Amicus Curiae Brief — Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers

Supreme Court, U.S.

Gz) FILED .

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No. 99-1178 JU) 2 6 200

IN THE

os hi

SUPREME COURT OF THE uniTeb states RK

SOLID WASTE AGENCY OF

NORTHERN COOK COUNTY,

Petitioner,

UNITED STATES ARMY

CORPS OF ENGINEERS, et ai.,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF OF AMICI CURIAE

THE NATIONWIDE PUBLIC PROJECTS COALITION,

THE AMERICAN ROAD AND

TRANSPORTATION BUILDERS ASSOCIATION, and

THE METROPOLITAN DENVER WATER AUTHORITY

IN SUPPORT OF PETITIONER

LAWRENCE R. LIEBESMAN

(Counsel of Record)

RAFE PETERSEN

LINOWES & BLOCHER

1010 Wayne Avenue

Silver Spring, MD. 20910

(301) 588-8580

Counsel for Amici Curiae.

Washington, 0.C. ¢ THIEL PRESS © (202) 328-3286

(1)

Page

TABLE OF CONTENTS

Interests of the Amici Curiae..............000ee eee l

Summary of Argument...........: 0c ceeeeeeecees 6

ABGMGER ccccccccccesccccsescccccsccecceecens 7

I. THE MIGRATORY BIRD RULE VIOLATES FUNDA-

MENTAL PRINCIPLES OF FEDERALISM. ABSENT

A “CLEAR STATEMENT” FROM CONGRESS, A

REVIEWING COURT SHOULD NOT SANCTION

USURPATION OF STATE AND LOCAL CONTROL

OF LAND AND WATER RESOURCES. ............. 7

A. The Clear Statement Principle Limits

the Reach of Section 404 Regulatory

PURGES oo c cccccccnceeesceccccoeseess 8

B. The Migratory Bird Rule Improperly

Expands the Definition of Navigable

Waters and Invades the Land Use Reg-

ulatory Authority of State and Local

Agencies In Violation of the “Clear

Statement” Principle... ccccccccccccccees 10

C. The Seventh Circuit’s Interpretation

Could Have a Significant Adverse

Effect on Vital Public Projects ............ 13

II. THE CORPS’S ARGUMENT THAT FEDERAL REG-

ULATION IS NECESSARY TO PROTECT THE

NATURAL HABITAT OF MIGRATORY BIRDS

IGNORES STATE PROGRAMS THAT EXCEED

THE CLEAN WATER ACTIN SCOPE ............. 19

Cemee, . o 606000bbnedsesbun ie oeb0enseseune 25

(:t)

P

TABLE OF AUTHORITIES — HE

Cases:

Borden Ranch Partnership v. U.S. Army Corps

of Engineers, No. $97-0858, 1999 WL

1797329 (E.D. Cal. Nov. 8, 1999)... .......0005. 3

Cargill Inc. v. United States, 516 U.S. 955

TTT CT TEEPE TLEE TUTTLE LETT TTT 11

City of Dallas, Texas v. FCC, 165 F.3d 341

i: CE cb 6e6bsebeoccscecencecccccees 12

Federal Energy Regulatory Commission v.

Mississippi, 456 U.S. 742 (1980)... 2... ee ee eee 19

Gregory v. Ashcroft, 501 U.S. 452 (1991) ..... 9,10, 12

Leslie Salt Co. v. United States, 55 F.3d

Dh ME: + obbwovcceeecesesececece 11

Resource Investments, Inc. v. U.S. Army Corps

of Engineers, 151 F.3d 1162 (9th Cir.

i ieee ssheeeeedses ee eecencecceccces 14

United States v. Bass, 404 U.S. 336 (1971). ......... 10

United States v. Lopez, 514 U.S. 549

Dh icceeeee be seeeeseveecocececece 9, 24

United States v. Morrison, 529 U.S. _—

SOTO TT CTC TTTTTET ULL TTT TTT ee 12

United States v. Wilson, 133 F.2d 251 (4th

EET Tee eeTT PTET TTT TTTTTe ll

Statutes:

Federal Water Pollution Control Act, 33

U.S.C. § § 1251-13987 (1994). ........ cece ee eees 2

CWA section 101, 33 U.S.C. §1251(b)........... 8,19

CWA section 404, 33 U.S.C. §1344 ......... 8,11, 24

ary

(iit)

Statutes, continued: Page

CWA section 502, 33 U.S.C. §1362............ 8,11

CWA section 510, 33 U.S.C. §1370 ............ 8,19

Cal. Water Code § §13000-14958................ 22

Se, SEY SIL ccececcoccessoeseeuses 22

Conn. Gen. Stat. § §22a-36 to -45 (1994). ......... 20

Fla. Stat. Ann. § §373.414-421 (West

PED Ge be eeeceeeSdonceseeesooeseesosanse 20

Ph, PO céeceneceoéeseuctasaons 23

415 Ill. Comp. Stat. 5/3.56 (West

SE 6946600600 4006656406000666000600. 21, 22

Mass. Gen. Laws Ann. Ch. 131, § §40, 40A

SEED DEE coccecacccoseecscoeseceseesees 20

MD. Code Ann., Envir. §5-102...............0.:. 22

MD. Code Ann., Envir. §5-902.............2205. 22

Me. Rev. Stat. Ann. Tit. 38, § §480-A to

PD DEED co sececesnesesesceseceseesece 20

Mich. Comp. Laws §281.701-722 (1994).......... 20

Min. Stat. § 103G.222-2242 (1994) .............. 20

N.H. Rev. Stat. Ann. §482-A:1-:27 (1994). ........ 20

N.J. Rev. Stat. §13:9B-1 to -30 (1994). ........... 20

N.Y. Envtl. Conserv. Law § §24-0101-

RODS CEMOGE, BEEP ccc ccccccccccccccccccccs 20

Pa. Stat. Ann. Tit. 25, §105.17 (1993). ........... 20

R.1. Gen. Laws § §2-1-18 to -24 (1994) ........... 20

Va. Code Ann. § §62.1-44.3-44.5 (2000) .......... 20

Vt. Stat. Ann. Tit. 10, §1272 (1994)............. 20

(wv)

