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

W, supreme Court, U,S.

FILED

No. 01-1243

the United States

BORDEN RANCH PARTNERSHIP;

ANGELO K. TSAKOPOULOS, Petitioners,

——— —

r

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS;

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF

SAVE OUR SHORELINE

IN SUPPORT OF PETITIONERS

David L. Powers Nancie G. Marzulla

Smith, Martin, Powers Counsel of Record

& Knier, P.C. Roger J. Marzulla

900 Washington Ave. Brenda D. Colella

P.O. Box 219 Marzulla & Marzulla

Bay City, MI 48707 1350 Connecticut Ave., N.W..,

(989) 892-3924 Suite 410

Washington, DC 20036

202-822-6770

Counsel for Amicus Curiae

5) PP

QUESTION PRESENTED

Amicus curiae will address the following question:

Whether deep plowing ranchland to plant deep-rooted crops

constitutes the “addition” of a “pollutant” (the plowed soil)

from a “point source” (the plow) so as to fall within the

regulation of Section 404 of the Clean Water Act?

TABLE OF CONTENTS

CUTIE Tee PPRIISIIIN 8 Bol oc 00ccccceccccccccnsccssccssnccccnsscnszccesccceeesees i

TABLES OF AU TIBOR BiB 0ccccccccsccscccscccsccssccssvesscessocesces ili-V

INTEREST OF AMICUS CURIAE............ccccccccessessesseneeneeees l

STATEREEINT OF THEE CASE........ccccrcccrsscsscccssccssccsscessccsscees 4

SUMMARY OF THE ARGUMENT.............ccccccccesseeseeeeseeees 9

EI EIEIIY 8 ccccscscsenscesccecsecsnserenscscocovemammnnmnannananannennnenanennetet 13

ADOPTION OF THE COURT BELOW’S NEW

DEFINITION OF THE CLEAN WATER ACT’S

PROHIBITION WOULD MAKE ILLEGAL ALL

MANNER OF ACTIVITIES, INCLUDING THOSE THAT

RESULT ONLY IN INCIDENTAL FALLBACK, WHICH

THE CORPS ITSELF HAS SAID ARE BEYOND THE

REACH OF THE CLEAN WATER

Ae CccccccasccercsoccnsceccsesssesceuuanmetnannntnnnAnnnNeanNaNnneN 24

TABLE OF AUTHORITIES

CASES

American Mining Congress v. United States Army

Corps of Engineers,

ae 21-22

Borden Ranch Partnership v. United States Army

Corps of Engineers,

ee Gas CO ee Ge Be meme passim

Froebel v. Meyer,

13 F. Supp.2d 843 (E.D. Wis. 1998).................cccccsseessseeseees 14

Greenfield Mills, inc. v. O’Bannon,

189 F. Supp.2d 893 (N.D. Ind. 2002)..............cccccccceceseeeneeees 14

National Mining Association v. United States Army

Corps of Engineers,

145 F.3d 1399 (D.C. Cir. 1998).00........ccccsceeeseeeneeees 7, 15, 16

National Wildlife Federation v. Consumers Power Co.,

Se Os ED GS Ce pees 14

North Carolina Wildlife Federation v. Tulloch,

No. C90-713-CIV-5-BO (E.D. N.C.1992)..........ccccccecsceeeeees 15

Solid Waste Agency of North Cook County v. United

States Army Corps of Engineers,

Oe 6, 23

United States v. Bay-Houston Towing Co..,

33 F. Supp.2d 596 (E.D. Mich. 1999)... .cccccceceeeeeeneee 16

ili

TABLE OF AUTHORITIES—cont.

United States v. Groya,

No. 02-10079 (E.D. Mich. Mar. 25, 2002).........0..cccccccee0e 3,21

United States v. Kincaid,

No. 02-10149 (E.D. Mich. May 28, 2002)............cccccc000 21-22

United States v. Riverside Bayview Homes, Inc..,

eT 9, 14, 20

United States v. Stuart,

No. 02-10054 (E.D. Mich. Feb. 27, 2002)...........ccccccceeeee 3,21

STATUTES

Water Pollution Prevention and Control Act, 33 U.S.C.A.

