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

Cifice Supreme Court, us

FILED

28 1985

No. 84-701 dus

_ Ss EvaS

CLERK

IN THE -_ -

Supreme Court of the United States

OcTOBER TERM, 1984

UNITED STATES OF AMERICA,

. Petitioner,

Riversipe Bayview Homes, INC.. et ai..

Re spondents

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION,

NATIONAL CATTLEMEN'S ASSOCIATION, AND

RESOURCE DEVELOPMENT COUNCIL FOR ALASKA,

INC. IN SUPPORT OF RESPONDENTS

RONALD A. ZUMBRUN

SAM KAZMAN

Counsel of Record

KEVIN J. HERON

Of Counael

PACIFIC LEGAL FOUNDATION

1990 M Street, N.W., Suite 560

Washington, D.C. 20086

Telephone: (202) 466-2686

Attorneys for Amici Curiae

Pacific Legal Foundation.

National Cattlemen's

Association, and Resource

Development Council for

Alaska, Ine

BEST AVAILABLE COPY

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Wiceon . Eres Paint we Co Ieee 7ee ooe6 Wasninetror DOD 20001

QUESTION PRESENTED

Whether federal jurisdiction under the Clean Water

Act to regulate discharges into “navigable waters” ex-

tends to areas which are occasionally inundated or satu-

rated from sources having no hydrologic connection to

any lake, stream, river, or tributary.

(i)

TABLE OF CONTENTS

INTRODUCTION _......

ARGUMENT

I. THE SIXTH CIRCUIT WAS CORRECT IN

HOLDING THAT THE RIVERSIDE PROP-

ERTY DOES NOT CONSTITUTE A WET-

LAND SUBJECT TO THE ARMY CORPS’

A

A. The Jurisdictional Terms Related To Imple-

mentation of Section 404 Have Led To Un-

reasonable and Unjustified Impacts on Pri-

vate Property Owners... tists

B. Not Only Have Wetlands Been Erroneously

Embodied Within Section 404, But Invalid

Presumptions Regarding Wetlands Have

Also Been Incorporated Into the Corps’ Reg-

ulatory Scheme Chk

1. The Sixth Circuit’s Narrow Interpreta-

tion of the Wetlands Regulation Is Clearly

Warranted in View of the Significant

Impacts on Property Rights That Result

From the Application of the Section 404

Il. THE SIXTH CIRCUIT’S DECISION IS FULLY

SUPPORTED BY THE CLEAN WATER ACT

AND ITS LEGISLATIVE HISTORY

(iii)

12

16

19

iv

TABLE OF CONTENTS—Continued

A. The Legislative History of the Clean Water

Act Demonstrates That It Was Designed To

Protect Water Quality and Is Not a Wet-

lands Preservation Law ............................--.----

B. To the Extent the Clean Water Act Encom-

passes Wetlands, It Certainly Does Not In-

ON Ss

I vc cricsnerccctestnnsecciiiummenmannnmeamnnntinnimminiiants

APPENDIX A

Page

v

TABLE OF AUTHORITIES

Cases Page

Armstrong v. United States, 364 U.S. 40 (1960)... 17

Avoyelles Sportsmen’s League, Inc. v. Marsh, 715

lk 26-27

Florida Rock Industries, Inc. v. United States, Civil

Action No. 266-82L (Ct. Cl. May 6, 1985) ......... 17-18

Kay v. Federal Communications Commission, 443

F.2d 638 (D.C. Cir. 1970) 20.........cccccceceeccce eens 26

Natural Resources Defense Council v. Callaway,

392 F. Supp. 685 (D.D.C. 1975) 00 5, 26-27

Oklahoma ex rel. Phillips v. Atkinson Company, ,

3 Ee eS 23

United States v. Appalachian Electric Power Com-

RT, SEE Tele BOE CRUD cccccccccccceeccsnsteccnccscnceseses 22-23

United States v. Riverside Bayview Homes, Inc.,

729 F.2d 391 (6th Cir. 1984) 200000. 5-6, 10, 16

United States v. Byrd, 609 F.2d 1204 (7th Cir.

EC ee ne 26

Statutes and Regulations

BD Weide ie ie OO BI, cceccccceccsteccccccccceccessssccvccscecessese 4

TT SRDS See eee 20

I iliac aee 20

ETc 14

aac re 2

tt ET ee ce 14

TTT ~eneusasusssesese 24

33 C.F.R. § 209.120 (e) (2) (i) (1976) 26

a iti 12

§ 320.4(b) (1984) 20 13

cree 4

fe Ln 15

§ 227.13 (b) (2) (ii) (1984) . 15

Part 230 (1984) 2.0.0.0... aeiaaiies - 12

§ SB0.1 (ec) (10846) 2... ccceececc eee. = 13

I 12

§ 230.3(q-1) (1984) 000 12

§ 230.10(a) (2) (1984) 0. —_ 15

§ 230.10(a) (3) (1984) 0 15

vi

TABLE OF AUTHORITIES—Continued

Miscellaneous

Appleton: A Regulated City, The Washington

QL GQ (GG i _y————————————————

Army Corps Determination of Jurisdiction Under

Clean Water Act, Madrona Marsh, Torrance,

California (June 14, 1982) ..............0.................

Classification of Wetlands and Despwater Habitats

of the United States Fish and Wildlife Service,

Department of Interior (1979) ~..........................

Fleming, Testimony before Senate Committee on

Environment and Public Works Subcommittee

on Environmental Pollution Concerning Imple

mentation of Section 404 of the Federal Water

Pollution Control Act in Alaska (June 23, 1980) ..

Goode, The Public Interest Review Process, 3 Nat'l

Wetlands Newsletter (Jan.-Feb. 1981) ...............

Kibby, Effects of Wetlands on Water Quality,

Strategies for Protection and Management of

Floodplain Wetlands and Other Reparian Eco-

0 UL

Larson, A National Program for Regional Wet-

land Assessment, 5 Nat'l Wetlands Newsletter

(Sept.-Oct. 1984) ........... sechitiiiamieaitniinieniasiiedaibestietiain

Mosher, When Is a Prairie Pothole a Wetland?

When the Federal Regulators Get Busy, Nat'l

Journal 410 (March 6, 1982) —.............................

Presidential Task Force on Regulatory Relief,

Office of the Vice President, Administrative Re-

forms to the Regulatory Program Under Section

404 of the Clean Water Act and Section 10 of

the Rivers and Harbors Act (May 7, 1982)........

Scientists Report, National Symposium on Wet-

lands (sponsored by the National Wetlands

Technical Council) (Nov., 1978) .......................

3 Congressional Research Service, Library of Con-

gress, A Legislative History of the Clean Water

Act of 1977: A Continuation of the Legislative

History of the Federal Water Pollution Control

ff FR ete Allen dest. 2

18

14

16

13

13

ll

10, 27

vii

TABLE OF AUTHORITIES—Continued

Page

118 Cong. Rec. H33,699 (1972) 00 20-21

H33,766 (1972) ..................cccccccceeeeeee 21-22

123 Cong. Rec. $26,718 (1977) cn. 25

ET REE 20

EE 25

| 25

H10,418 (1977) 2.0... 28

49 Fed. Reg. 39,478 (1984) 220 11

IN THE

Supreme Court of the United States

OcTOBER TERM, 1984

No. 84-701

UNITED STATES OF AMERICA,

7 Petitioner,

RIVERSIDE BAYVIEW Homes, INC., et a/.,

Respondents.

_—

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION,

NATIONAL CATTLEMEN'S ASSOCIATION, AND

RESOURCE DEVELOPMENT COUNCIL FOR ALASKA,

INC. IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 36, Pacific Legal

Foundation, the National Cattlemen’s Association, and

the Resource Development Council for Alaska, Inc., re-

spectfully submit this brief amicus curiae in support of

the respondents, Riverside Bayview Homes, Inc., et al.

Consent to the filing of this brief has been obtained from

counsel for all parties and copies of these consent letters

have been lodged with the Clerk of this Court.

