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

Supreme Court, U,$,

FILED

AUG 2 6 2002

\7/ OFFICE OF THE CLERK

No. 01-1243

In The

Supreme Court of the United States

BORDEN RANCH PARTNERSHIP; ANGELO K. TSAKOPOULOS,

Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS; UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

On a Writ Of Certiorari To The United States Court of Appeals

For The Ninth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF THE PETITIONERS

DUANE J. DESIDERIO VIRGINIA S. ALBRECHT*

THOMAS JON WARD ANDREW J. TURNER

NATIONAL ASSOCIATION OF HUNTON & WILLIAMS

HOME BUILDERS 1900 K STREET, NW

1201 15™ STREET, NW WASHINGTON, D.C. 20006

WASHINGTON, D.C. 20005 (202) 955-1500

(202) 266-8200

*Counsel of Record

ev?

Page

NED CE BOI secccrinnncscsnninnisnsnnioniaiiveiiiliaiaaienl l

TI cccesesccsccnsnenersnisnnsitdeninsitnansaniiainiiiebimanians 3

PER crcensnnrennmnnnianininninciguiteindiiipaaamalal 5

I. To Meet the Clean Water Act’s Goal of

Il.

TABLE OF CONTENTS

Controlling Water Pollution, Congress Specified

that Federal Agencies Can Only Regulate

“Discharges” that “Add” Pollutants.......................0.

A. Congress’s Goal: Control Water Pollution........

B. Clean Water Act Framework: Regulate

“Discharges” that “Add” Pollutants. ..................

Section 404 is a Limited Regulatory Subset of

The Clean Water Act that Applies Only To

Discharges of “Dredged Or Fill Material” Into

Navigable Waters at “Specified Disposal Sites.”’.....

A. Section 404 Applies Only To Additions of

“Dredged or Fill Material.” .................:ccceeeeeees

B. Section 404’s Direction that the Corps Only

Permit Discharges at “Specified Disposal

Sites” Shows that a Discharge is a Discrete

Activity Separate from Dredging .......................

= |

=

=

III. The Ninth Circuit Should be Reversed Because it

Upheld Federal Regulation Based on a Broad

“Environmental Effects” Test, Ignoring the

Limited Scope and Specific Text of the Clean

IV.

Water Actand Section 404 Itself. .0....0.00c cece eee 13

A. The Ninth Circuit was Wrong. ..................:c000000+ 13

B. The Other Circuits are Consistent: Only

Additions of Material Trigger CWA

TTT A tic tactitieidinigegeenementeinemenssccnese 14

Current Section 404 Regulations Enforced by the

Corps and EPA are Illegal Because they Cover

Generic “Earth-Moving” Activities, Regardless

of Whether Those Activities “Discharge” or

“Add” Anything to Navigable Waters....................... 17

A.

B.

C.

1972-1990: Early Regulations Were Faithful

nnn Third innstnpntncnnneepscnecesnensscses 18

1991: Tulloch Rule | Purports to Regulate

Ee 19

1997-1998: Federal Courts in the D.C.

Circuit Strike Tulloch 1 as Facially Invalid

Because the Rule Regulated Activities that

SPUD EEE REED DIMEN IIE, <<cocececocescescsesescosessocecosooces 20

1997-1999: Corps and EPA Efforts to

Circumvent the AMC And National Mining

Opinions and Regulate Excavation and Other

SO MOVEMSINS Per SE. ......0cccerrosssscesesseessseresseees 21

***

E. 2000: The AMC Court Cautions the Agencies

F.

Against Taking an “Unduly Narrow”

Interpretation of Non-Regulated Activities. ......... 23

2001: The Agencies Issue Tulloch 3 and

“Regard” Vast Categories of Soil Moving

Activities as Regulated “Discharge.”’.................. 24

TR een een nS mae He oan TS SS 26

iv

TABLE OF AUTHORITIES

CASES Page(s)

Agins v. City of Tiburon, 447 U.S. 255 (1980) ..............0. l

American Mining Congress v. U.S. Army Corps of

Engineers, 951 F.Supp. 267 (D.D.C. 1997) ..0............... 20

American Mining Congress v. U.S. Army Corps of

Engineers, No. CIV.A. 93-1754, 2000 U.S. Dist. LEXIS

a ee 23, 24

Babbitt v. Sweet Home Chapter of Communities for a

Greater Oregon, 515 U.S. 687 (1995) .......ccccccccceeeseeeeeeeee l

Borden Ranch Partnership v. U.S. Army Corps of

Engineers, 261 F.3d 810 (9" Cir. 2001) ...........000-+: passim

Catskill Mountains Chapter of Trout Unlimited v. City of

New York, 273 F.3d 481 (2 Cir. 2001) .....cccccccc000e. 11, 16

City of Monterey v. Del Monte Dunes at Monterey, Lid.,

Ss CT COD sitececnsniniciniiieisaeiiiiaiibatiianansinaaiiunionionnin 2

Dolan v. City of Tigard, 512 U.S. 374 (1994)... l

Headwaters v. Talent Irrigation Company,

gg 9

International Paper Company v. Ouellette,

ig | Sf Ee EE 7

Lucas v. South Carolina Coastal Council,

ee ee SITs vcistaiteticiinssnsihiiibisiibintiataaiaeiibeiiniaiduiiaimniabiciats l

Vv

MacDonald, Sommer & Frates v. Yolo County,

Sr ek TIED ccstscsiuiiiteliisetiadilesiiaitiineniintiaiaaiataaemmnians l

Minnehaha Creek Watershed Distribution v. Hoffman,

597 F.2d 617 (8 Cir. 1979) ....cccccccccccscscssesesescsesesenenees 8,15

National Association of Home Builders v. U.S. Army

Corps of Engineers, No. 1:01CV00274 (D.D.C. filed Feb.