$§ 1311(a) (1995 & Supp. 2002)..........cccccccccccccseeseeeeeeees 9,13

33 U.S.C. § 1344(a),(d) (1987 & Supp. 2002)... )

33 U.S.C. § 1362 (2000 & Supp. 2002)........cccccccceceeeeeee 9,13

RULES AND REGULATIONS

tS kf ee nee 17, 19, 20-21

EE rae ee Na Se EAR re 17,19

Revisions to the Clean Water Act Regulatory Definition of

“Discharge of Dredged Material,” Final Rule, 64 Fed. Reg.

ee nerensnctncennsinmniendiamnmnanionsatnninanmmimmmamsiaaan 17

Further Revisions to the Clean Water Act Regulatory

Definition of “Discharge of Dredged Material,” Final

Rule, 66 Fed. Reg. 4550, 4552 (2001)..........ccccccccccceeeeee passim

IV

TABLE OF AUTHORITIES—cont.

OTHER AUTHORITIES

Clean Beaches Council, The Blue Wave Campaign,

Protecting a Precious Resource at Risk (2001).............-+++++ 23

Corey Burnham, Note, The Tulloch Rule: Its Rise, Demise

& Resurrection, 33 CONN. L. REV. 1349 (2001)...........0000+8 12

U.S. Travel and Tourism Administration,

World Tourism at the Millennium (U.S. Department

oD , | 23

William F. James et al., Enhanced Phosphorous Recycling by

Zebra Mussels at High Density Levels in Relation to Food

Supply (Water Quality Technical Notes Collection, U.S.

Army Engineer Research & Development Center (ERDC

WQTN PD-09)) (2001) available in <http://www.wes.

army.mil/el/elpubs wqtncont.html>.. ..............-sesesseeeseeeeeeees 2

WEBSTER’S NEW TWENTIETH CENTURY UNABRIDGED

DICTIONARY 574 (2d €d. 1966)...........cccccccccseeesseeereseenereeenenees 11

James R. Houston, The Economic Value of Beaches,

2002 Update (U.S. Army Engineer Research &

Development Center) (2002) available in (visited

August 21, 2002) <http://www.virginiashoreand

eachs comn/ value Wtii>.........cccccccccessecesssscccccsccssscsceceseseees 21-22

Amicus curiae submits this brief supporting

petitioners;' both parties have consented to its filing. See

Rule 37.3.

INTEREST OF AMICUS CURIAE

Amicus Curiae, Save Our Shoreline, Inc. (“SOS”), is

a Michigan non-profit membership corporation, comprised of

over 1,300 Saginaw Bay residents who own a house or live

along the shoreline of Lake Huron. SOS’s members have a

direct and substantial interest in this Court's decision

regarding the U.S. Army Corps of Engineer’s (“Corps”)

authority to regulate “incidental fallback” and other

historically lawful activities under Section 404 of the Clean

Water Act. Members of SOS engage in routine beach

maintenance activities to maintain clean and safe beaches.

Members have historically used a variety of hand

tools such as rakes, shovels, and hoes as well as horse-drawn

implements and mechanized equipment such as small tractors

or goli carts to gather debris, smooth sand, and to eliminate

mosquito-infested, stagnant water and nuisance vegetation.

This normal beach maintenance results in incidental fallback

on the shoreline of their properties and not in the waters of

Lake Huron. Nevertheless, the Corps contends that shoreline

' No counsel for either party authored this brief amicus curiae, either in

whole or in part. Furthermore, no persons other than amicus curiae

contributed financially to the preparation of this brief.

|

property owners’ beach maintenance activities are unlawful

without a Section 404 permit.

For over a century, the residents in Saginaw Bay have

enjoyed unfettered maintenance of their beachfronts. Then in

1988, a dramatic change to the Saginaw Bay began due to the

introduction of non-native zebra mussels. These rapidly

multiplying mussels profoundly changed the ecology of

Saginaw Bay, causing rapid plant growth and increased

biological activity and decaying organic matter which

ultimately gathers along the shoreline. Zebra mussels and

substantial sewage and increased phosphate run-off into the

Saginaw Bay have caused significant growth of vegetation

near the shoreline and on the beaches themselves. Zebra

mussels in high density also enhance the solubilization of

phosphorus that causes noxious blue-green algae. See

William F. James et al., Enhanced Phosphorous Recycling by

Zebra Mussels at High Density Levels in Relation to Foud

Supply (Water Quality Technical Notes Collection, U.S.

Army Engineer Research & Development Center (ERDC

WQTN PD-09)) (May 2001), available in (visited August 21,

2002) <http://www.wes.army.mil/el/elpubs/watncont.htmI>.

As the ultimate insult, zebra mussels die, leaving behind

many thousands of sharp-edged, dead shells on the beaches.