Pacific Legal Foundation (PLF) is a nonprofit, tax-

exempt, public interest organization with over 19,000

contributors and supporters located throughout the coun-

try and with offices in Sacramento, California, and Wash-

2

ington, D.C., and liaison offices in Seattle, Washington,

and Anchorage, Alaksa.

Since its establishment in 1973, PLF has actively en-

gaged in research and litigation over a broad spectrum

of public interest issues. PLF advocates a balanced ap-

proach in dealing with public interest issues, and sup-

ports the concept that governmental decisions and policies

should reflect a careful assessment of the social and eco-

nomic costs and benefits involved. PLF has especially

stressed this approach in the area of land use regulation

and also where environmental issues are concerned.

The Resource Development Council for Alaska, Inc.

(RDC), and the National Cattlemen’s Association rep-

resent private property owners throughout the United

States. While the specific activities and objectives of each

of these organizations are unique, both share a concern

about the regulation of waters and wetlands under Sec-

tion 404 of the Clean Water Act (CWA). 33 U.S.C.

§ 1344.

RDC is a statewide citizens’ group, based in Anchorage,

Alaska, with a membership of approximately 19,000 in-

dividuals, labor unions, businesses, regional native cor-

porations, municipalities, chambers of commerce, and

trade associations. The objective of RDC is to assist in

the creation of a broad-based economy in Alaska, with

long-term stable employment, orderly growth, and im-

proved living standards for Alaskans. RDC is particu-

larly interested in helping to assure the rational develop-

ment of Alaska’s vast natural resources, which are of

vital importance to the nation’s energy, mineral, forest

products, and food production needs.

The National Cattlemen’s Association (NCA) is a non-

profit trade organization representing over 245,000 pro-

fessional cattlemen throughout the United States. NCA’s

headquarters is located in Denver, Colorado. The pur-

pose of NCA is to provide an organization through which

3

all segments of the beef cattle industry, including cattle

breeders, producers, and feeders, may work toward solu-

tions of industry problems and may inform the public

about issues related to the industry.

SUMMARY OF THE ARGUMENT

The Sixth Circuit’s interpretation of the Army Corps

of Engineers’ (Corps) Section 404 wetlands definition

provides necessary relief for private property owners

who have often been unjustifiably subjected to the rigors

of the Section 404 process due to the vague and overly

broad nature of the Corps’ jurisdictional terms. The rul-

ing by the Sixth Circuit establishes a palpably sensible

and legally supportable test for making jurisdictional de-

terminations under Section 404 which will reduce con-

siderably the regulatory burdens presently imposed on

property owners.

The Sixth Circuit’s decision is entirely consistent with

the goals and objectives of the CWA in that it maintains

environmental protection over traditionally navigable

waters and their tributaries as was originally intended

by Congress in the 1972 Federal Water Pollution Control

Act (FWPCA). In addition, to the extent Congress

sought to protect wetlands under its 1977 amendments

to FWPCA, the lower court’s jurisdictional test also en-

compasses those swamps, marshes, and bogs which are

hydrologically connected and, therefore, possibly environ-

mentally critical to navigable waters and their tributaries.

INTRODUCTION

Section 404 of the CWA was enactea by Congress

in 1972 as part of the amendments to the FWPCA.

(FWPCA was renamed the CWA under the 1977 amend-

ments.) Pursuant to this Section, the Corps is authorized

to regulate the discharge of dredged or fill material into

the navigable waters of the U::ited States. It can safely

be contended that there are few, if any, federal environ-

4

mental programs that have had a more compelling and

pervasive impact on private property rights in this

country inan Section 404. The conflict which has evolved

between the constitutional rights of property owners to

the reasonable use of their land and the desire to protect

and preserve our aquatic environment has quite often

been fought within the Section 404 arena. As a result,

numerous property owners, who have been denied dis-

charge permits under Section 404, have been forced to

bear the cost of environmental preservation through the

loss of valuable property rights—a cost which in all fair-

ness and equity should be borne by the benefited society.

While the economic impacts associated with Section 404

are indeed of great concern to many, the most critical

issue regarding Section 404 lies in the uncertainty over

the Corps’ regulatory jurisdiction under the CWA. The

lack of any specific clarification regarding the term “nav-

igable waters” in the CWA has resulted in much con-

fusion and controversy over the jurisdictional scope of

Section 404. Initially, the Corps viewed its jurisdiction

as being coterminous with that under the Rivers and

Harbors Act of 1899 (RHA), 33 U.S.C. §§ 401, et seq.

Pursuant to the RHA, the Corps prescribed its jurisdic-

tion on the basis of the traditional or historical definition

of “navigable waters”—i.e., those waters that “are sub-

ject to the ebb and flow of the tide, and/or are presently

or have been in the past, or may be susceptible for use

to transport interstate or foreign commerce.” 33 C.F.R.

§ 329.4 (1984). The Corps’ attempt to define its juris-

diction in this manner did not, however, survive judicial

scrutiny. In 1975, the United States District Court for

the District of Columbia held that Congress intended for

the Corps to assert federal jurisdiction over the nation’s

waters to the maximum extent permissible under the

Commerce Clause of the Constitution. The term “navi-

gable water” for purposes of the FWPCA was not, there-

fore, limited to the RHA’s traditional test of naviga-

5

bility. Natural Resources Defense Council v. Callaway,

392 F. Supp. 685 (D.D.C. 1975).

Subsequent to the decision in Callaway, the Corps

amended its definition of “navigable waters” to include,

among other aquatic areas, “wetlands.” Proponents of

this expanded jurisdiction contend that it is fully con-

sistent with the goals of the CWA and with the intent

of Congress. Opponents of such expansive regulatory

jurisdiction, however, argue that the CWA was designed

to protect water quality, not to preserve wetland areas.

The absence of any direct congressional action on the

issue of jurisdiction, coupled with the administrative mis-

management of the Section 404 program, has resulted in

the imposition of unjustifiable burdens on individual

property owners such as Mr. George Short, the owner

of Riverside Bayview Homes. While academicians, law-

yers, and legislators debate over the permissible bounds

of the Corps’ jurisdictional authority under Section 404,

private property owners like Mr. Short are being continu-

ally subjected to an administrative process which has oft-

times resulted in a complete deprivation of private prop-

erty rights. The need to recognize and to respect such

rights was in fact underscored by the Sixth Circuit in

the case at bar. The Court of Appeals specifically noted

that the “exercise of apparently unbounded jurisdiction

by the Corps” over waters within the United States raises

a serious taking problem under the Fifth Amendment to

the Constitution. United States v. Riverside Bayview

Homes, Inc., 729 F.2d 391, 398 (6th Cir. 1984), Appendix

to Petition for Certiorari (Pet. App.) at 15a.

This case brings before this Court many of the more

perplexing problems which have beset Section 404 since

its inception. At the very least, this case will decide

whether Mr. Short’s property falls within the Corps’

current wetlands definition, and will thereby hopefully

enable him to terminate ten years of legal and adminis-

6

trative battles in the vindication of his property rights.

On a much larger scale, however, this case will also

decide to what extent the Corps may exercise regulatory

jurisdiction over the nation’s waters under the CWA.

ARGUMENT

I. THE SIXTH CIRCUIT WAS CORRECT IN HOLD-

ING THAT THE RIVERSIDE PROPERTY DOES

NOT CONSTITUTE A WETLAND SUBJECT TO

THE ARMY CORPS’ JURISDICTION

The Sixth Circuit’s determination that Mr. Short’s

property does not constitute a wetland was based, in part,

on its perception, which amici fully support, that Con-

gress could not have intended for the CWA “to cover a

piece of property [Riverside] a mile inland from Lake

St. Clair which has been farmed in the past and is now

platted and laid out for subdivision development with the

fire hydrants and storm sewers already installed.” River-

side Bayview, 729 F.2d at 398, Pet. App. at 13a-1l4a.

The court determined that the Corps’ wetland regulation

requires a hydrologic connection between the property

alleged te be a wetland and a navigable water as defined

in the CWA. Id.

