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

at. nee

Gupreme Court, U.S.

ye EILED

(7) YUL 27 2000

No. 99-1178 THE

IN THE

Supreme Court of the United States

SOLID WASTE AGENCY OF

NORTHERN COOK COUNTY,

Petitioner,

V.

UNITED STATES ARMY CORPS OF ENGINEERS;

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; VILLAGE OF BARTLETT;

AND CITIZENS AGAINST THE BALEFILL,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF OF AMICI CURIAE ARID OPERATIONS, INC.

AND THE CALIFORNIA MINING ASSOCIATION

IN SUPPORT OF PETITIONER

CHARLES L. KAISER

Counsel of Record

ZACH M. MILLER

CHRISTOPHER KAMPER

DAVIS, GRAHAM & STUBBS L.L.P

370 Seventeenth Street

Denver, Colorado 80202

(303) 892-9400

Counsel for Amici Curiae

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. # 1-800-347-8208

Page

INTEREST OF THE AMICI CURIAE ..............ccccceseeeeees ]

THE MESQUITE REGIONAL LANDFILL...................... 2

MINE PROJECTS OF CMA MEMBERG................:.::00008+ 4

SUMMARY OF THE ARGUMENT...............ccceesseseseeeeees 6

GEER TIINUE cncnescceciscssnnnnieinimmiatopaasesiininiaminnteiiaieaaslbia 8

I. THE CORPS’S IMPROPERLY BROAD

CONSTRUCTION OF THE CLEAN WATER

ACT HAS LED THE CORPS TO

REGULATE DRY DESERT WASHES AND

OTHER ARID LANDS, DESPITE THE

PLAIN LANGUAGE OF THE ACT ...................04. 8

A. The Corps Has Claimed Jurisdiction

Over “Waters” That Contain No Water.......... 8

B. The Assertion of Corps Jurisdiction

Offends Common Sense Expectations of

PONIES PIES cnccecotcsiensonnnteninsienieacenniiin 11

Il. THE SEVENTH CIRCUIT FAILED TO

EVALUATE THE PRACTICAL EFFECT OF

APPROVING THE CORPS’S CLAIMED

JURISDICTION OVER ISOLATED AND

EPHEMERAL WATERS......0::ccscsccsocsssccsessssseseseesss 14

TABLE OF CONTENTS

Ill. CHEVRON DEFERENCE IS_ INAPPRO-

PRIATE WHERE THE CORPS’S LEGAL

POSITION HAS CONTINUALLY SHIFTED

OVER TIME........0:ss0csscssorescesssscssrescesssersescsesvsorescoes 15

CONCLUSION .......:.ssssscssscsscsssssssscsssercerennssenssscenssnsssnsees 19

TABLE OF AUTHORITIES

Page

Cases

Bowen v. Georgetown Univ. Hosp.,

Se AIT icienctsensnceectinnesiniicsinntednenneemeneeepsenntns 15

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

Council, Inc., 467 U.S. 837 (1984).........ccccccccccceececeeeeees 15

Natural Resources Defense Council v. Callaway,

392 F. Supp. 685 (D.D.C. 1975)........cccccccscesseeesees 15, 16

Quivira Mining Co. v. United States Environmental

Protection Agency, 765 F.2d 126 (10" Cir. 1985)... 17, 18

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

Engineers, 151 F.3d 1162 (9th Cir. 1998) ..........cccccceeee 4

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers et al.,

fk TF a 14

Tabb Lakes, Ltd. v. United States,

20 Envtl. L. Rep. 20008 (4 Cir. 1989) .......cccccccsecsesesee 10

United States v. Phelps Dodge Corp.,

391 F. Supp. 1181 (D. Ariz. 1975) .......ccccccccceeeeeeneeees 17

United States v. Riverside Bayview Homes, Inc.,

ee: SI I screesssectiecrenianasenticennemntninncesnss 15, 17, 18

Statutes

ep ale See Be Ce OR cernctccnieieisintcsinnitnasiinasiiianiiinitiaiintien 2

Sad ees: 0 GRIPE cxncercncsrsniunecrenenensiannnionmsiitisinniiiminaintiagusintia 13

SP eens © Wee ccrerrsinsesennnncepnmmsnnicitiniiianisininesiiitiiadiadaastaasitiinis 2

Sb lis i ee OO cncecccceensintisitiincaiiiitiaininiaianlibiiiianeaiaitine 3

Se ae Ce OI cenrccessninennisinnincinianmneinniiaainniitiin 3

Regulations

at Secale 0 CIID? ecxnesexetncnmeneniesinnenansiaicinisiitiniunenianiianianiiadinaiaiaias 9