REET sassetincssulecepebodetiecouchiadtealieiiddamsadshimiddiabieiiamiaaaniimmnbeai 25

National Mining Association v. U.S. Army Corps of

Engineers, 145 F.3d 1399 (D.C. Cir. 1998)............. passim

National Wildlife Federation v. Consumers Power,

IS CI cesectetecniesinensinriteniseehtsttnies 11

Nollan v. California Coastal Commision,

ee SI ITTTED exiiscessessinciteciitetneestiaetieibieiiitiidiainiialial l

North Carolina Wildlife Federation v. Tulloch,

No. C90-713-CIV-5-BO (E.D.N.C. 1992) .0.........ccccceeee 19

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) .............. 2

Rice v. Harken Exploration Company,

Be re” OG SD witientttinctctnrcensnsccntaniantsiiia 9

Rueth v. U.S. Environmental Protection Agency, 13 F.3d

CI winbiceteneviieniesicinsetaidepataaeninitintainanisain 7

Rybacheck v. U.S. Environmental Protection Agency,

904 F.2d 1276 (9" Cir. 1990) ........sssscssseessesneeeseees 15, 16

San Diego Gas & Electric Company v. City of San Diego,

Se Ce CIID cccsecnccennnaiiennsadennnensiiistinininituaiiaciamiasiaia l

vi

Save Our Community v. U.S. Environmental Protection

Agency, 971 F.2d 1155, 1162 (5™ Cir. 1992) ......... 7, 8,15

Solid Waste Agency of Northern Cook County v. U.S. Army

Corps of Engineers, 531 U.S. 159 (2001) ............... passim

Suitum v. Tahoe Regional Planning Agency,

eA SEP CITI ccitentestiibiininticnddeniansiititimennpineenienisnienaneninten 2

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 122 S.Ct. 1465 (2002) ......... 2

United States v. Deaton,

ee 16

United States v. Ashland Oil and Transportation,

Lb Fl nnn 5

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985) ..........cccccceeeeeeeeeeeees l

Yee v. City of Escondido, 503 U.S. 519 (1992) ..... 0.0.0.0... l

STATUTES AND REGULATIONS

I PTI, ctsiaiaicatinccieneaciea celia inemecariaiienilaaiadameinaiiiadl 6

gs I accelerated 6

Clean Water Act:

Section 101, 33 U.S.C. § 12S1Ca) ........ccccccccccccscesseseseeees 3,6

Section 101-607, 33 U.S.C. § 1251-1387 «0.0.0.0... 6

Sections 104-106, 33 U.S.C. § 1254-1256 0.0.0.0... 6

en 6

ED Gis SP Citas OP TIED cnnscinntenensseanssecemnevetmmmatsnianies 6

Section 115,33 U.S.C. § 1265. cocccccccccsscccssssesssseesssuesensecen 6

vii

I I I iittala 6

ND Us Ps TE IED dccccsenmenstnneniuecensotenensonsteens 6

STD BOG, Be CI © CI csecevccccnccesecsnecscetccscteccncnscenees 6

nr i A I cilia aliaeeenenti 6

ET oe | 7

Section 301-304, 33 U.S.C. §§ 1311-1314 woe 6

Section 303, 33 U.S.C. § 13 13(G)(I MC) ......ccccccccecceeceeeees 6

Gk ene 6

NE ei, AP IEE 0 UII ‘scisstpernsinersinerdnentnnncminncantadasaidie 6

Nn IIE, OO IED iteccncneniigrieneeinementeinmauiial 6

Se ny ise SF Ge crcnitnntencecenenectneniacniadaiseemmntitin 7

Section 404, 33 U.S.C. § 1344 woo ceccccceceseeeeeeeees passim

Section 404, 33 U.S.C. § 1344(a) .0......cccceceeeeeeees passim

is OF ED ctrntetectenesecennesecentcnesenniantinin 6

RE 7

RE RD 7

Sections 601-607, 33 U.S.C. § 1381-1387 ..0.....ceeeeee 6

Regulations:

Sa es ATID wiiehanernienncanniintisccsitainniniiaienipaiineinnntinniermaenty 9

Fs Ee NTIEIED vnvninntnininennicetenespemanntonaninatinuinanenls 9

es Oe I cnccscteceunnncecnininenennintinntoniniancinnnins 10, 11

ED steritencesserencecnnscentennttmamenmnmants 18

33 C.F.R. §§ 323.2(e) (July 1, 2001) 0... eeeeeees 10

tee eR | een 10

Ry SNEED excnssstemcennnnannenenmennnetennenie 18

a TUE ctccrnnceninsunesceqrnnienmnseiessmnidnnennes 18

Se ee I arsiscrnnieniunnrmemmneimenninnninin 19

“Tulloch 1,” 58 Fed. Reg. 45,008 (1993) .................. 19, 20

“Tulloch 2,” 64 Fed. Reg. 25,120 (1999) .................. 22, 23

a ee RN IE ceictterncecientncseennecermneeneemeiies 25

“Tulloch 3,” 66 Fed. Reg. 4550 (2001) ................. 5, 24, 25

viii

OTHER

B27 Camm, Ree. SETIT CUDTE) q..ccccccorscecssccssecccscecsesccesecees 12

Tite FB RY. , eee 12

“Interim, Interim’ Information Regarding the ‘Excavation

Rule’ Decision, American Mining Congress v. Corps”

Ey By DOD cenrenensnsnmermsereeenmmennnenemeemmnencseen 21

Memorandum from J. Charles Fox, Assistant

Administrator for Water, to The Administrator, “Impacts

to Public Health and the Environment Associated with the

‘Tulloch’ Decision—ACTION MEMORANDUM” (June

Bh SERIE csensiennevnscsnensnepsadnipinaiisimiiniatentantmiienmistednetaeees 21

PU GED cntanssstimnneneen 10

U.S. Army Corps of Engineers, Regulatory Guidance

Letter 81-4: Application of Section 404 to Dredging

PORNO GOUIED D, TOUS Pecvececvecvecesscvececsssecsevveseveqvesrenesevesees 18

U.S. Army Corps of Engineers, Regulatory Guidance

Letter 84-4: Application of Section 404 to Dredging

PURISED GES. ZO CEG wecevrevecsvccvsccsscesvevsscsevsvevscvescsvesseese 18

INTEREST OF AMICUS

The National Association of Home Builders

(“NAHB”) has received the parties’ written consent to file

this brief as amicus curiae in support of the Petitioners.

Letters of consent have been filed with the Clerk of the

Court.'

NAHB represents over 208,000 builder and associate

members throughout the United States. Its members

include not only people and firms that construct and

supply single family homes, but also apartment,

condominium, multi-family, commercial, and industrial

builders, land developers, and remodelers. It is the voice

of the American shelter industry. Many of NAHB’s

members own and develop land. It is therefore concerned

with any judicial decision that affects the regulation of

land development.

NAHB submitted an amicus brief in this case urging

the Court to grant certiorari.’ The central issue concerns

' Pursuant to Rule 37.6 of this Court, amicus states that its counsel

authored this brief and amicus paid for it. This brief was not written

in whole or part by counsel for a party, and no one other than amicus

made a monetary contribution to its preparation.