P

Regulations: age

Final Notice of Issuance and Modification of

Nationwide Permits, 65 Fed. Reg. 12,818

(March ©, 2000) ... 2... eee ee eee ee eee eens 15

65 Fed. Reg. 12,881... . 2... cee ee eee eee eees 16

65 Fed. Reg. 12,892-893. ... 2... eee ee eee eee 17

65 Fed. Reg. 12,897 ....... 2c cece erence ee eeees 16

$3 C.F.R. $922.4... ccc cc cece ccccerccecvens 17

SS C.F.R. SSSO2 .. wc cccccccccccccccccccccess 16

GO C.P.R. O2SO. 2. cccccccccccccccccccccceces 17

40 C.F.R. $2398.70... ccc wcrc ccccccencccces 24

40 C.F.R. $8293.71... .. cece cece eee eenccees 24

Other Authorities:

Jonathan H. Adler, Wetlands, Waterfowl, and

the Menace of Mr. Wilson: Commerce

Clause Jurisprudence and the Limits

of Federal Wetland Regulation, 29

Envtl. L. 1 (1999)... .. 2 cece ee eee eee ee eeees 21

California Environmental Protection Agency,

State of the State’s Wetlands (1998)............ 23

Congressional Budget Office, Trends in Pub-

lic Infrastructure Spending (May, 1999)....-- 14, 15

Alexandra D. Dawson, Massachusetts’ Exper-

tence in Regulating Wetlands, in Wetland

Protection: Strengthening the Role of the

States 225 (Association of State Wetland

Managers ed., 1985) ... 2... ee ee eee eee eee eens 21

Therese Dunphy, Corps’ New Nationwide Per-

mit Restrictions Leave Producers Very Lit-

On ey ne

(v)

Other Authorities, continued:

tle Room to Maneuver, Aggregate Manger,

June 2000

Environmental Law Institute, Almanac of

Enforceable State Laws to Control Non-

potnt Source Water Pollution (1998)............

Federal Wetland Protection Policy, 1993: Hear-

ings on S. 1304 Before the Subcomm. On

Clean Water, Fisheries and Wildlife of the

Senate Comm. On Environment and Pub-

lic Works, 103d Cong., Ist Sess. (1993)

(statement of the National Association of

State Departments of Agriculture) .............

Institute for Water Resources, U.S. Army Corps

of Engineers, Cost Analysis for the 1999 Pro-

posal to Issue and Modify Nationwide Per-

SP GS ou secéaccncssceseeesesececscces

Jon A. Kusler, et al., State Wetland Regulation:

Status of Programs and Emerging Trends

(Association of State Wetland Managers

ed., 1994)

National Association of Counties, Analysis

of The Army Corps of Engineers’ NWP 26

Replacement Permit Proposal (January

GED obec dessccdecocccesvasevesseseses

S. Rep. No. 414, 92d Cong., Ist Sess. 73

(1971); 118 Cong. Rec. 10.699 (1972)...........

U.S. Environmental Protection Agency, Office

of Wetlands, Oceans, and Watersheds, State

or Tribal Assumption of the Section 404

Permit Program (May 25,1999) ...............

Other Authonties, continued:

(vt)

William L. Want, Law of Wetland Regulation

(1992)

eoeervreeeeneeeeneeneteenteenetenweeeneeeneeeeetereeteeeee #

The Nationwide Public Projects Coalition, the Amer-

ican Road and Transportation Builders Association, and

the Metro Denver Water Authority, as amici cunae, res-

pectfully submit this brief in support of Petitioner Solid

Waste Agency of Northern Cook County, pursuant to

Rule 37.3 of the Supreme Court Rules.!

INTERESTS OF THE AMICI CURIAE

The Amici are public sector agencies and associations,

local governments, and private entities that provide

essential services to the public.

Nationwide Public Projects Coalition (NPPC) is a

not-for-profit association whose members include state,

regional and local government agencies and associations

and private sector entities. Its members represent over 12

million constituents, extending from Connecticut to

Califomia and from Alaska to Georgia. NPPC funda-

mentally represents the interests of the public in ensur-

ing that vital public infrastructure services such as mun-

icipal, industrial and agricultural water supply, flood con-

trol, irrigation, wastewater treatment, stormwater man-

agement, street and highway construction and mainten-

ance, aggregate mining, and environmental quality amen-

ities are provided in a safe, timely and environmentally-

beneficial fashion. Consisting predominantly of public

officials and firms that serve public sector needs, NPPC’s

members must ensure that a responsible balance is

I The parties have consented to the filing of this brief. The

Amici have filed letters of consent with the Clerk. Pursuant to this

Court’s Rule 37.6, no counsel for any party in this case authored

this brief in whole or in part, and no person or entity other than

the Amici and their counsel has made a monetary contribution to

the preparation and submission of this brief.

2

achieved between environmental, health, and safety

goals and the protection of lives and property.

American Road and Transportation Builders Associa-

tion (“ARTBA”) is made up of 5,000 member organi-

zations in the transportation construction industry,

including construction contractors; professional engin-

eering firms; federal, state and local transportation

administrators; heavy equipment manufacturers; and

materials suppliers. These member companies employ

more than 1,000,000 people in the transportation con-

struction industry in the United States.

The Metro Denver Water Authority (MDWA), a pol-

itical subdivision and public corporation of the state of

Colorado, is made up of 15 Suburban Denver cities,

counties and special districts that provide water and/or

wastewater services to about 1,300,000 persons.

This case could have a profound impact on the Amici,

and on the public that they serve. The U.S. Army Corps

of Engineer’s (“Corps”) assertion of Clean Water Act

(“CWA”)? regulatory jurisdiction over isolated bodies

of water such as manmade ponds, drainage ditches,

vernal pools, swales, rainwater filled depressions and

excavation ditches, intermittent streams and drainages,

dry washes and other remote, ephemerally wet areas

alleged to be actual or potential habitat for migratory

birds affects public and private projects throughout the

Nation. As discussed below, the resources at issue in this

case are not waters or wetlands in the traditional sense,

but rather are often low points in the landscape where

rainwater collects.?> Taken to its logical conclusion, this

2 Federal Water Pollution Control Act, 38 U.S.C. § §1251-

1387 (1994).