BP Sele 0) Fe ccnenenienneneemsecsnseneiiiiiataitiiiidaitniiinlinaiinnaiiaaiiaians 9

Other Authorities

Pe Se renitinesnncccesusiaitiniisiineatiniianiniaiiiaiin 16

42 Fed. Reg. 37122 (July 19, 1977) ...........ccccccccceeseeees 16, 17

51 Fed. Reg. 41206 (November 13, 1986)...............0.0000+. 18

65 Fed. Reg. 21291 (April 20, 2000) .0.........ccecccecesseesseeneees 4

Blackstone, Commentaries on the Laws of England,

1765-69, Vol. 1, Introduction, Section II....................... 16

EPA, Comment Concerning Public Notice No. 96-

BO Te) GD BD, FD cccccscccccnccsscecencescsesecscsssssssesees 5

Memorandum on Clean Water Act Jurisdiction Over

Isolated Waters, from Brigadier General Patrick

Kelly to District Offices, (November 8, 1985)........ 10, 14

iV

In The Supreme Court of the United States

No. 99-1178

Solid Waste Agency of Northern Cook County, Petitioner,

Vv.

United States Army Corps of Engineers, et al., Respondents.

On Writ of Certiorari

To The United States Court of Appeals

For the Seventh Circuit

BRIEF FOR

ARID OPERATIONS, INC. AND

THE CALIFORNIA MINING ASSOCIATION AS

AMICI CURIAE SUPPORTING PETITIONERS

INTEREST OF THE AMICI CURIAE'

Arid Operations, Inc. (“Arid”) is the proponent of the

Mesquite Regional Landfill (the “Landfill” or the “Mesquite

Landfill”), a regional solid waste landfill under development

in the California Sonoran Desert. Members of the California

Mining Association (“CMA”) include mining companies that

' Pursuant to Rule 34.6, amici state (i) that no counsel for any

party authored this brief in whole or in part; and (ii) that only Arid

Operations, Inc. and members of the California Mining Association made

monetary contributions to the preparation and submission of this brief.

Pursuant to Rule 37(2)(a), letters from counsel for all parties consenting

to the filing of this brief have been filed with the Clerk of the Court.

2

conduct exploration or mineral development activities in the

same or similar desert regions. Recently, the United States

Army Corps of Engineers (“Corps” or “Corps of Engineers”)

has claimed jurisdiction under Section 404 of the Clean

Water Act, 33 U.S.C. § 1344, over dry washes and erosional

features throughout the arid desert regions in which the

projects of these entities are located. Thus, the decision that

the Court renders in this case will set the standard that the

Corps and the United States Environmental Protection

Agency (“EPA”) will apply in future project permitting

decisions that will affect Arid and the members of CMA.

Amici therefore have a critical interest in the outcome of this

case.

THE MESQUITE REGIONAL LANDFILL

The Mesquite Landfill site is located in eastern

Imperial County, California, adjacent to the site of the

existing Newmont Mesquite Goid Mine and Ore Processing

Facility, as described below in this brief. The entire

Mesquite Landfill site covers approximately 4,245 acres. The

Landfill is located on an alluvial desert plain near the

Algodones Dunes, about 6 miles southwest of Mount

Barrow, California.

The Mesquite Landfill has been approved for the

development of a 600 million-ton municipal solid waste

landfill, with an expected operational life of 100 years. The

Landfill has undergone extensive environmental studies and

has received all necessary regulatory approvals, including a

Conditional Use Permit from Imperial County; a Record of

Decision approving an extensive land exchange with the

U.S. Department of Interior, Bureau of Land Management

(“BLM”); a “no jeopardy” opinion issued pursuant to the

Endangered Species Act, 16 U.S.C. §§ 1521 et seq. (“ESA”),

by the U.S. Fish and Wildlife Service (““USF&WS”) for the

desert tortoises which inhabit the area, as well as analogous

3

state action under the California Fish and Game Code; and a

Solid Waste Facility Permit from the California Integrated

Waste Management Board pursuant to California’s EPA-

approved implementation of the Resource Conservation and

Recovery Act, codified within the Solid Waste Disposal Act

at 42 U.S.C. §§ 6901 et seq. (“RCRA”). Issuance of these

permits was preceded by comprehensive environmental

studies completed under the National Environmental Policy

Act, 42 U.S.C. §§ 4321 et seq. (“NEPA”) and analogous

state law.

