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

FILED

OCT 25 2

No. 01-1243

In The CLERK

" Supreme Court, U.S.

Supreme Court of the United States

¢

BORDEN RANCH PARTNERSHIP and

ANGELO K. TSAKOPOULOS,

Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS

and UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondents.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF OF AMICI CURIAE NATIONAL

WILDLIFE FEDERATION, SIERRA CLUB,

NATURAL RESOURCES DEFENSE COUNCIL,

AND NATIONAL AUDUBON SOCIETY IN

SUPPORT OF RESPONDENTS

¢

HOWARD I. Fox

EARTHJUSTICE

1625 Massachusetts Avenue, N.W.

Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Counsel of Record forAmict Curiae

National Wildlife Federation,

Sierra Club, Natural Resources

Defense Council, and National

Audubon Society

October 25, 2002

COCKLE LAW BRIEF PRINTING CO. (800) 225-6064

Sa

IBEST AVAILABLE COPY}

TABLE OF CONTENTS

Page

STATEMENT OF INTEEREGT .....ccccccscccccccccccscsccccscess 1

STATEMENT OF THE CASE’ .......cccccceccccccccccccccccccess 1

Introductory Statement.................cscccecesessseeees 1

ES LE ETI 4

ERE SES ne ane ae NSE ae Smee 4

I 5

I i 6

SUMMARY OF ARGUMENT ...................ccccccececeeeeeees 8

I citadel acai i ats g

I. CONGRESS ENACTED NO BLANKET

AGRICULTURAL EXCLUSION FROM

POINT SOURCE PERMIT

Be iii itrtenrinsinedcnannablinideadinmensis i)

Il. THE ROLLING STOCK USED BY

PETITIONERS ARE “POINT SOURCES?” ........ 12

Ill. THE MATERIAL DISCHARGED BY

PETITIONERS CONSTITUTES

| ET TTT. STEELER 15

IV. PETITIONERS “ADDED” POLLUTANTS TO

UNITED STATES WATERS ......................20.0000. 17

A. Petitioners Added Pollutants Drawn From

Sat iccecnisniodadantntnnapantetinstinstniniaadaineeneees 17

B. Petitioners Added Pollutants Drawn From

United States Waters ................cccccccssecceeeees 18

ii

TABLE OF CONTENTS - Continued

V. PETITIONERS’ EARTHMOVING

ACTIVITIES, WHICH DESTROYED SOME

UNITED STATES WATERS AND DAMAGED

OTHERS, DO NOT FALL WITHIN THE

ACT’S AGRICULTURAL EXEMPTIONG.......... 22

A. Draining and Destroying United States

Waters Does Not Constitute “Plowing”

Within the Meaning of § 404(f)(1) ............... 24

B. The Change From Ranched Wetlands to

Farmed Uplands Is a Change In Use

Triggering the § 404(f)(2) Requirement For

| ET eee 25

VI. PROTECTION OF WATERS THAT

UNDISPUTEDLY CONSTITUTE “WATERS

OF THE UNITED STATES” POSES NO

FEDERALISM ISSUES. ................csccsssssseseeseenees 27

SpE IIIT drenensindncinctasasbncieneninansanobennsecegunensensesse 30

TABLE OF AUTHORITIES

Page

CASES

Avoyelles Sportsmen’s League v. Marsh, 715 F.2d

Be Gee Ge BED cccccccccccccccccccccccssecececcecezenccveescees passim

Department of HUD v. Rucker, 122 S.Ct. 1230

ITT isin nas nrpent depepaetipememngennennemenennteminnenseenee 10

Minnehaha Creek Watershed District v. Hoffman,

597 F.2d 617 (Sth Cir. 1979)..............cccccccccccceeeeseeeees 13, 16

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

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

Resource Investments v. U.S. Army Corps of Engi-

neers, 151 F.3d 1162 (9th Cir. 1998)................ccccccceeeeeees 16

Rybachek v. USEPA, 904 F.2d 1276 (9th Cir. 1990).......... 17

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

Army Corps of Engineers, 531 U.S. 159 (2001).......... 1, 28

TRW v. Andrews, 1228. Ct. 441 (2001) .........ccccccccceeeeeeeees 14

United States v. Brace, 41 F.3d 117 (3d Cir. 1994) ..21, 23, 25

United States v. Deaton, 209 F.3d 331 (4th Cir.