* NAHB has been before the Court as an amicus curiae or as “of

counsel” representing the interests of property owners in a number of

cases. These include Agins v. City of Tiburon, 447 U.S. 255 (1980);

San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621

(1981); Williamson County Regional Planning Comm'n v. Hamilton

Bank, 473 U.S. 172 (1985); MacDonald, Sommer & Frates v. Yolo

County, 477 U.S. 340 (1986); Nollan v. California Coastal Comm'n,

483 U.S. 825 (1987); Yee v. City of Escondido, 503 U.S. 519 (1992);

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992);

Dolan v. City of Tigard, 512 U.S. 374 (1994); Babbitt v. Sweet Home

Chapter of Communities for a Greater Oregon, 515 U.S. 687 (1995);

2

the extent of activities over which the Corps of Engineers

(“Corps”) and the Environmental Protection Agency

(“EPA”) can require federal approval through the

permitting programs of the Clean Water Act (“CWA”). |

These are some of the most common permits that NAHB’s

members must obtain in their projects to provide housing

for the Nation’s citizens. Amicus submits that the

Agencies often compel its members to apply for CWA

permits beyond the scope of congressional authority. To

curb such regulatory overreach, since 1991 NAHB has

participated in numerous lawsuits—both as a named party

and as an amicus—to police the CWA’s permitting

programs and attempt to stop the Agencies from extending

their authority in an unauthorized manner.

Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997);

City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687

(1999); Solid Waste Agency of Northern Cook County v. U.S. Army

Corps of Eng'rs, 531 U.S. 159 (2001); Palazzolo v. Rhode Island, 533

U.S. 606 (2001); and Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency, 122 S. Ct. 1465 (2002).

INTRODUCTION

Congress passed the Clean Water Act in 1972 in

response to concerns that industrial and municipal

facilities were discharging untreated waste materials into

the Nation’s surface waters. To tackle that problem, the

Clean Water Act established a permitting system to

regulate the discharge of pollutants into navigable waters.

Although the goals of the CWA are ambitious (to “restore

and maintain the chemical, physical, and biological

integrity of the Nation’s waters....”), Congress selected

with care the means by which it would pursue those goals.

33 U.S.C. § 1251(a). It did not prohibit all actions that

cause some type of environmental damage to an aquatic

resource; it focused on discharges to navigable waters.

The Ninth Circuit, however, has disregarded Congress’s

carefully chosen words, holding instead that Petitioner’s

“deep-plowing” to prepare his land for a vineyard must be

regulated under Section 404 of the Clean Water Act

because it causes “environmental damage.” Borden Ranch

Partnership v. U.S. Army Corps of Eng’rs, 261 F.3d 810,

815 n.2, 819 (9" Cir. 2001) (Judge Gould uses the term

“deep-plowing” in his dissent).

The Court addressed a similar administrative disregard

of congressional language in the same CWA program just

two years ago. In Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001)

(“SWANCC’”), the Corps claimed that isolated, intrastate

ponds located on a landfill in northern Illinois were

“navigable waters” subject to section 404 permit

requirements. The Court rejected this broad assertion of

federal authority, observing that the term “navigable

4

waters” cannot be read out of the statute. SWANCC, 531

U.S. at 172.

While SWANCC addressed the geographic extent of

CWA jurisdiction, the case at bench concerns the types of

actions that the CWA regulates and the specific words

Congress selected to specify those actions. Amicus

NAHB will show that CWA jurisdiction is like Venn

diagram circles contained within each other:

e First, when Congress enacted the CWA, its overriding

goal was to control water pollution. (Infra, pp. 5-7.)

e Second, one means by which Congress sought to

control water puilution was by establishing permit

programs in Sections 402 and 404. These permit

programs only regulate actions that “discharge” or

“add” materials to navigable waters. (/nfra, pp. 7-9.)

e Third, Section 404—the particular permit program at

issue here—addresses a specific type of addition, the

discharge of “dredged or fill material.” (Infra, pp. 9-

11.)

e Fourth, Section 404’s scope is further narrowed by the

statutory language that directs discharges to “specified

disposal sites.” (Infra, pp. 11-13.)

The Ninth Circuit improperly ignored this statutory

framework. It ruled that federal regulation was

appropriate because Petitioner's plowing activity

“constitutes environmental damage.” Borden Ranch

Partnership, 261 F.3d at 815 n.2. This ruling was wrong

because Borden Ranch’s plowing did not (1) discharge or

5

add (2) dredged or fill material at a (3) specified disposal

site.’

In the end, the Ninth Circuit’s decision was wrong

because it disregards the boundaries of the CWA’s

effective, coercive—but limited—regime.

ARGUMENT

I. TO MEET THE CLEAN WATER ACT’S GOAL

OF CONTROLLING WATER POLLUTION,

CONGRESS SPECIFIED THAT FEDERAL

AGENCIES CAN ONLY REGULATE

“DISCHARGES” THAT “ADD” POLLUTANTS.

A. Congress’s Goal: Control Water Pollution.

Waterways burned in the years leading up to the

CWA’s enactment. “In 1969, the Cuyahoga River in

Cleveland, Ohio, coated with a slick of industrial waste,

caught fire. Congress responded to that dramatic event,

and to others like it, by enacting the [CWA].” SWANCC,

531 U.S. at 174-75 (Stevens, J., dissenting); see United

States v. Ashland Oil and Transportation, 504 F.2d 1317,

1325 (6th Cir. 1974) (fires on the Schuylkill, Cuyahoga,

and Rouge rivers threatened navigation; when it enacted

the CWA, “Congress was convinced that uncontrolled

* Indeed, the Agencies’ approach in Borden Ranch is not unique.

Recent Corps and EPA regulations unlawfully extend CWA authority

over a vast spectrum of soil movements (not just plowing) merely

because those movements affect aquatic resources. Through a

regulation issued in January 2001, the Agencies “regard” any “earth-

moving activity” caused by a machine as a statutory “discharge” that

requires a Section 404 permit—regardless of whether any pollutant is

actually added when soil is moved. See 66 Fed. Reg. 4550, 4575

(2001) (codified at 33 C.F.R. § 323.2 (2001)). (See infra pp. 24-26.)

6

pollution of the nation’s waterways is a threat to the health

and welfare of the country, as well as a threat to interstate

commerce.”).

Congress responded to the threats posed by untreated

discharges of pollutants into the Nation’s surface waters by

enacting the Federal Water Pollution Control Amendments

of 1972, otherwise known as the CWA, 33 U.S.C. §§

1251-1387. The CWA’s first stated goal is to eliminate

“the discharge of pollutants into the navigable waters....”

