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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0547%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 981

## Text

~ [~~ 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:
a 11
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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.

2

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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

4

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

7

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 and .

11

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.

13

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0547%3A13. Public record. Not legal advice.