Amicus Brief — United States v. Riverside Bayview Homes, Inc.

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wov 16 308 No. 84-701

IN THE

Supreme Court of the United States

OcTOBER TERM, 1984

UNITED STATES OF AMERICA,

Petitioner

Vv.

RIVERSIDE BAYVIEW Homes, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AND

PROPOSED BRIEF AS AMICI CURIAE

NATIONAL WILDLIFE FEDERATION, AMERICAN FISHERIES

Society, AMERICAN LITTORAL SOCIETY,

Bass ANGLERS SPORTSMAN SOCIETY,

CHESAPEAKE Bay FOUNDATION, INC., ENVIRONMENTAL

Po.Licy INSTITUTE, STATE OF FLORIDA, FLORIDA

AUDUBON SOcIeETY, FLORIDA WILDLIFE FEDERATION,

MICHIGAN UNITED CONSERVATION CLUBS, INC.,

NorTH CAROLINA WILDLIFE FEDERATION,

Scenic Hupson, INc., SIERRA CLUB,

TENNESSEE CONSERVATION LEAGUE,

WILDLIFE MANAGEMENT INSTITUTE,

CLEAN WATER ACTION PROJECT,

SOUTH CAROLINA WILDLIFE FEDERATION,

ENVIRONMENTAL DEFENSE FUND, INC.,

STATE OF MICHIGAN,

NATURAL Resources DEFENSE COUNCIL, INC.,

LOUISIANA WILDLIFE FEDERATION, and

Trout UNLIMITED

IN SUPPORT OF PETITION

FRANK J. KELLEY Jerry JACKSON

Attorney General National Wildlife Federation

Louis CARUSO 1412 Sixteenth St., N.W.

Solicitor General Washington, DC 20036

State of Michigan (202) 797-6827

760 Law Building

Lansing, Mich. 48913 Counsel of Record and

(517) 373-1110 Attorney for Amici Curiae

MOTION a

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1984

No. 84-701

UNITED STATES OF AMERICA,

Petitioner

Vv.

RIVERSIDE BAYVIEW Homes, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF

AS AMICI CURIAE

NATIONAL WILDLIFE FEDERATION, AMERICAN FISHERIES

SOcIETY, AMERICAN LITTORAL SOCIETY,

Bass ANGLERS SPORTSMAN SOCIETY,

CHESAPEAKE Bay FOUNDATION, INC., ENVIRONMENTAL

Po.icy INSTITUTE, STATE OF FLORIDA, FLORIDA

AUDUBON SOCIETY, FLORIDA WILDLIFE FEDERATION,

MICHIGAN UNITED CONSERVATION CLUBS, INC.,

NorTH CAROLINA WILDLIFE FEDERATION,

Scenic Hupson, INc., SIERRA CLUB,

TENNESSEE CONSERVATION LEAGUE,

WILDLIFE MANAGEMENT INSTITUTE,

CLEAN WATER ACTION PROJECT,

SOUTH CAROLINA WILDLIFE FEDERATION,

ENVIRONMENTAL DEFENSE FUND, INC..,

STATE OF MICHIGAN,

NATURAL Resources DEFENSE COUNCIL, INC.,

LOUISIANA WILDLIFE FEDERATION, and

Trout UNLIMITED

IN SUPPORT OF PETITION

The National Wildlife Federation and the above named

organizations ( NWF et al.) hereby respectfully move for leave

to file the attached brief as amici curiae in support of the United

2

States. The consent of counsel for the respondent has been

requested but not yet obtained. The petitioner has consented.

The interest of amici curiae in this case arises from the fact

that the court of appeals decision could potentially remove

significant portions of this Nation’s wetlands from the coverage

of Section 404 of the Clean Water Act, 33 U.S.C. 1344.

Amici curiae consist of two States and various non-profit

membership organizations dedicated to the conservation and

wise use of natural resources including wetlands. Members and

citizens of amici curiae regularly use and enjoy the wetlands of

the United States for outdoor recreation, including fishing,

hunting, hiking, camping, nature observation, photography,

scientific study, and aesthetic enjoyment. Members and citizens

of amici curiae also have a substantial interest in the protection

and preservation of wetlands because these resources contribute

to the maintenance and restoration of the chemical, physical,

and biological integrity of the Nation’s waters. Members and

citizens of amici curiae will be adversely affected by a judicial

decision which removes important wetlands from the regulatory

scope of Section 404 of the Clean Water Act.

Amici curiae have participated extensively in alli facets of

public decisionmaking on the use of wetlands. Amici curiae

have also brought, entered, and filed amicus curiae briefs in

numerous lawsuits involving Section 404 and wetlands. Na-

tional Wildlife Federation, Michigan United Conservation

Clubs, Inc., and Tennessee Conservation League filed a brief as

amicus curiae in support of the United States’ petition for

rehearing of the court of appeals decision. A more detailed

statement of the interests of amici curiae is set out as Appendix

A to the attached proposed brief.

As more fully set forth in the attached proposed brief,

amici curiae are concerned that the court of appeals incorrectly

narrowed the geographic scope of Section 404 contrary to

congressional intent. In addition, amici curiae believe that the

court of appeals decision warrants review by this Court because

of the decision’s potential impact on wetlands which provide

substantial values and therefore should be protected.