Ae 15, 18, 19, 20, 21

United States v. Huebner, 752 F.2d 1235 (7th Cir.

United States v. Lopez, 514 U.S. 549 (1995)..............cccc0008 29

United States v. M.C.C., 772 F.2d 1501 (11th Cir.

1985), vacated on other grounds, 481 U.S. 1034

(1987), “redeposit” analysis reaffirmed, 848 F.2d

1133 (11th Cir. 1988), modified on other grounds,

863 F.2d 802 (11th Cir. 1989) ..............cccccccccecereeeeees 18, 21

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

I tlic nn iaeatemtiticiceeriinnnrcneeeramienmeneiael 3,4, 5

iv

TABLE OF AUTHORITIES — Continued

Page

United States v. Wilson, 133 F.3d 251 (4th Cir.

SSI TU Dvessnsasensdonnnsnssntentasananibinanmsneusasuntumsenniasaaaiamesstatiamasai 20

Whitman v. American Trucking Associations, 531

ee Gi eee ivenescvcnnianntnnntivieidbaniiindenseasiasieneicieeiaaes 30

Williamson v. Lee Optical Co., 348 U.S. 483 (1955).......... 15

STATUTES

Clean Water Act § 101, 33 U.S.C. § 1251................. 3, 19, 26

Clean Water Act § 301, 33 U.S.C. § 1311......... 4, 5, 6, 17, 22

Clean Water Act § 307, 33 U.S.C. § 1817..........cccccccccccceeeee 6

Clean Water Act § 402, 33 U.S.C. § 1342.00.00... 5,6

Clean Water Act § 404, 33 U.S.C. § 1344.00.00... passim

Clean Water Act § 502, 33 U.S.C. § 1362................... passim

Pub. L. 95-217, § 33, 91 Stat. 1577 (Dec. 27, 1977)........... 11

REGULATIONS

ee 15, 18

i EE 24, 25, 26

FEDERAL REGISTER

42 Fed. Reg. 37130 (July 19, 1977)................ccccesceeeeeeeeeeees 11

v

TABLE OF AUTHORITIES - Continued

Page

LEGISLATIVE HISTORY

Cong. Research Service, A Legislative History of

the Water Pollution Control Act Amendments of

I Oe 10, 12, 15, 18

Cong. Research Service, A Legislative History of .

the Clean Water Act of 1977 (Oct. 1978) ............... passim

CouRT RULES

eT Ee. _-csniinicsnetatauiiinininibinianebeteninnaienieigmimnmnpetamnenenen 1

MISCELLANEOUS

American Heritage Dictionary (4th ed. 2000)................... 14

U.S. Fish and Wildlife Service, “Status and Trends

of Wetlands and Deepwater Habitats in the Con-

terminous United States, 1950’s to 1970's” (1983)....3, 29

U.S. Fish and Wildlife Service, “Status and Trends

of Wetlands in the Conterminous United States,

SS Cp BE Ce rrcssrectecenesmemmnsemensencemesses 3, 29

Corps of Engineers, Draft Nationwide Permits

ic Environmental Impact Statement

| ee 3

1

STATEMENT OF INTEREST

National Wildlife Federation, Sierra Club, Natural

Resources Defense Council, and National Audubon Society

all have a long history of involvement in, and expertise

concerning, the protection of our Nation’s waters and the

implementation of the Clean Water Act. Through testi-

mony in Congress, comments and other advocacy in the

Executive Branch, and litigation in the courts, they have

pursued these interests repeatedly during the three

decades since enactment of the seminal 1972 amendments

that gave the Act its current structure. All of these organi-

zations have members who use and rely on a wide array of

waters throughout our Nation for recreation, scientific

study, and protection of their health, safety, property,

drinking water, and food supply.’

STATEMENT OF THE CASE

Introductory Statement

The arguments made by petitioners and their amici

pose a profound danger to the future of the Clean Water

Act and the precious waters it protects. Those arguments

seek nothing less than the power to destroy outright and

to severely degrade waters — not “isolated” ponds like

those at issue in Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Engineers, 531 U.S. 159

(2001), but “waters of the United States” that are

* Pursuant to S. Ct. R. 37.3(a) and 37.6, the undersigned repre-

sents that (1) all parties consented to the filing of this brief, (2) no

counsel for any party authored this brief in whole or in part, and (3) no

person or entity other than the above-named amici curiae and their

counsel made a monetary contribution to the preparation or submission

of this brief.

