Amicus Curiae Brief — Borden Ranch Partnership v. United States Army Corps of Engineers

~ [~~ Supreme Court, U.S

FILED

AUG 26 200°

No. 01-1243

IN THE

Supreme Court of the United States

BORDEN RANCH PARTNERSHP, et ai.,

Petitioners,

Vv

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

AMERICAN FOREST & PAPER ASSOCIATION

IN SUPPORT OF PETITIONERS

Of Counsel: STEVEN P. QUARLES

WILLIAM R. MURRAY Counsel of Record

AMERICAN FOREST & J. MICHAEL KLISE

PAPER ASSOCIATION ELLEN B. STEEN

1111 19th Street, NW CROWELL & MORING LLP

Suite 800 1001 Pennsylvania Ave., NW

Washington, DC 20036 Washington, DC 20004-2595

(202) 624-2500

Attorneys for American Forest &

Paper Association

QUESTION PRESENTED

This brief addresses only the second of three questions

presented by Petitioners:

Whether deep plowing ranchland that is farmable in its

natural state to plant deep-rooted crops is statutorily exempt

from regulation under Clean Water Act section 404(f)’s

exemption for any discharge from “normal farming ...

activities such as plowing....”

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT ...........-::s0:eeeseeeeeeeees

Il.

Il.

(ii)

TABLE OF CONTENTS

EXEMPT “NORMAL” FARMING,

FORESTRY, AND RANCHING

ACTIVITIES MAY AFFECT

WETLAND HYDROLOGY. .......-+-:0:e00see000

EXEMPT “NORMAL” FARMING,

FORESTRY, AND RANCHING

ACTIVITIES NEED NOT USE

TRADITIONAL TECHNIQUES. +++++++++:++:+0000«

THE TWO ELEMENTS OF THE

“RECAPTURE” PROVISION WORK

TOGETHER TO MINIMIZE

UNNECESSARY FEDERAL

REGULATION OF FARMING,

FORESTRY, AND RANCHING. ..........000055

SR APIIEIEY contesccccesconsccceses

TOP PPP PEEP EP EEC

eens 9

(iii)

TABLE OF AUTHORITIES

Cases:

Asgrow Seed Co. v. Denny Winterboer, et al., 513

es UIE cccemancssenssiesetiaeniaiapnesinnniesmubiasinandininsiiaciaadl 6

Norfolk & Western Ry. Co. v. Train Dispatchers, 499

Seas SUP Ie isutshinetncisnererentsssinainindiniennienininicnsiaeeinedianiidiel 6

Statutes:

Pub. L. No. 92-500, § 404, 86 Stat. 816,

a ali inscnsnennnisecnssernenneietnieegeicteaniacaniiisighaniiaginiiniaiaamatiiel +

Pub. L. No. 95-217, § 67, 91 Stat. 1566, 1600-01

Gate Up ncranemsscesesescommssnsenmnntenesmennenmnmmaminnammmmmiteimeneisial 5

Clean Water Act § 404(f), 33 U.S.C. § 1344(f)

Tei ceenrevineminsnnnasisenintanenainniasiapacainadsiiiaiaasmapiciaitiiea’ passim

Regulations:

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Other Materials:

See SAEED, CD, Se CIT OP crencnrecncecenescteneiaieniiiibateaataritaa 7

er nn 7

en, Se i cetetiianiaeinieiniiiia til! 7

(iv)

United States Environmental Protection Agency and

United States Department of the Army,

Memorandum for the Field, “Clean Water Act

Section 404 Regulatory Program and Agricultural

Activitios” (day 1990) ........0...c.sccrscsccsecsscccvescssscesorees 9-10

United States Environmental Protection Agency,

Memorandum from Gerald H. Yamada, EPA

Acting General Counsel, to Josephine S. Cooper,

EPA Assistant Administrator for External Affairs

(Feb. 8, 1985), 1985 WL 71787 (E.P.A.G.C.)...........000+. 10

INTEREST OF AMICUS CURIAE

American Forest & Paper Association (“AF&PA”) is the

national trade association for the forest, pulp, paper, and

wood products industry.' AF&PA represents approximately

130 member companies that grow, harvest, and process

wood and wood fiber; manufacture pulp, paper, and

paperboard products from both virgin and recovered fiber;

produce solid wood products; and import and export

unmanufactured wood products. AF&PA is also the

umbrella for more than 60 affiliate member associations that

provide outreach to more than 10,000 companies.

