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

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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 Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

Brief of the States of New Jersey, Hawaii, and West

Virginia, as Amici Curiae in Support of Respondents

David Samson

Attorney General of New Jersey

R.J. Hughes Justice Complex

PO BOX 112

Trenton, New Jersey 08625

(609) 633-8119

Patrick DeAlmeida

Deputy Attorney General

Rachel J. Horowitz

Deputy Attorney General

Counsel of Record and On the Brief

IBEST AVAILABLE COPY

EARL I. ANZAI

Attorney General of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

DARRELL V. McGRAW, JR.

Attorney General of West Virginia

State Capitol, Room 26-E

Charleston, West Virginia 25305

ARGUMENT

RESTRICTING THE SCOPE OF ACTIVITIES THAT

REQUIRE A PERMIT UNDER SECTION 404 OF THE

CLEAN WATER ACT, AND THE REACH OF THE

PENALTY PROVISIONS OF THAT STATUTE WILL

UNDERMINE STATE EFFORTS TO ENHANCE

WATER QUALITY AND WILL UPSET THE BALANCE

OF STATE AND FEDERAL RESPONSIBILITIES SET

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TABLE OF AUTHORITIES

CASES:

Arkansas v. Oklahoma, 503 U.S. 91 (1992) ........ 6

Atlantic States Legal Found., Inc. v. Tyson Foods, Inc., 897

Pe a EE GENE co bcecccocenscesees 9

City of Milwaukee v. Illinois, 451 U.S. 304 (1981)

560668008 650506068 400800 ee enn hikes bas 3-5

Public Interest Research Group v. Star Enterprise, 771 F.

GPE EEE s coccccescecuéeseoven 9

PUD No. I of Jefferson County v. a

Ecology, $11 U.S. 700 (1994) ...........2208-

United States v. Aluminum Co. of America, 824 F. Supp. 640

Ss DS GEE uo dé cb rene edaveoeeness beens 9

United States v. Amoco Oil Co., 580 F. Supp. 1042 (W.D.

Se BE 6 eucesessecdevevasteceectaceecs 9

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

PEGE a ea ceeceshsesensetestasuvsdus 3-6

United States v. Smithfield Foods, Inc., 191 F. 3d 516 (4th

Cir. 1999), cert. den., 531 U.S. 813 (2000) ........ 9

STATUTES:

SPEED n 6 Seebens sevesesesbebdees 3

Ps SEE oe ccc detevesoesdecascacees 6

33 U.S.C. §1254 ..

33 U.S.C. §1319(d)

33 U.S.C. §1341 ..

33 U.S.C. §1344 ..

33 U.S.C. §1344(g)

33 U.S.C. §1362(19)

INTEREST OF THE AMICI CURIAE

Pursuant to the Clean Water Act, the amici States have

established water quality standards and goals for State

waters, and have the primary right and responsibility to

prevent, reduce, and eliminate water pollution. Amici States

also have the right, but not the obligation, to conduct the

ee eget rrr De gt ge ate ger Ar

federal authorities. Consistent with the allocation of federal

and State responsibilities set forth in the Act, the amici States

cooperate with federal authorities in implementing a

comprehensive program to eliminate water pollution and to

improve surface and ground water quality. This

comprehensive program includes the regulation of discharges

into wetlands, which are considered waters of the United

States under Section 404 of the Act, in recognition of the key

water quality functions that wetland resources serve.

Petitioners argue that “deep ripping,” which involves the

movement of earth, rock, and sand horizontally and vertically

in wetlands by dragging long metal shanks attached to a

plow, and which has the effect of turning those wetlands into

because “deep ripping” does not involve a discharge of

dredged and fill material into a water of the United States.

Petitioners also argue that if “deep ripping” without a permit

violates the Act, where many instances of “deep ripping”

occur on a single day, only one violation occurs for penalty

assessment purposes. Petitioners’ cramped interpretation of

what constitutes a discharge under Section 404, and how

Section 404 can be enforced, could permit wetlands to be

filled and destroyed without oversight, yn ene

waters of the United States that are critical

maintenance of water quality.