2

undisputedly within the jurisdiction of the Act’s permit

program. See § 502(7), 33 U.S.C. § 1362(7).

Petitioners’ arguments threaten to reach well beyond

the circumstances of this case in at least two respects.

First, the geographic scope of those arguments is ex-

tremely broad, addressing cross-cutting statutory terms

like “discharge,” “point source,” “pollutant,” and “addition,”

§ 502, 33 U.S.C. § 1362, and the exemptions in § 404(f)\(1),

33 U.S.C. § 1344(f(1) - each of which applies, not simply

to certain subsets of “waters of the United States,” but to

all of them. Thus, petitioners’ arguments, if accepted,

threaten destruction of and damage to not only intermit-

tent swales and streams like those located on Borden

Ranch, but also perennial streams, rivers, lakes, coastal

* ays and estuaries — as well as wetlands adjoining them.

Second, the activities potentially exempted by those

arguments are likewise wide-ranging. The key statutory

terms “discharge,” “point source,” “pollutant,” and “addi-

tion” do not apply solely to agricultural activities, but also

to all other activities regulated by the Act’s permit pro-

grams — including the § 404 program administered by the

Corps as well as the § 402 program administered by the

Environmental Protection Agency. 33° U.S.C. §§ 1344,

1342. Thus, petitioners’ arguments raise the specter of

wholesale destruction of waters through mining, develop-

ment of shopping malls and subdivisions, channelization,

roadbuilding and other infrastructure projects — a prospect

underscored by the presence in this case of amici from

many of those industries.

Even considering only agriculture, petitioners’ argu-

ments are troubling enough. Petitioners untenably claim

that the Act’s agricultural provisions allow unpermitted

destruction of United States waters by conversion to dry

land — here, from ranched wetlands to upland crops. This

3

approach would allow wholesale conversions of wetlands

without a permit — an alarming prospect, given that the

conversion of wetlands to cropland has been the primary

source of wetland loss in the United States. U.S. Fish and

Wildlife Service, “Status and Trends of Wetlands and

Deepwater Habitats in the Conterminous United States,

1950’s to 1970's” (1983) (“1983 Wetland Trends Report”) at

3, 26; U.S. Fish and Wildlife Service, “Status and Trends of

Wetlands in the Conterminous United States, 1986 to

1987” (2000) (“2000. Wetland Trends Report”), at 29.

Indeed, under petitioners’ theory, even developers could

escape regulation by first converting wetlands to upland

crops (so they are no longer regulated waters of the United

States), then developing them for nonagricultural] uses.

An interpretation of the Act authorizing unpermitted

wholesale destruction and degradation of rivers, streams,

bays, estuaries, lakes, and their adjacent wetlands would

turn on its head Congress’s intent that the Act serve as a

“comprehensive legislative attempt ‘to restore and main-

tain the chemical, physical, and biological integrity of the

Nation’s waters.’” United States v. Riverside Bayview

Homes, 474 U.S. 121, 132 (1985) (quoting CWA § 101(a), 33

U.S.C. § 1251(a)). “Integrity” means “a condition in which

the natural structure and function of ecosystems is main-

tained,” id. (emphasis added; internal quotations omitted)

(quoting legislative history) — not destroyed. With half of

our wetlands already lost, and tens of thousands of acres

more being lost each year, 2000 Wetland Trends R«port at

9, and with our streams and rivers under constant assault

from channelization, mining, and other damaging activi-

ties, Corps of Engineers, Draft Nationwide Permits Pro-

grammatic Environmental Impact Statement (July 2001),

at App. F, the need for the Act’s protection remains urgent

indeed.

4

The Act’s substantive provisions, far from supporting

petitioners’ attempt to undermine the statutory purposes

under the guise of interpretation, conclusively refute that

attempt. In keeping with Congress’s recognition that

“[p]rotection of acuatic ecosystems ... demanded broad

federal authority to control pollution,” Riverside Bayview,

474 U.S. at 132-33, the 1972 Act enacted a comprehensive

ban on unpermitted point source discharges, using broad

definitions that plainly encompass the facts of this case.