The Clean Water Act (“CWA”) section 404(f)

permitting exemption for “normal farming, silviculture, and

ranching activities” — and the “recapture” provision that

eliminates that exemption for certain activities — are of vital

interest to AF&PA’s members. Normal silvicultural

activities such as timber harvesting, minor drainage,

plowing, seeding, and cultivating are essential management

practices in many wetland forests. Such activities often

necessarily involve the minor or temporary modification of

wetland hydrology and yet are fully compatible with long-

term operations that maintain the wetland’s status and

function.

These activities are essential to ongoing forestry

operations on millions of acres of privately owned forested

Letters indicating the parties’ consent to the filing of this

amicus curiae brief have been filed with the Clerk of the Court.

Pursuant to this Court’s Rule 37.6, AF&PA states that counsel for a

party did not author this brief in whole or in part and that no person

other than AF&PA made a monetary contribution to the preparation

or submission of this brief.

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wetlands across the United States. Moreover, although

forestry is fully compatible with the wetland characteristics

of these areas, these normal forestry activities sometimes fall

within the expansive definition of a “discharge of dredged or

fill material” into “navigable waters” under the CWA

(particularly as interpreted by the court below). Thus, many

U.S. forestry operations rely on the CWA section 404(f)

exemption to conduct their operations without the delay,

expense, and red tape of seeking CWA permits for these

activities.

AF&PA’s interest is not in the particular outcome of this

case in terms of whether the “deep plowing” activity at issue

is viewed as exempt or not exempt. Instead, AF&PA’s

interest is in the Court’s analysis of CWA section 404(f)’s

normal farming, forestry, and ranching exemption and

recapture provision, in the event that the Court reaches those

issues. AF&PA wishes to ensure that these provisions are

interpreted in a manner that preserves the exempt status of

normal forestry activities that are consistent with maintaining

ongoing operations in a wetland setting.

SUMMARY OF ARGUMENT

AF&PA endorses — and will not repeat — the view of

Circuit Judge Gould and the Petitioners that the mere

disturbance of soils by plowing cannot constitute the

“addition” of dredged or fill material (or any other pollutant)

and therefore cannot tngger regulation under CWA section

404. This brief concerns only the questions that arise if the

Court finds that Petitioners’ deep plowing activity did cause

a “discharge” of dredged or fill material under the CWA. In

that event, two questions must be addressed to determine

whether the discharge is nevertheless exempt from

regulation. Those questions are: (1) did the discharge result

from a “normal” farming, silviculture, or ranching activity

3

within the meaning of CWA section 404(f)(1)? and (2) if so,

is the discharge “recaptured” for CWA regulation by virtue

of section 404(f)(2)? AF&PA does not discuss these

questions with reference to the “deep plowing” activity at

issue in this case. Instead, AF&PA provides additional

views to assist in the Court’s analysis of section 404 in a

manner that achieves the purposes of the statute with respect

to a broader universe of activities and a larger community of

operations that rely on the exemption. Specifically, AF&PA

urges the Court to consider the following points when

interpreting the section 404(f) exemption:

1. Consistent with the language and purpose of the

section 404(f) exemption, “normal” farming and forestry

activities may encompass a wide range of practices, some of

which necessarily involve minor or temporary changes to

wetland hydrology. Several of the forestry activities

expressly identified as “normal” in section 404(f), for

example — including minor drainage, harvesting, and seeding

— invariably cause temporary changes to wetland hydrology

and yet are fully compatible with maintaining a wetland’s

status and function over the long term. The exemption of

such activities from CWA regulation — despite their

incidental impact on wetlands — is precisely the purpose of

section 404(f).

2. “Normal” activities also encompass changes in

management practices and technology over time. Because

the purpose of section 404(f) is to facilitate long-term

farming and forestry operations in wetland environments, the

exemption for “normal” activities must accommodate

improvements in technologies and practices. Thus, activities

may be “normal” even if they are not accomplished through

“traditionai ' sechniques.

a

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3. If an activity is “normal” within the farming,

forestry, or ranching community as a general matter,

discharges incidental to that activity at any particular

location nevertheless may be subject to CWA regulation

pursuant to the “recapture” provision. Under the plain

language of CWA section 404(f)(2), however, “recapture”

occurs only where two elements are present: (1) the purpose

of the activity is to bring an area of the “navigable waters”

into a use to which it has not previously been subject; and

(2) the activity may impair the flow or reduce the reach of

such navigable waters. These two elements work together to

avoid CWA permitting requirements for farming and forestry

operations that are compatible with wetland environments.