3

The proposed brief is intended to supplement but not

duplicate the United States’ petition. As such, the brief should

assist the Court in determining whether to grant a writ of

certiorari.

Accordingly, amici curiae NWF et al. respectfully request

leave to file the attached brief in support of the United States.

Respectfully submitted,

JERRY JACKSON

National Wildlife Federation

1412 Sixteenth St., N.W.

Washington, DC 20036

(202) 797-6827

Counsel of Record and

Attorney for Amici Curiae

FRANK J. KELLEY

Attorney Genera!

Louis CARUSO

Solicitor General

State of Michigan

760 Law Building

Lansing, Mich. 48913

(517) 373-1110

7 ‘

76 oe

v8

No. 84-701

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

UNITED STATES OF AMERICA,

Petitioner

Vv.

RIVERSIDE BAYVIEW HOMES, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PROPOSED BRIEF AS AMICI CURIAE

NATIONAL WILDLIFE FEDERATION, AMERICAN FISHERIES

SOcIETY, AMERICAN LITTORAL SOCIETY,

Bass ANGLERS SPORTSMAN SOCIETY,

CHESAPEAKE BAY FOUNDATION, INC., ENVIRONMENTAL

POLicy INSTITUTE, STATE OF FLORIDA, FLORIDA

AUDUBON SOCIETY, FLORIDA WILDLIFE FEDERATION,

MICHIGAN UNITED CONSERVATION CLUBS, INC.,

NorTH CAROLINA WILDLIFE FEDERATION,

ScENIC Hupson, INC., SIERRA CLUB,

TENNESSEE CONSERVATION LEAGUE,

WILDLIFE MANAGEMENT INSTITUTE,

CLEAN WATER ACTION PROJECT,

SOUTH CAROLINA WILDLIFE FEDERATION,

ENVIRONMENTAL JOEFENSE FUND, INC..,

STATE OF MICHIGAN,

NATURAL RESOURCES DEFENSE COUNCIL, INC.

LOUISIANA WILDLIFE FEDERATION, and

Trout UNLIMITED

IN SUPPORT OF PETITION

FRANK J. KELLEY JERRY JACKSON

Attorney General National Wildlife Federation

Louis CARUSO 1412 Sixteenth St., N.W.

Solicitor General Washington, DC 20036

State of Michigan (202) 797-6827

760 Law Building

Lansing, Mich. 48913 Counsel of Record and

(517) 373-1110 Attorney for Amici Curiae

i

QUESTION PRESENTED

Whether the definition of wetlands for purposes of Clean

Water Act regulation correctly includes wetland areas that are

not frequently flooded by adjacent streams.

il

TABLE OF CONTENTS

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QUESTION PRESENTED ...............:.ccceceeeeeeeeeeeeeeenees i

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TABLE OF AUTHORITIES ......................ccccceeeeeeeeeeees ul

INTERESTS OF AMICI CURIAE .......0............cccceeeee I

INTRODUCTORY STATEMENT......... seieniiiesiiaiaeeiiain 2

REASONS FOR GRANTING THE PETITION ....... 4

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TABLE OF AUTHORITIES

Page

CASES:

Avoyelles Sportsmen’s League v. Marsh, 715 F.2d 897

CR Ge, GD cencccpetsennsenntatnnspsensnscannsensmesesmmnnnsenmnnese 10

Bell v. New Jersey, 102 S. Ct. 2187 (1983) .............-.0 10

Chapman v. Houston Welfare Rights Org., 441 U.S.

OD , 10

Minnehaha Creek Watershed Dist. v. Hoffman, 597

PC le 4 ) 10

Mount Sinai Hosp. v. Weinberger, 517 F.2d 329 (Sth

0. | ee 10

United States v. City of Fort Pierre, No. 84-1162 (8th

Cie. Bat, BE, STIG D ceccesenccnssccccescccnssecsnsencnnsasssensvsssencnss 10

United States v. Tilton, 705 F.2d 428 (11th Cir.

A 10

Utah v. Marsh, 740 F.2d 799 ( 10th Cir. 1984) ............ 10-11

CONSTITUTION, STATUTES, AND REGULATIONS:

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Clean Water Act, 33 U.S.C. 1251 ef seq.

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33 U.S.C. 1F19C BD), (C) ....crrrrrcrrrcrrcrrrrrrrrrereeseeseees 6

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33 C.F.R. 323.2(c) (1983)... maparnasomennetanecasen

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40 Fed. Reg. 31324-31325, formerly codified at 33

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MISCELLANEOUS:

Congressional Research Service, 95th Cong. Ist Sess.,

Legislative History of the Federal Water Pollution

Control Act Amendments ( 1977) ....0.00...ccccccceeceeees

Harper & Row’s Complete Field Guide to North

American Wildlife ( Eastern Ed.) (1981) 0.000000...

Office of Technology Assessment, Wetland Use and

Regulation: Alaska Case Study ( 1983) .......00.0000....