33 U.S.C. § 1251(a). The CWA also contains myriad

programs evidencing Congress’s overriding goal to reduce

water pollution. ‘

The CWA contains targeted programs to deal with

pollution in specific navigable waters of national

significance. See 33 U.S.C. §§ 1258, 1268 (Great Lakes);

id. § 1266 (Hudson River); id. § 1267 (Chesapeake Bay);

id. § 1269 (Long Island Sound); id. § 1273 (Lake

Pontchartrain); id. § 1330 (estuaries). The CWA also

targets specific types of water pollutants. See, e.g., id. §

1257 (mine water pollution); id. § 1265 (toxic pollutants);

id. § 1321 (oil pollution); id. § 1345 (sewage sludge).

* See, e.g., 33 U.S.C. §§ 1254-1256 (research and grant programs to

study water pollution); id. §§ 1281-1301 (federal grant programs for

construction of publicly-owned works to pre-treat wastewater entering

receiving waters); id. §§ 1311-1314 (program regarding effluent

limitations from point sources to achieve water quality standards

developed by States); id. § 1313(d)(1)(C) (requiring States to establish

“total maximum daily loads” for certain pollutants, or the maximum

permissible level of pollutants allowed in designated impaired

waters); id. § 1316 (EPA to establish national standards of

performance for various industrial sources to develop technologies

necessary to control discharge of pollutants); id. §§ 1381-1387

(revolving fund program for States to construct treatment works and

implement water management programs).

7

As the primary means to achieve the CWA’s goal to

limit and ultimately eliminate water pollution, Section

301(a) imposes a blanket prohibition on the “discharge of

any pollutant by any person”—unless permitted elsewhere

in the Act. Jd. § 1311(a), 1362(6) and (12); see

International Paper Company v. Ouellette, 479 U.S. 481,

489 (1987) (“One of the primary features of the [CWA is]

a federal permit program designed to regulate the

discharge of polluting effluents.”); Rueth v. U.S. E.P.A., 13

F.3d 227, 229 (7th Cir. 1993) (“To achieve the purposes of

the Act, Congress prohibited the discharge of any

pollutants, including dredged or other fill material, except

in accordance with the Act.”).

Section 404 is one exception to the discharge

prohibition. It authorizes the Corps to issue permits for the

“discharge of dredged or fill material into the navigable

waters at specified disposal sites.” 33 U.S.C. § 1344(a).

Section 402 is another exception to the discharge

prohibition. It authorizes EPA and delegated States to

issue permits for discharges of other pollutants, such as

industrial and municipal waste. Jd. §§ 1342, 1362(6).

B. Clean Water Act Framework: Regulate

“Discharges” that “Add” Pollutants.

The existence of a “discharge” is the critical, deciding

factor in determining whether CWA jurisdiction is

triggered and therefore whether a Section 402 or 404

permit is required. Congress defined the term “discharge”

to mean an “addition” of a pollutant to navigable waters.

33 U.S.C. § 1362(12). Thus, the CWA regulates only

those actions that add pollutants to navigable waters.

Actions that impact waters but add no pollutants are

beyond CWA jurisdiction. See Save Our Community v.

U.S.E.P.A., 971 F.2d 1155, 1162-63 (Sth Cir. 1992)

(absent a discharge, the destruction of a wetland is not

regulated by the CWA). Conversely, a discharge that adds

pollutants is regulated even if no damaging effects result.

See Minnehaha Creek Watershed Dist. v. Hoffman, 597

F.2d 617, 626-27 (8th Cir. 1979) (discharges are regulated

even where water quality is not affected).

The D.C. Circuit has observed the distinction between

the CWA regulation of “discharges” and the regulation

under a separate statutory scheme of other actions that can

adversely affect navigable waters:

[T]he removal of material from the waters of

the United States, as opposed to the

discharge of material into those waters, is

governed by a completely independent

Statutory scheme. ... the [Rivers and

Harbors Act of 1899] covers the act of

dredging, while [CWA] Section 404 []

covers the disposal of the dredged material.

National Mining Ass'n v. U.S. Army Corps of Eng'rs, 145

F.3d 1399, 1404 (D.C. Cir. 1998) (citations omitted).

In sum, Congress did not intend the CWA to be an

liber-environmental statute to regulate any activity that

could cause aquatic degradation. The Act’s scope is

narrower: to limit water pollution by regulating actions

that “discharge” or “add” pollutants. See National Mining,

145 F.3d at 1410.

One reason Borden Ranch’s activities fall outside

CWA jurisdiction is because the plowing at issue did not

“discharge” or “add” a pollutant. Soils may have been

9

moved around the tines of the plow and earth may have

been displaced, but nothing new was added to a navigable

water.*

Il. SECTION 404 IS A LIMITED REGULATORY

SUBSET OF THE CLEAN WATER ACT THAT

APPLIES ONLY TO DISCHARGES OF

“DREDGED OR FILL MATERIAL” INTO

NAVIGABLE WATERS AT “SPECIFIED

DISPOSAL SITES.”

A. Section 404 Applies Only To Additions of

“Dredged or Fill Material.”

Congress established the Section 404 regulatory

program to address one particular type of polluting

activity—the “discharge of dredged or fill material into the

navigable waters at specified disposal sites.” 33 U.S.C. §

1344(a). The Corps relies on Section 404 to assert

regulatory authority over and require permits for “the

discharge of dredged or fill material into waters of the

United States.” See 33 C.F.R. §§ 323.1, 323.3(a). By its

terms, Section 404 and the Corps’ implementing

> After SWANCC, it is questionable whether Petitioner’s land qualifies

as “navigable waters” under the CWA. In fact, the scope of CWA

geographic jurisdiction after SWANCC is the subject of a split in the

Circuits. Compare Rice v. Harken Exploration Co., 251 F.3d 264,

269 (Sth Cir. 2001), with Headwaters v. Talent Irrigation Co., 243

F.3d 526, 533 (9th Cir. 2001). Nonetheless, geographic jurisdiction

has not been raised as an issue in this case because the parties have

agreed to assume for purposes of this litigation that the land in

question is “navigable waters.” To the extent the Court adopts this

assumption, Amicus respectfully urges the Court to make clear that the

issue of geographic jurisdiction is not before it and it is not holding

that this land is jurisdictional.

10

regulations apply only to discharges of “dredged or fill

material” “into” navigable waters.