Amici oppose an interpretation of Section 404 which

would allow wetlands to be destroyed through “deep-

ripping” without regulation, simply because the fill used to

create the upland is a component of the soil beneath the

wetlands. Interpreting Section 404 in this restrictive fashion

2.

will facilitate the destruction of waters of the United States,

undermine the efforts of the amici States to restore and

maintain the quality of local waters, and upset the allocation

of federal and State responsibilities established by Congress

to restore and maintain the Nation’s waters. Accordingly,

amici urge this Court to hold that a permit is required under

Section 404 if “deep ripping” or other soil movement

conducted in wetlands converts the wetlands to an upland.

Amici also urge the Court to affirm that there is discretion

under the Act to consider each unpermitted discharge into

wetlands as a separate violation for penalty »ssessment

purposes.

3.

SUMMARY OF ARGUMENT

The Clean Water Act was adopted to establish an all-

encompassing program of water pollution control, and to

restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters. 33 U.S.C. §1251(a); City

of Milwaukee v. Illinois, 451 U.S. 304, 318-19 (1981). The

Nation’s waters include wetlands, which filter and purify

water draining into adjacent bodies of water and serve

important biological functions. United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 134 (1985).

Accordingly, the Act provides that a permit from the United

States Army Corps of Engineers is required before fill

material can be discharged into wetlands. 33 U.S.C. §1344.

Petitioners argue that “deep ripping,” an activity which

can convert a wetland to an upland by using soils from in,

beneath, and around the wetland, is not subject to regulation

under Section 404 because the practice does not involve the

“discharge” of a pollutant from a “point source.”

Interpreting these terms in this overly technical fashion

would undermine Congress’ determination in the Act to

establish a broad program of water pollution prevention, and

would facilitate the destruction of waters of the United States

that are critically needed to maintain water quality.

Although regulation of land uses is viewed as primarily

a local matter, regulation of water pollution and the need to

restore and maintain the Nation’s waters has been recognized

by $ as a matter of national concern. Accordingly,

in the Act, Congress mandated that the federal authorities

fulfill certain responsibilities, which include the permitting of

discharges of fill material into waters of the United States

to Section 404 of the Act. Section 404 allows, but

does not require, States to assume that permitting jurisdiction

from the federal authorities. 33 U.S.C. §1344(g). Thus,

restricting the ability of the federal authorities to regulate

wetlands under Section 404 may impose on States an

In addition, this Court should affirm that each

unpermitted discharge of dredged and fili material into

wetlands may be considered a separate violation of the Act

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ARGUMENT

RESTRICTING THE SCOPE OF

ACTIVITIES THAT REQUIRE A

PERMIT UNDER SECTION 404

OF THE CLEAN WATER ACT,

AND THE REACH OF THE

PENALTY PROVISIONS OF

THAT STATUTE WILL

UNDERMINE STATE EFFORTS

TO ENHANCE WATER QUALITY

AND WILL UPSET THE

BALANCE OF STATE AND

FEDERAL RESPONSIBILITIES

SET BY CONGRESS.

The Clean Water Act established a comprehensive

program of water pollution regulation, reflecting Congress’

recognition that the prior program had been “inadequate in

every vital respect.” City of Milwaukee v. Illinois, 451 U.S.

304, 310 (1981). The Act provided a new regulatory system,

based on the principle that pollutants should not be

discharged into the Nation’s waters except pursuant to a

permit. Jd. To achieve its comprehensive, long-range goals,

the Act prohibits any unpermitted discharge from a point

source, and broadly defines a “point source” to include any

discernible, confined and discrete conveyance from which

pollutants are or may be discharged. /d. at 318. Similarly,

the Act broadly defines pollution as any man-made or man-

induced alteration of the chemical, physical, biological and

radiological integrity of water. 33 U.S.C. §1362(19); PUD

No. 1 of Jefferson County v. Washington Dep’t of Ecology,

511 U.S. 700, 719 (1994).

To meet the ambitious goal of restoring and maintaining

the chemical, physical and biclogical integrity of the Nation’s

waters, the Act requires a national program to eliminate

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water pollution, and anticipates a partnership and a division