Thus, the SOS homeowners, who for over a century

havc enjoyed and maintained beautiful sugar sand beaches,

now own what the Corps calls “wetland.” The Corps has

launched an enforcement initiative against these SOS

beachfront owners, and has filed three enforcement actions

against individual homeowners, demanding that they cease

and desist from all normal, routine beach maintenance. See

United States v. Stuart, No. 02-10054 (E.D. Mich. Feb. 27,

2002); United States v. Groya, No. 02-10079 (E.D. Mich.

Mar. 25, 2002); United States v. Kincaid, No. 02-10149

(E.D. Mich. May 28, 2002). How this Court defines the

reach of the Clean Water Act may well determine the fate of

the Saginaw Bay’s public and private beaches and whether

their historical beauty may be restored and maintained or

whether they will be forced to stay overgrown with noxious

weeds and other vegetation and covered with accumulated

trash, debris and other organic matter (that breeds pests and

rodents, often carrying diseases).

STATEMENT OF THE CASE

1. This case involves the right of Petitioners, Borden

Ranch Partnership, and the title owner of Borden Ranch,

Angelo Tsakopoulos, a farmer, rancher, and real estate

developer, to “deeply plow” a privately owned 8,400 acre

ranch near Lodi, California. Petitioners’ Appendix (“Pet.

2 3

App.”) 2-3. Portions of that ranch are classified as wetland

by the Corps. /d. In this case, petitioner, Mr. Tsakopoulos,

sought to convert his cattle ranch and crop land into

vineyards and orchards; these proposed uses are consistent

with the agricultural zoning of the property. Jd. Since

vineyards require deep roots, Mr. Tsakopoulos commenced

deep plowing, which uses long metal prongs to penetrate

several layers of soil. Jd.

Mr. Tsakopoulos began deep plowing in the fall of

1993, and was granted an after-the-fact permit in the spring

of 1994 after he was informed that he needed a wetland

permit under Section 404 of the Clean Water Act to plow

certain areas of his ranch. Pet App. 3; see also Pet. App. 72,

74, 77-78; Borden Ranch Partnership v. United States Army

Corps of Engineers, 261 F.3d 810, 812 (9th Cir. 2001). He

also agreed to mitigate for the wetland that he haa disturbed

without a permit. Pet. App. 3; see also Borden Ranch, 261

F.3d at 812.

In the spring of 1995, respondents issued Mr.

Tsakopoulos a cease and desist order because he had engaged

in deep plowing in wetland without a permit. Pet. App. 3; see

also Borden Ranch, 261 F.3d at 813. Thereafter, from July

to November 1995, in order to avoid further deep plowing, he

plowed with the shank raised as high as possible, as

4

—_——— = ee

authorized by the Corps. Pet. App. 3. Respondents,

nevertheless, later contended that this plowing was also deep

plowing, and respondents issued another cease and desist

order to Mr. Tsakopoulos in November of 1995. Id.; see also

Borden Ranch, 261 F.3d at 813. In May of 1996, Mr.

Tsakopoulos attempted to settle the matter with the Corps by

dedicating a 1418-acre seasonal wetlands preserve (with

1368 contiguous acres) in the heart of the Borden Ranch to

be managed by the Corps in perpetuity. Pet. App. 3-4; see

also Borden Ranch, 261 F.3d at 813.

The Corps and EPA officials provided guidance for

1996 plowing on Borden Ranch in September of 1996,

reconfirming that Mr. Tsakopoulos, without a permit, could

deep plow uplands and cross the narrow, dry and widely

dispersed drainages with the plow shank raised at its highest

point. Pet. App. 3-4. Then, in April 1997, the EPA, ignoring

the guidance given in September of 1996, issued Mr.

Tsakopoulos yet another cease and desist order, requiring

him to stop all activity involving “machinery crossing

drainages” on the ranch. Pet. App. 4; see also Borden Ranch,

261 F.3d at 813.

Petitioners filed suit in federal district court in May

1997, challenging the authority of the Corps and EPA to

require that they obtain a permit for deeply plowing wetland.

5

Pet. App. 4; see also Borden Ranch, 261 F.3d at 813. The

government filed a counterclaim for injunctive relief and

civil penalties. Jd.; see also Borden Ranch, 261 F.3d at 813.

The district court granted sunimary judgment in favor of the

government, holding that the Corps could require a permit for

deep plowing in jurisdictional waters. Pet. App. 28-56. After

a bench trial, the district court held that petitioners had

engaged in deep plowing without a permit, and petitioners

were fined $1.5 million in civil penalties. Pet. App. 5, 67-

121. The district court held that petitioners had committed

358 separate Clean Water Act violations by plowing an

aggregate of approximately two acres of widely dispersed

intermittent linear drainages and a vernal pool. Jd.