Precipitation in the site tends to occur in short,

intense but extremely rare storm events, with average annual

rainfall of about 3.5 inches. These storm events often create

new erosional features in the desert landscape, identified as

“dry washes.” As is typical for desert regions of the west,

the site contains many of these interbraided dry washes. All

dry washes within the site are at best “ephemeral,” a term of

art meaning that they convey surface flows only during and

immediately following rare precipitation events. Otherwise,

and as a general rule, these washes contain no water. There

are no navigable or other surface waters at or anywhere near

the Mesquite Landfill. In fact, all the ephemeral washes

crossing the site drain toward the southwest, ultimately

seeping quickly into the sandy soils or, in extreme storm

events, flowing at most approximately 4 miles from the site

into the Algodones sand dunes, where they evaporate. Thus,

the washes are hydrologically isolated, meaning that they

have no connection on the upstream or downstream side with

any other waters.

The Corps has nonetheless determined that over 338

acres of the dry desert washes within the 4,245-acre site, or

nearly 10% of this stark desert landscape, constitute “waters

of the United States.” The fact that such a significant portion

of this essentially waterless land could be subject to the

Corps’s claimed jurisdiction under the Clean Water Act

4

illustrates how far the Corps has gone in stretching its

jurisdictional boundaries.? The effect of the Corps finding

this acreage of “waters of the United States” is that the Corps

thereby gains control over the entire project.

MINE PROJECTS OF CMA MEMBERS

A number of desert mining projects operated by

various CMA members have been subject to similar

expansive jurisdictional claims by the Corps. For example,

the Mesquite Gold Mine and Ore Processing Facility (the

“Mesquite Mine”), which is owned by CMA member

Newmont Mining Corp., is located adjacent to the Mesquite

Landfill. The Mesquite Mine is an active precious metal

mine that has been in operation for nearly two decades.

Throughout the 1980s, the Mesquite Mine disturbed over

4,000 acres of land under the strict supervision of several

state and federal governmental agencies. The Corps during

this period did not assert Section 404 jurisdiction over the

project, and indeed in commenting on NEPA documentation

required for the project in 1984, the Corps specifically

disavowed any jurisdiction over the site and declined to

comment further. Yet, in recent years, as in the instant case

below, the Corps has begun to shift its position and claim

Section 404 jurisdiction over desert washes within the aid

. As a result of a negotiated resolution, 4 ' Operations agreed

with the Corps to obtain a Clean Water Act § 404 permit for certain

ancillary facilities (such as roads) to be constructed in connection with

the Landfill. This result, where no permit was demanded for the Landfill

itself, stemmed from the decision in Resource Investments, Inc. v. U.S.

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

held for several reasons that the Corps has no regulatory authority under

Section 404 over solid waste landfills permitted under RCRA Subtitle D.

In a recent Notice of Proposed Rulemaking, however, the Army Corps

has asserted that it intends in the future again to assert jurisdiction over

permitted landfill operations, notwithstanding the RII decision. 65 Fed.

Reg. 21291 (April 20, 2000).

5

project site as “waters of the United States” and has

demanded Section 404 permits relating to recent exploration

and development activities proposed for the site. Due to the

substantial cost, delay and uncertainty involved in attempting

to challenge Corps jurisdiction, Newmont has agreed under

protest to obtain such permits from the Corps.

Similarly, the Imperial Project Mine (the “Imperial

Project”) is located entirely within the arid Sonoran Desert

region, and yet has also been subject to far-reaching

jurisdictional claims and demands by the Corps. Glamis

Imperial Corporation, a member of CMA, is the project

proponent. The Imperial Project is a proposed open-pit gold

and silver mining operation, which encompasses 1,631 acres

within Imperial County, California.

Again using a combination of the Corps’s expansive,

“high water mark” approach to identifying “waters,” as

described below in this brief, and the Corps’s Migratory Bird

Rule, EPA and the Corps have asserted that the Imperial

Project area contains 114.5 acres of dry washes within the

project area that constitute “waters of the United States.” As

a result, the agencies have required a Section 404 permit for

the entire project. Among the resulting analyses required for

this project was an identification of all potential alternative

areas in the western United States that would be reasonable

to consider in locating a gold and silver mine, and a

demonstration that the project as proposed met with EPA’s

asserted criteria that “only projects that absolutely need to be

sited in waters are authorized.” EPA, Comment Concerning

Public Notice No. 96-20083-TCD (June 26, 1998). Thus,

under the Corps’s current policies and interpretations, EPA

and the Corps have required a project in the middle of the

driest desert in the country to justify itself as a project to be

sited “in waters.” In fact, EPA went so far as to describe the

ephemeral desert washes at the Imperial Project area as

Aquatic Resources of National Importance.