5“ vernal pool is a low point in the landscape underlain

with a dense soil layer and wherein rainwater collects. Generally,

[footnote continued]

3

overreach of federal jurisdiction via the migratory bird

rule could have a chilling effect on public projects by

allowing the Corps and the Environmental Protection

Agency (“EPA”)* to override carefully considered deci-

sions and investments of state and local governments that

are intended to meet vital public needs, including life-

saving infrastructure. The potential impact of the migra-

tory bird rule affects a broad array of public projects.

1. NPPC’s members regularly are subject to the CWA

section 404 permit program. For example, stormwater

management agencies generally require access to wetlands

and streams and other areas that are seasonally wet due

to collection of rainwater. These agencies require author-

ization from the Corps to conduct basic, but important,

maintenance functions such as cleaning debris basins and

clearing vegetation and other obstructions that choke

flood control channels. Such activities are critical to

maintaining the maximum capacity and proper function-

it is inundated part of the year and is dry during the summer, and

may or may not be connected with other hydrological features.”

Borden Ranch Partnership v. U.S. Army Corps of Engineers, No.

$97-0858, 1999 WL 1797329, at *1 (E.D. Cal. Nov. 8, 1999)

(describing wetlands at issue in enforcement action). “Intermit-

tent drainages are basically streams or water courses with a defined

bed and bank that generally transport water during and after

rains.”” id.

#4 1979 Opinion of the Attorney General determined that

EPA has the ultimate authority for determining the extent of CWA

jurisdiction. See 43 Op. Attorney General No. 15 (September 5,

1979). The Corps and EPA, however, entered into a memorandum

of agreement in 1989 that accords the Corps primary authority to

determine the scope of geographical jurisdiction under the CWA.

See Memorandum of Agreement Between the Department of the

Army and the Environmental Protection Agency Concerning the

Determination of Geographic Jurisdiction of the Section 404 Pro-

gram and the Application of the Exemptions Under Section 404(f)

of the Clean Water Act (Jan. 19, 1989).

4

ing of the flood control systems in the case of a major

flood event. These activities are especially critical for

NPPC members in Souther California that must rapidly

clean out accumulated sediment from flood control chan-

nels to prevent flood damage and loss of life. Many of

these areas have water during storms but are otherwise

dry.

2. Metro Denver Water Authonty (“MDWA’”’) is sup-

ported by annual membership assessmeiiis based on the

number of water and/or sewer taps provided. The pop-

ulation growth rate in MDWA’s region is among the

highest in the United States and, accordingly, new infra-

structure needs are substantial. MDWA has legitimate

concems that assertion of jurisdiction over isolated and

ephemeral waters will make it very difficult to construct

and maintain new water and sewer facilities in a timely

manner and could severely impact the Authority’s abil-

ity to provide vital public services, particularly when

emergencies arise.

3. ARTBA’s members provide vital transportation

infrastructure such as highways, bridges, airports, rail-

roads, mass transit facilities, and similar structures. Con-

struction and maintenance of transportation infrastruc-

ture often requires access to wetlands, streams, lakes,

and rivers. Accordingly, ARTBA members regularly

require authorization from the Corps to provide and

maintain the Nation’s valuable transportation infrastruc-

ture. ARTBA’s members include public agencies respons-

ible for the construction of transportation systems,

aggregate miners that produce materials used in trans-

portation projects, and members that construct storm-

water management facilities for transportation pro-

jects. The assertion of federal jurisdiction over man-

made waters such as roadside drainage ditches and sea-

5

sonally wet depressions has substantially impacted

necessary public transportation infrastructure projects.

It is Amict’s belief that, if the Seventh Circuit’s inter-

pretation is upheld, the intrusion of the federal agen-

cies into the state and local public projects process will

significantly impede the ability of public entities to pro-

vide essential services. The Amici’s diverse membership

must be able to rely on minimal levels of certainty and

predictability in the processes that are necessary for

design and implementation of public works projects.

The Amicit’s members invest countless hours and hun-

dreds of millions of tax dollars planning, assuring finan-

cing, preparing for, and constructing public service pro-

jects of equal or greater importance and cost than the

Solid Waste Agency of Northern Cook Cook County

(“SWANCC”) balefill. If public projects that impact only

intrastate, isolated waters are subject to federal suprem-

acy that overrides local authority to plan, site and

approve such projects, countless hours and millions of

tax dollars for vital public works projects would be need-

lessly sacrificed.

Moreover, the requirement that public agencies obtain

section 404 permits for repetitious and routine main-

tenance activities such as clearing vegetation from flood

control channels, debris basins and other catchment areas

disrupts normal maintenance schedules and delays needed

maintenance work. Such a requirement also increases the

cost of that work, and in some cases exposes lives and

property to unnecessary risk. The long-range conse-

quences for the Nation may include significant decreases

in not only the quantity and quality of public works pro-

jects, but also the ability to timely deliver public services

necessary to protect public health and welfare.

6

SUMMARY OF ARGUMENT

1. The migratory bird rule’s intrusion into matters tra-

ditionally reserved to state and local govemments cannot

be permitted, absent a clear statement of Congressional

intent. By limiting the Corps’s jurisdiction to “navigable

waters,” and by expressly recognizing, preserving, and

protecting the “primary responsibilities” of states with

respect to “land and water resources,” Congress expressed

its clear intent not to authorize jurisdiction over isolated,

intrastate waters lacking any meaningful connection to

interstate commerce. The Seventh Circuit’s ruling con-

travenes these principles.

2.The Seventh Circuit’s interpretation could have a

significant adverse effect on vital public projects. The

Corps’s expansion of jurisdiction to include all poten-

tial migratory bird habitat could have the practical

effect of allowing the Corps to overturn state and local

approvals of public projects impacting isolated “wet

areas” based on an alleged federal interest in the “‘aggre-

gate’’ health of the Nation’s migratory bird population.

3. Assertion of jurisdiction over isolated intrastate

waters violates fundemental principles of federalism by

intruding into areas traditionally reserved for state and

local regulation. State regulatory schemes provide ade-

quate protection for isolated, intrastate waters. There

are many state programs that regulate wetlands and

control non-point source pollution. These programs

provide adequate protection for the functions of iso-

lated, intrastate waters.

ARGUMENT

I.