2. On appeal, the Ninth Circuit Court of Appeals

upheid the district court’s decision that the type of deep

plowing engaged in by the petitioners is subject to federal

regulation under Section 404 of the Clean Water Act.” Pet.

App. 6-8; Borden Ranch, 261 F.3d at 815-16. The court

below rejected petitioners’ argument that the deep plowing

was exempt under the normal farming and ranching activities

? The court below, however, reversed the district court’s decision as to the

vernal pool located on the petitioners’ property, after the government

conceded that that the case of Solid Waste Agency of North Cook County

v. United States Army Corps of Engineers, 531 U.S. 159 (2001), now

precludes Corps’ authority over such pools. Borden Ranch, 261 F.3d at

816.

6

exemption under the Clean Water Act, holding that the

plowing constituted a new use of the ranch. Pet. App. 9-10;

Borden Ranch, 261 F.3d at 815-16.

Petitioners argued to the Ninth Circuit court that deep

plowing simply churns up the soil that is already there,

placing it back basically where it came from, and thus, was

only incidental fallback, not subject to Section 404

regulation, citing National Mining Association v. United

States Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir.

1998). Pet. App. 6-8; Borden Ranch, 261 F.3d at 814.

The court below rejected that argument, too, holding

that deep plowing should require a permit because “activities

that destroy the ecology of a wetland are not immune from

the Clean Water Act merely because they do not involve the

introduction of material brought in from somewhere else.”

Pet. App. 7-8; Borden Ranch, 261 F.3d at 814-15. The court

below distinguished the decision of the D.C. Circuit Court of

Appeals in National Mining Association v. United States

Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998),

which held that “incidental fallback” is not a redeposit

subject to regulation under the Clean Water Act. The Ninth

Circuit stated that, “[h]ere, the deep ripping does not involve

mere incidental fallback, but constitutes environmental

damage sufficient to constitute a regulable redeposit.” Pet.

App. 8 n.2; Borden Ranch, 261 F.3d at 815 n.2.

In dissent, Judge Gould observed that “[f]armers have

been altering and transforming their crop land from the

beginning of our nation, and indeed in colonial times.” Pet.

App. 18; Borden Ranch, 261 F.3d at 819 (Gould, J.

dissenting). Looking at the Clean Water Act, he saw nothing

that prohibited deep plowing, which is a traditional farming

activity. Pet. App. 18-22; Borden Ranch, 261 F.3d at 819-21.

Judge Gould further concluded that since there was no

significant removal or addition of material to the site, the

Clean Water Act’s prohibition on the addition of a pollutant

into the nation’s waters did not apply. Jd. He flatly rejected

the majority’s decision holding that mere ecological -

disturbance of a wetland violated the Clean Water Act: “The

ground is plowed and transformed. It is true that the

hydrological regime is modified, but Congress spoke in terms

of discharge or addition of pollutants, not in terms of change

of the hydrolegical nature of the soil.” Pet. App. 19; Borden

Ranch, 261 F.3d at 820. The dissent, thus, concluded that

“[i]f Congress intends to prohibit so natural a farm activity as

plowing, and even the deep plowing that occurred here,

Congress can and should be explicit.” Jd.

SUMMARY OF ARGUMENT

In the Federal Water Pollution Control Act,

commonly known as the Clean Water Act, Congress

prohibited the discharge of a pollutant into the nation’s

waters, without a permit from the Corps. See 33 U.S.C. §

1311(a) (1995 & Supp. 2002); 33 U.S.C. § 1344(a),(d) (1987

& Supp. 2002). The nation’s waters have been interpreted to

include wetlands adjacent to navigable waters. See United

States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 129

(1985) (“The regulation extends the Corps’ authority under §

404 to all wetlands adjacent to navigable or interstate waters

and their tributaries.”). The Clean Water Act defines

discharge as “any addition of any pollutant to navigable

waters from any point source.” 33 U.S.C. § 1362(12) (2000

& Supp. 2002). A point source is “any discernible, confined

and discrete conveyance, including but not limited to any

pipe, ditch, channel, tunnel, conduit, well, discrete fissure,

container, rolling stock, concentrated animal feeding

operation, or vessel or other floating craft, from which

pollutants are or may be discharged.” 33 U.S.C. § 1362(14).

A pollutant is defined as “dredged snoil, ... biological

materials, . . . rock, sand, [and] ceilar dirt.” 33 U.S.C. §

1362(6).