As will be shown beiow, the Court of Appeals’ interpre-

tation of the wetlands regulation is entirely consistent

with the objectives and goals articulated in the CWA and

with congressional intent underlying the Act. It also

provides a more reasonable and equitable method for

asserting jurisdictional claims under Section 404 and pro-

tects private property owners from excessive and un-

warranted federal regulation of their land.

A. The Jurisdictional Terms Related To Implementa-

tion of Section 404 Have Led To Unreasonable and

Unjustified Impacts on Private Property Owners

Since its inception in 1972, Section 404 of the CWA

has been plagued with uncertainties related to its in-

tended scope. Private property owners planning activi-

7

ties in the vicinity of waters of the United States, as

well as in areas totally unrelated to such waters, have

frequently been uncertain as to whether a Section 404

permit was required and have often been required to

obtain permits or modify projects after they have begun

or have even been completed. Much of this confusion

on the part of landowners stems from the fact that Sec-

tion 404, which was clearly intended by Congress to be

a means for protecting the quality of our nation’s waters,

has inexplicably evolved into a national wetlands pro-

tection statute.

In order to fully understand and appreciate the irra-

tionality of the current jurisdictional scope of Section

404, one need only look at several representative case

examples of uncertainty and delay related to the am-

biguity of the jurisdictional terms. The case of Madrona

Marsh in Torrance, California, is a case in point.

In February, 1980, the Corps asserted Section 404

jurisdiction over an area known as Madrona March. Por-

tions of this land area are subject to inundation during

and immediately following the rainy season. The waters

which accumulate in the area do not arrive through any

waterways, nor do they ultimately end up in any public

body of water such as a river, stream, lake, reservoir,

bay, gulf, sea, or ocean. At present, most of the water

is supplied through two drainage ditches designed to

transmit rainfall. According to Army Corps documents,

the area has

“no underground water source from springs. . . and

is maintained as a wetland during the wet season

due to an impermeable clay soil layer which prevents

percolation, and to a lesser extent, transpiration.

The surface water which collects during the wet

season is not connected with the ground water table,

and the marsh has no outlet. As such, it is an

isolated [intermittent] wetland.” Army Corps De-

termination of Jurisdiction Under Clean Water Act

8

—Madrona Marsh, Torrance, California, at 1-2 (is-

sued by Homer Johnstone, Brigadier General, USA

Division Engineer), Army Corps, Los Angeles Dis-

trict, Los Angeles, California (June 14, 1982).

A capsulization of the events that have occurred in

this matter points out how the overly broad and impre-

cise definition of “waters of the United States” forces

large and small property owners alike to proceed prelimi-

narily through a cumbersome, costly, and seemingly end-

less administrative proceeding just to determine whether

CWA jurisdiction may, in fact, be appropriately asserted.

In 1981, a petition for withdrawal of jurisdiction over

Madrona Marsh was submitted to the Corps, and after

the matter had been transmitted through the Environ-

mental Protection Agency (EPA), the Corps reversed its

initial position and concluded that it had no jurisdiction

over Madrona Marsh. This, unfortunately, was not the

end of the case.

In March, 1982, the Chief of Engineers, at the request

of a group known as the “Friends of Madrona Marsh,”

ordered a complete review of the Section 404 jurisdiction

over Madrona Marsh and reopened the record for addi-

tional “public participation.” See Public Notice, issued

March 26, 1982, Department of the Army, Los Angeles

District, Corps of Engineers, Los Angeles, California.

Finally, in June, 1982, the Corps conclusively determined

that it had no jurisdiction over the Madrona Marsh area.

See Army Corps Determination of Jurisdiction, supra

at 7. It took an incredible two years and four months

of bureaucratic processing just to determine whether or

not jurisdiction could be properly asserted over this site.

It must be borne in mind that the 28 months of ad-

ministrative processing in the Madrona Marsh case were

utilized only to determine if jurisdiction existed; once the

jurisdictional issue is resolved, however, a property owner

might then be required to wait an equally oppressive

9

length of time to receive a Section 404 permit.' Under

the Sixth Circuit’s decision below, an intermittent wet

area such as Madrona Marsh would clearly fall beyond the

regulatory jurisdiction of the Corps since no hydrological

connection existed between the marsh and an adjacent lake,

stream, or river. The exclusion of an area such as Ma-

drona Marsh from the Corps’ Section 404 program is

clearly consistent with the goals of the Clean Water Act

since the marsh in no way impacted upon the quality

of our nation’s navigable waters. Until the jurisdictional

limits of the Corps’ authority are firmly established, how-

ever, cases such as Madrona Marsh will continue to occur.

The Madrona Marsh experience also serves to contradict

the government’s position that the current jurisdictional

test “can be applied to particular parcels of land” with

“relative ease.” Petitioner’s Brief (Pet. Brief) at 44.

Surely, a 28-month entanglement with bureaucratic red

tape does not signify a program that is applied with rela-

tive ease.

The Madrona Marsh scenario is only one example of

the consequences of an imprecise statute and regulations

governing the Section 404 program. While the property

owner in this case could financially afford to pursue an

administrative determination, there are thousands of

small property owners subject to the Corps’ regulations

who cannot shoulder the burden. See example of Mr.

Arnie Thomas, infra at 18.

These case studies are not simply aberrations from an

otherwise easily administered and well-managed regula-

tory program. They are, instead, representative examples

from a program drifting in a sea of limitless jurisdic-

tion. Until the boundaries envisioned by Congress under

the CWA are clearly ascertained and definitively marked,

any attempt to chart a course for the program to sail by

will invariably sink. The need to establish an “adequate

limiting principle” regarding the Corps’ jurisdiction was

1 See Case Summaries Nos. 1, 2, Appendix A at A-3, A-5.

10

specifically noted by the Sixth Circuit in its denial of the

government’s request for a rehearing en banc:

“By an unusual construction of the words ‘navigable

waters’ in the Clean Water Act, the government and

. . amicus curiae would apparently have the Court

by injunction prevent the owner from using low

lying land areas where water sometimes stands and

where vegetation requiring moist conditions grows.

Such low lying lands would be converted into naviga-

ble waters without regard to either their proximity

to navigable waters, streams or seas or the inunda-

tion of such lands by such navigable waters. Under

such a construction low lying backyards miles from

a navigable waterway would become wetlands.

Neither the government nor amicus suggests an ade-

quate limiting principle. Such a construction is over-

broad and inconsistent with the language of the Act

in question, and the Court declines to adopt such a

construction.” Riverside Bayview, 729 F.2d at 401,

Pet. App. at 20a-21a.

The numerous shortcomings of the Section 404 pro-

gram, particularly its jurisdictional scope, were in fact

revealed by the Presidential Task Force on Regulatory

Relief in 1982. See Presidential Task Force on Regula-

tory Relief, Office of the Vice President, Administrative

Reforms to the Regulatory Program Under Section 404

of the Clean Water Act and Section 10 of the Rivers and

Harbors Act (Administrative Reforms) (May 7, 1982)

(portions of this report are contained herein at Appendix

A). This special Task Force, headed by Vice President

Bush, specifically determined that the Section “404 pro-

gram has been plagued by uncertainties over its juris-

dictional scope {and that] [i]ndividuals planning con-

struction, exploration, or development projects in the vi-

cinity of bodies of water have frequently been uncertain

whether a Section 404 permit was required... .” See

Appendix A at A-7. °

Concern over Section 404’s seemingly limitless jurisdic-

tion has also been echoed by the agency charged with

11

administering the program, the Corps of Engineers. Wil-

liam Gianelli, former Assistant Secretary to the Army

for Civil Works, had been committed to reducing the

jurisdictional scope of the program, impelled in his effort

by the view “that the Section 404 program ha[d] gone

far beyond its originally envisioned scope and, more im-

portantly, beyond the appropriate role of the federal gov-

ernment in regulating the development of private and

public resources.” ? Mosher, When Is a Prairie Pothole a

Wetland? When the Federal Regulators Get Busy, Nat’]

Journal 410, 412 (March 6, 1982). Mr. Gianelli was

sympathetic to “ ‘protecting the nation’s valuable wet-

lands’” but he believed that “‘a far better method [for

doing this] would be for the Congress to legislatively

identify and designate the true wetlands needing protec-

tion from all development rather than to try and afford

incomplete protection through the piecemeal, backdoor

approach applicable to landfill areas under the Corps’

404 program.’ ” Id.