of responsibility between the States and Federal

Governments. 33 U.S.C. §1252; 33 U.S.C. §1254; PUD,

511 U.S. at 704; Arkansas v. Oklahoma, 503 U.S. 91, 101

(1992). Thus, the Act recognizes that the States have the

primary responsibility and right to reduce and eliminate

water pollution, but does not require any State to regulate

discharges into waters within its boundaries. Rather, the Act

obligates the federal authorities to regulate discharges into

waters of the United States, and allows States the option of

either relying on federal enforcement authority or

undertaking that function, provided that the State’s regulatory

program satisfies federal requirements. /d. at 102. Reliance

on federal authority is of particular importance with respect

to interstate migration of waters. If a discharge in one State

will adversely affect the waters of a downstream State, the

downstream State cannot block the discharge, but must seek

relief from the federal authorities. Jd. at 100. Thus, without

federal participation, no State can ensure comprehensive

protection of the quality of its waters.

Waters of the United States include freshwater wetlands,

which enhance and protect water quality by filtering and

purifying water draining into surface and groundwaters.

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

121, 134(1985). Hence, the prohibition against unpermitted

discharges contained in the Act properly applies to discharges

of dredged and fill material into wetlands. /d.; 33 U.S.C.

§1344. The Act assigns the responsibility for permitting

these discharges to the Army Corps of Engineers, giving

States the option, but not the obligation, to assume that

federal function. 33 U.S.C. §1344(g). To date, only two

States, New Jersey and Michigan, have assumed this federal

obligation. However, other States ensure the protection of

wetlands through Section 401 of the Act. That Section

allows a State to object to the issuance of a federal permit, if

the activities proposed to be permitted would be inconsistent

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with the State’s water quality standards and goals. PUD,

511 U.S. at 722-23.

Petitioners’ argument that “deep ripping” within a

wetland cannot constitute a discharge of fill material or a

pollutant into a water of the United States elevates form over

substance, and will permit the destruction of waters of the

United States. The purpose of Section 404 is to protect

waters of the United States such as wetlands by regulating

their filling with dredged material, because this activity can

eliminate the wetland and prevent it from serving key water

quality and other functions. “Deep ripping” eliminates

wetlands, by combining the soils in, beneath and around an

existing wetland into a new soil composite which is then

deposited into the wetland as a means of converting it to an

upland. Once the wetland is converted to an upland, it may

in the future be used for any purpose, whether exempt from

Section 404 or not.

Clearly, an activity which causes the destruction of a

water of the United States constitutes the sort of discharge

that Section 404 was intended to address. The end result of

“deep ripping” is the destruction of wetlands, an essential

element of the Nation’s waters and water protection system.

Surely, Congress intended to subject this activity to federal

regulatory authority, regardless of whether the material used

to eliminate the wetlands is transported from another location

or is ripped from the soil beneath the wetlands. The origin

of the fill material cannot form a principled legal basis to

distinguish “deep ripping” from other fill activity.

In addition, a holding that “deep ripping” is not subject

to Section 404 will be detrimental to State efforts to promote

water quality and may require States to assume an obligation

that Congress intended to be fulfilled by the federal

government, absent voluntary State assumption of that

responsibility. The Act identifies States as the entities that

are principally responsible for the maintenance of water

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quality within their boundaries, and requires them to adopt

water quality standards. PUD, 511 U.S. at 704. The Act,

however, does not assign permitting authority over

discharges to the States. Rather, the Act imposes that

obligation on the federal government, and allows States to

object to proposed federal permitting that would violate Sate

water quality standards under Section 401. 33 U.S.C.

§1341. This allocation of federal and State responsibilities

was selected by Congress as the best way to achieve the

comprehensive goals of the Act and is a basic component of

the Act’s regulatory scheme.