THE MIGRATORY BIRD RULE VIOLATES FUNDA-

MENTAL PRINCIPLES OF FEDERALISM. ABSENT A

“CLEAR STATEMENT” FROM CONGRESS, A REVIEW-

ING COURT SHOULD NOT SANCTION USURPATION OF

STATE AND LOCAL CONTROL OF LAND AND WATER

RESOURCES.

Both the trial and appellate courts improperly deferred

to the Corps’s assertion of jurisdiction over isolated wat-

ers that were not “navigable” in any true sense. In fact,

the waters involved in this case were essentially rain filled

trenches excavated by strip mining in upland areas.

The Seventh Circuit, while acknowledging that the Corps

made no finding that the use of the site by migratory

“birds had any actual effect on interstate commerce, held

that “‘a single activity that itself has no discernable effect

on interstate commerce may still be regulared if the aggre-

gate effect of that class of activity has a substantial effect

interstate commerce.” Pet. App. 6a. This holding is of

particular importance to Amici’s public works projects.

The expansion of the definition of “‘navigable waters”’ to

encompass isolated water bodies with no direct connec-

tion to interstate commerce expands the authority of

the federal agencies to influence, and indeed, as was the

case with SWANCC, negate carefully planned public

works projects. This overreach intrudes into matters tra-

ditionally reserved to state and local governments — an

intrusion that the Court has held cannot be permitted,

absent a clear statement of Congressional intent.

A. The Clear Statement Principle Limits the Reach

of Section 404 Regulatory Jurisdiction.

Section 101 of the CWA specifically limits the auth-

ority of federal agencies to intrude into state and local

matters, stating:

It is the policy of the Congress to recognize, pre-

serve, and protect the primary responsibilities and

rights of States to prevent, reduce, and eliminate

pollution, [and] to plan the development and use

(including restoration, preservation, and enhance-

ment) of land and water resources. . . .

33 U.S.C. §1251(b). Congress also explicitly stated that

nothing in the CWA is to “be construed as impairing or in

any manner affecting any right or jurisdiction of the

States with respect to the waters ... of such States.” 33

U.S.C. $1370. In furtherance of these policies, Congress

declined to extend the authority of the Corps to require

permits for the discharge of “pollutants” into many

known types of water bodies — limiting jurisdiction to

only “navigable” waters. See 33 U.S.C. § §1311(a),

1344(a), 1362(12).° Similarly, Congress excluded

groundwater from the CWA’s regulatory program after

finding that including such waters would have involved

the federal government in complex state jurisdictional

rules. See S. Rep. No. 414, 92d Cong., Ist Sess. 73

(1971); 118 Cong. Rec. 10,699 (1972). State regulatory

programs in these reserved areas were to complement the

mandatory regulatory programs that would be adminis-

tered by federal agencies under sections 402 and 404 of

the CWA. Accordingly, Congress also enacted section

5In turn, “navigable waters” are defined in section 502 of

the CWA as “The waters of the United States.” 33 U.S.C. §1362-

(7).

9

208 to encourage the states to develop area-wide manage-

ment plans that would address the pollution sources not

regulated by federal law. See 33 U.S.C. §1288. Thus,

Congress struck a careful balance — providing federal

authority where necessary to protect federal interest in

the health of “‘navigable waters,” while preserving state

authority in all other spheres.

The migratory bird rule eviscerates this careful bal-

ance, extending federal authority to include isolated,

intrastate, seasonally wet areas that would otherwise

remain in the exclusive control of state and local deci-

sionmakers. Under our federal system, however, the

Court does not allow this abrogation of local power unless

it is clear that Congress considered and intended, when

it passed the authorizing legislation, to alter the tradi-

tional balance between federal and state powers. This

‘“‘clear statement” principle applies “in cases implicating

Congress’s historical reluctance to trench on state legis-

lative prerogatives or to enter into spheres already occu-

pied by the States.” United States v. Lopez, 514 US.

549, 611 (1995) (Souter, J., dissenting) (citation omit-

ted).

As the Court explained in Gregory v. Ashcroft, 501

U.S. 452 (1991), ,

our Constitution establishes a system of dual sover-

eignty between the States and the Federal Govern-

ment ... [in which] “the preservation of the States,

and the maintenance of their governments, are as

much within the design and care of the Constitution

as the preservation of the Union and the mainten-

ance of the National government.”

Id. at 457 (quoting Texas v. White, 68 U.S. (7 Wall.)

700, 725 (1869)).

10

Of course, as long as Congress is acting pursuant to one

of its enumerated powers, such as its power under the

Commerce Clause, the Supremacy Clause allows Con-

gress to trump state law, even in areas (such as land use)

that by tradition fall within the state sphere. Nonethe-

less, under the “clear statement” principle, the Court will

not simply assume that Congress has used its power to

override state authority. Rather, “[u]nless Congress

conveys its purpose clearly, it will not be deemed to have

significantly changed the federal-state balance.” United

States v. Bass, 404 U.S. 336, 349 (1971). Mere ambi-

guity will not suffice to demonstrate that Congress

intended to utilize the Commerce Clause to intrude into

state interests. See Gregory, 501 U.S. at 464.

B. The Migratory Bird Rule Improperly Expands

the Definition of Navigable Waters and Invades

the Land Use Regulatory Authority of State and

Local Agencies In Violation of the “Clear State-

ment” Principle.

The Corps utilizes the migratory bird rule to improp-

erly expand the scope of federal regulatory authority to

extend to isolated waters, such as manmade ponds and

depressions excavated in uplands, seasonally wet drainage

ditches and dry washes, and other remote, marginally wet

areas. The Seventh Circuit’s decision allows the Corps to

assert jurisdiction over any wet area having no other con-

nection to interstate commerce other than the potential

presence of migratory birds and the “aggregate” impact

of the “destruction of the natural habitat of migratory

birds. ...”” Pet. App. 7a. The migratory bird rule goes

well beyond the intended scope of the CWA, and invites

unwarranted agency abuse where the public projects of

11

municipal and quasi-municipal agencies involve purely

isolated, intrastate waters.