As illustrated by the case studies cited above, and

substantiated by the Task Force report and Mr. Gia-

nelli’s comments, the confusion generated by the Corps’

unbounded Section 404 jurisdiction has had a devastating

impact on private property owners. This impact has re-

sulted not only from the unwarranted inclusion of all

wetlands within the scope of Section 404 but also from

the various “presumptions” regarding wetland values

that have been built into the Corps’ regulatory program.

These presumptions further compound the problems af-

fecting property owners in this country. They therefore

provide additional evidence as to why the scope of the

Corps’ jurisdiction should be circumscribed in the man-

ner expressed by the Court of Appeals.

? Although the Corps has previously taken some steps to reduce

the regulatory burden of Section 404, these attempts were not

directed toward limiting the scope of jurisdiction. See 49 Fed. Reg.

39,478 (1984) (to be codified at 33 C.F.R. Parts 320, 323, 330).

12

B. Not Only Have Wetlands Been Erroneously Em-

bodied Within Section 404, But Invalid Presump-

tions Regarding Wetlands Have Also Been Incor-

porated Into the Corps’ Regulatory Scheme

While the “ecological value” of wetlands is not directly

at issue in this case, amici believe that it is important

for this Court to understand not only that all wetlands

have been erroneously included within Section 404, but

also that these areas have been improperly accorded spe-

cial protections under the Corps’ regulations which

severely reduce the likelihood that a permit will be

granted once jurisdiction has been asserted. The nature

of these presumptions and their impact on the Section

404 permit process substantially refute the government’s

position that “the mere assertion of regulatory jurisdic-

tion does not .. . mean that a permit will be denied” and

also its contention that the current wetlands regulation

reflects good science. Pet. Brief at 11, 37.

In evaluating a Section 404 permit application, the

Corps must adhere to guidelines developed by EPA. 33

C.F.R. § 323.6; 40 C.F.R. Part 230 (1984). Several of

these guidelines essentially incorporate into the Section

404 permit process a wetlands preservation bias. For ex-

ample, Section 230.1(d) of the guidelines provides:

“From a national perspective, the degradation or de-

struction of special aquatic sites,* such as filling

operations in wetlands, is considered to be among

the most severe environmental impacts covered by

these Guidelines. The guiding principle should be

that degradation or destruction of special sites may

represent an irreversible loss of valuable aquatic

resources.”

3 Special aquatic sites are defined as “geographic areas, large

or small, possessing special ecological characteristics of productivity,

habitat, wildlife protection, or other important and easily disrupted

ecological values.” 40 C.F.R. § 230.3 (q-1). According to the regu-

lations, however, wetlands are automatically deemed to be special

aquatic sites whether they possses these qualities or not. 40 C.F.R.

Part 230, Subpart E.

13

Similarly, Section 230.1(c) of the guidelines states that

“|f|undamental to these Guidelines is the precept that

dredged or fill material should not be discharged into

the aquatic ecosystem” unless certain conditions are met.

Thus, any wetland area which is determined to be within

the overly expansive grasp of Section 404 is presumed

to be vital to the public interest without regard to its

actual value or lack of value to the aquatic ecosystem.

Even the Corps’ own regulations provide that the destruc-

tion or alteration of wetlands “should be discouraged as

contrary to the public interest.” 33 C.F.R. § 320.4(b).

Contrary to the views regarding wetlands that are

prevalent in the current Section 404 regulations, the

scientific community has recognized that not all wetlands

are valuable to the aquatic ecosystem:

“Just as all wetlands do not have all of the values

prescribed to them .. . it must be emphasized that

all wetlands are not going to have all of the effects

that are described. The effect of a given wetland on

water quality is very dependent on the hydrological

characteristics of the area.” Kibby, Effects of Wet-

lands on Water Quality, Strategies for Protection

and Management of Floodplain Wetlands and Other

Riparian Ecosystems at 289 (U.S. Dept. of Agri-

culture 1978) (emphasis added).

The regulatory dilemma which has resulted from the

overrating of wetland values was aptly expressed by Dr.

Joseph S. Larson in his article A National Program for

Regional Wetland Assessment, 5 Nat’l Wetlands News-

letter 2 (Sept.-Oct. 1984):

“Scientific evidence strongly suggests that every wet-

land does not perform every publicly-valued wetland

function. Nonetheless, federal and state wetland pro-

tection policies continue to presume, in the absence

of evidence to the contrary, that ail functions are

equally important in all wetlands. And under such

policies, there is an apparent lack of linkage between

the functional role of a wetland and the application

of regulations.”

14

The Corps’ current wetlands definition, which the gov-

ernment contends reflects good science, precludes categori-

zation and evaluation of wetlands according to their

actual contribution to water quality. This is in fact con-

trary to scientific knowledge about wetlands. See Scien-

tists Report, National Symposium on Wetlands at 14

(sponsored by the National Wetlands Technical Council)

(Nov. 1978) (“[g]eographic, climatic, hydrologic and

other factors greatly affect the character and functions

of wetlands. As a result, the transference of charac-

teristics (values) of one wetland . . . to another must be

done cautiously .. . .”); Classification of Wetlands and

Deepwater Habitats of the United States, Fish and Wild-

life Service, Department of the Interior (1979). Conse-

quently, there are many areas in this country which are

being subjected to the Corps’ regulatory program that

have absolutely no connection to the goals of the CWA

and which were never intended by Congress to be held

captive in the federal regulatory system.

In addition to the absence of a scientific basis, there is

also no statutory basis for the wetlands presumptions,

which place a more stringent burden on property owners

seeking to discharge in areas encompassed by Section

404 than the burden placed on applicants for permits

under Section 403 or other sections of the CWA. Section

403 of the CWA regulates discharges into the “territorial

sea, the waters of the contiguous zone, [and] the oceans.”

33 U.S.C. § 1343(a). Although the CWA mandates that

the Section 404(b)(1) guidelines be based on criteria

established pursuant to Section 403 (33 U.S.C. § 1344

(b)), the guidelines in fact differ markedly from the

Section 403 criteria.‘ No justification can be found in

the statute for such discrimination.

* For example, the ocean criteria for evaluating dredged material

provide that when the dredged material is “substantially the same

as the substrata at the proposed disposal site’ and the site of the

origin of the material is “far removed from known historical

15

The Section 404(b)(1) guidelines also provide that

“where the activity associated with a discharge . . . does

not require access or proximity to or siting” within a

“special aquatic site,” ° including any wetland, “prac-

ticable alternatives . . . are presumed to be available,

unless clearly demonstrated otherwise.” 40 C.F.R.

§ 230.10(a) (3) (emphasis added). This so-called “water

dependency test” * similarly finds no support in the CWA,

nor is there anything in the ocean discharge criteria

which requires this additional test. The difficulties aris-

ing from the presumption that practicable land-based al-

ternatives exist for a nonwater-dependent project are

futher intensified by the extremely broad definition used

in determining what is “practicable.” *

Under the guidelines, the Corps makes the initial de-

termination as to whether a proposed activity requires

access to water to fulfill its basic purpose. Jn the case of

a proposed project on an isolated or intermittent wet

area, such as Madrona Marsh, however, the permit appli-

cant obviously could never demonstrate water dependency

since the proposed project site is wholly unconnected to

sources of pollution,” no further testing for environmental impacts

is required. See 40 C.F.R. §§$ 227.13(b) and 227.13(b) (3) (ii). No

such provision, however, exists in the Section 404(b) (1) guidelines,

which are significantly more stringent than the Section 403

criteria.

5 Defined supra at n.3.

®A project is considered nonwater-dependent if it does not

require access or proximity to the special aquatic site in order

to fulfill its basic purpose.