Office of Technology Assessment, Wetlands: Their

Use and Regulation (1984) ooo. eee

C. Richardson, Pocosin Wetlands ( 1980)......... lias

U.S. Army Engineers Waterways Experiment Station,

Preliminary Guide to the Onsite Identification and

Delineation of the Wetlands of the Interior United

A SETS ae Ce a

U.S. Fish & Wildlife Service, Classification of Wet-

lands and Deepwater Habitats of the United States

RD SERS ETUC REISE renner

U.S. Fish and Wildlife Service, Wetlands of the

United States: Current Status and Recent Trends

ERE REE AC ieee aa SESE eee

Want, Federal Wetlands Law: The Cases and the

Problems, 8 Harv. Env. L. Rev. | (1984) ................

M. Weller, Freshwater Marshes: Ecology and Wild-

life Management ( 1981 ) oo... cecceeccceecececeeees

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IN THE

Supreme Court of the United States

OcToBer TERM, 1984

No. 84-701

UNITED STATES OF AMERICA,

Petitioner

Vv.

Riversipe Bayview Homes, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF AMICI CURIAE

NATIONAL WILDLIFE FEDERATION, AMERICAN FISHERIES

Society, AMERICAN LITTORAL SOCIETY,

Bass ANGLERS SPORTSMAN SOCIETY,

CHESAPEAKE Bay FOUNDATION, INC., ENVIRONMENTAL

Po.icy INSTITUTE, STATE OF FLORIDA, FLORIDA

AUDUBON SOcIETY, FLORIDA WILDLIFE FEDERATION,

MICHIGAN UNITED CONSERVATION CLUBS, INC..,

NorTH CAROLINA WILDLIFE FEDERATION,

Scenic Hupson, INc., Srerra CLus,

TENNESSEE CONSERVATION LEAGUE,

WILDLIFE MANAGEMENT INSTITUTE,

CLEAN WATER ACTION PROJECT,

SOUTH CAROLINA WILDLIFE FEDERATION,

ENVIRONMENTAL DEFENSE FUND, INC..,

STATE OF MICHIGAN,

NaTURAL Resources DereNse COUNCIL, INC., and

Trout UNLIMITED

IN SUPPORT OF PETITION

INTERESTS OF AMICI CURIAE

Amici curiae consist of two States and various non-profit

membership organizations dedicated to the conservation and

2

wise use of natural resources including wetlands. Members and

citizens of amici curiae regularly use and enjoy the wetlands of

the United States for outdoor recreation, including fishing,

hunting, hiking, camping, nature observation, photography,

scientific study, and aesthetic enjoyment. Members and citizens

of amici curiae also have a substantial interest in the protection

and preservation of wetlands because these resources contribute

to the maintenance and restoration of the chemical, physical,

and biological integrity of the Nation’s waters. Members and

citizens of amici curiae will be adversely affected by a judicial

decision which removes important wetlands from the regulatory

scope of Section 494 of the Clean Water Act.

Amici curiae have participated extensively in all facets of

public decisionmaking on the use of wetlands. Amici curiae

support Section 404 of the Clean Water Act, 33 U.S.C. 1344,

and believe in preservation of the geographical scope of Section

404 in its present form. Amici curiae have also brought,

entered, and filed amicus curiae briefs in numerous lawsuits

involving Section 404 and wetlands. A more detailed statement

of the intevests of amici curiae is set out as Appendix A to this

brief.

INTRODUCTORY STATEMENT

Section 404 of the Clean Water Act, 33 U.S.C. 1344,

prohibits the unpermitted discharge of dredged or fill material

into waters of the United States, including wetlands. 33 U.S.C.

1344 & 1362(7). The Secretary of the Army, through his

designee, the Corps of Engineers, and the Environmental

Protection Agency are responsible for enforcement of Section

404. This action was brought to enjoin an unpermitted

discharge of dredged or fill material into a wetlands site owned

by the respondent Riverside Bayview Homes, Inc. ( Riverside ).

The district court held seven days of hearings and visited

the site, primarily to determine whether Riverside’s tract con-

tained a wetland ( Pet. App. 23a). The testimony demonstrated

that the site is characterized by the presence of plants such as

cattails, sedge, and common reed. E.g., Tr. Jan. 13, 1977, at

3

20-21, 36; Jan. 15, 1977, at 8-9, 14, 21, 87, 130. These plants

require or are adapted to water-logged or highly saturated soils

and, therefore, are commonly considered to be indicators of

wetlands. U.S. Army Engineers Waterways Experiment Sta-

tion, Preliminary Guide to the Onsite Identification and Delin-

eation of the Wetlands of the Interior United States 9-12 &

Al-Al0 (1982); U.S. Fish & Wildlife Service, Classification of

Wetlands and Deepwater Habitats of the United States 3

(1979).

In addition, the evidence showed that the soil on the tract

has the characteristic of retaining water and that the water table

is within inches of the surface. Tr. Jan. 22, 1977, at 114-115,

163. The area has been a wetland for decades. E.g., Tr. Jan.

15, 1977, at 134. Riverside’s tract is part of a larger wetland

area on the western shore of Lake St. Clair (located approxi-

mately one mile from the site) and would be inundated but for

a system of dikes and drains in the area. Jd. at 156. The site is

inhabited by muskrat and long-billed marsh wrens (id. at 54-

55, 97), species found almost exclusively in wetlands habitat.

