# 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

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 .. ..............-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) .........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) .
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

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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) (“‘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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0547%3A16. Public record. Not legal advice.