*“An alternative is practicable if it is available ar) capable

of being done after taking into consideration cost, existing tech-

nology, and logistics in light of overall project purposes. If it is

otherwise a practicable alternative, an area not presently owned by

the applicant which could reasonably be obtained, utilized, expanded

or managed in order to fulfill the basic purpose of the proposed

activity may be considered.” 40 C.F.R. § 230.10(a) (2).

16

any other body of water. Consequently, a permit would

never issue unless the applicant could overcome the

presumption that practicable alternatives exist.

As is evident from the foreging discussion, the onerous

nature of the presumptions regarding wetlands that are

engrafted into the Corps’ regulatory program substan-

tially undercut the government’s position regarding the

effect of “the mere assertion of regulatory jurisdiction.”

Pet. Brief at 11. In the State of Alaska, for example,

the exercise of jurisdiction over a particular area has

quite often marked the beginning of the end for a permit

applicant not only due to the foregoing presumptions but

also because of the plethora of federal and state agencies

that are afforded an opportunity to comment on a permit

application.*

1. The Sixth Circuit’s Narrow Interpretation of

the Wetlands Regulation Is Clearly Warranted

in View of the Significant Impacts on Property

Rights That Result From the Application of the

Section 404 Regulations

The substantial interference with private property

rights that results from the “mere assertion” of Section

404 jurisdiction is precisely why the Sixth Circuit inter-

preted the Corps’ jurisdiction narrowly. The court did

so in order to avoid “a very real taking problem.” River-

side Bayview, 729 F.2d at 398, Pet. App. at 15a. The

concern voiced by the lower court was in fact recently

SA partial list of these agencies include the Environmental

Protection Agency, Department of the Interior, Fish and Wildlife

Service, National Marine Fisheries Service, Alaska Department of

Fish and Game, Alaska [l‘epartment of Environmental Conserva-

tion, and the Alaska Department of Natural Resources. “The

inescapable result is a labyrinth from which an applicant may

never emerge.” Testimony of Robert Fleming before Senate Com-

mittee on Environment and Public Works Subcommittee on En-

vironmental Pollution Concerning Implementation of Section 404

of the Federal Water Pollution Control Act in Alaska at 3 (June 23,

1980).

17

realized in Florida Rock Industries, Inc. v. United States,

Civil Action No. 266-82L (Ct. Cl. May 6, 1985), where

it was held that the denial of a Section 404 permit con-

stituted a taking of the plaintiff's property since the

land in question could “be put to no viable economic use

without such a permit.” Jd. at 1. In the course of its

opinion, the court cited with approval the following lan-

guage from a state supreme court decision discussing the

cost of wetlands preservation:

“*'T]}he area of Wetlands representing a “valuable

natural resource of the State,” of which appellants’

holdings are but a minute part, is of state-wide

concern. The benefits from its preservation . . . are

state-wide. The cost of its preservation should be

publicly borne. To leave appellants with commer-

cially valueless land in upholding the restriction pres-

ently imposed, is to charge them with more than

their just share of the cost ef this state-wide conser-

vation program, granting fully its commendable pur-

pose.’” Id. at 21, quoting State of Maine v. Johnson,

265 A.2d 711, 716 (Me. 1971).

See also Armstrong v. United States, 364 U.S. 40, 49

(1960) (“[t]he Fifth Amendment’s guarantee that pri-

vate property shall not be taken for a public use without

just compensation was designed to bar Government from

forcing some people alone to bear public burdens which,

in all fairness and justice, should be borne by the public

as a whole”).

While the government, as well as the amici in sup-

port of it, is quite prolific in espousing the values and

virtues of wetlands and in emphasizing the need to pro-

tect such areas, the government completely disregards

the fact that it is individual property owners in this

country who have been forced to bear the cost of this

protection. As made clear by the court in Florida Rock

Industries, however, “courts do not view the public’s in-

terest in environmental and aesthetic values as a servi-

18

tude upon all private property, but as a public benefit

that is widely shared and therefore must be paid for by

all.” Florida Rock Industries at 21.

The case of Arnie Thomas, a homeowner in Appleton,

Wisconsin,” ideally demonstrates that this burden is not

being equally shared by all and illustrates the unreason-

ableness of the presumptions regarding wetlands and

practicable alternatives contained in the Section 404 reg-

ulations. In 1981, Mr. Thomas extended his backyard an

additional 8 feet to his property line by filling in a

“swamp” area with 50 cubic yards of dirt. He then

planted grass seed and started a vegetable garden on the

filled-in land. The Corps asserted Section 404 jurisdic-

tion over the property and ordered Mr. Thomas either to

remove the dirt or apply for an “after-the-fact” Section

404 permit. Mr. Thomas decided to submit a permit ap-

plication, which contained as one of its 55 questions what

the effect of the project would be on navigation.

The “swamp” in Mr. Thomas’ backyard, which the

Corps sought to protect, was not connected to any other

body of water. Although Mr. Thomas’ neighbors sup-

ported his fill activity, saying the area was previously

filled with rubbish and served as a breeding ground for

rodents and mosquitoes, the Fish and Wildlife Service

and EPA objected to the project. EPA argued that the

project was not “water-dependent,” that alternatives

were available and that the cumulative impact of nu-

merous small activities such as Mr. Thomas’ could de-

*Army Corps File No. NCSCO-RF 80-480-13/VF, 80-302-15,

Army Corps of Engineers, St. Paul District Engineer, 1135 U.S.

Post Office, St. Paul, Minnesota 55101; Letter to Mr. Vartkes

Broussalian from Major David E. Peixotto, Department of the

Army (Official Memorandum) (April 1, 1982). (In this memo-

randum, Major Peixotto validated the facts of the two Section 404

cases contained in the Task Force Report, Appendix A ——, and

the case of Mr. Thomas). See also Appleton: A Regulated City,

The Washington Post, April 7, 1981 at 14.

19

stroy protected resources. As a result, Mr. Thomas’ per-

mit application was denied.

The plight of Arnie Thomas reflects the unreasonable-

ness of establishing a presumption that all wetlands are

valuable to the aquatic ecosystem and that, where a proj-

ect is not water-dependent, alternatives are presumed to

exist. The ludicrous and patently unfair results that

flow from applying such presumptions in cases such as

Mr. Thomas’ are illustrative of the types of abuses pres-

ently experienced by property owners who find them-

selves caught up in the Section 404 process. The ques-

tion one must ask, however, is whether Congress ever

intended, when it created the CWA, for the Corps’ juris-

diction to extend to the point where such bewildering

results would ensue. The answer one finds is no.

Il. THE SIXTH CIRCUIT'S DECISION IS FULLY

SUPPORTED BY THE CLEAN WATER ACT AND

ITS LEGISLATIVE HISTORY

The CWA was created by Congress in order to com-

bat pollution in the “navigable waters” of the United

States; it was not designed to operate as a wetlands

preservation law. As will be shown below, while the

term “navigable waters” was intended to have a more

expansive meaning than that which it had traditionally,

there is no evidence in the Act’s history to indicate that

the term was to include all wetlands. Rather, the 1972

legislative history makes it abundantly clear that the

Corps’ jurisdiction over navigable waters was only ex-

tended beyond the traditional limits to include those

waters which might become navigable after reasonable

improvements, and also the tributaries of waters that

are navigable in fact.

To the extent Congress envisioned that certain wet-

lands might require protection in order to preserve the

waters specifically identified in the CWA, there certainly

was no intention to protect “every brook, creek, cattle

20

tank, mud puddle, slough, or damp spot in every land-

owner’s backyard across this Nation.” 123 Cong. Ree.

S26,722 (1977) (floor statement of Senator Tower).

The protection, if any, to be extended to a particular

wetland was only to be exercised in furtherance of the

goals and objectives of the CWA.

A. The Legislative History of the Clean Water Act

Demonstrates That It Was Designed To Protect

Water Quality and Is Not a Wetlands Preservation

Law

The government maintains in its brief that “if the

Corps is to fulfill Congress’ intent to protect ecologically

important wetlands, then its threshold jurisdiction must

be construed broadly.” Pet. Brief at 14. Not only does

the government fail to cite any authority in the history

of the 1972 FWPCA amendments to support this finding

of “congressional intent,” but its position misinterprets

the purpose of the CWA and, in particular, Section 404.