Harper & Row’s Complete Field Guide to North American

Wildlife (Eastern Ed.) 150 & 265 (1981). At the time of the

January 1977 hearing, the Riverside tract was covered by two

to four inches of ice. Tr. Jan. 15, 1977, at 97.

On this evidence, the district court properly found a

portion of the area to be a wetland and enjoined Riverside from

filling that portion without first obtaining a Section 404 permit

(Pet. App. 30a-31a)."

‘In reaching this result the court applied the definition of “freshwater

wetlands” contained in regulations promulgated by the Corps in 1975. 40

Fed. Reg. 31324-31325 (July 25, 1975), formerly codified at 33 C.F.R.

209.120(d)(2)(A). Subsequent to the entry of a preliminary injunction

against Riverside, the Corps’ definition of wetlands was revised in 1977. 33

C.F.R. 323.2(¢) (1983) promulgated at 42 Fed. Reg. 37122 (July 19, 1977).

The distnct court entered final judgment against Riverside without reference

to the revised definition ( Pet. App. 32a-37a). Upon Riverside’s first appeal

of the final judgment, the court of appeals remanded for reconsideration in

light of the new 1977 definition (id. at 42a). The district court ( by a different

judge ) sustained final judgment for the United States and Riverside appealed

again (id. at 42a-44a).

4

The court of appeals reversed, ruling that Section 404 was

inapplicable to the Riverside tract because the site was not

“frequently flooded by waters from adjacent streams” ( Pet.

App. 12a and I5a). The court stated that this restrictive test

was necessary to prevent presumably unconstitutional takings

(id. at 13a-l6a). Accordingly, the court reversed the district

court’s injunction of unpermitted discharges. The United

States’ petition for rehearing was denied ( Pet. App. 20a-21a).

REASONS FOR GRANTING THE PETITION

The United States’ petition should be granted because the

decision of the court below frustrates the clear intent of

Congress in enacting Section 404, is in direct conflict with the

decision of several other circuits, and will wreak havoc on

consistent nationwide administration of this important pro-

gram. While these grounds are amply explained in the petition,

amici curiae submit this brief to amplify several points, primar-

ily the impact of the court of appeals decision on the resources

Congress intended to protect.

It is clear that Congress recognized the importance of

wetlands and intended, through Section 404, to protect these

areas to the full extent of its legislative authority unaer the

Commerce Clause. The regulatory definitions of “wetlands”

fully reflect this congressional mandate and good science.

However, the decision of the court below frustrates the clear

intent of Congress, ignores the scientific basis for the regulatory

definitions, and threatens to remove important wetlands from

the scope of Section 404.

1. Wetlands indisputably perform a number of functions

that are socially, economically, and environmentally desirable.

Numerous species of fish and wildlife inhabit wetlands and

others depend on the contributions of wetlands to ecosystem

food chains. U.S. Fish & Wildlife Service, Wetlands of the

United States: Current Status and Recent Trends 13-18 (1984)

(hereafter “Wetlands of the United States”). Wetlands im-

prove water quality by filtering nutrients, wastes, and sediments

from surface runoff before these materials reach water bodies.

5

Id. at 18-19. Wetlands perform millions of dollars worth of

waste treatment. Jd. Wetlands also reduce the effects of floods

and storms by providing storage space for excess water and

preventing millions of dollars of flood damage. /d. at 21-23. In

addition wetlands recharge groundwater in aquifers providing

public water supplies. Jd. at 23. Finally, and not least of all,

wetlands provide significant recreation and aesthetic value to

hunters, fishermen, bird watchers, and others who appreciate

the natural characteristics of these areas. Jd. at 24-25. Even

this latter function is of more than sentimental value: for

example, sportfishermen alone spend $13 billion per year to

catch wetland-dependent fishes. Jd. at 24.

Approximately 450,000 acres of wetlands are intentionally

destroyed every year in the United States. Wetlands of the

United States, supra, at 31. Ninety-seven percent of this loss

has occurred in inland, freshwater wetlands such as Riverside’s.

Office of Technology Assessment, Wetlands: Their Use and

Regulation 7 (1984) (hereafter “OTA, Wetlands”). The State

of Michigan, where this case arose, has had 71 percent of its

original wetlands destroyed. Wetlands of the United States,

supra, at 32-34.

Section 404 of the Clean Water Act is virtually the only

federal regulatory statute available to protect these wetlands

from destruction. Want, Federal Wetlands Law: The Cases

and the Problems, 8 Harv. Env. L. Rev. 4-5 (1984). Almost all

coastal states have laws protecting coastal wetlands but only

eight states have laws protecting inland wetlands. OTA,

Wetlands, supra, at 13. Inland wetlands, which make up 95

percent of the Nation’s wetlands, must rely almost entirely on

Section 404 for protection. Jd.

To a scientist, “wetlands” are essentially those areas where

life can survive in a saturated environment. According to the

United States Fish and Wildlife Service,

wetlands are lands where saturation with water is the

dominant factor determining the nature of soil devel-

opment and the types of plant and animal commu-

nities living in the soil and on its surface. The single

feature that most wetlands share is soil or substrate

6

that is at least periodically saturated with or covered

by water. The water creates severe physiological

problems for all plants and animals except those that

are adapted for life in water or in saturated soil.