Far from undermining the broad reach of those definitions,

the 1977 amendments expressly confirmed their applica-

bility to agriculture.

The Clean Water Act

1972 Act. At the core of the Act since 1972 has been a

basic prohibition: “the discharge of any pollutant by any

person shall be unlawful” except as provided in enumer-

ated sections of the Act. § 301(a), 33 U.S.C. § 1311(a)

(emphasis added). To emphasize the wide scope of this

prohibition, Congress included several key definitions in

the Act. For example,

e “discharge ofa pollutant” is defined as in-

ter alia “any addition of any pollutant to navi-

gable waters from any point source,” § 502(12),

33 U.S.C. § 1362(12) (emphasis added);

e “pollutant” is defined to include inter alia

“dredged spoil,” “rock,” “sand,” “cellar dirt,” and

“biological materials,” § 502(6); and

e “point source” is defined as “any discerni-

ble, confined and discrete conveyance, including

but not limited to any pipe, ditch, channel, tun-

nel, conduit, well, discrete fissure, container, roll-

ing stock, concentrated animal feeding operation,

or vessel or other floating craft, from which

— awe ee

5

pollutants are or may be discharged,” § 502(14)

(emphasis added).

The Act offers two primary paths for seeking a waiver

of §301(a)’s broad prohibition on discharge. For most

discharges, a permit may be sought from EPA pursuant to

§ 402, 33 U.S.C. § 1342. In the case of “the discharge of

dredged or fill material,” however, Congress assigned

permitting authority to the Corps of Engineers. § 404(a),

33 U.S.C. § 1344(a).

1977 Amendments. Stressing the urgent need for

protection of wetlands,’ Congress in 1977 rejected at-

tempts to limit the scope of waters covered by the Act.

Riverside Bayview, 474 U.S. at 136-37. Instead, Congress

enacted narrowly drawn — and conditional — exemptions

targeted at specific activities. In particular, Congress

provided that, with specified exceptions, no permit under

either § 404 or § 402 would be required for (inter alia) the ©

discharge of dredged or fill material “from normal farming,

silviculture, and ranching activities such as plowing,

seeding, cultivating, minor drainage, harvesting for the

production of food, fiber, and forest products, or upland soil

and water conservation practices.” § 404(f(1)(A). The

drafters cautioned that “[tJhe exemption for minor drain-

age does not apply to the drainage of swampland or other

* See, e.g., Cong. Research Service, A Legislative History of the

Clean Water Act of 1977 (Oct. 1978) (“1977 Legis. Hist.”), at 644 (Senate

Report: “The wetlands and bays, estuaries and deltas are the Nation's

most biologically active areas,” and “(tJhere is no question that the

systematic destruction of the Nation’s wetlands is causing serious,

permanent ecological damage.”). Accord, id. 923 (Sen. Baker), 916-19

(Sen. Chafee); 882 (Sen. Stafford); 869-70 (Sen. Muskie); 549 (Sen.

Moynihan); 908-09 (Sen. Hart); 417-18 (Cong. Dingell); 413 (Cong.

Lehman).

6

wetlands.” 1977 Legis. Hist. at 709 (Senate Report) (em-

phasis added).

The activities enumerated in § 404(f(1) were not

completely exempted from the permit requirement. First,

the exemption does not relieve dischargers of the obliga-

tion to obtain a permit for releases of toxic pollutants

covered by Clean Water Act § 307, 33 U.S.C. § 1317.

§ 404(f)(1) (the enumerated discharges are not regulated

under §§ 404, 402, or 301(a) “except for effluent standards

or prohibitions under section 1317 of this title”) (emphasis

added).

Second, [aJmy discharge of dredged or fill material

into the navigable waters incidental to any activity having

as its purpose bringing an area of the navigable waters

into a use to which it was not previously subject, where

the flow or circulation of navigable waters may be im-

paired or the reach of such waters be reduced, shall be

required to have a permit under this section.”

§ 404(f)(2) (emphasis added).

