat

in Massachusetts. By contrast, the open water, marsh meadows

and shrub swamp to be created by Pyramid is a relatively rare

type of habitat in the Northeast. As a result, the off-site wet-

lands will attract animals whose presence in Massachusetts is

limited severely by available habitat.

5

On balance, after exhaustively analyzing the degraded

state of Sweedens Swamp and the millions of dollars of im-

provements to be made by Pyramid, both on-site and off-site,

the Corps finally concluded that Pyramid’s purported project

would result in a net benefit to the environment by an order of

magnitude of 1 1/2 to 1. The Corps found that Pyramid’s

proposal would result in a more efficient, functioning wetlands

that would actually clean the water entering it, provide mean-

ingful fisheries habitat, and provide for rarer and more en-

dangered wildlife.

Nevertheless, the Administrator of the Environmental

Protection Agency, acting through the Assistant Administrator

for External Affairs, issued a Final Determination, the effect of

which was to veto the proposed fill permit which the U.S. Army

Corps of Engineers had carefully decided to issue to the

developer. The purported basis for this veto was the EPA’s

determination that filling in the swamp would cause "unaccep-

table adverse effects" to the wildlife habitat at Sweedens

Swamp.

While parroting the conclusory statutory language of

Section 404(c) ("unacceptable adverse effects") in exercising

its veto power, the EPA’s basis or supporting reason for reach-

ing that conclusion reveals that an important factor in its

decision was the state or condition of wetlands other than at the

site in question, namely, Sweedens Swamp. However, Con-

gress limited the EPA’s veto authority by requiring that it as-

sess the environmental effects only at the site in question, rather

than considering the condition of wetlands regionally or nation-

ally.

The court of appeals essentially ignored this argument

and merely stated without any explication in footnote one of its

decision that the "EPA’s decision as wholly within its

authority." App. 5a, n.1.

REASONS FOR GRANTING THE WRIT

THE SECOND CIRCUIT IGNORED THE PLAIN

MEANING OF SECTION 404(C) OF THE CLEAN

WATER ACT WHICH LIMITS THE EPA’S

AUTHORITY TO DENY A FILL PERMIT ON THE

BASIS OF THE ENVIRONMENTAL EFFECTS OF A

DISCHARGE AT THE PROPOSED SITE IN QUESTION

RATHER THAN AT UNRELATED SITES, THEREBY

VIOLATING BASIC RULES OF STATUTORY CON-

STRUCTION AND CONCOMITANTLY, ALLOWING

THE EPA TO EXCEED ITS STATUTORY

AUTHORITY.

It is undisputed that the EPA denied the permit in ques-

tion to the developer to fill in his own property to build a shop-

ping mali at Sweedens Swamp on essentially two grounds. The

EPA Assistant Administrator determined that because of:

[1] the avoidability of the loss [of wildlife habitat]

and[2j the significance of such areas in Massachusetts,

I conclude that filling Sweedens Swamp to build the

proposed mall would have unacceptable adverse

effects within the meaning of Section 404(c).

EPA Final Decision at App. 107a. (emphasis added). It is also

undisputed that EPA expressly regarded the alleged cumulative

impact of losses at other unrelated wetland sites far away

Sweedens Swamp as an "important" factor in denying the per-

mit. /d at 106a. The Second Circuit, however, only addressede

the first reason offered by the EPA for its veto of the permit and

all but ignored the substantial arguments raised by petitioners

as to why the EPA’s consideration of the historical and cumula-

tive losses of wetlands at other sites in Massachusetts and

~ eae Se

7

around the country is contrary to the plain meaning of Section

404(c), 33 U.S.C. 1344(c). Consequently, the EPA acted "in ex-

cess of statutory jurisdiction, authority, and limitations .. .” and

its decision should have been set aside. 5 U.S.C. 106(2)(C).!

The lower court correctly noted in its decision that Sec-

tion 404(c), 33 U.S.C. 1344(c) "is at the heart of the instant

case." App. at 8a. That section, reproduced in footnote 3 of the

panel’s decision, App. 8a, states in pertinent part that the EPA

administrator has the authority to deny or restrict the use of any

defined area...as a disposal site, whenever he determines...that

the discharge of such materials into such area will have an un-

acceptable adverse effect on municipal water supplies, shellfish

beds and fishery areas...wildlife, or recreational areas. (em-

phasis added).

Congress could not have made it clearer that by using

the terms "defined area" and "such area," it intended that the

EPA consider the environmental impacts of the discharge only

at the site in question. The "defined area" has been defined as

49 acres of Sweedens Swamp. The term "such area" clearly

1 The panel, in footnote one of its decision, simply restated petitioners’

statutory authority issue and held without any explanation "that EPA’s

decision was wholly within its authority..." App. Sa, n.1. As for

petitioners’ second argument, that the EPA’s rejection of the

developers mitigation efforts was “arbitrary and capricious" under 5

U.S.C. 706(2)(A), the panel at least gave a curt reason for its

conclusion stating only that the EPA had a basis to believe that the

mitigation efforts "were not likely to succeed." Jd. While petitioners

maintain that the lower court neglected to further determine whether

the EPA’s assignment of a zero chance of success to the mitigation

efforts was arbitrary, especially in light of the fact that the developer

offered to undertake the mitigation efforts before he began filling the

swamp, we will nevertheless focus our petition on our first issue, i.e.,

the lower court’s failure to apply the plain meaning of the statute, since

that is the more egregious error.