Thus, whether an action is subject to Section 404

regulation turns on whether “dredged or fill material” is

discharged. (The discharge of fill material is not at issue

in this case.*) “Dredged material” is not defined in the

CWA, but Corps regulations define it as “material that is

excavated or dredged from waters of the United States.”

Id. at § 323.2(c) (emphasis added). Thus, material must

actually be dredged from waters to qualify as “dredged

material.” This stands to reason. The ordinary meaning of

“dredge” is

v. 1 tr. a (often foll. by up) bring up (lost

or hidden material) as if with a dredge

(don't dredge all that up again). b (often

foll. by away, up, out) bring up or clear

(mud, etc.) from a river, harbor, etc. with a

dredge. 2 tr. clean ( a harbor, river, etc.)

with a dredge...

Oxford American Dictionary, 291 (Oxford University

Press 1999). “Dredge” essentially means to bring material

* “Fill material” is material “placed in waters of the United States

where the material has the effect of ... [rjeplacing an aquatic area

with dry land” or “[cJhanging the bottom elevation of a water of the

United States.” 33 C.F.R. § 323.2(e) (July 1, 2002) (emphasis added).

The regulatory definition of “discharge of fill material” specifically

excludes

plowing, cultivating, seeding and harvesting for the

production of food, fiber and forest products.

Id. at § 323.2(f). Material was not “placed in” waters of the United

States by petitioner’s activities, and, in any event, petitioner's

activities did involve plowing for the production of food products.

up and clear it away from a waterbody (to allow, for

example, the movement of vessels in interstate commerce).

It follows, as the Corps’ regulations apparently recognize,

that “dredged material” is material that is actually removed

from a waterbody, not soil that is merely churned but

remains in a waterbody. 33 C.F.R. § 323.2(c). Only

material dredged from water is “dredged material,” and

only when that material is subsequently discharged “into”

navigable waters is Section 404 triggered. 33 U.S.C. §

1344.’

Another reason Borden Ranch’s activities fall outside

CWA jurisdiction is because the plowing at issue did not

dredge material up from a waterbody. The plow may have

moved soils around, but it did not dredge material from a

waterbody.

B. Section 404’s Direction that the Corps Only Permit

Discharges at “Specified Disposal Sites” Shows that

a Discharge is a Discrete Activity Separate from

Dredging.

Section 404 authorizes the Corps to issue permits for

the discharge of dredged or fill material into navigable

waters “at specified disposal sites.” 33 U.S.C. § 1344(a).

Congress’s use of the term “specified disposal sites” is

consistent with the common dredging practice of

” Likewise, in the context of Section 404, the Court of Appeals for the

Second Circuit has observed that merely recirculating material within

a waterbody is not an “addition” triggering a permit requirement.

Discussing National Wildlife Federation v. Consumers Power, 862

F.2d 580 (6" Cir. 1988), the court noted that a permit was not required

because “[t]he navigable water was recirculated, but nothing was

added.” Catskill Mountains Chapter of Trout Unlimited v. City of New

York, 273 F.3d 481, 491 (2nd Cir. 2001).

12

excavating material from one place and dumping it into

another area—viz., the “specified disposal site."* The term

“specified disposal site” evidences that Section 404

governs material that is removed and taken away to be

discarded (i.e., “disposed”’), and ultimately placed at some

different point away from the locale of initial dredging

(i.e., “specified site.”). Thus, by its plain terms, Section

404 envisions and applies to a discharge that adds dredged

or fill material at a site specified for “disposal.”

Another reason Borden Ranch’s activities fall outside

the scope of the CWA is that its plow did not dispose of

soil and, thus, there was no “disposal site” that could be

specified in a Section 404 permit. The plow may have

churned soil and moved it around, but it did not take away

dirt from a dredging site and dispose of it at a specific

location elsewhere. Under the Ninth Circuit’s reasoning,

any area subject to plowing would be both a dredging site

and a specified disposal site, but the statute clearly

contemplates that dredging and disposal of dredged

* The legislative history indicates that Congress understood

“discharge of dredged material” to mean the disposal in one area of

material dredged from another area, i.e, dredging and the subsequent

disposal of dredged material are two distinct operations. In his

remarks during the floor debate, Sen. Muskie stated “There is no

question that [the Corps] should retain authority to permit dredging

operations . . . But, conversely, spoil disposal should be subject to

EPA regulations .. ..” 117 Cong. Rec 38797, 38854 (1971); see also

id. at 38853-54 (colloquy among Senators Ellender, Muskie, and

Stennis) (discussing disposal of dredged material in open water,

which is “essential since the Secretary of the Army is responsible for

maintaining and improving the navigable waters of the United

States”) and 118 Cong. Rec. 33692, 33699 (1972) (Senate

Consideration of Conference Report on S. 2770) (EPA “should have

the veto over the selection of the site for dredged spoil disposal and

over any specific spoil to be disposed of in any selected site.”).

13

material are separate acts that occur in separate places at

separate times. This Congressional language must be

given effect. See SWANCC, 531 U.S. at 171-72 (unlawful

to read terms out of the CWA). Congress could not have

intended the tortured reading of the statute the Ninth

Circuit would render.

lil, THE NINTH CIRCUIT SHOULD BE

REVERSED BECAUSE IT UPHELD FEDERAL

REGULATION BASED ON A_ BROAD

“ENVIRONMENTAL EFFECTS” TEST,

IGNORING THE LIMITED SCOPE AND

SPECIFIC TEXT OF THE CLEAN WATER

ACT AND SECTION 404 ITSELF.

A. The Ninth Circuit was Wrong.

Again, only (1) “discharges” that “add” (2) “dredged or

fill material” at (3) “specified disposal sites” within

navigable waters require a Section 404 permit. See 33

U.S.C. § 1344(a). Because Petitioner’s plowing activity

did not meet these requirements, it did not need a Section

404 permit.

Yet the Ninth Circuit upheld the assertion of federal

jurisdiction because Borden Ranch’s soil movements, in its

view, caused environmental harm. Offended by

Petitioner’s “deep ripping,” a form of plowing used to

prepare soil for the deep roots of orchards and vineyards,

the Ninth Circuit held that “activities that destroy the

ecology of a wetland are not immune from [CWA]

jurisdiction merely because they do not involve the

introduction of material brought in from somewhere else

... [Petitioner’s activity] constitutes environmental damage

14

sufficient to constitute a regulable redeposit.” Borden

Ranch Partnership, 261 F.3d at 814-15 n.2.

This conclusion was erroneous and warrants reversal.