In short, Congress’s intent was to exempt only “those

narrowly defined activities that cause little or no adverse

effects either individually or cumulatively.” 1977 Legis.

Hist. at 474 (Sen. Muskie). Accord, id. 420 (Cong. Harsha),

529 (Sen. Wallop).

Borden Ranch

In this case, petitioners used heavy earthmoving

equipment on a California ranch to destroy some United

States waters and seriously impair others. At issue are

swales, “sloped wetlands that allow for the movement of

aquatic plant and animal life, and that filter water flows

and minimize erosion,” and intermittent drainages,

“streams that transport water during and after rains.” Pet.

App. 2 (Ninth Circuit). Water from the swales flowed

EEE —..<eee

7

through the intermittent streams to Goose Creek and Dry

Creek, and then to the Cosumnes and Mokelumne Rivers.

District Court findings, Pet. App. 68-69, 86-92; Dec. of Dr.

Lyndon C. Lee, Supplemental Excerpts of Record (“SER”)

126-27. These swales and streams all “depend upon a

dense layer of soil, called a ‘restrictive layer’ or ‘clay pan,’

which prevents surface water from penetrating deeply into

the soil.” Pet. App. 2 (Ninth Circuit).

Petitioners used at least two kinds of rolling stock -

bulldozers and tractors equipped with prongs, discs, and

rollers, see Pet. App. 9, SER 129 — to destroy and impair

these waters. These devices —

e Pushed dirt into the swales and streams

from surrounding upland areas. See, e.g., District

Court findings, Pet. App. 83 (Corps official found

that “[sJoil was moved into a number of these

drainages by turning equipment”) (emphasis

added), 89 (“The upper swale portions have been

partially filled due to deep rippers plowing to

the edge of the feature and depositing soil

into the swale.”) (emphasis added); id. (in an-

other swale, “due to proximate deep ripping, a

small amount of fill material has been depos-

ited”); 87, 90, 92 (ripping moved “through” or

“across” various swales and streams, indicating

that soil was dragged perpendicularly into them

from outside); Lee Dec., SER 129 (expert whom

the district court found to be the “most thorough”

[Pet. App. 86] found that “[tJhe bulldozers and

tractors and attached rippers, discs, and rollers

carry and drag along large clods of dirt and bio-

logical material such as plant stems and roots

from surrounding upland areas into the ...

swales ... and intermittent streams”) (emphasis

added).

e Broke up the subsurface hardpan layer,

thereby depriving the swales and streams of

8

their capacity to hold water — ie., draining

them. Pet. App. 8 (Ninth Circuit: “by ripping up

the bottom layer of soil, the water that was

trapped can now drain out”) (emphasis added).

e Excavated soil from within the swales and

streams and dragged it laterally to a new loca-

tion. Id. 3, 8 (“soil ... is ... dragged behind the

ripper,” and was “wrenched up, moved around,

and redeposited somewhere else”) (emphasis

added); District Court findings, Pet. App. 70

(deep ripping “mov[ed] earth, rock, sand, and

biological matter both horizontally and verti-

ll —— added). Accord, Lee Dec., SER

129. ;

e Deposited soil in 28 swales and streams,

Pet. App. 86 (district court), filling many of them

—- and many others partially. Jd. 86-88,

e Converted areas of United States waters

to dry land by “completely obliterat{ing]” at least

eight of the swales and streams, and “nearly

completely obliterat[ing]” or otherwise damaging

others. Pet. App. 106, 86-92 (district court). See

also Lee Dec., SER 128-29, 132; Pet. App. 10

(Ninth Circuit: petitioners’ activities “radically

altered the hydrological regime of the protected

wetlands”).

SUMMARY OF ARGUMENT

The plain meaning of the Act compels the conclusion

that petitioners’ activities fall within the Act’s permit

program, whose applicability is defined by broad statutory

definitions - without any exemptions for agricultural

activities of the kind at issue here. The wheeled earthmov-

ing equipment used by petitioners constitutes “point

sources,” which are statutorily defined to include “any ...

rolling stock,” and more broadly “any discernible, confined

ee ee

9

and discrete conveyance.” The earth discharged contains

several components statutorily defined as “pollutants,”

including “rock,” “sand,” “cellar dirt,” and “biological

materials” — and also constitutes “dredged material” and

“fill material.”