The court below redefined the prohibited act to be not mowing grass or cutting down trees, removing animal

the discharge of a pollutant, but the destruction of the | communities, adding plants (whether farming or

ecology: landscaping), all change the ecology, which is defined as the

These cases recognize that activities that “branch of biology that deals with the relations between

destroy the ecology of a wetland are not ioe ; , ” WEBSTER’

immune from the Clean Water Act merely living organisms and their environment.” W oo

because they do not involve the introduction TWENTIETH CENTURY UNABRIDGED DICTIONARY 574 (2d ed.

of material brought in from somewhere else. :; ,

In this case, the Corps alleges that 1966). Yet, as the Corps itself has recognized, the Corps’s

Tsakopoulos has essentially poked a hole in Clean Water Act regulations do not require a permit for any

the bottom of protected wetlands. That is, by

ripping up the bottom layer of soil, the water of these actions, even though they may destroy the ecology

that was trapped can now drain out. While it is | of the wetland:

true, that in so doing, no new material has

been “added,” a “pollutant” has certainly been

“added.” Prior to the deep ripping, the

protective layer of soil was intact, holding the

wetland in place. Afterwards, that soil was

wrenched up, moved around, and redeposited

somewhere else. We can see no meaningful

distinction between this activity and the

activities at issue in Rybachek and Deaton.

We therefore conclude that deep ripping,

when undertaken in the context at issue here,

can constitute a discharge of a pollutant under

the Clean Water Act.

Pet. App. 7-8; Borden Ranch, 261 F.3d at 814-15.

The danger of adopting this new definition of the

Clean Water Act’s prohibition is that it would make illegal

all manner of activities that the Corps itself has said are

beyond the reach of the Clean Water Act. For example,

10

[Alctivities that would generally not be

regulated include discing, harrowing, and

harvesting were soil is stirred, cut or turned

over to prepare for planting of crops. These

activities involve only minor redistribution of

soil, rock, sand, and other surface materials.

The use of K-G blades and other forms of

vegetation cutting such as bush hogging or

mowing that cut vegetation above the soil line

do not involve a discharge of dredged

material. . . . [T]he use of equipment to cut

trees above the roots that does not disturb the

root system would not involve a discharge. . . .

[A]lthough significant adverse environmental

effects can result from activities undertaken

using mechanized earth-moving equipment,

the jurisdictional basis is the presence of

regulable discharges.

11

Further Revisions to the Clean Water Act Regulatory

Definition of “Discharge of Dredged Material,” Final Rule,

66 Fed. Reg. 4550, 4554-55, 4557 (2001).

While the Corps, by its actions, has spoken to the

contrary, the regulations also do not prohibit routine beach

maintenance activities such as raking and smoothing of

surface beach sand, removal of vegetation and debris, and

other general maintenance activities designed only to insure a

clean and healthy beach. Such activities should not require a

Section 404 permit because they result only in “minor

redistributions of soil, rock, sand, and other surface

materials.” 66 Fed. Reg. at 4554.

Accordingly, Amicus Curiae SOS urges this Court to

hold that Congress, in prohibiting the discharge of a pollutant

without a permit, does not prohibit other acts (including

routine beach maintenance), as the Corps and EPA

themselves have said. If Congress wishes to expand the

Clean Water Act to encompass destruction of the ecology of

a wetland, it should do so. See Corey Burnham, Note, The

Tulloch Rule: Its Rise, Demise & Resurrection, 33 CONN. L.

REV. 1349 (2001) (“Whatever approach ultimately is taken,

the long echoed calls to amend the Clean Water Act must

continue until they are heard.”).

12

Renee ee eee eee eee ee ee

ARGUMENT

ADOPTION OF THE COURT BELOW’S NEW

DEFINITION OF THE CLEAN WATER ACT’S

PROHIBITION WOULD MAKE ILLEGAL ALL

MANNER OF ACTIVITIES, INCLUDING THOSE

THAT RESULT ONLY IN INCIDENTAL FALLBACK,

WHICH THE CORPS ITSELF HAS SAID ARE

BEYOND THE REACH OF THE CLEAN WATER

ACT.

The court below adopted an interpretation of the

Clean Water Act that leaps over the “discharge,” “point

source,” and “pollutant” prohibition created by Congress, and

substituted a “disrupts the ecology” standard that has no basis

in the text or history of the statute.

As the dissent in the court below stated, “Congress

spoke in terms of discharge or addition of pollutants, not in

terms of change of the hydrological nature of the soil.” Pet.