Environmental damage per se cannot be the basis for

CWA jurisdiction. The specific textual elements discussed

above are prerequisites for Section 404 jurisdiction, and

they have not been satisfied in the case at bench.

B. The Other Circuits are Consistent: Only

Additions of Material Trigger CWA

Jurisdiction.

By concluding that jurisdiction is triggered by

“damage” rather than a “discharge,” the Ninth Circuit

departed from consistent holdings of other circuits. In

National Mining, the D.C. Circuit vacated a rule that

attempted to regulate land-clearing and other excavation

activities by characterizing the soil movements

accompanying such activities as a “discharge of dredged

material.” The Agencies argued that soil becomes a

pollutant once it is excavated, and that the soil material

that inevitably falls off a shovel during such excavation is

therefore a discharge of a pollutant. There was no

question that the Agencies’ purpose in adopting the rule

was to reach activities that altered or destroyed wetlands.

But the D.C. Circuit held that there can be no “addition” of

a pollutant without an addition of material.

[T}he straightforward statutory term

“addition” cannot reasonably be said to

encompass the situation in which material is

removed from waters of the United States

and a small portion of it happens to fall

back. Because incidental fallback represents

15

a net withdrawal, not an addition, of

material, it cannot be a discharge.

National Mining, 145 F.3d at 1404 (citations omitted).

The Fifth Circuit has likewise held that a discharge into

navigable water, not effects, is the jurisdictional

prerequisite for regulation under Section 404. In Save Our

Community, a landfill operator proposed to drain several

man-made ponds within the site to make them suitable for

landfill use. The Corps and EPA agreed that the operator’s

draining activities were not regulated because they did not

result in an addition of dredged or fill material. The

district court held that the proposed activity would destroy

wetlands and therefore required a permit. The Fifth

Circuit reversed, holding that “absent a finding of

discharge, draining activity that converts a wetland does

not trigger section 404 jurisdiction . . ..” Save Our

Community, 971 F.2d at 1165-66."

The Ninth Circuit relied on two prior decisions to find

that Petitioner’s deep ripping qualified as a “discharge.”

Both of the prior decisions, however, addressed material

that was first “dredged” or “excavated” from water, then

subsequently discharged into navigable water. Rybachek

* The Eighth Circuit, addressing the same issue from the opposite

perspective, has also held that a discharge, not effects, is the deciding

factor in triggering CWA jurisdiction. In Minnehaha Creek

Watershed Dist. v. Hoffman, the lower court held that the construction

of dams and placement of riprap into lake waters did not constitute a

discharge because there was no evidence that the activities would

have detrimental effects. But the Eighth Circuit held that, if a

discharge occurs, it will still be regulated regardless of whether the

activity involves a “significant alteration in water quality.” 597 F.2d

617, 626-27.

16

v. U.S. E.P.A., 904 F.2d 1276, 1285 (9th Cir. 1990) (where

streambed is excavated, then processed to extract gold,

subsequent discharge of sifted material into navigable

water is regulable); United States v. Deaton, 209 F.3d 331,

335 (4th Cir. 2000) (“the contractor removed earth and

vegetable matter from the wetland... once that material

was excavated from the wetland, its redeposit in that same

wetland added a pollutant. ..”) (emphasis added).

In clear contrast to Rybachek and Deaton, Borden

Ranch moved material within waters but did not dredge

material from a water and subsequently “discharge” it

“into” a navigable water. The D.C. Circuit recognized this

distinction in National Mining. 145 F.3d at 1406

(“Rybachek would help the agencies if [it held that

fallback during placer mining constituted a discharge], but

instead it identified the regulable discharge as the discrete

act of dumping leftover material into the stream after it

had been processed.”) (emphasis added). The Second

Circuit likewise has emphasized that mere recirculation is

not an addition:

If one takes a ladle of soup from a pot, lifts

it above the pot, and pours it back into the

pot, one has not “added” soup or anything

else to the pot (beyond, perhaps, a de

minimis quantity of airborne dust that fell

into the ladle). In requiring a permit for

such a “discharge,” the EPA might as easily

require a permit for Niagra Falls.

Catskill Mountains, 273 F.3d at 492.

The Ninth Circuit, however, wrongly excised the

jurisdictional trigger of a “discharge of dredged or fill

17

material into the navigable waters” and rewrote Section

404 to regulate soil movements that cause “damage.” 33

U.S.C. § 1344(a) (emphasis added).

IV. CURRENT SECTION 404 REGULATIONS

ENFORCED BY THE CORPS AND EPA ARE

ILLEGAL BECAUSE THEY COVER GENERIC

“EARTH-MOVING” ACTIVITIES,

REGARDLESS OF WHETHER THOSE

ACTIVITIES “DISCHARGE” OR “ADD”

ANYTHING TO NAVIGABLE WATERS.

The Ninth Circuit’s “environmental effects” test for

CWA jurisdiction will only fuel the recent growth of the

Section 404 regulatory state. Since 1991 the Corps and

EPA have issued three separate regulations and

innumerable bits of “guidance,” all in an effort to redefine

“discharge of dredged material” to capture more and more

activities. In so doing, the Agencies have alchemized

“discharge” to cover sweeping categories of activities that

cannot remotely be construed to “add” anything to

jurisdictional waters. Even if the subject activity removes

or excavates material, the Corps and EPA nonetheless

require a Section 404 permit through its current

regulations.

The timeline below lays bare the Agencies’ extra-

jurisdictional attempts to regulate based on environmental

effects. It chronicles the “pull” of the courts to give the

effect to the term “discharge” and the Agencies’ reactive,

expansive “push” to cover virtually any action that

subtracts soil from, or moves soil around in, a navigable

water. Such regulatory overreach will continue unabated

unless the Court overrules the Ninth Circuit and sends

18

strong cautionary words about the limits of CWA

jurisdiction.

A. 1972-1990: Early Regulations Were Faithful to

the CWA.

During the first 18 years that the Corps and EPA

enforced the CWA, they faithfully interpreted Section 404

in a manner confirming that “discharge” required an

addition of materials. In 1977, the Corps promulgated

final regulations defining the term “discharge of dredged

material” as “any addition of dredged material into waters

of the United States.” 42 Fed. Reg. 37,122, 37,145 (1977).

Guidance issued in 1981 and reissued in 1984 reinforced

the understanding that additions were regulated, but

removals and other soil movements were not:

[Section 404] does not authorize the Corps to

regulate dredging in [waters of the United

States] .... De minimus discharge occurring

during normal dredging operations, such as

the drippings from a dragline bucket, is not

considered to be a Section 404 discharge."