Petitioners’ activities encompass the “discharge” — i.e.,

“addition” — of pollutants to United States waters. First,

petitioners moved earth into those waters from uplands.

Second, they excavated earth within United States waters,

moved it around, and redeposited it at other locations within

those waters. Given that “dredged material” inherently is

material excavated from United States waters, the

“addition” requirement is plainly met by such redeposits.

Section 404’s agricultural exemption, which applies

only to activities whose environmental effects are minor

individually and cumulatively, such as “minor drainage,”

excludes the conversion of ranched wetlands to farmed

uplands.

ARGUMENT

Petitioners argue that agriculture is exempt from point

source regulation generally, and alternatively, that the

earthmoving activities at issue are exempt from the Act’s

permit requirements because they allegedly fall outside

various key statutory definitions (“point source,” “pollut-

ant,” and “discharge”), and are within the scope of the

§ 404(f) exemption enacted by Congress in 1977. Each of

these arguments is refuted by the plain meaning of the Act.

I. CONGRESS ENACTED NO BLANKET AGRICUL-

TURAL EXCLUSION FROM POINT SOURCE

PERMIT REQUIREMENTS.

Petitioners argue broadly that “Congress intentionally

excluded agriculture from Section 404 regulation.” Pet. Br.

10

27 (initial caps omitted). To the contrary, as discussed in

Parts II-IV below, the 1972 Act enacted broad definitions

that on their face include agricultural point sources.

Indeed, Congress repeatedly prefaced these key provisions

with the word “any,” see pp. 4-5, supra (quoting Act),

thereby emphasizing their comprehensive scope. See, e.g.,

Dept. of HUD v. Rucker, 122 S. Ct. 1230, 1233 (2002) (“the

word ‘any has an expansive meaning, that is, ‘one or some

indiscriminately of whatever kind’ ”).

Far from inviting implicit exclusions from these

definitions, the drafters expressly emphasized their

importance, and cautioned against attempts to narrow

them. See, e.g., Cong. Research Service, A Legislative

History of the Water Pollution Control Act Amendments of

1972 (Jan. 1973) (“1972 Legis. Hist.”), at 762 (House

Report: “(Cjertain terms used in the drafting of this

section [i.e., §2, which contained §§ 301 and 404) have

very specific and technical meanings. The definitions

of these terms are included in section 502 of title V, and it

is recommended that very special attention be accorded

section 502.”) (emphasis added); 356 (Cong. Blatnik,

committee chair: “If there is a part of this bill that can be

labeled ‘most important,’ it is these definitions. To revise

them in a way to limit their coverage is to severely

detract from the effectiveness of the bill.”) (emphasis

added). See also id. 651-53 (rejecting proposed amend-

ment seeking to exempt agricultural irrigation from point

source regulation).

Indeed, discussing its 1975 regulations that had

established some agricultural exemptions, the Corps in

1977 cautioned that “many interpreted this language as

an exclusion of all practices by the farming and forestry

industry including those that do involve discharges of

dredged or fill material into water. The FWPCA does not

allow us to make such an exemption or exclusion for

11

any industry.” 42 Fed. Reg. 37130 (July 19, 1977) (em-

phasis added).

Subsequently, Congress carefully calibrated the

applicability of the Act’s permit requirements to agricul-

ture, enacting in 1977 a provision — § 404(f) — that ad-

dressed the issue in detail. Petitioners untenably claim

that § 404(f) represents a “belt and suspenders” approach

to clarifying the exclusion of plowing and other normal

farming activities from § 404 regulation. Pet. Br. 37-38. To

the contrary, Congress knew full well how to carve out

exclusions from the Act’s key definitions governing the

applicability of the point source discharge program — and

indeed the 1977 Amendments that enacted § 404(f) in-

cluded such a provision. Pub. L. 95-217, § 33(b), 91 Stat.

1577 (Dec. 27, 1977) (amending the “point source” defini-

tion in §502(14) to exclude irrigation return flows).’

Section 404(f) carves out no such exclusion for plowing or

other agricultural earthmoving activities.