The CWA unequivocally states that its objective is “to

restore and maintain the chemical, physical, and biologi-

cal integrity of the Nation’s waters.” 33 U.S.C.

§ 1251(a). One of the primary goals of the CWA is to

eliminate by 1985 “the discharge of pollutants into navi-

gable waters.” 33 U.S.C. § 1251(a)(1). The Section 404

program was established in order to help attain this goal

by authorizing the “Administrator [of EPA] and the Sec-

retary [of the Army] to move expeditiously to end the

process of dumping dredged spoil in water—to limit to

the greatest extent possible the disposal of dredged spoil

in the navigable inland waters of the United States in-

cluding the Great Lakes.” 118 Cong. Rec. H33,699

(1972) (statement of Senator Muskie).

While the legislative history of the FWPCA amend-

ments of 1972 evinces Congress’ intent to expand some-

what the traditional view of navigability, the history also

indicates that the conferees in no way intended to com-

21

pletely discard concepts of navigation for purposes of ju-

risdiction under the Act:

“It is intended that the term ‘navigable waters’ in-

clude all water bodies, such as lakes, streams, and

rivers, regarded as public navigable waters in law

which are navigable in fact . . . [S]uch waters

shall be considered to be navigable in fact when they

form, in their ordinary condition by themselves or

by uniting with other waters or other systems of

transportation, such as highways or railroads, a con-

tinuing highway over which commerce is or may be

carried on with other States or with foreign coun-

tries in the customary means of trade and travel in

which commerce is conducted today.” /d.

This discussion of the term “navigable waters” suggests

that, even though Congress wished to broaden the mean-

ing of this term, it still intended for jurisdiction under

the CWA to be limited to waters having some linkage to

navigability. Although certain wetland areas may have

to be regulated in order to protect the quality of these

navigable waters, such regulation is permissible since it

is tied directly to the goals of the Act and is not done

solely to preserve a wetland. That the Corps’ jurisdic-

tion was to be limited to waters having some connection

to navigability is also evident from a review of the con-

gressional debates on the 1972 FWPCA amendments.

In discussing the new broader definition of “navigabie

waters,” Congressman Dingell, an avid supporter and

floor manager of the FWPCA amendments, made the

following observation:

“The new and broader definition is in line with more

recent judicial opinions which have substantially

expanded that limited view of navigability—derived

from the Daniel Ball case (77 U.S. 557, 563)—to

include waterways which would be ‘susceptible of

being used . . . with reasonable improvement,’ as

well as those waterways which include sections pres-

ently obstructed by falls, rapids, sand bars, currents,

floating debris, et cetera. United States v. Utah, 238

U.S. 64 (1931); United States v. Appalachian Elec-

tric Power Co., [311] U.S. 377, 407-410, 416 (1940) ;

Wisconsin Public Service Corp. v. Federal Power

Commission, 147 F.2d 743 (CA 7, 1945) cert. den.

325 U.S. 880: Wisconsin v. Federal Power Commis-

sion, 214 F.2d 334 (CA 7, 1954) cert. den. 348 U.S.

883 (1954); Namekagon Hydre Co. v. Federal Power

Commission, 216 F.2d 509 (CA 7, 1954) ... .”

118 Cong. Rec. H33,756 (1972).

A review of the cases cited by Congressman Dingell pro-

vides plentiful insight into where Congress intended to

draw the jurisdictional line under Section 404.

In United States v. Appalachian Electric Power Com-

pany, 311 U.S. 377 (1940), the Supreme Court had oc-

casion to interpret the following traditional test of navi-

gability set forth in the Daniel Ball case:

“* ... Those rivers must be regarded as public

navigable rivers in law which are navigable in fact.

And they are navigable in fact when they are used,

or are susceptible of being used, in their ordinary

condition, as highways for commerce, over which

trade and travel are or may be conducted in the

customary modes of trade and travel on water. And

they constitute navigable waters of the United States

within the meaning of the acts of Congress, in

contradistinction from the navigable waters of the

States, when they form in their ordinary condition

by themselves, or by uniting with other waters, a

continued highway over which commerce is or may

be carried on with other States or foreign countries

in the customary modes in which such commerce is

conducted by water.’” Jd. at 406 n.21, quoting from

Daniel Ball, 10 Wali. 557, 563 (1870) (emphasis

added ) .

The Court construed the phrase “susceptible of being

used, in their ordinary condition” as including those wa-

23

ters which might be navigable “after reasonable improve-

ments.” Jd. at 409. The Court also determined that the

“constitutional power of the United States over its wa-

ters” was not limited solely “to control for navigation’”’

but that “[f]lood protection, [and] watershed develop-

ment ... are likewise parts of” the government’s control.

Id. at 426.

The Court thus extended the traditional concept of nav-

igability to those waters which might be susceptible to use

for commerce and recognized that Congress’ authority

was not merely limited to control for navigation.

The authority of Congress to control activities on non-

navigable tributaries of navigable waters was decided by

the Supreme Court in Oklahoma ex rel. Phillips v. Atkin-

son Company, 313 U.S. 508 (1941). In that case, the

Court held that “Congress may exercise its control over

the non-navigable stretches of a river in order to preserve

or promote commerce on the navigable portions.” Jd. at

523. Furthermore, the Court determined that the power

of the government over “flood control,” as was recog-

nized in Appalachian Electric Power Company, “extends

to the tributaries of navigable streams.” Atkinson, 313

U.S. at 526.

Appalachian Electric Power Company and its progeny

are extremely useful in ascertaining Congress’ intent with

regard to the scope of the term “navigable waters.” As

indicated by Congressman Dingell, Congress’ expanded

view of this term was essentially derived from the opin-

ions in these cases. While these opinions may have ex-

tended the term “navigable waters” to include waters

“susceptible of being used” for navigation as well as

tributaries of navigable waters, they did not go so far

as to encompass all wetlands. This fact, coupled with the

absence of any language regarding wetlands in the 1972

legislative history, suggests rather conclusively that Con-

gress had no intention of including these areas within the

Corps’ Section 404 jurisdiction.

24

B. To the Extent the Clean Water Act Encompasses

Wetlands, It Certainly Does Not Include All

Wetlands

The government’s primary support for its position that

Congress fully intended to regulate wetlands under the

CWA is based upon the 1977 amendments to the Act.

Although the 1977 legislative history contains some dis-

cussion of wetlands and wetlands values, the term “navi-

gable waters” was not redefined either to include or ex-

clude areas such as wetlands. As a matter of fact, the

only mention of the term “wetlands” in the final 1977

amendments is in Section 404/g) (1), which merely de-

scribes the procedure for state assumption of a dredge

and fill program. 33 U.S.C. § 1344/g) (1).

The government also makes reference to statements by

Senator Baker and Senator Muskie in support of its view

that Congress, in the 1977 amendments, ratified the

Corps’ regulatory assertion of jurisdiction over all wet-

lands. There are, however, aailliten statements by both

of these Senators in the legislative history which illus-

trate that there was actually considerable confusion by

members of Congress regarding the proper scope of the

Corps’ jurisdiction. For instance, Senator Baker, in com-

menting upon the types of waters that are subject to

Section 404 jurisdiction, clearly maintained the prere-

quisite hydrologic connection to traditionally navigable

waters:

“A fundamental element of the Water Act is broad

jurisdiction over water for pollution control pur-

poses. Several Federal courts have endorsed the

wisdom, and constitutionality, of this committee’s

observation that:

‘Water moves in hydrologic cycles and it is

essential that discharge of pollutants be con-

trolled at the source. Therefore, reference to the

control requirements must be made to the nav-

igable waters, portions thereof, and their tribu-

tartes.” ...

25

“Unless Federal jurisdiction is uniformly imple-

mented for all waters, discharges located on non-

navigable tributaries upstream from the larger rivers

and estuaries would not be required to comply with

the same procedural and substantive standards im-

posed upon their downstream competitors.” 123

Cong. Rec. $26,718 (1977) (floor statement of Sena-

tor Baker) (emphasis added).