6

These examples, unfortunately, are not isolated but

rather are representative of numerous sites throughout the

arid West where the Corps has employed its open-ended

Migratory Bird Rule and related policies to claim regulatory

authority over vast areas of ephemeral desert drainages.

The extent of the Corps’s expansive claims is

Staggering. The Sonoran Desert as a whole, which

encompasses the above and other similar projects, is over

200,000 square miles (128 million acres). Of this area, 6,200

square miles (3,968,000 acres) are located in Southern

California. Desert washes are relatively common features in

this landscape, encompassing approximately 10 percent of

the total Sonoran Desert land area. It is estimated that

between 317,440 and 396,800 acres of ephemeral washes

occur within the Southern California portion alone of the

Sonoran Desert. Consistent with the Corps’s view of the

Mesquite Landfill and the mining projects noted above, the

Corps could assert jurisdiction over any project that could

affect any portion of these washes — indeed it is difficult to

imagine a project of any scope that would not affect them.

In essence, the Corps sees itself as having jurisdiction over

the entire desolate and typically waterless area.

SUMMARY OF THE ARGUMENT

The Corps’s construction of the term “waters of the

United States” is unreasonable and improper, in part,

because it renders the key term “waters” superfluous. Under

the Corps’s interpretation of this statutory jurisdictional

threshold, it is the presence of erosional features on normally

arid landscapes, and the presence of certain plants and

wildlife — not water — that purportedly triggers the Corps’s

Section 404 jurisdiction. The Corps has expanded its

interpretation of the Clean Water Act in such a manner as to

now claim jurisdiction over every area that contains not just

oi

7

a body of water, but also any drainage or erosional feature

where the Corps might, for example, find even some

potential or temporary presence of a migratory bird or ESA-

protected species. Of course, almost every erosional feature

nationwide, no matter how dry or desolate, can be made to fit

this extreme and improper interpretation of the language of

the Clean Water Act.

Amici urge this Court to consider the Seventh Circuit

opinion below in light of three points. First, this

extraordinary result, where the Corps regulates projects in

one of the driest regions on earth based upon the Clean

Water Act, cannot be squared with the plain language of the

Clean Water Act, yet it is a logical extension of the

reasoning of the Seventh Circuit opinion. It cannot seriously

be argued that Congress, in adopting the Clean Water Act,

saw itself as conferring jurisdiction on the Corps to regulate

nearly waterless stretches of desert landscape. Second, the

opinion below failed to evaluate the practical effect of the

Corps’s claimed jurisdiction under the Clean Water Act and,

therefore, improperly endorsed a jurisdictional approach that

has significant potential to harm individuals and companies

like amici through spurious regulation by the Corps. Third,

in light of the manner in which the Corps has gradually

expanded its definition of the term “waters of the United

States,” through a series of significant conceptual shifts,

deference to the Corps’s interpretation in this litigation

would not be appropriate.

8

ARGUMENT

I. THE CORPS’S IMPROPERLY BROAD

CONSTRUCTION OF THE CLEAN WATER

ACT HAS LED THE CORPS TO REGULATE

DRY DESERT WASHES AND OTHER ARID

LANDS, DESPITE THE PLAIN LANGUAGE

OF THE ACT.

The Army Corps of Engineers has gradually and

improperly expanded its jurisdiction over “waters of the

United States” in such a manner that now virtually every

land area which drains or is crossed by water, even

sporadically, falls within that claimed jurisdiction. The

extremity of the Corps’s view of its jurisdiction is illustrated

by the experience of Arid and the members of the CMA in

attempting to complete projects in remote regions of the

desert, where the Corps, incredibly, has asserted that dry

desert washes constitute “waters of the United States”

subject to Section 404 jurisdiction.

A. The Corps Has Claimed Jurisdiction Over

“Waters” That Contain No Water.

The experiences of these amici graphically illustrate

that the approach taken by the Corps has resulted in the

assertion by the Corps of jurisdiction over non-aquatic areas

that is unreasonable and contrary to the meaning of the Clean

Water Act. It is undisputed, for example, that the Mesquite

Landfill site contains no wetlands, ponds, streams, or other

water bodies. There is no surface water connection between

the site and any wetland, pond, stream, or other water body.