US. Fish & Wildlife Service, Classification of Wetlands and

Deepwater Habitats of the United States 3 (1979) (hereafter

“Classification of Wetlands”).2 Thus the primary factor in

classifying an area as a wetland is the extent and duration of

water present. As a result, life existing in such areas must be

tolerant of or dependent upon saturated conditions to survive.

Hence, the Corps’ and EPA's identical definitions of “wetlands”

appropriately focus on “areas... . inundated or saturated ... at

a frequency and duration sufficient to support... a prevalence

of vegetation typically adapted for life in saturated soil condi-

tions.” 33 C.F.R. 323.2(c) (1983) (Corps) and 40 C.F.R.

230.3(t) (1983) (EPA).

The source of the water for any particular wetland is

irrelevant to the question of whether the area supports a

prevalence of life forms typically adapted to saturated soil

conditions. Thus the regulatory definitions again correctly state

that the “inundat{ion] or saturat{ion]” may be caused “by

surface or ground water.” 33 C.F.R. 323.2(c) and 40 C.F.R.

230.3(t). By the same token the source of the water is not a

limiting factor in whether wetlands perform valuable functions.

Therefore, a critical and significant flaw in the court of

appeals decision is the requirement that a Section 404 wetland

2 The US. Fish and Wildlife Service is responsible for administering the

National Wetlands Inventory. See Section 208(i)(2), Clean Water Act, 33

U S.C. 1288(1)(2). The National Wetlands Inventory is designed to use the

Fish and Wildlife Service's biological expertise to provide scientific informa-

uon on wetlands characteristics as wel! as to indicate the extent of such areas

in the United States. Wetlands of the United States, supra, at |. The

information 1s intended to provide technical assistance to agencies regulating

activities in wetlands. Jd; see 33 US.C. 1288/1).

2 EPA shares Section 404 permit responsibility with the Corps. EPA has

uluumate authonty in permit decisions by virtue of us power to veto any permit

issued by the Corps. Section 404(c), 33 US.C. 1344(c). In addition, EPA

has authority to bring an enforcement action against any unpermuitted

discharge of dredged or fill maternal into wetlands. Sections 301( a), 30% b)

and (c), Clean Water Act. 33 US.C. 131 1(a), 13191 b) and (c).

7

must be “frequently flooded by... adjacent streams” ( Pet.

App. 15a). This standard incorrectly removes from Section 404

the numerous types of wetlands which perform valuable wet-

lands functions because of saturated conditions and attendent

life forms.

For example, approximately three million acres of “prairie

pothole” wetlands exist in the Northern Great Piains. Wet-

lands of the United States, supra, at 42. These wetlands,

formed in glacial depressions in an otherwise flat landscape, are

seldom frequently flooded by adjacent streams. /d.; M. Weller,

Freshwater Marshes: Ecology and Wildlife Management 7-9

and 12 (1981) (hereafter ““Weller”). Nonetheless they per-

form significant wetland functions. Prairie potholes constitute

only one-tenth of North America’s waterfowl breeding area but

produce half of the annual duck crop. Wetlands of the United

States, supra, at 42. Waterfowl hunting is a $638 million per

year business in this country. Jd. at 24. In addition these

shallow depressions provide substantial flood control functions

on the Great Plains. Jd. at 43. Potholes have been found to

retain up to 75% of surface runoff. /d. at 22. Prairie potholes

are also believed to contribute to groundwater recharge. /d. at

23.

Alaska’s 100 million acres of tundra wetlands are the result

of snowmelt and the thawing of permafrost substrate. Weller,

supra, at 10; Office of Technology Assessment, Wetland Use

and Regulation: Alaska Case Study 2-2 and 2-3 (1983). Again

frequent flooding by adjacent streams plays little or no part in

the maintenance of these wetlands. Yet tundra wetlands

provide nesting and breeding habitat for millions of ducks,

geese, other waterfowl, and shorebirds which migrate to Alaska

each year. /d. at iii and 2-6 through 2-7. Caribou herds depend

on vast areas of Alaska tundra not only for calving grounds but

also for migratory range which prevents depletion of their

lichen food supply. /d. at ii and 2-6 through 2-8.

Similarly the 2.2 million acres of pocosin wetlands in

North Carolina are formed by groundwater and rainfall, not

flooding by adjacent streams. C. Richardson, Pocosin Wet-

lands 5 (1980) (hereafter “Richardson”). These forested

wetlands provide habitat for many animal species, including

8

coastal black bears. Wetlands of the United States, supra, at

49. Destruction of pocosin wetlands leads to increased fresh-

water runoff into saltwater and brackish estuarine systems,

destroying shellfish and finfish nurseries. Richardson, supra, at

243-249. North Carolina’s fishing industry is dependent upon

estuarine nurseries and is estimated to generate more than $300

million in revenues per year. Jd. at 238-239.

All or most of these wetlands do not fall within the court of

appeals’ narrow restriction on the geographic reach of Section

404. Nonetheless they are undoubtedly wetlands from a

scientific point of view and are capable of performing valuable

wetlands functions. Moreover these same valuable functions

stimulated Congress to include wetlands within the scope of

Section 404.