In 1986 the Agencies issued revised Section 404

regulations that remained consistent with the idea that

activities involving incidental soil movement were not

regulated. See 33 C.F.R. § 323.2(d) (1992) (Corps

regulations); 40 C.F.R. § 232.2(e) (1992) (EPA

regulations). In the preamble to its 1986 regulations, the

U.S. Army Corps of Engineers, Regulatory Guidance Letter 81-4:

Application of Section 404 to Dredging Projects ff] 1-2 (June 3,

1981); U.S. Army Corps of Engineers, Regulatory Guidance Letter

84-4: Application of Section 404 to Dredging Projects {| 2-3 (Mar.

23, 1984) (reissuance of RGL 81-4).

19

Corps plainly acknowledged: “We have consistently

provided guidance to our field offices since 1977 that

incidental fallback is not an activity regulated under

section 404.” 51 Fed. Reg. 41,206, 41,210 (1986).

B. 1991: Tulloch Rule 1 Purports to Regulate

“Incidental Fallback.”

The regulatory landscape shifted in 1991, when

environmental groups sued the Agencies and two

landowners, alleging that the landowners’ clearing and

excavation activities destroyed and degraded wetlands and

therefore should be subject to Section 404 regulation.

North Carolina Wildlife Fed’n v. Tulloch, No. C90-713-

CIV-5-BO (E.D.N.C. 1992). Rather than defend the

lawsuit, the Corps and EPA settled by agreeing to amend

their rules to regulate landclearing and excavation. On

August 25, 1993, the agencies adopted a final rule—

commonly known as the Tulloch Rule (hereafter “Tulloch

1”)}—that was virtually identical to the language dictated

by the parties’ settlement agreement. See 58 Fed. Reg.

45,008 (1993).

Tulloch 1 purported to extend the Agencies’ authority

to a new category of activity known as “incidental

fallback”: “any redeposit of dredged material . . . which is

incidental to any activity, including mechanized

landclearing, ditching, channelization, or other

excavation.” 58 Fed. Reg. at 45,035, 45,037. Because it is

“virtually impossible” to excavate or clear land without

causing some incidental soil movement (see id. at 45,017),

and because such incidental soil movement was now

considered a “discharge,” for she first time since the

CWA 's inception, Tulloch | required a Section 404 permit

for all actions that removed soils from, or pushed soils in,

20

jurisdictional waters. The Agencies acknowledged that

their decision to now regulate incidental fallback was not

driven by concern about the incidental soil movement

itself, but rather by concern about adverse effects resulting

from the underlying excavation activities. See 58 Fed.

Reg. at 45,019. Characterizing incidental soil movement

as a “discharge” thus provided the pretext for regulating

removal, ditching, plowing, and other soil-moving

activities that the Agencies had no authority to regulate

directly under the Act.

C. 1997-1998: Federal Courts in the D.C. Circuit

Strike Tulloch 1 As Facially Invalid Because the

Rule Regulated Activities that Did Not Add

Materials.

In 1993, Amicus NAHB and other trade groups

challenged Tulloch 1 as exceeding the Corps’ and EPA’s

authority. The U.S. District Court for the District of

Columbia agreed with NAHB. Recognizing that Section

404 regulates only “discharges” (and not removal or soil

disturbance per se), the district court found Tulloch 1

“inconsistent with the language and intent of the [CWA].”

American Mining Congress v. U.S. Army Corps of Eng’rs,

951 F.Supp. 267, 270 (D.D.C. 1997). “[{Congressional]

understanding of ‘discharge’ excludes the small-volume

incidental discharge that accompanies excavation and

landclearing activities.” Jd. at 273. Accordingly, the

district court “declared [Tulloch 1] invalid” and entered a

permanent injunction ordering the agencies “not to appl[y]

or enforc[e]” the rule. /d. at 278.

The U.S. Court of Appeals for the D.C. Circuit

affirmed without dissent in National Mining. The appeals

court examined the administrative record and concluded

21

that Tulloch 1 stretched federal authority to reach, among

other things, the “soils and sediments [that] fall from the

bucket” during excavation operations, and the “scrap(ing]

or displac{ement of] wetland soil” during mechanized

landclearing.” National Mining, 145 F.3d at 1403 (citing

Tulloch 1 preamble, 58 Fed. Reg. at 45,017-018).

However, such an extension of authority flouted

Congress’s definition of “discharge” because it did not

require some “addition” of material. Jd. at 1404. Simply,

“how [can there] be an addition of dredged material when

there is no addition of material”? /d.

D. 1997-1999: Corps and EPA Efforts to

Circumvent the AMC and National Mining

Opinions and Regulate Excavation and Other

Soil Movements Per Se.

The Corps and EPA responded with a campaign of

resistance to AMC and National Mining. An EPA official

derided these decisions as creating a “loophole” in the

statute. Memorandum from J. Charles Fox, Assistant

Administrator for Water, to The Administrator, “Impacts

to Public Health and the Environment Associated with the

‘Tulloch’ Decision—ACTION MEMORANDUM” (June

1, 1999). The Corps also issued a document styled as

“*Interim, Interim’ Information Regarding the ‘Excavation

Rule’ Decision, American Mining Congress v. Corps”

(February 13, 1997)). The “Interim, Interim Information”

instructed Corps field officials that they could properly

assert jurisdiction over incidental fallback, notwithstanding

the result in AMC, by bootstrapping authority over some

other part of a larger project where a regulable addition of

material had in fact occurred. The “Interim, Interim

Information” directed that “many projects that could be

built with only ‘incidental fallback,’ . . . also need Corps

22

authorization for access roads or other parts of the project

... [T]he excavation [i.e., non-regulated] part of the project

can be treated as secondary impacts of the parts of the

overall project that we do regulate.”

Next came “Tulloch 2,” an “interim” rule published on

May 10, 1999, pending a formal rulemaking to comply

with National Mining. See 64 Fed. Reg. 25,120 (1999).

Although styled as an attempt to comply with the AMC

and National Mining decisions, Tulloch 2 was nothing

more than a resuscitation of the rejected Tulloch Rule 1.

Based on the plain text of Tulloch 2," the agencies

continued to unlawfully regulate soil (“excavated

material”) inevitably displaced as an “incidental”

byproduct of landclearing or “other [mechanized]

excavation.” Because virtually all mechanized operations

in jurisdictional waters move around grains of soil,

Tulloch 2 regulated a vast array of activities regardless of

whether material was actually added to the waterbody.”