Moreover, Senator Muskie, who as the government notes

was “one of the primary sponsors of the Act” (Pet. Brief

at 26), took it upon himself to express Congress’ overall

dissatisfaction with the way in which the Corps had pro-

ceeded to regulate activities in this country under Section

404:

“There is not a Senator on the floor, including the

Senator who is speaking, who supports Section 404

as it has been interpreted and implemented by the

Corps of Engineers.

“The corps proceeded to take . . . section [404]

and, by its interpretation, expand it far beyond any

intent of the Congress so that it found itself threat-

ening regulation in areas of the country which the

corps had never imagined it had any jurisdiction

over.” 123 Cong. Rec. $26,728 (1977).

Senator Muskie also rejected any notion that Section 404

was intended to regulate all wetlands when, in response

to Senator Dole’s concern that “any standing water in a

field where cattails, or other weeds have grown up around

it” would fall within the ambit of Section 404, he stated

that such an area would not be covered by Section 404

since the Corps’ definition of “wetlands” was intended to

describe “only the true swamps and marshes that are

part of the aquatic ecosystem.” 123 Cong. Rec. $26,767

(1977) (floor discussion between Senator Muskie and

Senator Dole).

The government contends that Congress’ failure to re-

define the term “navigable waters” in the 1977 amend-

26

ments is tantamount to congressional ratification of the

Corps’ post-Callaway regulations, which extended regula-

tory jurisdiction over all wetlands, including “nonad-

jacent” or isolated wetlands. It must be noted, however,

that the Corps’ regulations concerning the latter type of

wetland were not even in effect during the House de-

bates on Section 404 in 1977. In addition, the regulations

had been in place only briefly during the Senate’s discus-

sion of Section 404 amendments and had been operative

for only five months prior to Congress’ consideration and

passage of the final conference report on the 1977 amend-

ments.’ While legislative silence may in some circum-

stances be viewed as congressional ratification of an agen-

cy’s interpretation of a statute, this is only where the

administrative interpretation has been “consistent” and

“shown clearly to have been brought to the attention of

Congress.” Kay v. Federal Communications Commission,

443 F.2d 638, 646 (D.C. Cir. 1970). In the case at bar,

neither of these factors has been satisfied.

While it may be asserted that the Corps must exercise

jurisdiction over some critical wetlands to fulfill its legal

obligations, the current scope of jurisdiction goes far be-

yond what has been sanctioned by Congress and the

courts.

The 1975 decision of the United States District Court

for the District of Columbia in Natural Resources De-

fense Council v. Callaway, 392 F. Supp. 685, is uni-

formly cited as supporting expansive Section 404 juris-

diction. United States v. Byrd, 609 F.2d 1204 (7th Cir.

1979); Avoyelles Sportsmen’s League, Inc. v. Marsh,

10 See 3 Congressional Research Service, Library of Congress, A

Legislative History of the Clean Water Act of 1977: A Continu-

ation of the Legislative History of the Federal Water Pollution

Control Act at 49 (1978) (Section 404 amendments were passed by

the House on April 5, 1977: by the Senate on Aug. 4, 1977; and

both houses agreed to the conference report on Dec. 15, 1977);

33 C.F.R. § 209.120(e) (2) (i) (1976) (regulations became effective

July, 1977).

ee

27

715 F.2d 897 (5th Cir. 1983). In Callaway, the court

determined that Congress, in the FWPCA of 1972, had

“asserted federal jurisdiction over the nation’s waters

to the maximum extent permissible under the Commerce

Clause of the Constitution.” Jd. at 686. The traditional

tests of navigability were found to be inapplicable to the

term “navigable waters” for purposes of the FWPCA.

Accordingly, the court determined that the definition of

“navigable waters” which had been promulgated by the

Corps in its Section 404 regulations and which encom-

passed only traditionally navigable waters failed to com-

ply with the requirements of the FWPCA. Id.

Callaway did not explicitly include wetlands as part

of the “nation’s waters” to be regulated under Section

404; the court merely found that the Corps had inter-

preted the term “navigable waters” too narrowly. Nei-

ther the court’s opinion nor the CWA as it existed in

1975 mentioned the term “wetlands,” much less included

wetlands as “navigable waters” within the ambit of

Section 404."

As previously indicated, Congress did not define the

term “wetlands” in its amendments to the CWA. This

task was therefore left to the agencies charged with

administering Section 404. Those agencies must look to

the purposes underlying the CWA in promulgating the

relevant jurisdictional definitions.'"* The values behind

111t must be emphasized that this one-page District Court

decision provides no legal analysis or reasoning for its conclusions.

To the extent that this case conflicts with this Court’s understand-

ing of the CWA and its legislative history, it should be overruled.

12 The Presidential Task Force Report on Section 404 also recog-

nized that not every wetland was to be included within the Corps’

regulatory jurisdiction:

“While Congress’ definition goes beyond the traditional defi-

nition of ‘navigable waters’ covered by earlier Corps regulatory

programs, it also does not encompass all biological ‘wetlands’

however defined or regardless of their connection to waters.”

Appendix A at A-7.

28

preserving a particular wetland must be tied to one of

the stated goals of the CWA. As noted by Congressman

Alexander in commenting upon the House Report to

amend FWPCA in 1977:

“I do not believe the Congress intended for section

404 to cover all of the Nation’s waters and wetlands.

I believe the intent was to maintain Federal au-

thority over dredging and filling operations in com-

mercially navigable waters.” 123 Cong. Rec. H10,418

(1977).

In his article, The Public Interest Review Process,

Bernard N. Goode, Chief, Regulatory Functions Branch,

Office of the Chief of Engineers, United States Army

Corps of Engineers, specifically states that Section 404

“was never designed to protect wetlands, but rather to

control the discharge of two types of pollutants into the

nation’s waters—dredged material and fill.” 3 Nat'l

Wetlands Newsletter 6-7 (Jan.-Feb. 1981).

As is evident from the preceding discussion, Congress

in no way intended for Section 404 to reach all wetlands.

Rather, the guiding principle for determining whether

404 jurisdiction extends to a particular wetland is

whether a hydrologic connection exists between the wet-

land and any lake, river, stream, or tributary. This

guiding principle is in fact equivalent to the Sixth Cir-

cuit’s interpretation of the Corps’ wetland regulation

in this case. After reviewing the Corps’ amended wet-

land regulation, and the Corps’ interpretive statements

pertaining thercto, the lower court construed the regula-

tion as being limited to “lands such as swamps, marshes,

and bogs” that have a direct hydrologic connection to

“waters from adjacent streams and seas subject to the

jurisdiction of the Corps that it is not unreasonable to

classify them as lands which frequently underlie the

‘waters of the United States.’” Riverside Bayview, 729

F.2d at 398, Pet. App. at 15a. The District Court de-

termined that the navigable waters contiguous to the

29

Riverside property had not contributed to the wetland

characteristics of the land, except for the six instances of

inundation over an 80-year period. Joint Ar 2ndix at

50. Absent the hydrologic connection to thc-2 waters, the

Sixth Circuit was entirely correct in finding that the

Riverside property fell outside the ambit of the Corps’

jurisdiction under the CWA and its interpretation of the

Corps’ wetland regulation is fully consonant with the

terms of the CWA and its legislative history.

CONCLUSION

Based upon the arguments presented herein and the

reasons set forth in the brief of respondents, Riverside

Bayview Homes, Inc., et al., the decision of the Court of

Appeals should be affirmed.

Respectfully submitted,

RONALD A. ZUMBRUN

SAM KAZMAN

Counsel of Record

KEVIN J. HERON

Of Counsel

PACIFIC LEGAL FOUNDATION

1990 M Street, N.W., Suite 550

Washington, D.C. 20036

Telephone: (202) 466-2686

Attorneys for Amici Curiae

Pacific Legal Foundation,

National Cattlemen’s

Association, and Resource

Development Council for

Alaska, Inc.

DATED: June, 1985.