The Seventh Circuit reasoned that people spend money

on hunting and bird-watching equipment and _ travel

across state lines to view such birds. Jd. This rationale,

however, ignores the fact that Congress limited the scope

of the CWA to “navigable waters” and, in turn, to “wat-

ers of the United States.” 33 U.S.C. § §1344(a), 1362(7).®

In effect, the migratory bird rule drops the key words

“navigable” and “United States’’ and rewrites statutory

authority to cover all “‘waters” based on any remote

nexus to interstate or foreign commerce. Yet, as noted

by the Fourth Circuit in United States v. Wilson, 133

F.2d 251, 257 (4th Cir. 1997), “the phrase ‘waters of the

United States’ when used to define the phrase ‘navigable

waters’ . . . refers to waters which, if not navigable in

fact, are at least interstate or closely related to naviga-

ble or interstate waters.”

The CWA does not provide the Corps with a “clear

statement” that it possesses authority to assert jurisdic-

tion over such isolated waters based on their potential

use as migratory bird habitat. The Corps appears to bel-

ieve, and the Seventh Circuit agreed, that it may bend

the Commerce Clause in such a manner as to expand the

6 Without repeating the arguments of Petitioner, the Amici

note that they concur with Petitioners’ assertion that the Seventh

Circuit improperly interpreted the Commerce Clause.

7 Similarly, the validity of such broad interpretation of the

Commerce Clause set forth in Leslie Salt Co. v. United States,

55 F.3d 1388 (9th Cir. 1995) is questioned by Justice Thomas in

a dissent from the denial of certiorari to review that decision,

where Justice Thomas notes that the Ninth Circuit stretched the

Commerce Clause “beyond the breaking point.” See Cargill Inc.

v. United States, 516 U.S. 955, 959 (1995) (Thomas, J., dissent-

ing from denial of certiorari).

12

definition of “waters of the United States” to cover iso-

lated, intrastate waters and thus bootstrap itself into

regulation of local affairs. However, “Lopez empha-

sized . . . that even under our modem expansive inter-

pretation of the Commerce Clause, Congress’ regulatory

authority is not without effective bounds.” United

States v. Morrison, 529 U.S. _— (2000). The notion

that Congress has provided a “clear statement” that the

Corps’s jurisdiction extends to isolated waters is belied by

the limitation that the federal entities regulate solely

“navigable” waters, and by sections 101’s and 510’s

clear recognition of the primacy of state authority over

intrastate land and water resource protection. A broad

interpretation of statutory authority is not enough where

Congress has not stated its intent to preempt state auth-

ority.” See City of Dallas, Texas v. FCC, 165 F.3d 341,

348 (5th Cir. 1999). Congressional intent to alter the

traditional constitutional balance between the states and

the federal government must be “unmistakably clear in

the language of the statute.” Gregory, 501 U.S. at 460

(quoting Atascadero State Hospital v. Scanlon, 473 U.S.

234, 242 (1985).

In sum, the almost “limitness” expansion of federal

authority inherent in the migratory bird rule allows the

Corps to essentially arrogate federal power over state and

local governments contrary to the express language of the

CWA and fundamental principles of federalism. “[T]o

give the state-displacing weight of federal law to mere

congressional ambiguity would evade the very procedure

for lawmaking on which Garcia relied to protect states’

interests.” Gregory, 501 U.S. at 464 (quoting L. Tribe,

American Constitutional Law §6-25, 480 (2nd ed.

1988)).

13

C. The Seventh Circuit's Interpretation Could Have

a Significant Adverse Effect on Vital Public

Projects.

The ramifications of the Seventh Circuit’s interpreta-

tion of the scope of the CWA are significant. The Sev-

enth Circuit’s decision could severely impact the process

of decisionmaking for many vital projects sponsored by

the Amict. The Amici bring together an alliance of

regional water, highway and public works agencies, local

and state governments, and private sector associations

and companies that plan for and construct vital public

works projects. The Amici are motivated by the increas-

ing difficulty for state and local governments to deliver

needed services affordably, efficiently, and on a timely

basis, as a result of the nature and scope of various fed-

eral environmental laws. The role of public works

agencies in providing services such as vital flood control,

potable water, and maintenance of utility rights-of-way

is severely hampered by the migratory bird rule and its

triggering of the complex section 404 wetlands permit

Program. The Corps’s expansion of jurisdiction to

include all potential migratory bird habitat could have

the practical effect of allowing the Corps to overtum

state and local approvals of public works projects impact-

ing isolated “wet areas” based on an alleged federal

interest in the “aggregate” health of the Nation’s migra-

tory bird population.

The balefill project at issue in this case, where the

denial of a section 404 permit halted a vital $20 million

landfill, is but one example of the type of project that

could be completely thwarted by the Corps’s assertion

of jurisdiction over local projects impacting purely intra-

14

state, isolated waters,® Indeed, national data in infra-

structure funding reflects the greatly increased burdens

on local governments. A 1999 report prepared by the

Congressional Budget Office (“CBO”) indicates that the

percentage of federal dollars contributed to the con-

struction, operation and maintenance of public infra-

structure has been steadily decreasing. See CBO, Trends

in Public Infrastructure Spending (May, 1999) <http:

/|www.cbo.gov/byclasscat.cfm?class=0&cat=21>.9 Stat-

ing that “public facilities, resources, and services known

as infrastructure are vital to the nation’s production and

distribution of private economic output as well as to its

citizens’ overall quality of life,” the report notes that in

1994 total public spending for infrastructure was $171

billion, but that the federal share of spending has

decreased. See id. at 1. The analysis contained in the

CBO report of spending on infrastructure relative to gross

domestic product reveals increasing levels of responsibil-

ity placed on state and local governments to finance

infrastructure. Since the late 1980s, “state and local gov-

ernments have contributed approximate 75 percent of

public infrastructure outlays, and current patterns of

8 For example, in Resource Investments, Inc. v. U.S. Army

Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998), the Corps

denied a section 404 permit for a 320 acre municipal landfill

after over six years of extensive state and local reviews. A unani-

mous panel of the Ninth Circuit overturned the lower court,

which had upheld the denial, and found that the Corps lacks

authority to require a section 404 permit for a facility approved

by the state under the Resources Conservation and Recovery Act,

42 U.S.C. § §6901-6992.

°The CBO report examines federal, state and local spending

from 1956 through 1994 and estimates federal outlays through

2008 for eight types of infrastructure: highways, mass transit,

rail, aviation, water transportation, water resources, water supply

and wastewater treatment facilities.