In fact, there is no water to be found in the site at all, except

on a highly irregular and temporary basis. The only water-

related features that exist in the site are hydrologically

isolated dry washes, which temporarily transmit storm water.

9

In any year, these washes will hold water for only a few

hours — perhaps only for a few minutes.

Just how does the Corps reach its determination that a

dry desert wash is a “water of the United States,” thereby

claiming jurisdiction under the Clean Water Act? In arid

areas like the Sonoran Desert, the answer has two

components.

First, the Corps has concluded that erosional features

in the desert landscape should be considered “waters”

because they purportedly contain an “ordinary high water

mark” or OHWM, even where the water that creates these

features generally is present only during extremely rare and

short storm events. Indeed, under the Corps’s current

regulations and policies, the jurisdictional extent of “waters

of the United States” encompasses all areas displaying

visible signs of water-flow, extending laterally to OHWM,

and upstream to that point where the OHWM is no longer

perceptible. 33 C.F.R. § 328.4. The OHWM, in tum, is

defined as “that line on the shore established by the

fluctuations of water and _ indicated by physical

characteristics such as a clear natural line impressed on the

bank, shelving, changes in the character of soil, desiruction

of terrestrial vegetation, the presence of litter and debris, or

other appropriate means that consider the characteristics of

the surrounding area.” 33 C.F.R. § 328-3. Thus, even

though water generally is not present in the Sonoran Desert,

the Corps asserts jurisdiction over dry washes in this area in

part because, during the infrequent occasions when storm

water run-off passes through, it erodes the dusty landscape in

the prescribed manner, purportedly creating the requisite

“high water mark.” The problem with this approach, of

course, is that there are virtually no drainage or erosional

features, no matter how shallow or minor, that fail to meet

this minimal “test,” and indeed such erosional features can

be created by just one or two storm events. Storm water run-

10

off flowing down the smallest gully or rivulet, no matter how

briefly, will virtually always leave some mark of its passing.

Second, under the overbroad Migratory Bird Rule at

issue in this case, the Corps has concluded that these dry

desert wash “waters” are or could be a habitat for migratory

birds that cross state lines, or that they are or could be a

habitat for species listed as “threatened” or “endangered”

under the ESA. Corps guidance documents have interpreted

the Clean Water Act to include any waters that “could be

used” by migratory birds or species listed under the ESA as

regulated waters. Memorandum on Clean Water Act

Jurisdiction Over Isolated Waters, from Brigadier General

Patrick Kelly to District Offices, (November 8, 1985)

(“Kelly Memorandum”) (emphasis supplied).°

In a desert region, this interpretation does not require

that surface water be present in the area at all. Water must

be present, possibly solely below the surface, just often

enough for plant communities to survive that “could”

provide “habitat” for migratory birds passing through the

area -- regardless of whether the birds in fact use the area as

habitat (significantly, the phrase “could be” does not require

that the Corps determine that the area in fact provides a

habitat for migratory birds). In the case of the Mesquite

Landfill, the Corps claims that the ephemeral desert washes

that cross the site fall within this definition due to the

presence within the washes of desert microphyll woodland

and creosote bush scrub plant communities that could be

used by birds that migrate through the Lower Colorado and

Sonoran deserts. In addition, although the site is not “critical

: The Kelly Memorandum was set aside as in violation of the

Administrative Procedure Act in an unpublished decision, Tabb Lakes,

Ltd. v. United States, 20 Envtl. L. Rep. 20008 (4 Cir..1989). EPA and

the Corps have issued a joint memorandum stating that they will follow

Tabb Lakes only within the Fourth Circuit.

11

habitat” as defined in the ESA, the desert tortoise

(Gospherus agassizii) is known to occur there.‘

These dry desert washes contain no water on even an

infrequent basis, and they contain no unique resources that

do not occur on thousands of acres of similar topography in

this region. Yet, the washes and desert erosional features are

sufficient, under the Corps’s approach, to confer jurisdiction

upon the agency. By this circuitous route, the Corps has

reached the conclusion that it has Clean Water Act

jurisdiction over a project undertaken in the most arid stretch

of the American landscape. Using this reasoning and

policies, the Corps could assert such jurisdiction over

virtually any construction activity in this or similar desert

regions.

B. The Assertion of Corps’s Jurisdiction

Offends Common Sense Expectations of

Project Proponents.