APPENDIX

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APPENDIX

THE VICE PRESIDENT

OFFICE OF THE PRESS SECRETARY

For IMMEDIATE RELEASE

9:00 A.M.

Friday, May 7, 1982

CONTACT: Peter Teeley

Shirley Green

202/456-6772

Time and date are local

Announcement of administrative reforms to

the regulatory program under Section 404 of the

Clean Water Act and Section 10 of the Rivers and

Harbors Act

Christopher C. DeMuth, Executive Director of the

Presidential Task Force on Regulatory Relief, today an-

nounced the initiation of major administrative reforms

of the U.S. Corps of Engineers’ permit program. The

reforms will dramatically reduce the delays in process-

ing permit applications and, according to rough estimates

by the Corps, could save $1 billion annually.

The reforms will include: eliminating the multi-level

bureaucratic review procedure, expanding the use of gen-

eral permits, giving states more authority and respon-

sibility for permit decisions, and clarifying the scope of

the permit program. This effort to develop a workable

and efficient permit program is based on the recommen-

dations of William R. Gianelli, Assistant Secretary of

the Army for Civil Works, and senior officials from EPA,

the Departments of the Interior and Commerce, and

other agencies.

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FACT SHEET

The U.S. Army Corps of Engineers

Section 10/404 Regulatory Program

® The Army Corps of Engineers administers Section 404

as part of its regulatory permit program, which also

includes Section 10 of the Rivers and Harbors Act of

1899 and Section 103 of the Marine Protection, Re-

search and Santuaries [sic] Act. Section 404 ex-

panded the Corps’ regulatory program from traditional

navigable waters (for which Section 10 permits were

also required) to “waters of the United States,” which

have been construed by some to encompass practically

all waters and wetlands.

* The Section 404 program has been plagued by severe

delays that have generated complaints and imposed

heavy economic burdens on the public. Despite recent

improvements, average processing time for “delayed”

(processing time greater than 120 days) permit ac-

tions was 815 days for applications requiring Environ-

mental Impact Statements (EIS), and 270 days for

those not requiring an EIS. Roughly 3 of every 10

permit actions are delayed and 1 percent of those de-

layed require an EIS. Based upon the number of

permit applications experiencing processing time longer

than 120 days, the total cost of delays has been esti-

mated on a very rough basis by the Corps to be in

excess of $1.5 billion annually.

® Two illustrative cases of delays in the Section 404 pro-

gram are provided at the end of this fact sheet. The

first illustrates the kinds of complications that can

arise from several layers of reviews involving different

agencies. The second illustrates that long delays have

occurred even over relatively minor issues.

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CASE SUMMARY NO. 1

LAKE ALMA PERMIT

The Lake Alma project was originally part of a De-

partment of Housing and Urban Development grant to

construct a public reservoir to help satisfy water-oriented

recreation needs of the City of Alma and Bacon County,

Georgia, and to stimulate economic growth in the region.

On October 4, 1977, the City of Alma and Bacon

County Commissioners applied for an Army Section 404

permit. The application called for the construction of an

earthen dam to create a 1,400 acre recreation lake on

Hurricane Creek.

EPA and the US Fish and Wildlife Service objected to

issuing the permit on the ground that the project did

not justify elimination of approximately 1,400 acres of

wetlands and that quality of the lake water would be un-

acceptable for recreational uses. The Georgia Depart-

ment of Natural Resources supported the project citing

the relative low quality of the existing wetlands; the En-

vironmental Protection Division of DNR stated that

water quality in the proposed iake would meet or exceed

all applicable water quality standards for recreational

waters.

The FWS conducted an evaluation of the project and

submitted a mitigation plan which included a provision

that the applicants purchase and manage additional acre-

age to offset the loss of wildlife habitat. Following ac-

ceptance of the mitigation plan by the applicants, FWS

withdrew its objection.

The mitigation plan included a group of six small

artificial lakes (green tree reservoirs, comprising a total

of 194 acres) to be constructed and managed for wildlife

habitat. EPA then added to its objection the concern

that the green tree reservoirs would be detrimental to

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water quality. EPA continued its objection to the proj-

ect as it was elevated through the Division Engineer and

the Chief of Engineers to the Assistant Secretary of the

Army for Civil Works, with each level trying to resolve

EPA’s concerns. When the ASA(CW) received the re-

port in August 1981, he consulted with EPA and called

for a restudy of the green tree reservoirs. Upon comple-

tion of the study, the ASA(CW) directed the issuance

of the permit. In September 1981 he transmitted his de-

cision to the EPA Administrator who could have, but did

not, elevate the matter to the Secretary of the Army.

The permit was finally issued on November 10, 1981,

four years after the application.

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CASE SUMMARY NO. 2

CAMERON CONSTRUCTION COMPANY

On June 19, 1979 the Cameron Construction Company

applied for a Corps permit to convert 10 acres of marsh

along a navigation channel to a water oriented commer-

cial use. The proposed project would allow Cameron

Construction to expand its operations in Cameron, Louisi-

ana, to meet the increased needs of energy producers.

The proposed site is near Cameron Construction’s exist-

ing facility and would require the placement of fill mate-

rial over the 10 acres and construction of a 614-foot long

bulkhead.

The National Marine Fisheries Service, part of the

Department of Commerce, objected to the permit on the

grounds that t.e project would have significant adverse

consequences on important marine resources and that

there were other viable alternatives. The Corps of Engi-

neers disagreed with NMFS and proposed to issue the

permit. Subsequently, in accordance with the 404(q)

Memorandum of Agreement, NMFS elevated the issue to

the Division Engineer and then to the Chief of Engi-

neers. At each level, the Corps weighed all factors, in-

cluding the concerns of NMFS, and found that the public

interest was best served by issuing the permit.

On February 2, 1981, the matter was elevated to the

Assistant Secretary of the Army for Civil Works. After

evaluating all aspects of the issue, the ASA(CW) found

that, although the 10 acres of wetlands would be lost,

this only represented five ten-thousandths of one percent

of the total wetlands in the area and that the benefits to

be gained from the project were considerable. Further,

he found that the Corps had adequately evaluated eight

alternatives to the proposed action and had found that

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none of them offered significant advantages over the

proposal.

In April 1981, the ASA(CW) decided that it was in

the public interest to issue the permit and directed the

Corps of Engineers to do so. The permit was issued on

June 20, 1981, two years after the application.

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ADMINISTRATIVE REFORMS TO THE

REGULATORY PROGRAM UNDER SECTION 404

OF THE CLEAN WATER ACT AND

SECTION 10 OF THE RIVERS AND HARBORS ACT

V. Clarifying the Scope of the Permit Program

The Section 404 program has been plagued by uncer-

tainties over its jurisdictional scope. Individuals plan-

ning construction, exploration, or development projects in

the vicinity of bodies of water have frequently been un-

certain whether a Section 404 permit was required, and

have sometimes been required to obtain permits or modify

projects after they had begun or completed them.

The Administration is strongly committed to protecting

the nation’s important wetlands. However, a proper re-

gard for Congressional intent and sound administrative

practice requires recognition that the purpose of Section

404 is not to restrict development of certain types of land

as such, but rather “to restore and maintain the chemi-

cal, physical, and biological integrity of the Nation’s wa-

ters.”” While Congress’ definition goes beyond the tradi-

tional definition of “navieable waters” covered by earlier

Corps regulatory programs, it also does not encompass

all biological “wetlands” however defined or regardless of

their connection to waters.

The current administrative definitions of the jurisdic-

tion of the Section 404 program, contained in regulations

of the EPA and the Corps, need to be clarified to pro-

vide better guidance to private parties and the Corps’ own

District Engineers. EPA and the Army, in consultation

with other expert agencies, will develop new and more

specific criteria redefining the scope of the program, based

upon technical parameters and specifying which types of

wetlands are and are not appropriately covered by the

Clean Water Act. The purpose of the new criteria will

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be to introduce a reasonable degree of certainty into the

scope of the Section 404 regulatory program and to main-

tain essential protection of the chemical, physical, and

biological integrity of the Nation’s waters.