2. In the course of considering proposals to restrict Section

404’s geographic scope in 1977 (see Pet. 13-15), Congress

expressly stated its concern that the Nation’s valuable wetlands

were being lost through ill-advised development. Many of the

same wetland values discussed in Part |, supra, were identified

in Floor debates by opponents of an amendment to narrow

Section 404’s reach. Senators Stafford, Chafee, Baker, and

Hart, all members of the Senate Committee reporting the 1977

amendments to the 1972 Clean Water Act, described at length

these valuable wetlands roles. Congressional Research Service,

95th Cong., Ist Sess., Legislative History of the Federal Water.

Pollution Control Act Amendments Vol. 4 at 881-882, 917, 920-

923, and 927 (1977) (hereafter “Leg. Hist.”). Senator Baker’s

remarks summarized these values:

As you know, wetlands are a priceless, multiuse

resource. They perform the following services:

First, high yield food sources for aquatic

animals;

Second, spawning and nyrsery areas for com-

mercial and sports fish;

Third, natural treatment of waterborne and air-

borne pollutants;

Fourth, recharge of ground water for water

supply:

9

Fifth, natural protection from floods and storms;

and

Sixth, essential nesting and wintering areas for

waterfowl.

We should be mindful of the fact that when

these areas are polluted out of existence, we will have

lost the very valuable free service of nature; and if

toxic-laden dredged or fill material is discharged into

wetlands, we risk poisoning the very foundation of

our aquatic system.

4 Leg. Hist., supra, at 923.

Although an amendment limiting Section 404’s geographic

scope passed the House, opponents there espoused these same

values. For example, Representative Lehman argued that

Section 404

is a key to the protection of drinking supplies, finfish

and shellfish spawning grounds, wildlife nesting and

breeding areas, and countless aesthetic and recrea-

tion benefits that are enjoyed throughout the Nation.

Furthermore, wetlands provide free of charge $140

billion worth of flood protection and water purifica-

tion services, according to the clean water action

project. Such priceless natural resources should be

given Federal protection from development and de-

struction. However, the amount of wetlands in our

Nation has diminished by 50 percent over the past

200 years.

Id. at 1317. Representative Bonior, whose District includes

Riverside’s wetlands, invoked similar arguments in support of

broad Section 404 jurisdiction. Jd. at 1320; see also id. at 1247

(House Committee Report, Additional Views of Reps. Edgar

and Myers).

Recognition of the very same values discussed in Part 1,

supra, and performed by wetlands excluded by the court of

appeals decision carried the day as Congress deliberately

refrained from narrowing the geographic scope of Section 404.

Legislative history in this context has “persuasive value” be-

cause “ ‘Congress is not merely expressing an opinior.. . . but is

10

acting on what it understands its own prior acts to mean.’ ” Bell

v. New Jersey, 102 S. Ct. 2187, 2194-2195 & n. 12 (1983),

quoting Mount Sinai Hosp. v. Weinberger, 517 F.2d 329, 343

(Sth Cir. 1975). Here Congress clearly explained that in 1972

it meant the term “navigable waters” to encompass the vast

multitude of wetlands so beneficial to society without regard to

the kind of artifical standard invented by the court of appeals.

See Minnehaha Creek Watershed Dist. v. Hoffman, 597 F.2d

617, 626 (8th Cir. 1979) (applying 1977 legislative history to

determine regulatory scope of Section 404 as originally passed ).

The court of appeals’ constricted reading of Section 404

would remove from the statute many of the very wetlands

which Congress sought to cover. Thus the decision violates the

cardinal rule of statutory construction requiring federal statutes

to be interpreted “in light of the purposes Congress sought to

serve.”” Chagman v. Houston Welfare Rights Org., 441 U.S. 600,

608 (1979). Moreover the decision casts in doubt the federally

regulated status of millions of acres of valuable wetlands.

3. The court below also incorrectly ignored express con-

gressional intent that the geographic reach of Section 404 is to

be coextensive with Congress’ authority under the Commerce

Clause (U.S. CONST. Art. I, § 8, cl. 3). Section 404(a)

prohibits unpermitted “discharge of dredged or fill material

into the navigable waters....” 33 U.S.C. 1344(a). “Navi-

gable waters” is defined in the Act to mean “waters of the

United States, including territorial seas.” Section 502(7), 33

U.S.C. 1362(7). Congress intended “navigable waters” to “be

given the broadest constitutional interpretation.” | Leg. Hist.,

supra, at 144 (Conference Committee Report on 1972 Act); see

Pet. 12-13.

Other courts addressing the issue of the geographic limits

of Section 404 have held that the term “navigable waters” in

Section 404 was intended to reach to the limits of Congress’

Commerce Clause authority. E.g., Utah v. Marsh, 740 F.2d

799, 802 (10th Cir. 1984); Avoyelles Sportsmen’s League v.