Any interpretation of section 404(f) that allows regulation of

normal farming and forestry activities on the basis of either

element alone would defeat Congress’s purpose of

exempting such operations. In particular, a one-part

recapture test based solely on the second element of the

Statutory test (impairing the flow or reducing the reach of

waters) would jeopardize the exemption for innumerable on-

going wetland farming and forestry operations that

necessarily cause minor or temporary wetland impacts (see

1. above).

ARGUMENT

I. EXEMPT “NORMAL” FARMING, FORESTRY,

AND RANCHING ACTIVITIES MAY AFFECT

WETLAND HYDROLOGY.

Section 404 of the 1972 CWA established a federal

permitting program for any “discharge” of “dredged or fill

material” into “navigable waters.” See Pub. L. No. 92-500,

§ 404, 86 Stat. 816, 884 (1972) (codified at 33 U.S.C.

§ 1344). After courts interpreted the term “navigable

waters” to include certain wetlands, section 404 permitting

5

became the primary CWA program affecting activities in

wetlands, although the word “wetlands” appears nowhere in

that section. Responding to wide-spread public concern over

federal regulation of routine land use activities that often

occur in wetland areas, such as farming and forestry, in 1977

Congress enacted section 404(f) as a qualified exemption for

certain discharges for which federal permitting was deemed

unnecessary and unduly burdensome. See Pub. L. No. 95-

217, § 67, 91 Stat. 1566, 1600-01 (1977) (codified at 33

U.S.C. § 1344(f)).?

Section 404(f)(1)(A) exempts any discharge of dredged

or fill material that results from:

normal farming, silviculture, and ranching activities

such as plowing, seeding, cultivating, minor

drainage, harvesting ..., or upland soil and water

conservation practices

33 US.C. § 1344(f(1)(A). The remainder of section

404(f)(1) identifies other activities whose discharges are

exempt, including maintenance of dikes, dams, and levees;

maintenance of drainage ditches; and construction or

maintenance of farm or forest roads where those activities

meet specified “best management practices” to minimize

adverse effects on the aquatic environment. Id.

§ 1344(f)(1)(B)-(F). The exemption of these activities is

limited by section 404(f)(2) (the “recapture” provision),

which provides for regulation if the discharge-generating

activity is for the purpose of “bringing an area of the

* Section 404(f) exempts specified discharges from permitting

requirements under both CWA section 404 (dredge and fill

permitting) and section 492 (permits for “discharges” of “pollutants”

other than dredged or fill material). See 33 U.S.C. § 1344(f)(1).

6

navigable waters into a use to which * was not previously

subject,” where the water’s flow or circulation may be

impaired or its reach may be reduced. Jd. § 1344(f)(2).

The statute does not define “normal” farming or forestry

activities, other than by providing a list of such activities.

The phrase “such as,” however, makes clear that the list is

illustrative, rather than exclusive. The term “normal” for

purposes of section 404(f)(1) thus should be interpreted in

accordance with its ordinary meaning, illuminated by the

examples provided. See Asgrow Seed Co. v. Denny

Winterboer, et al., 513 U.S. 179, 187 (1995) (statutory terms

that are not defined are given their ordinary meaning);

Norfolk & Western Ry. Co. v. Train Dispatchers, 499 U.S.

117, 129 (1991) (general term should be construed as

referring to items similar to specifically enumerated items).

The language of the exemption and the list of examples

reveal that “normal” activities encompass a wide variety of

earth-disturbing practices - some of which necessarily cause

minor or temporary changes to wetland hydrology. “Minor

drainage,” for example — which is expressly identified as

“normal” in section 404(f)(1) -— by its terms involves

drainage, i.e., a reduction in water levels. “Harvesting” of

trees in wetland forests, on the other hand, can cause

temporary but significant increases in water levels, due to

the loss of the removed trees’ capacity for transpiration of

water into the atmosphere. After harvest, “seeding” in

wetland areas typically involves the placement of elevated

soil beds to improve seedling survival and growth, which

incidentally alters surface water flow in the area of the beds.