15

spending maintain that trend.” Jd. at 2. While federal

spending for highways is expected to increase, projected

federal spending is expected to decrease by an average

annual rate of 2.7 percent for all other categories of

infrastructure throughout the 1998-2003 period. See id.

In light of the multitude of public services that state

and local governments are now responsible for providing

to their residents, state and local governments often must

contract with or rely upon private entities to provide

many of these services. Unfortunately, the Seventh Cir-

cuit’s decision creates a disincentive for private entities to

enter into such partnerships with public agencies. With

the possibility that the federal government will assert

jurisdiction over isolated wet spots due to the “aggre-

gate” impact on interstate commerce of potential migra-

tory bird use, private entities will be more hesitant to

undertake contracts to provide essential public services.

Even where private entities are willing to provide these

services, they will have to increase the cost of the con-

tracts in order to account for the risks and unpredicta-

bility flowing from possible assertion of jurisdiction by

the Corps. Thus, the Seventh Circuit’s decision unduly

constrains the options of public entities in the current

fiscal climate where public agencies are under increasing

pressure to provide greater services with fewer resources.

To compound this problem, this decision has occurred

at a time when federal jurisdiction under the CWA is

becoming increasingly more onerous. In March 2000, the

Corps made substantial changes to the “fast track”

Nationwide Permit (“NWP”) program under section 404

of the CWA; phasing out NWP 26 for impacts to isolated

or headwaters areas and substituting five activity-specific

nationwide permits. See Corps, Final Notice of Issuance

and Modification of Nationwide Permits, 65 Fed. Reg.

16

12,818 (March 9, 2000). Under the prior program, the

Amici relied on NWP 26, which permitted discharges of

up to 3 acres in certain “isolated” waters or “headwater”’

wetlands.’° Thus, even where the Corps’s jurisdiction

over certain isolated waters was questionable, the more

expedited nationwide permit program was available in

many cases.'!! However, under the revised program,

there is a maximum one-half (1/2) acre limit for impacts

to “Waters of the United States” which includes “ephem-

eral streams.”!* Even where the new one half acre limit

could be met, the use of the new NWP program is

severely restricted for activities conducted within the

100-year floodplain. For example, the mining replace-

ment permit (NWP 44) may not be used within the flood-

10-rhe Corps defines “headwaters” as “non-tidal rivers,

streams, and their lakes and impoundments, including adjacent

wetlands, that are part of a surface tributary system to an inter-

state or navigable water of the United States upstream of the point

on the river or stream at which the average annual flow is less

than five cubic feet per second.” 33 C.F.R. §330.2(d). “Isolated

waters” are defined as “those non-tidal waters of the United

States that are: (1) Not part of a surface tributary system to inter-

state or navigable waters of the United States; and (2) Not adjacent

to such tributary waterbodies.” 33 C.F.R. §330.2(e).

11 Corps data shows that more than 80% of the Corps permit-

ting under section 404 fell under the NWP program. See U.S.

Army Corps of Engineers Regulatory Branch, Section 404 of the

Clean Water Act and Wetlands, A Special Statistical Report, July

1995.

The Corps. defines an “ephemeral stream” as having

“flowing water only during and for a short duration, after, pre-

cipitation events in a typical year. Ephemeral stream beds are

located above the water table year-round. Groundwater is not a

source of water for the stream. Runoff from rainfall is the pri-

mary source of water for stream flow.” 65 Fed. Reg. at 12,897.

An “ephemeral strema that meets the criteria at 43 C.F.R. part

$28 is a water of the United States.” Jd. at 12,881.

17

way of the 100-year floodplain, or within 100 feet of the

ordinary high water mark of headwater streams where

ave annual flow is greater than 1 cubic foot per sec-

ond. A recent preliminary study by the National

Aggregates Association indicates that 77 percent of res-

pondents had one or more operations within the 100 year

floodplain and 57 percent anticipated that they would be

seeking a dredge and fill permit for activities within the

100 year floodplain within the next five years.'* Thus,

the floodplain restriction could severely impact aggre-

gate production so necessary for the Nation’s infrastruc-

ture.

The Seventh Circuii’s decision will have a greater

impact on public entities than otherwise would have been

the case, due to the contemporaneous nature of the deci-

sion with the March 2000 changes to the NWP program.

As a result, Amici’s members will be subject to the far

more onerous and time-consuming individual permit pro-

cess under the CWA because many activities vital to the

Nation’s infrastructure, such as aggregate mining, flood

control and stormwater management activities, impact

floodplains with isolated ephemeral waters and have

become ineligible for the NWP program.!®

13 See 40 Fed. Reg. at 12,892-893,

14

See Therese Dunphy, Corps’ New Nationwide Permit

Restrictions Leave Producers Very Little Room to Maneuver,

Aggregate Manager, June 2000, at 37.

|The individual permit process involves a detailed evalua-

tion of whether a proposed discharge is in the “public interest.”

The Corps considers and balances many factors and must deter-

mine that there are no practicable alternatives to the proposed dis-

charge, see 38 C.F.R. §322.4, and must also comply with EPA’s

detailed 404(b)(1) guidelines, see 40 C.F.R. §230. This involves

individual public notices allowing for agency and public comment

that must be considered before a permit may be issued. The Corps

must prepare detailed findings to support its permit decision.

18

The Corps is well aware of the cost impacts of the

changes to the NWP program. As required by the FY

2000 Energy and Water Development Appropriations

Act, the Corps prepared a report for Congress estimating

workload and costs impacts related to the increase in the

number of individual permits that would be required as

a result of the more stringent NWP requirements. The

Corps estimated that the changes will result in an annual

additional 4,429 individual permits, with $48 million in

direct costs to the regulated public. See Letter from

Joseph W. Westphal, Assistant Secretary of the Army

(Civil Works) to the Honorable Pete V. Domenici, Chair-

man, Subcommittee on Energy and Water Development

Committee on Appropriations United States Senate

(May 22, 2000) <HTTP://www.usace.army.mil/inet/

functions/cw/>. In a separate report, the National Asso-

ciation of Counties concluded that the changes will cost

the general public an additional $300 million annually,

or $100,000 per acre affected. See National Association

of Counties, Analysis of The Army Corps of Engineers’

NWP 26 Replacement Permit Proposal (January 2000)

(hereinafter NACO Report) <http://www.naco.org/leg/-

Advocacy/corps.cfm>.'®© Amici submit that many of

these costs will involve public projects and will ultimately

be bome by taxpayers.