Marsh, 715 F.2d 897, 914-916 & n. 33 (Sth Cir. 1983); United

States v. Tilton, 705 F.2d 428, 431 ( 11th Cir. 1983 ).4 Therefore

4Cf. United States v. City of Fort Pierre, No. 84-1162 (8th Cir. Oct. 31,

1984).

the only limits on Section 404’s applicability to a wetland are

(1) whether the area meets the regulatory definition of “wet-

lands,” 33 C.F.R. 232.2(c) and 40 C.F.R. 230.3(t), and (2)

whether regulation of discharges into the area is within Con-

gress’ Commerce Clause authority.

The court of appeals decision ignores the multitude of

federal cases extending Section 404’s coverage to the limits of

the Commerce Clause. Moreover, the “frequently flooded

by ... adjacent streams” restriction is completely at odds with

such an analysis since it is quite easy to identify wetlands which

affect interstate commerce but do not meet the test fashioned by

the court below.

For example, the Tenth Circuit Court of Appeals has

recently ruled that Section 404 applies, by virtue of the

Commerce Clause, to fills in an “isolated” lake (i.e., not

connected to a surface tributary system) in part because the

lake provides habitat for migratory waterfowl protected by

other federal law and international treaty. Utah v. Marsh,

supra, 740 F.2d at 804. Prairie potholes, described in Part |,

supra, are the most significant migratory waterfowl breeding

areas in North America. Most prz‘rie potholes are not “fre-

quently flooded by . . . adjacent streams.” Accordingly the deci-

sion of the court below is wholly contrary to Congress’ intent to

apply Section 404 to all wetlands, subject only to Commerce

Clause limitations.

b. The Sixth Circuit’s unsupportable repudiation of the

other circuits’ rulings will }ead to an unmanageable inconsis-

tency in the enforcement of Section 404 on a nationwide basis.

In addition to the practical difficulties identified by the United

States (Pet. 21-22 & n. 20), the court of appeals decision

creates a wholly unpredictable jurisdictional test because no-

where did the court explain how “frequently” an area must be

flooded by an adjacent stream to constitute 2 wetland.

All that can be said is that an area flooded five or six times

within the 80 years in which flooding records are available ( see

Pet. App. 28a-29a) is not a wetland. There is no way of

knowing whether flooding five or six times within 79 or fewer

years or seven or more times within 80 years is sufficiently

12

“frequent.” Identification of plant species adapted to saturated

soil conditions is relatively easy; identification of areas “fre-

quently flooded” is not. Substitution of such an unworkable

test for a reasonably predictable one, upheld by other courts

and consistent wth congressional intent, creates an intolerable

and unjustified burden for regulators, dischargers, and those

who wish to preserve wetlands.5

5 The United States notes that the court of appeals decision will impose

substantial financial cost on regulators ar | landowners attempting to deter-

mine jurisdiction under the “frequently flooded” test. Pet. 21. This argument

is compelling in view of the fact that Congress rejected the “traditional”

navigable waters approach (see Pet. 3-4) for Section 404 in part to avoid

imposing such a financial burden:

For example, the old jurisdictional mean high water line in our

coastal waters was costly to establish ....

Today this problem has been eliminated. The location of a

coastal marsh by using the aquatic vegetation line accurately

identifies most m*.sh areas....No longer is it necessary to

expend thousands of dollars for tide experts and surveyors to

establish the exact mean high water mark as required by the old

[ C]orps program.

4 Leg. Hist., supra, at 922 ( Remarks of Sen. Baker. Aug. 4, 1977) [emphasis

added]. These concerns apply as well to hydrologists’ costs.

Ce ee Ee

13

CONCLUSION

For these reasons and those stated in the petition, the

United States’ petition for a writ of certiorari should be granted.

November 1984

Respectfully submitted,

JERRY JACKSON

National Wildlife Federation

1412 Sixteenth St., N.W.

Washington, DC 20036

(202) 797-6827

Counsel of Record and

Attorney for Amici Curiae

FRANK J. KELLEY

Attorney General

Louts Caruso

Solicitor General

State of Michigan

760 Law Building

Lansing, Mich. 48913

(517) 373-1110

APPENDIX A

Detailed Statement of Interests

The National Wildlife Federation is a nonprofit member-

ship organization incorporated in 1939 under the laws of the

District of Columbia. The Federation maintains its headquar-

ters at 1412 Sixteenth Street, N.W., Washington, DC 20036

(telephone 202-797-6827). The Federation is the largest

nongovernmental conservation education organization in the

world, with affiliate organizations in 49 states and three terri-

tories. Its 4.1 million members and supporters are dedicated to

increasing public awareness of the need for wise use, proper

management, and conservation of our natural resources. The

Federation undertakes a comprehensive conservation education

program, distributes numerous periodicals and educational

materials, lobbies for the adoption of laws to protect and

improve the environment, and litigates when necessary to

conserve natural resources and wildlife. The Federation has

undertaken a wide range of legal, legislative, administrative,

and educational initiatives aimed at improving the conservation

of wetlands and other wildlife habitac.

The American Fisheries Society is a nonprofit professional

society organized in 1870 to promote the conservation, devel-

opment and wise utilization of recreational and commercial

fisheries. The Society supports the conservation of wetlands

because such areas play a critical role in the well-being of many

fisheries. The Society has 8,300 members.

The American Littoral Society is a nonprofit membership

organization founded in 1961 to encourage scientific research of

and foster public interest in aquatic life. The Society’s members

include fishermen, hunters, and others who use wetlands and

work for the conservation of this resource. The Society has

5,000 members.