To the contrary, § 404(f) expressly references “the

discharge of dredged or fill material ... from normal

farming, silviculture, and ranching activities such as

plowing,” § 404(f)(1A) (emphasis added), thus confirm-

ing Congress’s understanding that plowing and other

agricultural activities can produce discharges. Moreover,

while § 404(f) includes limited exemptions for such

agricultural discharges, it also expressly provides — in

each of its two subparagraphs — that discharges associated

with all of the listed activities, including plowing, are

* See also §§ 502(14) (additional amendment, enacted in 1987,

excluded agricultural stormwater from definition of “point source”),

502(6) (certain military and oil-and-gas activities excluded from

definition of “pollutant”), 502(12XB) (ocean vessels excluded from

definition of “discharge of a pollutant”).

12

subject to permit requirements in specified circum-

stances. See pp. 5-6, supra. Considering this amendment,

the D.C. Circuit, in a decision praised by petitioners (at

22) as “persuasive,” expressly indicated that “plowing .. .

may ... produce actual discharges, ie., additions of

pollutants.” Natl. Mining Assn. v. U.S. Army Corps of

Engineers, 145 F °d 1399, 1405 (D.C. Cir. 1998) (emphasis

added).

Il. THE ROLLING STOCK USED BY PETITION-

“RS ARE “POINT SOURCES.”

The wheeled equipment at issue here plainly consti-

tutes point sources under the Act. The statutory definition

expressly encompasses “any ... rolling stock.” § 502(14).

Petitioners creatively attempt to equate bulldozers and

tractors with draft animals such as “horses and oxen,” Pet.

Br. 26, but of course the latter walk on hooves, while the

former roll on wheels.

While the express statutory reference to “rolling

stock” suffices to resolve the matter, the earthmoving

equipment at issue here also fits comfortably within the

broader statutory phrase “any discernible, confined and

discrete conveyance” — indeed, the record documents, and

petitioner does not dispute (Pet. Br. 21), that the equip-

ment conveyed earth both vertically and laterally. See pp.

7-8, supra. Reinforcing the clear import of the statutory

text, the legislative history cautions that agency imple-

mentation “should not ignore discharges resulting from

point sources other than pipelines or similar conduits. . . .

There are many other forms of periodic, though frequent,

discharges of pollutants into the water through point

sources such as barges, vessels, feedlots, trucks and

other conveyances.” 1972 Legis. Hist. at 1469 (Senate

Report) (emphasis added).

13

That earthmoving equipment constitutes point

sources is further confirmed by § 404(f), which enumerates

various activities (including plowing as well as the con-

struction and maintenance of infrastructure including

ditches, roads, and sedimentation basins) that are ex-

pressly subjected to point source permitting requirements

in specified circumstances. See pp. 5-6, supra (quoting

§ 404(f1) and (2)). Because most of the enumerated

activities are conducted with earthmoving equipment,

§ 404(f)’s language expressly applying point source permit-

ting requirements to those activities further confirms that

such equipment constitutes point sources.

The Fifth Circuit long ago held that “bulldozers”

equipped with “blades” constitute point sources, and

petitioners do not claim that case was wrongly decided.

Pet. Br. 26 and n.16 (discussing Avoyelles Sportsmen's

League v. Marsh, 715 F.2d 897 (5th Cir. 1983)). There is no

basis in § 502(14) for distinguishing between that equip- —

ment and the bulldozers and tractors at issue here, which

were likewise equipped with metal earthmoving attach-

ments, and which used those attachments to excavate,

move and relocate, and grace soil. Cf Pet. Br. 26 (errone-

ously asserting that the Borden Ranch equipment did not

excavate or grade).

Petitioners’ suggestion (at 26) that the activities at

issue here are not “major” enough to constitute point

source discharges ignores the district court’s express

findings that those activities destroyed numerous United

States waters and damaged others. See pp. 7-8, supra.

Moreover, the Act’s point source program does not apply

only to “major” discharges. See, e.g., Minnehaha Creek

Watershed District v. Hoffman, 597 F.2d 617, 626-27 (8th

Cir. 1979). To the contrary, the Act expressly requires

regulation of discharges that are “incidental,” § 404(f(2) -

i.e., an “unpredictable or minor accompaniment,” or “[o)f a

14

minor, casual, or subordinate nature.” Am. Heritage Dict.