The Corps’s assertion of Clean Water Act

jurisdiction, in the absence of water, is so offensive to

common sense interpretations of the Act that it has wreaked

havoc on projects in the desert regions where Arid and

CMA’s members have attempted them. During the first

seven years of the permitting process for the Mesquite

Landfill, for example, neither the Corps nor EPA asserted

. The Mesquite Regional Landfill site was not included in areas

designated by the USF&WS as “Critical Habitat” and therefore was not

included in designated “Desert Wildlife Management Areas” in the

USF&WS Desert Tortoise Recovery Plan. The Landfill project

incorporates numerous mitigation measures designed for conservation of

the desert tortoise and its habitat, a key component of which is the

acquisition of high quality “critical” desert tortoise habitat through a

transfer of exchange and compensation lands from private into federal

ownership.

12

that the project site contained “waters of the United States,”

even though the presence of desert tortoises and plant

communities suitable for use by migratory birds was well

known. In fact, the project had been the subject of

regulatory approvals issued by EPA itself, as well as by the

USF&WS. Moreover, the Mesquite Landfill had

participated in an extensive land exchange with the federal

government, in which the historically disturbed, low-quality

tortoise habitat on federal lands was exchanged for high

quality tortoise habitat on private lands, at the cost of

millions of dollars to Arid. That federal land exchange was

reviewed under NEPA and analyzed by the BLM, USF& WS,

EPA, and other agencies.” Indeed, the federal district court

upholding the land exchange associated with the project was

compelled to remark,

The exchange also has a positive

impact on the environment by

improving the biological integrity of

the threatened desert tortoise

population. BLM stands to acquire

3,656.1 acres of Category I Desert

Tortoise Habitat to compensate for the

loss of Category III Desert Tortoise

Habitat (lower quality) within the

Mesquite Regional Landfill Project.

Desert Citizens Against Pollution v. Bisson, 954 F. Supp.

1430, 1440 (S.D. Cal. 1997) (currently on appeal before the

Ninth Circuit, Case No. 97-55429).

. The exchange was also challenged by an environmental group

and upheld by a federal district court. Desert Citizens Against Pollution

v. Bisson, 954 F. Supp. 1430 (S.D. Cal. 1997) (currently on appeal before

the Ninth Circuit, Case No. 97-55429.)

13

At no time during this extensive federal permitting

process did EPA, the Corps, or any other agency suggest that

the dry desert washes within the site might constitute “waters

of the United States” requiring an additional permit under

Section 404. Similar to the instant case, only after all other

regulatory approvals had been granted following six years of

studies, the Corps suddenly and surprisingly claimed

jurisdiction for the first time based solely on the erosional

features of the landscape and the occasional presence of

migratory birds and ESA species, although these drainages

and creatures had already been the subject of intense

regulatory attention.

One need not peruse exhaustively the text of the

Clean Water Act to realize that this result cannot be squared

with the plain language of the legislation, which nowhere

suggests that the statute was to provide the Corps with

jurisdiction over broad areas of essentially waterless

landscape. Indeed, the oft-repeated purpose of the Clean

Water Act is to “restore and maintain the chemical, physical,

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

§ 1251. One might expect that if Congress had intended the

legislation to restore and maintain the biological integrity of

the Nation’s deserts, it would have done so with express

language. Not one word or phrase of the statute can be

construed as providing such protection. Yet, this is precisely

the result that the Army Corps has reached through steady

expansion of its jurisdiction during the decades since the

statute was enacted.

14

Il. THE SEVENTH CIRCUIT FAILED TO

EVALUATE THE PRACTICAL EFFECT OF

APPROVING THE CORPS’S CLAIMED

JURISDICTION OVER ISOLATED AND

EPHEMERAL WATERS.

The opinion below failed to acknowledge the validity

of Petitioner’s claims that the approval of the Corps’s broad

assertion of jurisdiction over isolated waters would lead to

the Corps possessing virtually unlimited jurisdiction. The

Seventh Circuit correctly acknowledged that

[t]he United States is home to

somewhere between 2.5 and 6 billion

birds, two-thirds of which migrate.

Virtually any body of water could

serve as a temporary habitat for at

least some of these birds.

Solid Waste Agency of Northern Cook County v. United

States Army Corps of Engineers et al., 191 F.3d 845, 850 (7

Cir. 1999). However, the Seventh Circuit then failed to carry

this statement through to its logical conclusion, stating “any

suggestion that next the Corps will be trying to regulate the

filling of every puddle that forms after a rainstorm, at least if

a bird is seen splashing in it, misses the point.” Jd.

