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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 159

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0351%3A31. Public record. Not legal advice.