"' The May 10, 1999, rule changed the language of Tulloch | as

follows: “Any addition of dredged material into, including redeposit

of dredged material other than incidental fallback, within, the waters

of the United States. The term includes, but is not limited to the

following:*** any addition, including any redeposit other than

incidental fallback, of dredged material, including excavated material,

into waters of the United States which is incidental to any activity,

including mechanized landclearing . . . or other excavation.” 64 Fed.

Reg. at 25,123.

? The preamble to Tulloch 2 offered a predictably cramped

explanation of the minimalist changes made from Tulloch 1. In the

Tulloch 2 preamble the Agencies stated that National Mining

invalidated Tulloch 1 only because it impermissibly regulated

incidental fallback. 64 Fed. Reg. at 25,120. While leaving to another

day the question of what types of redeposits might constitute

incidental fallback, in one portion of the Tulloch 2 preamble the

23

E. 2000: The AMC Court Cautions the Agencies

Against Taking an “Unduly Narrow”

Interpretation of Non-Regulated Activities.

After Tulloch 2’s issuance NAHB returned to the D.C.

District Court, arguing that the interim rule violated the

court’s injunction that forbade the Agencies to apply or

enforce Tulloch 1. The district court ruled that Tulloch 2

did not violate the injunction because it was only an

interim step. However, the court also criticized the

Agencies’ cramped interpretation of incidental fallback,

stating that it did “not comport with the Court's

understanding . . ..”. American Mining Congress v. U.S.

Army Corps of Eng'rs, No. CIV.A. 93-1754, 2000 U.S.

Dist. LEXIS 13953 at **24 (D.D.C. Sept. 13, 2000)

(hereafter “AMC IT’). The district court further

“caution[ed] [the Agencies] against parsing the language

of the decisions in [National Mining] and AMC to render a

narrow definition of incidental fallback that is inconsistent

with an objective and good faith reading of those

decisions.” AMC II, 2000 U.S. Dist. LEXIS 13953, at

**25. To “ensure” that the Agencies did not take an

“unduly narrow definition” of “incidental fallback,” the

district court emphasized that the Agencies have authority

to regulate only some forms of soil redeposits—namely,

those that add materials to navigable waters. /d at **23,

**25. In this regard, the district court emphasized the

following language from National Mining:

Corps and EPA declared categorically that soil movements associated

with “mechanized landclearing” are automatically

“redeposits...subject to CWA jurisdiction...” /d. at 25,121.

24

But [Tulloch |] makes no effort to draw ...

a line [between regulated and non-

regulated redeposits], and indeed its

overriding purpose appears to be to expand

the Corps’ permitting authority to

encompass . . . a wide range of activities

that cannot remotely be said to “add”

anything to the waters of the United States.

AMC II, 2000 U.S. Dist. LEXIS 13953, at **17.

F. 2001: The Agencies Issue Tulloch 3 and

“Regard” Vast Categories of Soil Moving

Activities as Regulated “Discharge.”

The D.C. District Court did not strike Tulloch 2, in

large measure, because it was an interim rule that would be

followed by “a notice and comment rulemaking ‘to make a

reasoned attempt to more clearly delineate the scope of

CWA jurisdiction over redeposits of dredged material.’”

AMC Il, 2000 U.S. Dist LEXIS 13593 at, **19-**20

(citing Tulloch 2, 64 Fed. Reg. at 25,121). That new

rule—“Tulloch 3”—is in effect today and governs the

Agencies’ present regulatory regime. Tulloch 3 is another

revision of the term “discharge of dredged material.” See

66 Fed. Reg. 4550 (2001). It suffers from the same defect

as its predecessors because it regulates all earth-moving

activities (e.g., land-clearing, ditching) simply because

they move soils, not because they cause discharges that

add pollutants.

Tulloch 3 declares that, despite whether any addition of

material actually occurs, the Corps and EPA “regard” all

landclearing and other “earth-moving activity” in

navigable waters “as resulting in a discharge of dredged

25

material”—unless the regulated entity convinces the

Agencies with “project specific evidence” that the activity

results in “only incidental fallback.” 66 Fed. Reg. at 4575.

Through Tulloch 3, the Agencies have effectively

presumed that any earth-moving activity is regulated as a

CWA discharge."* Whether the activity is plowing or

excavation, Tulloch 3 is a sweeping assertion of federal

jurisdiction over activities that do not add materials to

waters of the United States. As a result, Tulloch 3 is

currently the target of yet another court challenge filed by

Amicus. See National Ass'n of Home Builders v. U.S.

Army Corps of Eng'rs, No. 1:01CV00274 (D.D.C. filed

Feb. 6, 2001) (consolidated with 1:01CV00320). That

litigation has been stayed by the parties pending a decision

from the Court in the case at bench.

With all of their regulatory machinations over the past

nine years, the Agencies’ motivation has become apparent.

What they real/y want is to regulate any activity that has

an adverse effect on any water anywhere. However, the

language of the CWA—specifically the term “discharge of

dredged material at specified disposal sites”—limits what

they may regulate. As the courts in the D.C. Circuit and

Judge Gould’s dissent below have observed, if the

Agencies are not satisfied with the CWA as it now stands,

'? When the agencies initially proposed Tulloch 3, they sought to

establish a rebuttable presumption that all mechanized earth-moving

activities resulted in a regulable discharge. 65 Fed. Reg. 50,108 (Aug.

16, 2000). The final version of Tulloch 3 dropped the “presumption”

language in favor of language that “regard[s]” earth-moving activities

in waters of the United States as regulated. Tulloch 3, 66 Fed. Reg. at

4575 (Jan. 17, 2001). Word choice aside, the impact on the regulated

community is the same: the Agencies presume that all mechanized

movement of soil in a navigable water will require a Section 404

permit.

26

they should go to Congress to amend the CWA for

language that suits their broader agenda. See Borden

Ranch Partnership, 261 F.3d at 821 (Judge Gould

dissenting).

CONCLUSION

For all of the foregoing reasons, the Ninth Circuit’s

decision should be reversed.

DATED: August 24, 2002

Respectfully submitted,

Duane J. Desiderio Virginia S. Albrecht*

Thomas Jon Ward Andrew J. Turner

National Association of Hunton & Williams

Home Builders 1900 K Street, NW

1201 15™ Street, NW 20005 Washington, D.C. 20006

Washington, *.C. (202) 955-1500

(202) 266-8200 *Counsel of Record

Attorneys for Amicus Curiae

National Association of Home Builders