This suggestion, which the Seventh Circuit

apparently considered outlandish, has become the reality at

the Mesquite Landfill Site and similar project sites in the

western United States, where the Corps already has asserted

and will continue to assert jurisdiction over every “puddle”

and dry wash. Contrary to the expectation voiced in the

Seventh Circuit’s opinion, the Corps does not always make a

factual determination that an area is actually used as habitat

by migratory birds before asserting its jurisdiction. See 191

F.3d at 850; Kelly Memorandum (extending jurisdiction to

15

lands that “could be” habitat for migratory birds). Not only

has the Corps sought to regulate every puddle that forms

after a rainstorm, it has sought to do so in places like the

Sonoran Desert, where puddles may only exist for a matter

of hours, or in some cases merely minutes, out of each year.

The Seventh Circuit simply failed to appreciate the scope of

the jurisdiction the Corps already routinely asserts with

respect to projects everywhere, including the deserts of the

western states, or to compare the scope of this claimed

jurisdiction with a reasonable construction of the Clean

Water Act. The practical effect of the Seventh Circuit’s

decision will be continued regulation by the Corps of areas

that are plainly beyond the reach of the Clean Water Act and

which are more appropriately regulated by other federal and

state agencies.

Ill. CHEVRON DEFERENCE IS INAPPROPRIATE

WHERE THE CORPS’S LEGAL POSITION

HAS CONTINUALLY SHIFTED OVER TIME.

An agency’s construction of a statute it is charged

with enforcing is normally entitled to deference if it is

reasonable and not in conflict with the expressed intent of

Congress. United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 131 (1985); Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).

However, in the instant case this is not appropriate, because

(1) the Corps’s definition of “waters of the United States”

arises from the judicial opinion issued in Callaway, and not

the Corps’s expert interpretation of the Clean Water Act; and

(2) the Corps has shifted its definitional framework several

times in the years since the Callaway decision, and has

gradually expanded its jurisdiction through this process

beyond any reasonable construction of the Clean Water Act.

See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212

(1988) (deference does not extend to “agency litigating

16

positions that are wholly unsupported by regulations, rulings,

or administrative practice”).°

The Corps’s original interpretation of the Clean

Water Act limited its jurisdiction to waters that were actually

used in navigation or were susceptible to use to transport

interstate or foreign commerce. 42 Fed. Reg. 37122, 37123

(July 19, 1977) (summarizing early history of Corps’s

interpretations of its jurisdiction). In Natural Resources

Defense Council v. Callaway, 392 F. Supp. 685 (D.D.C.

1975), the Corps and the United States argued that the

Corps’s regulatory jurisdiction was limited to these

traditionally navigable waters. Callaway, however, held that

Congress intended the definition of waters of the United

States to have the maximum scope that the Commerce

Clause would allow. Jd. at 686. The Corps chose not to

appeal this district court opinion. Taking this direction from

Callaway, the Corps issued interim final regulations in 1975

that redefined “waters of the United States” to include not

only actually navigable waters but also tributaries of such

waters, interstate waters and their tributaries, and

nonnavigable intrastate waters whose use or misuse could

affect interstate commerce. 40 Fed. Reg. at 31320 (1975).

In practice, however, even this “second generation”

interpretation by the Corps of “waters of the United States”

retained some requirement of a physical or hydrological

connection between a body of water and truly navigable

water in order to support jurisdiction. For example, the

Corps initially defined a “freshwater wetland” subject to its

jurisdiction as an area that was “adjacent to” a regulated

7 In ancient Rome, according to Dio Cassius, the Emperor

Caligula was said to have tormented Roman citizens by printing obscure

laws at the top of tall columns, and then punishing unsuspecting citizens

who failed to comply with them. Blackstone, Commentaries on the Laws

of England, 1765-69, Vol. 1, Introduction, Section II. The Corps has

accomplished a modern version of this unfair practice.

———

17

body of water. 42 Fed. Reg. at 37123 (July 19, 1977). See

Riverside, 474 U.S. 121 (upholding regulations). The

rationale behind extending the definition io include these

connected waters was that “[wjater moves in hydrologic

cycles, and the pollution of this part of the aquatic system,

regardless of whether it is above or below an ordinary high

water mark, or mean high tide line, will affect the water

quality of the other waters within that aquatic system.”

Riverside, 474 U.S. at 134, quoting 42 Fed. Reg. at 37128.