8

references the term "defined area." Accordingly, the Congress

Clearly limited the authority of the EPA to considering the en-

vironmental impacts at the site in question, rather than leaving

it with open-ended and uncabined discretion to deny a permit

simply because in its view, enough wetlands have been filled

already at the national or regional level.

At oral argument before the Second Circuit, Judge Wil-

liam H. Timbers, who wrote the opinion, disparaged

petitioners’ argument that the EPA’s authority is limited by the

language Congress chose, characterizing it as a basic "law

school" type argument, and one that he rejected in an earlier

opinion he wrote but which he could not recall. To a certain

extent, the other members of the panel similarly indicated at

oral argument their belief that the EPA need not wear "blinders"

and limit their assessment of the environmental impact to the

site in question. Presumably, these views informed the court’s

unadorned and unexplained conclusion that the EPA "was

wholly within its authority” in considering the cumulative im-

pacts of other sites, rather than the site in question. App. 5a,

n.1. This conclusion is clearly wrong and violates basic rules

of statutory construction as enunciated by this Court on

numerous occasions and even as recognized by Second Circuit

in a major opinion written by Judge Timbers himself. This

grave error must be corrected because it goes to the fundamen-

tal principles of separation of powers and the role of the federal

courts in a democratic society, i.e., whether courts are com-

petent to make law and policy or whether that role is reserved

wholly to the Congress.

As the Supreme Court stated in the leading case of Chev-

ron, U.S.A., Inc. v. Natural Resources Defense Council, 467

U.S. 837 (1984):

When a court reviews an agency’s constuction of the

statute which it administers, it is confronted with two

9

questions. First, always, is the question whether

Congress has directly spoken to the precise question

at issue. If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent

of Congress....[I]f the statute is silent or ambiguous

with respect to the specific issue, the question for the

court [then, and only then] is whether the agency’s

answer [or reason for its decision] is based on a

permissible construction of the statute.

Id. at 842-43 (emphasis added). The unambiguously

expressed intent of the Congress in Section 404(c) is that the

EPA administrator is limited to considering the impacts of the

discharge at "such areas" which refers to the "defined areas,"

namely Sweedens Swamp. ss Congress wanted the EPA to

consider the impact of discharges at other areas, Congress

would not have used site-specific language. Since Congress did

expressly address the issue, "that is the end of the matter" and

neither the agency nor the lower court was free to re-write the

statute. Consequently, there is simply no need to defer to the

agency’s expertise in deciding whether its construction of an

ambiguous statute or one with "gaps" is a reasonable one.

While it may seem to the agency or the court below that

EPA’s consideration of the impact at other sites is a

"reasonable" one as a policy matter, that is not the issue. The

2 See also Middle South Energy, Inc. v. F.ER.C., 747 F.2d 763 (D.C.

Cir. 1984) where Judge Bork stated that "[p]rima facie, the use of the

iterative adjective ‘such’ indicates that this language is understandable

only by reference to the sole prior reference in" the particular statutory

provision under review." /d. at 768. In that case, the court held that

the regulatory agency lacked authority to veto or suspend initial rate

filings by the company for the sale of electricity.

10

question is whether it is a "reasonable" interpretation of the

statute, not whether it is "reasonable" as a general policy mat-

ter. The Clean Water Act is not a Wetlands Protection Act.

Since the statute is clear, EPA’s recourse is to Congress if it

feels that it needs additional authority in administering the

CWA. As the Supreme Court concluded in Chevron, "The

responsibilities for assessing the wisdom of such policy choices

and resolving the struggle between competing views of the

public interest are not judicial ones: Our Constitution vests

such responsibilities in the political branches.’" /d. at 866 citing

TVA v. Hill, 437 U.S. 153, 195 (1978).

The leading case in the Second Circuit for this proposi-

tion is an opinion written by Circuit Judge Timbers in

Manchester Environmental Coalition v. Environmental Protec-

tion Agency, 612 F.2d 56 (2d Cir. 1979). In a unanimous

opinion, the court struck down the EPA’s interpretation of a

provision of the Clean Air Act, 42 U.S.C. 7410(a)(5)(A)(iii) in

language that is equally applicable here:

In short, none of the arguments advanced by the EPA

is sufficient to overcome the clear import of the

statutory language itself. As the Supreme Court stated

in TVA v. Hill, 437 U.S. 153 (1978), courts should not

“ignore the ordinary meaning of [the] plain language"

of the statute, even though effectuating that meaning

may have undesirable public policy ramifications. Id.

at 173. In the instant case, for us to approve the EPA’s

construction of the proviso in question would be to

preempt congressional action by judicially decreeing

what "’accords with some modicum of common sense

and the public weal.’" Jd. at 194. We decline to do so.

