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

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## Record

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

## Text

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

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Page
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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, 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0547%3A15. Public record. Not legal advice.