Adoption of petitioners’ tortured interpretation of

“discharge,” “fill,” and “pollutant” in the Act could

jeopardize State efforts to control water pollution through

State statutes which use identical or similar terms. While this

Court’s interpretation of those phrases as they appear in the

Act will not mandate that those phrases be interpreted in the

same way in State statutes, the Court’s holding will certainly

make a more expansive interpretation under State law more

difficult to achieve. In addition, treating any category of

discharges into wetlands as a local concern that can only be

addressed on a State-by-State basis would contravene

Congress’ determination to impose minimum national

standards to prevent water pollution. So long as wetlands are

waters of the United States, the Act requires their protection

to be subject to national permitting standards which the States

may supplement. This Court should, therefore, affirm the

Ninth Circuit’s decision that “deep ripping” constitutes a

discharge into wetlands subject to permitting under Section

404.

In addition to arguing that “deep ripping” is not a

discharge of a pollutant under Section 404, petitioners also

argue that the Act does not permit each instance of “deep

ripping” to be treated as a separate violation for penalty

assessment purposes. Adoption of petitioners’ view on this

issue would conflict with the plain language of the statute,

-9-

and undermine the comprehensive, all encompassing goals of

the Act.

The Clean Water Act provides the federal authorities with

a variety of enforcement options, including the ability to

assess civil penalties of up to $25,000 per day for each

violation of the Act. 33 U.S.C. §1319(d). This clearly is

not a cap on the maximum daily penalty that can be imposed,

but only is a cap on the daily penalty for any individual

violation that occurs on a given day. The courts have

consistently held that where a person commits more than one

violation on a single day, a penalty exceeding $25,000 can be

imposed for that day’s violations. See, e.g, United States v.

Smithfield Foods, Inc., 191 F. 3d 516, 528 (4" Cir. 1999),

cert. den., 531 U.S. 813 (2000); Atlantic States Legal

Found., Inc. v. Tyson Foods, Inc. , 897 F. 2d 1128, 1137-39

(11h Cir. 1990). In addition, the courts have held that where

a discharge limitation is measured in more than a single day’s

period of time, a separate violation occurs on each day

involved in the time period covered by the limitation. United

States v. Aluminum Co. of America, 824 F. Supp. 640 (E.D.

Tex. 1993)(violations of daily average limitations were

violations for every day of the month); Public Interest

Research Group v. Star Enterprise, 771 F. Supp. 655

(D.N.J. 1991)(violation of monthly average limitation

constituted a violation for each day of the month); United

States v. Amoco Oil Co., 580 F. Supp. 1042 (W.D. Mo.

1984).

Congress’ decision to allow a penalty of up to $25,000

per day for each separate violation is consistent with its

determination to attack the problem of water pollution and

the need to restore and maintain the Nation’s waters in a

broad, all-encompassing fashion. Moreover, allowing

penalties to be assessed in this fashion permits a penalty to

reflect more accurately the severity of the infractions,

thereby serving as an effective deterrent. A person who

commits multiple violations of a single requirement on a

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single day should not be subject to the same penalty cap as a

person who commits a single violation on a single day, as the

former conduct likely will cause greater harm. Further,

imposing the penalty cap urged by petitioners could provide

an economic incentive for persons desiring to fill illegally

waters of the United States to marshal sufficient resources to

complete in a single day filling that would normally require

multiple days to complete, thus reducing the anticipated

penalty to an economically acceptable expense of converting

wetlands to uplands.

The penalty provisions of the Act should be interpreted

to avoid this result and to encourage maximum compliance

with the Act, as a means of fostering the restoration and

maintenance of the nation’s waters mandated by Congress.

Accordingly, the decision of the Ninth Circuit should be

affirmed.

i,

CONCLUSION

For these reasons, amici States urge this Court to

affirm the decision of the Ninth Circuit.

Respectfully submitted,

David Samson

Attorney General of New Jersey

Patrick DeA!meida

Deputy Attorney General

Rache! J. Horowitz

Deputy Attorney General

Counsel of Record and On the Brief

R.J. Hughes Justice Complex

PO BOX 112

Trenton, New Jersey 08625

(609) 633-8119

Dated: October 25, 2002