The Bass Anglers Sportsman Society (BASS) is a non-

profit membership organization founded in 1968 to fight pollu-

tion and provide conservation education. BASS’s member

sportsmen and 1500 affiliated local chapters are located in all

2a

S50 states. BASS’s members are committed to the preservation

of wetlands and water quality in order to maintain and enhance

the nation’s fishery resources.

The Chesapeake Bay Foundation, Inc., is a nonprofit

regional membership organization founded in 1966 to promote

the environmental welfare and proper management of Chesa-

peake Bay, including its tidal tributaries. The Foundation

accomplishes these goals through citizen representation,

environmental education, and land preservation. The Founda-

tion has 6,500 members.

The Environmental Policy Institute is a nonprofit organiza-

tion that conducts research, education, lobbying, and litigation

on key energy and environmental laws. The Institute is

dedicated to organizing economically, politically, and geo-

graphically diverse citizen coalitions on environmental issues

including water quality and wetlands protection. The Institute

produces a periodic educational newsletter reporting on these

issues to concerned citizens across the country.

The State of Florida has a vital interest in protecting the

significant wetland resources found in Florida. Over 40 percent

of Florida’s original wetlands have been destroyed by human

activity. This loss has had a devastating effect on Florida’s

economy, causing increased flooding of property and decreased

catches in fisheries dependent upon wetlands. Although Flon-

da has enacted wetlands legislation, a s\rong federal regulatory

program is necessary to enhance State wetlands protection.

The Florida Audubon Society is a statewide nonprofit

organization founded in 1900 to provide an understanding of,

and an interest in wildlife, and in the environment that supports

it, and to further the cause of wildlife conservation.

The Florida Wildlife Federation is a statewide nonprofit

organization affiliated with the National Wildlife Federation

whose goals and objectives it shares

Michigan United Conservation Clubs, Inc., is a statewide

nonprofit organization affiliated with the National Wildlife

Federation whose goals and objectives it shares.

3a’

The North Carolina Wildlife Federation is a statewide

nonprofit organization affiliated with the National Wildlife

Federation whose goals and objectives it shares.

Scenic Hudson, Inc. is a nonprofit citizen’s conservation

group founded in 1963 to improve and preserve the natural,

recreational, historic and scenic resources of the Hudson River

Valley, including wetlands.

The Sierra Club is a nonprofit national membership or-

ganization founded in 1892 to promote the responsible use of

the earth’s ecosystems, to enjoy and protect the earth’s re-

sources, and to educate humanity in the need to protect and

restore the quality of the natural and human environment.

With approximately 336,000 members and $4 local chapters

coast to coast, the Sierra Club works on legislation, litigation,

public information, and outings to protect, understand, and

enjoy the natural environment.

The Tennessee Conservation League is a statewide

nonprofit organization affiliated with the National Wildlife

Federation whose goals and objectives it shares.

The Wildlife Management Institute is a national nonprofit

membership organization, supported by industries, groups, and

individuals, promoting better use of natural resources for the

welfare of the Nation. The Institute is particularly concerned

with the conservation of wetlands because of the importance of

this resource to wildlife habitat.

The Clean Water Action Project is a national citizen action

organization founded in 1971 to work for strong pollution

controls and safe drinking water. The Project believes that the

conservation of wetlands contributes to both of those goals.

The South Carolina Wildlife Federation is a statewide

nonprofit organization affiliated with the National Wildlife

Federation whose goals and objectives it shares.

The Environmental Defense Fund, Inc., is a nationwide

public interest organization of lawyers, scientists, and econo-

mists dedicated to protecting and improving environmental

quality and public health. The Fund Pursues responsible

reform of public policy in a number of environmental fields

including water resources, land use. wildlife, and wetlands

conservation, working through research, public education. and

judicial, administrative, and legislative action. The Fund has

50,000 members including residents in all 50 states.

ag

4a

The State of Michigan was the first state in the nation to

assume responsibility for dredge and fill projects, in waters

regulated under Section 404 of the Clean Water Act, 33 U.S.C.

1344, from the United States Environmental Protection Agency.

Michigan has a long history of concern for, and actions to

protect, its valued wetlands. Michigan is vitally interested in

the outcome because the controversy involves natural resources

located within the State of Michigan and because, for the

reasons stated in the brief of the United States, Michigan

believes that this case involves issues appropriate for review by

the Supreme Court of the United States.

The Natural Resources Defense Council, Inc., is a non-

profit membership organization, founded in 1970, to protect

America’s endangered natural resources and to improve the

quality of the human environment. The Council combines an

interdisciplinary legal and scientific approach in monitoring

government agencies, bringing legal action and disseminating

citizen information on a number of issues including water

pollution, resource management, wildlife protection, and coast-

al zone management. The Council has 45,000 members.

The Louisiana Wildlife Federation is a statewide nonprofit

organization affiliated with the National Wildlife Federation

whose goals and objectives it shares.

Trout Unlimited is a nonprofit international conservation

organization founded in 1959 and dedicated to the protection of

clean water and the enhancement of trout and salmon fishery

resources. Trout Unlimited has 32,000 members.