16The recent Corps report reveals that the processing times

for individual permits may increase dramatically under the new

NWP program. For example, the Corps study indicates that in year

five under the replacement permit program, processing times and

backlogs are predicted to be more than four times the levels exper-

ienced in FY 98 with an average of 400 processing days per appli-

cation. See Institute for Water Resources, U.S. Army Corps of

Engineers, Cost Analysis for the 1999 Proposal to Issue and Mod-

ify Nationwide Permit 23 (2000) <http: //www.usace.army.mil/

inet/functions/cw/>. The report by the National Association of

Counties indicates that it takes a total of 788 days to process an

individual permit. See NACO Report, at 2.

19

II.

THE CORPS’S ARGUMENT THAT FEDERAL REGULA-

TION IS NECESSARY TO PROTECT THE NATURAL

HABITAT OF MIGRATORY BIRDS IGNORES STATE

PROGRAMS THAT EXCEED THE CLEAN WATER ACT

IN SCOPE.

The Amici recognize the legitimate objective of the

section 404 program to protect the Nation’s waters.

However, these goals are not served where the areas to be

regulated are isolated, seasonally wet areas that are

already subject to state regulation. Fundamental prin-

ciples of federalism dictate that control of isolated, intra-

state waters is properly within the purview of state and

local governments. The regulation of intrastate, isolated

waters is the regular function of local governments in

their administration of many ordinary land uses — from

building new homes to renewal of past mining sites for

the construction of public works projects. Indeed, the

Court has recognized that “regulation of land use is per-

haps the quintessential state activity.” See Federal

Energy Regulatory Commisson v. Mississippi, 456 U.S.

742, 768 n.30 (1980).

The CWA explicitly recognizes the fundamental prin-

ciple of federalism, as recognized in Gregory, that there

are not exclusive, but, rather, overlapping spheres of

authority between the federal government and state and

local governments. As noted above, section 101 of the

CWA recognizes, preserves and protects “the primary

responsibilities and rights of States to prevent, reduce,

and eliminate pollution, [and] to plan the development

and use ... of land and water resources.” 33 U.S.C.

§1251(b), and section 510 notes that nothing in the

CWA is to “be construed as impairing or in any manner

affecting any right or jurisdiction of the States with res-

pect to the waters . . . of such States,’ 33 U.S.C. §1370.

20

Thus, the plain language of the CWA makes clear that it

was Congress’s intent to bestow “‘primary” responsibility

upon the states to protect these water rescurces. The

Corps’s assertion of jurisdiction over isolated, intrastate

waters, (and with that, over land use decisions), is incon-

sistent with this intent.

There are literally thousands of state and local govern-

ments that regulate wetlands and waters.!’? Accepting

their key role in wetland protection, state and local gov-

ernments throughout the Nation have passed compre-

hensive wetland laws, many of which are much broader

in scope than the CWA section 404 program, and, there-

fore, offer far greater protection.'® In fact, several states

17 See Federal Wetland Protection Policy, 1993: Hearings on

S. 1304 Before the Subcomm. On Clean Water, Fisheries and Wild-

life of the Senate Comm. on Environment and Public Works, 103d

Cong., Ist Sess. (1993) (statement of National Association of

State Departments of Agriculture), available in LEXIS, Legis Lib-

rary, Cngtst File (noting that over 5,000 local governments have

adopted wetland protection regulations).

18 On April 19, 2000, Virginia enacted new legislation for the

protection of state waters and wetlands. See Va. Code Ann.

§ §61.144.344.29 (2000). The law prohibits the discharge of

“sewage, industrial wastes, other wastes, or any noxious or dele-

terious substances” into “state waters’ (“state waters” is defined

as “‘all water, on the surface and under the ground, wholly or par-

tially within or bordering the Commonwealth or within its juris-

diction, including wetlands’”’). Jd. §62.1-44.3, 44.5; see also

Conn. Gen. Stat. §§22a-36 to 45 (1994); Fla. Stat. Ann. §§

373.414421 (West 1995); Me. Rev. Stat. Ann. Tit. 38, §§480-A

to -U (West 1994); Mass. Gen. Laws Ann. Ch. 131, §§40, 40A

(West 1994); Mich. Comp. Laws § 281.701-722 (1994); Min. Stat.

§ 103G.222-2242 (1994); N.H. Rev. Stat. Ann. §482-A:1-:27

(1994); NJ. Rev. Stat. §13:9B-1 to -30 (1994); N.Y. Envtl. Con-

serv. Law § §24-0101-1301 (Consol. 1994); Pa. Stat. Ann. Tit. 25,

§ 105.17 (1993); R.I. Gen. Laws § §2-1-18 to 24 (1994); Vt. Stat.

Ann. Tit. 10, §1272 (1994). For a thorough survey of state wet-

land laws, see generally William L. Want, Law of Wetland Regula-

tion (1992).

+ + oer

21

began regulating these areas well before the federal gov-

ernment took interest. “The first wetlands protection

statute in the United States was passed in Massachusetts

in 1963 .. . By the time Congress enacted the CWA in

1972, Massachusetts had nine years of experience regu-

lating wetlands, and was already reforming its laws to

provide greater local control and accountability while

maintaining state-level oversight.” Jonathan H. Adler,

Wetlands, Waterfowl, and the Menace of Mr. Wilson:

Commerce Clause Jurisprudence and the Limits of Fed-

eral Wetland Regulation, 29 Envtr. L. 1, 48 (1999).!9

Since the enactment of the CWA, many states have

enacted legislation within far greater reach than the

federal program. For example, 17 states (including IIli-

nois) have laws furnishing protection for freshwater wet-

lands,2° while other states have shoreline and coastal

zone protection programs.”! Illinois, in fact, prohibits

the discharge of contaminants into the “waters of the

State’, which is broadly defined to include ‘“‘all accum-

ulations of water, surface and underground, natural, and

artificial, public and private, or parts thereof, which are

19 See also Alexandra D. Dawson, Massachusetts’ Experience

in Regulating Wetlands, in Wetland Protection: Strengthening the

Role of the States 225 (Association of State Wetland Managers

ed., 1985).