Although each of these activities causes temporary

changes to wetlands, each is also fully compatible with

maintaining the wetland’s overall status and long term

functioning. The exemption of discharges associated with

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these activities thus precludes federal regulation

notwithstanding the activities’ incidental impacts on

wetlands. See 123 Cong. Rec. 39,i88 (1977) (Senator

Muskie’s comment that “it is understood that some of these

activities may necessarily result in incidental filling and

minor harm to aquatic resources”), reprinted at 3 A

Legislative History of the Clean Water Act of 1977, A

Continuation of the Legislative History of the Federal Water

Pollution Control Act (1978) (“1977 Leg. Hist.”) at 474.

This is consistent with the balance struck by Congress to

prevent the destruction of wetlands, while minimizing

regulation of operations capable of using wetlands

productively. See 123 Cong. Rec. 39,192 (1977) (Senator

Stafford’s comment that exemptions were adopted “to

prevent over-regulation of activities that have little or no

effect on the aquatic environment” but that regulation would

continue for activities that convert water to dry land),

reprinted at 3 1977 Leg. Hist. at 485; 123 Cong. Rec. 39,210

(1977) (Senator Wallop’s remarks that the section 404

amendments were “carefully worded to provide protection

from harmful activities, while reducing unnecessary

government interference”), reprinted at 3 1977 Leg. Hist. at

528-29.

This careful balance is wise indeed, as the exemption of

these wetland uses may well contribute more to wetland

protection than would regulation. With tens of millions of

wetland acres in private ownership, laws that facilitate the

compatible productive use of these areas (e.g., farming and

forestry) can only diminish economic incentives to sell them

into other uses that may be less compatible with their

wetland character (e.g., suburbs and shopping malls). For

the exemption to function as intended, however, any

interpretation must recognize that it exempts “normal”

farming and forestry activities regardless of their incidental

8

impacts on wetlands, subject only to the limited “recapture”

provision (discussed in Section III below).

Il. EXEMPT “NORMAL” FARMING, FORESTRY,

AND RANCHING ACTIVITIES NEED NOT USE

TRADITIONAL TECHNIQUES.

Petitioners point out that this case concerns “traditional”

plowing activity. See, eg., Pet. Br. at 2, 17, and 19.

Farming, forestry, and ranching activities may be “normal,”

however, even if they are not accomplished through

“traditional” means. Farming and forestry practices are not

static, but evolve continually to reflect technological

advancements, more efficient and productive management

methods, and improvements in environmental practices.

Because the purpose of the section 404(f) exemption is to

facilitate continued farming and forestry in wetland

environments, any judicial interpretation of the exemption

must accommodate new practices consistent with modem

operations.

In this context, normal activities — such as plowing,

seeding, cultivating, and harvesting — connote the function

being served, as opposed to the technique employed.

Raising crops, timber, and livestock normally involves such

functions as preparing and improving soils, establishing and

protecting desired vegetation, controlling undesired or

competing vegetation, harvesting crops, herding animals, and

so on. New techniques continually evolve to better

accomplish these fundamental objectives, and no operation’s

regulatory status under section 404 should hinge on its

willingness to resist innovation. Thus, the relevant question

in determining whether an activity is “normal” is not whether

timber is fertilized from the ground or from the air, whether

animals are herded on horseback or on all-terrain vehicles, or

whether plows are pulled by mules or by tractor. Instead, the

9

relevant question is whether the activity performs a

fundamental function associated with keeping lands in

farming, forestry, or ranching use.

Iti. THE TWO ELEMENTS OF THE “RECAPTURE”

PROVISION WORK TOGETHER TO MINIMIZE

UNNECESSARY FEDERAL REGULATION OF

FARMING, FORESTRY, AND RANCHING.

If an activity is “normal” within the farming, ranching,

or forestry community as a general matter, discharges of

dredged or fill material incidental to that activity at any

particular location nevertheless may be subject to CWA

regulation pursuant to the “recapture” provision. Under the

plain language of CWA section 404(f)(2), however,

“recapture” occurs only where two elements are present:

(1) the purpose of the activity is to bring an area of the

“navigable waters” into a use to which it has not previously

been subject; and (2) the discharge may impair the flow or

circulation, or reduce the reach, of such navigable waters.