App. 19; Borden Ranch, 261 F.3d at 820. Section 301(a) of

the Clean Water Act prohibits only the discharge of a

pollutant without a permit. 33 U.S.C. § 1311(a) (1995 &

Supp. 2002). The “discharge of a pollutant” is defined as

“any addition of any pollutant to navigable waters from any

point source.” 33 U.S.C. § 1362(12)(A) (2000 & Supp.

2002).

Although this Court has held that the Clean Water

Act gives the Corps authority to regulate navigable waters in

13

addition to non-navigable waters, such as wetlands (see

United States v. Riverside Bayview Homes, Inc., 474 U.S.

121 (1985)), Congress has not expanded the Corps’s

authority to regulate acts that do not involve the discharge or

addition of a “pollutant” into those waters. See, e.g.,

National Wildlife Federation v. Consumers Power Co., 862

F.2d 580, 585-86 (6th Cir. 1988) (“Just as in Gorsuch the

release of storage dam water low in dissolved oxygen, and

containing heat, dissolved minerals and nutrients, and

sediment did not constitute an addition of a pollutant to

navigable waters, so in the instant case the release of turbine

generating water containing entrained fish does not constitute

the addition of any pollutant to navigable waters. . . . For the

Ludington facility, the fish, both dead and alive, always

remain within the waters of the United States, and hence

cannot be added.”); Greenfield Mills, Inc. v. O'Bannon, 189

F. Supp.2d 893, 907 n.14 (N.D. Ind. 2002) (“{I]}t appears

clear to the court that a discharge that results from

maintenance, which is what occurred here, would fall

squarely within the maintenance exception.”); Froebel v.

Meyer, 13 F. Supp.2d 843 (E.D. Wis. 1998) (holding

redeposit of sediment during removal of dam was not

discharge of dredged material subject to Clean Water Act).

14

In 1993, the District Court for the District of

Columbia invalidated a 1993 Corps regulation purporting to

extend the Corps’s jurisdiction to include activities which,

although they do not add a pollutant, result in “incidental

fallback” of soil to essentially the place from which it was

taken (the “Tulloch Rule”).? American Mining Congress v.

United States Army Corps of Engineers, 951 F. Supp. 267

(D.D.C. 1997), aff'd sub nom., National Mining Ass'n v.

United States Army Corps of Engineers, 145 F.3d 1399 (D.C.

Cir. 1998). There the court said:

The Court concludes that neither § 301 nor §

404 covers incidental fallback. .... In

common dredging practices, excavation is

followed by the disposal of dredged material

at another location. Thus, Congress

understood the “discharge of dredged

material” to involve the moving of material

from one place to another. . . . Incidental

fallback associated with excavation or

landclearing does not add material or move it

from one location to another; some material

simply falls back in the same general location

from which most of it was removed.

Congress’ use of the term “specified disposal

sites” underscores this reading as it conveys

Congress’ understanding that discharges

would result in the relocation of material from

> Because this regulation was promulgated in response to the case, North

Carolina Wildlife Federation v. Tulloch, No. C90-713-CIV-5-BO (E.D.

N.C.1992), it become known as the “Tulloch Rule.”

15

one site to another. . . . The Court finds that

the Tulloch rule exceeds the scope of the

agencies’ statutory authority and, accordingly,

declares it invalid and sets it aside.

Id. at 272-74, 278.

The D.C. Circuit and other federai courts have

affirmed the rule in American Mining Congress, holding that

replacement of soil in essentially the same place from which

it came is not the “addition of a pollutant” as defined by

Congress. See National Mining Ass'n v. United States Army

Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998) (“We

agree with the plaintiffs, and with the district court, that the

straightforward statutory term ‘addition’ cannot reasonably

be said to encompass the situation in which material is

removed from the waters of the United States and a small

portion of it happens to fall back. Because incidental fallback

represents a net withdrawal, not an addition, of material, it

cannot be a discharge.”’); see also United States v. Bay-

Houston Towing Co., 33 F. Supp.2d 596, 605 (E.D. Mich.

1999) (“Unlike incidental fallback, these activities involve

purposeful relocation. . . . Bay-Houston removes materials

from the bog and, after a varying period of time, deliberately

redeposits the materials in other locations within the bog at

varying distances.”).

16

Following the invalidation of the Tulloch Rule, both

the Corps and the EPA have interpreted the Clean Water Act

to exclude incidental fallback resulting from activities

occurring in wetlands, defining those excluded activities as

“any addition of dredged material into, including redeposit of

dredged material other than incidental fallback within, the

waters of the United States.” 33 C.F.R. § 323.2(d)(1) (2002);

see also 40 C.F.R. § 232.2(1)(iii) (2002); see also Further

Revisions to the Clean Water Act Regulatory Definition of

“Discharge of Dredged Material,” Final Rule, 66 Fed. Reg.