Id. at 60 (Timbers, J.) (emphasis added). This admonition has,

until the instant case, been consistently followed by the Second

Circuit in its other decisions. See, e.g., United States v. Perdue

11

Farms, Inc., 680 F.2d 277, 285 (2d Cir. 1982) (literal reading

of statute must be followed and "inequitable" results or "alleged

drafting errors[s] are for Congress, not the courts, to resolve");

State of Connecticut v. EPA, 696 F.2d 147, 156 (2d Cir. 1982)

(opinion by Timbers, J.) ("agency does not have carte blanche

... tO interpret regulations or standards to achieve desired

result;...proper course ... would be to amend" regulations); Mc-

Mahon v. Califano, 605 F.2d 49, 52 (2d Cir. 1979) (opinion by

Timbers, J.) (court will not look behind "plain meaning" of

statute).

Other circuits have followed these fundamental prin-

ciples of statutory construction as well. See, e.g., Transbrasil

S.A. Linhas v. Dep’t of Transp., 791 F.2d 202, 206-07 (D.C.

Cir. 1986) (striking down the FAA’s limits on number of flights

by carrier to abate noise, stating that when "statute’s language

and history indicate a clear congressional intent, the court may

end its journey and deplane without ever reaching the issue of

the extent of deference to be accorded the agency’s interpreta-

tion") (opinion by Wald, J.); Moore v. Harris, 623 F.2d 908,

918 (4th Cir. 1980) (no ambiguity in statute; therefore, recourse

to agency interpretation is improper).

Needless to say, this Court has not hesitated to overturn

lower court decisions that depart from the basic rules of

statutory construction. For example, in Amoco Production Co.

v. Village of Gambell, Alaska, 107 S. Ct. 1396 (1987), this Court

reversed a Ninth Circuit decision that enjoined the sale of oil

leases on the Outer Continental Shelf (OCS) off Alaska. In so

doing, this Court looked at the language of the statute restrict-

ing the sale of oil leases "in Alaska" and concluded that the OCS

is not "in Alaska." It rejected the Ninth Circuit’s opinion that

the term "in Alaska" should be construed "in a general,

’nontechnical’ sense to mean the geographic region of Alaska,

including the Outer Continental Shelf." Jd. at 1405. "We reject

12

the notion that Congress was merely waving its hand in the

general direction of northwest North America when it defined

the scope of [the statute] as "Federal lands’ ’situated in Alas-

ka.’" Id. at 1405-06.

In the same manner, this Court should reject the EPA’s

determination that the term "such area" in section 404(c), which

clearly means the site in question, i.e., Sweedens Swamp, can

be read to mean the geographic region of all of Massachusetts

and/or the country at large.

Since it is undisputed that the EPA’s consideration of

the cumulative and historical loss of wetlands in places other

than Sweedens Swamp was "important" to its finding that there

would be "unacceptable adverse effects" on wildlife--which is

the ultimate finding required by section 404(c)--and since that

extraneous consideration was in excess of EPA’s statutory

authority and jurisdiction, this Court must reverse the lower

court and order it to vacate the agency’s decision. This result

obtains even if this Court should reject Bersani’s petition on the

issue of whether there was a practicable alternative site on

which to build the mall. This is so because the EPA expressly

stated that both reasons, i.e., the avoidability of the loss and the

cumulative impact of losses of wetlands generally other than at

the proposed site, together constituted the basis for vetoing the

fill permit. Consequently, if any of the two reasons were im-

properly considered, the EPA could decide that the one reason

standing alone would be insufficient grounds upon which to

base its veto of the permit. Obviously, if both reasons were im-

properly considered, and we believe that they were (based upon

the arguments in this petition as well as the petition of Bersani,

et al., and the dissenting opinion of Chief Judge Pratt), then the

EPA would have no choice but to issue the permit.

13

CONCLUSION

The issue raised by this petition is a serious one dealing

with the fundamental role of the federal courts in determining

what the law is, not what it should be. Congress clearly limited

the EPA’s veto authority of a permit to considering the environ-

mental effects of any fill at the proposed site in question. Never

before has the EPA claimed such a broad expanse of authority

as it has in this case. If this decision is not overturned, the EPA

will be allowed by the courts rather than by Congress to exer-

cise unlimited discretion in vetoing any of the 11,000 permit

applications filed each year on the grounds that in its view,

enough wetlands have already been filled in. In such a case,

Congress’ express desire to balance environmental considera-

tion with responsible economic development in the permitting

process will have been thwarted.

Respectfully submitted,

DANIEL J. POPEO

PAUL D. KAMENAR*

WASHINGTON LEGAL FOUNDATION

1705 N Street, N.W.

Washington, D.C. 20036

(202) 857-0240

*Counsel of Record