See 33 US.C. § 1344(f)(2). The United States

Environmental Protection Agency (“EPA”) and the United

States Army Corps of Engineers (“the Corps”) have

explicitly recognized the two-part test for recapture,

explaining that:

[The recapture provision] involves a two-part test

that results in an activity being considered not

exempt when both parties [sic] are met: 1) does the

activity represent a “new use” of the wetland and, 2)

would the activity result in a “reduction in

reach/impairment of the flow or circulation” of

waters of the United States?

United States Environmental Protection Agency and United

States Department of the Army, Memorandum for the Field,

10

“Clean Water Act Section 404 Regulatory Program and

Agricultural Activities” (May 1990) at 2.° See also, United

States Environmental Protection Agency, Memorandum

from Gerald H. Yamada, EPA Acting General Counsel to

Josephine S. Cooper, EPA Assistant Administrator for

External Affairs (Feb. 8, 1985) (“EPA General Counsel

Mem.”), 1985 WL 71787 (E.P.A.G.C.), at 6 (“section

404(f)(2) has two requirements: the ‘new use’ requirement,

and the ‘reduction in reach/impairment of flow ... [BJoth

requirements must be met ....).

The Ninth Circuit’s opinion in this case suggests that the

panel majority found both elements satisfied. See 261 F.3d

at 815 (“Converting ranch land to orchards and vineyards is

clearly bringing the land ‘into a use to which it was not

previously subject,’ and there is a clear basis in this record to

conclude that the destruction of the soil layer at issue here

constitutes an impairment of the flow of the nearby

navigable waters.”). Other aspects of the opinion, however,

articulate an overbroad standard for recapture by essentially

reading the “change in use” requirement out of the statute.

Observing that Congress intended to “prevent the conversion

of wetlands to dry lands,” the court declares that activities

are non-exempt where they “change a_ wetland's

hydrological regime.” Id. at 816. In this respect, the opinion

suggests — wrongly — that a “change in a wetland’s

hydrological regime” alone will result in “recapture” and

regulation, regardless of whether the wetland is being

brought into a new use.

> This Memorandum is available through EPA’s internet web

site at <http://www.epa.gov/owow/wetlands/cwaag.html> and <http://

www.epa.gov/egi-bin/epaprintonly.cgi>.

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This one-step recapture test based solely on a “change

[in] a wetland’s hydrological regime” contradicts the plain

language of section 404(f)(2) as discussed above. Moreover,

it would defeat the purpose of the exemption by sweeping

innumerable normal wetland farming and forestry activities

into the mire of CWA permitting. As noted in Section I,

many existing forestry operations in wetland areas engage in

essential activities that cause changes - sometimes

substantial, albeit temporary, changes -— to wetland

hydrology. Such on-going operations are unquestionably

intended to benefit from the section 404 exemption

notwithstanding their recognized incidental impacts on

wetlands. See supra pp. 6-7. Yet they would lose their

exempt status if they were subject to regulation by virtue of

their potential to “change a wetland’s hydrological regime.”

The Ninth Circuit’s one-step recapture test thus violates both

the plain language and the clear purpose of section 404(f).

In establishing a one-part recapture test based solely on

potential impacts to wetland hydrology, the panel appears to

have misconstrued a particular recapture analysis established

by regulation for activities that permanently convert

wetlands to dry land. Based on the same legislative purpose

mentioned by the panel — the desire to prevent the

conversion of wetlands to dry land —- EPA and the Corps

promulgated regulations providing that the conversion of

wetlands to dry land is a presumptive “change in use.” See

40 C.F.R. § 232.3(b) (2001) (“A conversion of section 404

wetland to a non-wetland is a change in use of an area of

waters of the U.S.”); 33 C.F.R. § 323.4(c) (2001) (Corps

regulation containing identical statement). Therefore, by

regulation, any activity that permanently changes a wetland

to dry land automatically satisfies both elements of the two-

part “recapture” test: (1) the activity is deemed to effect a

“change in use” (i.e., a change from wetland use to non-

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wetland use), and (2) because it converts wetland to dry land,

the activity necessarily involves a reduction in the reach of

the wetland. Discharges associated with otherwise “normal”

farming or forestry activities that are used to permanently

convert wetlands to non-wetlands thus are always

“recaptured” under this regulatory interpretation.“

This special regulatory application of the recapture test

essentially prevents the abuse of the exemption to destroy

wetlands under the guise of on-going wetland farming,

forestry, or ranching operations. It does not, however, alter

the fundamental two-part recapture test that requires both a

“change in use” and an impairment in flow or reduction in

reach of a navigable water. Thus, discharges in connection

with the activities of established farming or forestry

operations (i.e., where the first part of the test is not met)

remain exempt even if they incidentally impair a wetland’s

flow or reduce its reach (i.e., even if the second part of the

test is met). A 1985 EPA General Counsel Memorandum

explains in detail how the two-part test recaptures discharges

associated with activities that destroy wetlands, while

preserving the exemption for established wetland operations

that affect wetlands without destroying them:

The legislative history ... leaves no doubt that the

destruction of the wetland character of an area (i.e.,

* It bears emphasis that even if an activity converts a wetland to

dry land, CWA permitting requirements apply only if there is also a

“discharge” (i.e., an “addition”) of dredged or fill material. See 33

U.S.C. § 1344(a). The CWA regulates discharges, not activities with

particular environmental effects. As noted in Judge Gould’s dissent

below: “Congress prohibited the discharge or addition of any

pollutant to navigable waters from any point source. It did not

literally prohibit any conduct by farmers or ranchers that changes the

hydrological character of their land.” 261 F.3d at 821.

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its conversion to uplands) is a change in use of the

waters of the United States, and by definition also a

reduction in their reach, within the meaning of

section 404(f)(2). The fact that some farming

operations may have previously been conducted in

the wetland without altering its wetland status, or

that some new operation could theoretically be

conducted without a discharge, does not mean that

discharges associated with an operation which does

convert the wetland are exempt. Conversely, if

there is already an established farming operation in

a wetland, any discharges resulting from farming

activities listed in the regulation which do not

convert the wetland to upland are exempt, whether

or not there is an intensification of farming, change

in crops, etc. Similarly, discharges from the

construction of an irrigation ditch are exempt, even

if they affect a wetland, as long as they do not

convert the wetland to upland, bring it into an initial

farming use, or otherwise bring a water of the

United States into a new use, and reduce or impair

its reach, flow, or circulation.

EPA General Counsel Mem. at 6-7.°

Although the Ninth Circuit seems to have concluded that

the deep plowing at issue both: (1) brought navigable waters

into a use to which they had not been subject (by plowing

ranchland to prepare it for planting orchards and crops), and

(2) impaired the flow of those waters, its opinion wrongly

> The quoted portion of the EPA General Counsel Memorandum

cross references CWA legislative history discussed several pages

before, including statements by Senators Muskie (3 1977 Leg. Hist. at

474), Stafford (id. at 485), and Baker (id. at 523).

14

indicates that such a change in wetland hydrology alone is

sufficient to negate the section 404(f) exemption. To the

contrary, even under EPA’s broad regulatory interpretation

of the two-part statutory recapture test, the only wetland

impact that presumptively satisfies both elements of the test _

is the permanent conversion of a wetland to a non-wetland.

Under section 404(f)(2), any “normal” farming, forestry, or

ranching activity that has lesser wetland impacts (i.e., that

impairs a wetland’s flow or reduces its reach without

changing its overall wetland status) remains exempt unless

the purpose of the activity is to bring the wetland into a use

to which it has not previously been subject.

CONCLUSION

The judgment of the United States Court of Appeals for

the Ninth Circuit should be reversed on the grounds that the

disturbance of wetland soils by plowing is not the “addition”

of dredged or fill material to navigable waters. However, to

the extent that the Court addresses the CWA section 404(f)

exemption and “recapture” provision for “normal” farming,

forestry, and ranching activities, AF&PA respectfully asks

that the Court correct the Ninth Circuit’s flawed analysis of

those provisions. The section 404(f) exemption can serve its

purpose of protecting compatible wetland farming and

forestry operations from the unnecessary burdens of CWA

regulation only if the normal activities of established wetland

farming and forestry operations are recognized as exempt,

regardless of minor or temporary changes to wetland

hydrology.

WILLIAM R. MURRAY

AMERICAN FOREST &

PAPER ASSOCIATION

1111 19th Street, NW

Suite 800

Washington, DC 20036

August 26, 2002

15

Respectfully submitted,

STEVEN P. QUARLES”

J. MICHAEL KLISE

ELLEN B. STEEN

CROWELL & MORING LLP

1001 Pennsylvania Ave., NW

Washington, DC 20004-2595

(202) 624-2500

Attorneys for American Forest &

Paper Association and

California Forestry Association

* Counsel of Record