20see 415 Ill. Comp. Stat. 5/11 (West 2000). The other

states include: Connecticut, Florida, Maine, Maryland, Massachu-

setts, Michigan, Minnesota, New Hampshire, New Jersey, New

York, North Dakota, Oregon, Rhode Island, Vermont, and Wyo-

mong; See Jon A. Kusler et al., State Wetland Regulation: Status

of Programs and Emerging Trends, 2 (Association of State Wet-

land Managers ed., 1994).

21 These states include: Washington, Wisconsin, Delaware and

California, among others. See id. at 3.

22

wholly or partially within, flow through, or border upon

this State.”” 415 Ill. Comp. Stat. 5/3.56 (West 2000).

Maryland is an excellent example of a state that has

a regulatory regime that goes beyond the 404 program,

having enacted one of the first state laws declaring a goal

of “no net overall loss in nontidal wetland acreage and

function and to strive for a net resource gain in nontidal

wetlands over present conditions.” See MD. Code Ann.,

Envir. §5-902 (1996). In addition, Maryland’s compre-

hensive wetland legislation brings the following areas

within its jurisdiction:

both surface and underground waters within the

boundaries of the state . . . all ponds, lakes, rivers,

streams, public ditches, tax ditches, and public

drainage systems within the state, other than those

designated and used to collect, convey, or dispose of

sanitary sewage; and the floodplain of free-flowing

waters determined by the Department on the basis

of the 100-year flood frequency.

MD. Code Ann., Envir. §5-102. This broad definition of

the “‘Waters of the State” allows for the protection of

waters extending well beyond the reach of the federal

program.

In turn, the state of California regulates its waters

through the federal CWA, supplemented by the California

Porter-Cologne Water Quality Control Act “Porter-Col-

ogne” or “‘Act”’). See Cal. Water Code § § 13000-14958.

California’s act broadly defines “Waters of the State”

as “‘any surface water or groundwater, including saline

waters, within the boundaries of the state.”’ Cal. Water

Code §13050. Labeling itself as the “nation’s first

statewide comprehensive wetlands program,” the Cali-

fornia Wetlands Conservation Policy establishes a frame-

work and strategy to: (1) ensure no overall net loss and

23

achieve a long-term gain in the quantity, quality, and

permanence of wetlands in California; (2) reduce proced-

ural complexity in the administration of State and fed-

eral wetlands programs; and (3) encourage partnerships

to make landowner incentive programs and cooperative

planning efforts the primary focus of wetlands conser-

vation and restoration. See California Environmental

Protection Agency, State of the State’s Wetlands (1998).

As a final example, the Florida State Water Resource

Plan defines “‘Water”or ‘‘waters in the state’’ in the fol-

lowing manner:

any and all water on or beneath the surface of the

ground or in the atmosphere, including natural or

artificial watercourses, lakes, ponds, or diffused

surface water and water percolating, standing, or

flowing beneath the surface of the ground, as well

as all coastal waters within the jurisdiction of the

state.

Fla. Stat. Ann. §373-019. Again, with such a broad

scope of jurisdiction, the waters protected by the state

regulators far exceed the federal program.

Indeed, the EPA has recognized the essential role of

federalism in the protection of wetlands and other

waters, explaining:

More than a dozen States already are currently

administering aquatic resources/wetlands protection

programs similar to the Federal Section 404 pro-

gram. This makes sense because State and Tribal

regulators are, in many cases, located closer to the

proposed activities and are often more familiar with

the local resources, issues, and needs than are Fed-

eral regulators.”

22us. Environmental Protection Agency, Office of Wet-

lands, Oceans, and Watersheds, State or Tribal Assumption of the

[footnote continued]

24

Moreover, the CWA establishes parallel regimes by which

states can obtain authorization to administer the per-

mitting programs under sections 402 and 404 of the Act.

See CWA section 404, 33 U.S.C. §1344(g). To date,

two states have actually assumed the 404 program.

See 40 C.F.R. §233.70 (Michigan), and 40 C.F.R. §233.-

71 (New Jersey).

With literally thousands of local governments already

regulating wetlands, there are ample state and local pro-

tections of isolated waters in place to facilitate more

creative and, therefore, less burdensome regulatory

schemes than under the federal program.” The domin-

ation of federal authority over isolated, intrastate waters

could quash the policy innovation of the state and local

governments and interfere with their expertise in local

land use issues.

Moreover, state protection of isolated waters is fur-

ther enhanced by state regulation covering activities that

would escape regulations as “discharges’’ under section

404 of the CWA, especially non-point source pollution:

Nonpoint source discharges, which consist generally

of polluted runoff from farms, forests, land develop-

ment and other activities, are not regulated under

the [CWA]. Instead they are addressed primarily

through nonregulatory means, such as planning,

incentive and cost-share mechanisms. ... Yet,

increasingly, states are finding it necessary to deal

with nonpoint source discharges that cannot be

Section 404 Permit Program (May 25, 1999) <http:/www.epa.-

gov/owow/wetlands/facts/fact2$ html>.

23 As Justice Kennedy noted, state and local jurisdictions

“perform their roles as laboratories for experimentation to devise

various solutions where the best solution is far from clear.” Lopez,

514 U.S. at 581.

25

prevented, controlled, or abated adequately by these

means.

Environmental Law Institute, A/manac of Enforceable

State Laws to Control Nonpoint Source Water Pollu-

tion, 1 (1998). All fifty states, the District of Colum-

bia, and the Commonwealth of Puerto Rico have laws

that can apply to nonpoint source discharges. See id.

In sum, precluding federal regulation of isolated,

intrastate waters does not mean that these areas will

escape regulation. To the contrary, there is ample

state and local authority to protect these areas for their

various functions, including migratory bird use.

CONCLUSION

The Amici Nationwide Public Projects Coalition et

al. respectfully request this Court to reverse the Seventh

Circuit’s ruling upholding the migratory bird rule. That

ruling adversely affects the public projects community

and sanctions the Corps’s intrusion into areas tradition-

ally reserved for state and local governments.

Respectfully submitted,

LAWRENCE R. LIEBESMAN

(Counsel of Record)

RAFE PETERSEN

LINOWES & BLOCHER

1010 Wayne Avenue

Silver Spring, MD 20910

(301) 588-8580

Counsel for Amici Curiae.