Thus, water that was not itself navigable or usable in

interstate commerce fell within the Corps’s jurisdiction only

if dredge and fill activities in that water affected, or had

potential to affect, the quality of water that was navigable or

usable in interstate commerce. This Court upheld this

definition because the Court could not state that the

definition was unreasonable. 474 U.S. at 134.

As in many things, this interpretation took on a

different shade of meaning in the arid stretches of the

American West, where the Corps successfully argued in a

number of reported decisions that any area that formed a

surface water connection, if only on a seasonal or

intermittent basis, with a water that was navigable in fact

constituted a water of the United States, even if the upstream

area was typically dry. See, e.g., Quivira Mining Co. v.

United States Environmental Protection Agency, 765 F.2d

126, 130 (10 Cir. 1985) (normally dry arroyos are “waters

of the United States” where they are tributary to navigable

water); United States v. Phelps Dodge Corp., 391 F. Supp.

1181 (D. Ariz. 1975) (same). These decisions represent a

significant stretch of the Corps’s jurisdiction beyond the

concer of the Clean Water Act with protecting the nation’s

waters because the probability that the tributary arroyos

considered in these decisions could actually affect the quality

of the nation’s waters was exceedingly small. Certainly, dry

arroyos are one step removed from the wetlands upheld as

18

waters of the United States in Riverside Bayview Homes.

However, these decisions, citing deference to the Corps’s

expertise, approved this extension aS a reasonable one. As

described in the factual backgrounds above, the Corps

recently has gone well beyond these suspect cases by now

claiming jurisdiction over even non-tributary dry washes and

arroyos.

Contemporaneously with this Court’s opinion in

Riverside Bayview Homes, the Corps, through the Keliy

Memorandum in 1985 and a preamble to a Notice of Final

Rule in 1986,’ began a still-more ambitious expansion of its

jurisdiction through the Migratory Bird Rule. Though cast

as a “clarification” of existing policy, 51 Fed. Reg. at 41217,

the Migratory Bird Rule represented a major conceptual shift

away from the rationale that certain waters deserved the

protection of the Corps because of their potential to affect

the quality of interstate waters or waters that were

susceptible to use in interstate commerce. The dry desert

washes the Corps now regulates pursuant to the migratory

bird rule are fundamentally different from the arroyos and

intermittent streams addressed in reported judicial decisions

such as Quivira Mining, because the water bodies in those

cases were tributary and flowed directly into other waters of

the United States.

The result of this expansion has been that over a

period of nearly thirty years, the Corps has gradually pushed

the boundaries of its jurisdiction ever outward, moving from

(1) waters which were navigable in fact to (2) waters

(usually wetlands) that were hydrologically connected to

interstate waters, and from there to (3) its present position,

where the Corps now routinely asserts jurisdiction over land

areas that typically contain no water, that have no physical

connection to navigable waters, and where the presence of

. 51 Fed. Reg. 41206 (November 13, 1986).

19

water is both isolated and ephemeral. The Corps’s present

construction of the term “waters of the United States” is now

conceptually separated from any concern with water quality.

Now, the rationale in support of the Corps’s jurisdiction rests

upon the presence of migratory birds or endangered species

that “could” make use of a particular area of land, whether

that land typically contains any water or has any hydrologic

connection to permanent waters. The Corps’s assertion of

Section 404 jurisdiction in these areas amounts to a claim

that virtually every land area over which water ever flows

constitutes jurisdictional waters. This result is plainly

unreasonable and should not be tolerated by this Court.

CONCLUSION

The Army Corps of Engineers has extended its

jurisdiction well beyond the bounds of any reasonable

construction of the Clean Water Act, as is illustrated by the

Corps’s claim of Section 404 jurisdiction over dry desert

washes and erosional features in the California Sonoran

Desert and similar arid regions of the country. The Corps’s

insidious expansion of its jurisdiction has occurred through

successive reinterpretations of the otherwise plain phrase

“waters of the United States.” This Court should reject this

approach and should not be misled by the apparent

significance of the waters at issue in the instant case.

Because the opinion below failed adequately to appreciate

the extent of the jurisdictional grant it was approving, that

opinion is deeply flawed and should be reversed or limited

so that “waters of the United States” better comports with the

text and meaning of the Clean Water Act.

20

Respectfully submitted,

CHARLES L. KAISER

Counsel of Record

ZACH C. MILLER

CHRISTOPHER KAMPER

DAVIS, GRAHAM ~

& STUBBS, L.L.P.

370 Seventeenth St., Ste. 4700

Denver, CO 80202

(303) 892-9400

Counsel for Amici Curiae

July 27, 2000