4550, 4552 (2001).* The Corps defines “incidental fallback”

as the:

redeposit of small volumes of dredged

material that is incidental to excavation

activity in waters of the United States when

such material falls back to substantially the

same place as the initial removal. Examples of

incidental fallback include soil that is

disturbed when dirt is shoveled and the back-

spill that comes off a bucket when such small

volume of soil or dirt falls into substantially

the same place from which it was initially

removed.

33 C.F.R. § 323.2(d)(2ii); see also 40 C.F.R. § 232.2(2)ii).

* The Corps and EPA made their first major revision to the invalidated

Tulloch Rule on May 10, 1999. See Revisions to the Clean Water Act

Definition of “Discharge of Dredged Material,” Final Rule,

64 Fed. Reg. 25,120 (1999).

17

The Corps and EPA further explain their

interpretation of the limits placed upon their jurisdiction by

Congress: “[A]lthough significant adverse environmental

effects can result from activities undertaken using

mechanized earth-moving equipment, the jurisdictional basis

is the presence of regulable discharges” and “the transport of

dredged material downstream or the release of previously

bound-up or sequestered pollutants (which are in and part of

the dredged material) may constitute a discharge, not by

virtue of associated environmental impacts, but by virtue of

being added to a new location in waters of the U.S.” 66 Fed.

Reg. at 4557. The Corps and EPA went even further in the

preamble to the current final rule, rejecting a commenter’s

argument that regulatory authority should be based on the

“environmental effects” of an activity:

We agree that the evidence presented points to

the harmful environmental effects that can be

associated with redeposits of dredged material

incidental to excavation activity within a

particular water of the United States, even

those redeposits occurring in close proximity

[to] the point of initial removal. To the extent

commenters believe that we should determine

the scope of our jurisdiction based on such

environmental effects, however, we decline to

do so. As stated previously, today’s rule does

not adopt an effect-based test to determining

whether a redeposit is regulated, but instead

18

defines jurisdiction based on the definition of

“discharge of a pollutant” in the Act and

relevant caselaw. We have chosen to define

our jurisdiction based not on the effects of the

discharge, but on its physical characteristics-

i.e., whether the amount and location of the

redeposit renders it incidental fallback or a

regulated discharge.

66 Fed. Reg. at 4564. Rejecting the “disruption of the

ecology” interpretation adopted by the court below, the

Corps and EPA have thus reaffirmed the Congressional

limitation of their regulatory jurisdiction to include only

addition of a pollutant to the nation’s waters, stating that the

“presence of a ‘discharge’ of dredged or fill material into

waters of the U.S. is a prerequisite to jurisdiction under

section 404.” 66 Fed. Reg. at 4557.

Thus, the Corps and the EPA regulations specifically

exclude routine activities that would appear to include the

kind of deep plowing engaged in by petitioners and, most

certainly, would exclude the routine beach maintenance

activities engaged in by the SOS homeowners: “The term

discharge of dredged material does not include the following

... incidental fallback.” 33 C.F.R. § 323.2(d)(3){iii); 40

C.F.R. § 232.2(3)(iii). Importantly, and also contrary to the

decision by the court below in this case, nothing in this rule

19

purports to expand the Corps’s jurisdiction over activities

that harm a wetland ecology or damage the environment.

Furthermore, the court below must defer to an agency

interpretation that is reasonable and consistent with the intent

of Congress. See United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121, 131 (1985) (“An agency’s construction of

a statute it is charged with enforcing is entitled to deference

if it is reasonable and not in conflict with the expressed intent

of Congress.”’) (citations omitted).

Despite the clear limits of Clean Water Act regulatory

jurisdiction delineated by Congress, and endorsed by the

regulatory agencies themselves, the Department of Justice

has boldly sought to expand Clean Water Act jurisdiction by

prosecuting landowners whose actions disrupt the ecology

without adding a pollutant to the wetland. For example, in

the Saginaw Bay area of Lake Huron, Michigan, where SOS

members reside, the Corps has launched an enforcement

initiative against lakefront homeowners designed to deter

homeowners from engaging in the kinds of routine

beachfront maintenance activities that they have been

performing for over a century. These activities include

raking and beach smoothing activities that would appear to

be within the Corps’s definition of incidental fallback, and

thus outside the reach of Corps’s jurisdiction. See 33 C.F.R.

20

§ 323.2(d)(2)(ii). This enforcement initiative brought under

essentially the same provisions at issue in this case, Sections

301(a) and 404 of the Clean Water Act, consists of three

separate enforcement actions brought against beachfront

homeowners, two of which resulted in the entry of consent

decrees, and one that is being challenged by homeowners, the

Kincaids. See Draft Consent Judgment at {J 12, 13, United

States v. Stuart, No. 02-10054 (E.D. Mich. Feb. 27, 2002)

(imposing civil penalty of $10,000 and enjoining property

owner from performing, without a Corps permit, beach

maintenance activities, including those that would “adversely

affect or impede the natural vegetation process of this area”);

Compl., United States v. Groya, No. 02-10079 (E.D. Mich.

Mar. 25, 2002) (involving similar consent decree where

property owner found to be in violation of the Clean Water

Act for routine beach maintenance activities such as the

“tilling” and “grading” of sand).

In United States v. Kincaid, No. 02-10149 (E.D.

Mich. May 28, 2002), the Corps filed an enforcement action

against the Kincaids, elderly homeowners who use a tractor

to rake and smooth sand that accumulates on their beach in

severe weather and throughout the winter. Typically, over

the winter, winds blowing across Lake Huron causes sand to

accumulate along bulkheads and temporary snow fences.

21

The Corps alleges in its enforcement action against the

Kincaids that they have “conduct[ed] or caus[ed] to be

conducted such discharges of fill by the tilling, grading or

dozing of sand and sediments” in violation of the Clean

Water Act. For these alleged violations the Corps seeks “a

penalty of up to $25,000 per day, the exact number of days

being presently unknown to the United States.” Compl. at {J

4, 8, 9, United States v. Kincaid, No. 02-10149 (E.D. Mich.

May 28, 2002).

The outcome of the present case will determine

whether amici and thousands of other landowners across the

nation may be held liable for penalties of up to $25,000 per

day for ordinary grooming, cleaning, raking, landscaping,

and a panoply of similar activities which disrupt (and

generally improve) natural conditions, but do not discharge a

pollutant into waters of the United States. Furthermore, this

case may determine whether shoreline property owners can

maintain their historically pristine, white sand beaches (see

Ex. 1), or live with a shoreline marred by noxious weeds (see

Ex. 2), decaying organic matter and stagnant pools of water,

all of which attract pests and rodents.

If the Clean Water Act were to apply to beaches, such

a ruling would have a severe negative impact on our nation’s

most important industry: tourism. See James R. Houston, The

22

Economic Value of Beaches, 2002 Update (U.S. Army

Engineer Research & Development Center) (2002), available

in (visited August 21, 2002) <http://www. virginiashore

andbeach.com/valu.htm> (“‘Without a paradigm shift in

attitudes toward the economic significance of travel and

tourism and necessary infrastructure investment to maintain

and restore beaches, the U.S. will relinquish a dominant

worldwide lead in its most important industry.””) (citation

omitted). Each year, approximately 180 million Americans

make 2 billion visits to ocean, gulf, and inland beaches. Jd.

(citing Clean Beaches Council, The Blue Wave Campaign,

Protecting a Precious Resource at Risk (2001)). In 1992,

beaches contributed about $170 billion annually to the

economy. Jd. (citing U.S. Travel and Tourism

Administration, World Tourism at the Millennium (U.S.

Department of Commerce 1993)).

Accordingly, amicus curiae urges this Court to reject

this expansive assertion of the Corps’s jurisdiction over

activities not reached by the plain language of the Clean

Water Act or the current Corps and EPA regulations. See

Solid Waste Agency of North Cook County v. United States

Army Corps of Engineers, 531 U.S. 159, 172 (2001) (“Where

an administrative interpretation of a statute invokes the outer

limits of Congress’ power, we expect a clear indication that

23

Congress intended that result.”); see also Borden Ranch, 261 App. 1

F.3d at 819 (Gould, J. dissenting) (“The policy decision

involved here should be made by Congress . . . The

alternatives are an agency power too unbounded or judicial

law-making, which is worse.”’).

CONCLUSION

The judgment of the court below should be reversed.

Respectfully submitted,

Nancie G. Marzulla

Counsel of Record

Roger J. Marzulla

Brenda D. Colella

Marzulla & Marzulla

1350 Connecticut Ave., N.W.

Suite 410

Washington, DC 20036 EXHIBIT 2

202-822-6760

David L. Powers

Smith, Martin, Powers & Knier, P.C.

900 Washington Ave.

P.O. Box 219

Bay City, MI 48707-0219

989-892-3924

Counsel for Amicus Curiae

Dated: August 26, 2002

24

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