(4th ed. 2000) (emphasis added). Activities whose impacts

(unlike those here) are truly “minimal” may qualify for a

general permit, § 404(e), but not for outright exemption

from any permit.

Petitioners further argue (at 25 n.14) that the earth-

moving equipment is not covered because the word “plow”

does not appear in § 502(14). First, § 502(14) uses the

broad phrases “any ... rolling stock” and “any discerni-

ble, confined and discrete conveyance” (emphasis added),

with no suggestion that only certain kinds of rolling stock

and conveyances are covered. See p. 10, supra (citing

caselaw on use of word “any”). Second, Congress clearly

knew how to carve out exemptions from the point source

definition, having done so in two separate amendments —

in 1977 for “return flows from irrigated agriculture” and in

1987 for “agricultural stormwater discharges.” § 502(14).

Under basic principles of statutory interpretation, the

existence of those exemptions undercuts rather than

supports petitioners’ efforts to imply additional exemp-

tions for the earthmoving equipment at issue here. TRW v.

Andrews, 122 S. Ct. 441, 447 (2001). Cf. Pet. Br. 26 (erro-

neously arguing the contrary). Third, even if the equip-

ment at issue could be considered “plows,” § 404(f)

expressly confirms the applicability of the Act’s point

source provisions to “plowing.” See pp. 5-6, 11-12, supra.

Petitioners argue (at 26) that it would be the “height

of irrationality” for Congress to exclude surface runoff

from the Act's permit program, while regulating dis-

charges from earthmoving equipment. To the contrary,

Congress’s decision to focus the Act’s permit program on

point source discharges, while leaving surface runoff to

other mechanisms, lies at the heart of the 1972 Act. It is

common, and not irrational, for legislation to take a

15

stepwise approach to a problem. See, e.g., Williamson v.

Lee Optical Co., 348 U.S. 483, 489 (1955).

Ill. THE MATERIAL DISCHARGED BY PETI-

TIONERS CONSTITUTES “POLLUTANTS.”

Straying beyond the issues presented by their peti-

tion, petitioners argue (at 23-24) that the soil discharged

by the earthmoving equipment does not constitute a

“pollutant” within the meaning of the Act. To the contrary,

the drafters of the 1972 Act recognized that “[s)ediment,

often associated with agricultural activities, is by volume

our major pollutant.” 1972 Legis. Hist 1470 (Senate

Report) (emphasis added). Indeed, soil contains several

items listed in the § 502(6) definition of “pollutant,”

including “rock,” “sand,” and “cellar dirt” - as well as

“biological materials” in the form of organisms and detri-

tus found underground, and plants growing on the surface.

See also United States v. Deaton, 209 F.3d 331, 336 (4th

Cir. 2000) (“plain dirt” is pollutant).

Moreover, § 502(6) also encompasses “dredged spoil,”

synonymous with the term “dredged .. . material” used in

§ 404(a), which in turn has been defined regulatorily as

“material that is excavated or dredged from waters of the

United States.” 33 C.F.R. § 323.2(c) (emphasis added). The

material that was excavated from the swales and streams

on Borden Ranch clearly falls within this description.

In addition to dredged material, § 404(a) also encom-

passes “fill material,” defined regulatorily — at the time of

the actions at issue here — as “any material used for the

primary purpose of replacing an aquatic area with dry

land or of changing the bottom elevation of a waterbody.”

33 C.F.R. § 323.2(e). See also 1977 Legis. Hist. 707 (Senate

committee where § 404(f) originated emphasized that the

adverse effects of § 404 discharges include “the destruction

16

and degradation of aquatic resources that results from

replacing water with dredged material or fill material”).

The primary purpose of the activity at issue here was to

replace swales and streams with dry land, and change

their bottom elevation, so that they could be planted with

crops. See, e.g., Avoyelles, 715 F.2d at 924-25 (under

circumstances analogous to those here, court held that

material constituted “fill material” under the above

definition).

Petitioners argue (at 24) that soil is not a pollutant

because it is not “waste.” However, “rock,” “sand,” “cellar

dirt,” “biological materials,” and “dredged or fill material”

are pollutants under the Act — regardless of whether they

are being disposed of to discard waste material or for some

other purpose. See, e.g., Minnehaha, 597 F.2d at 627 (“We

... find no justification in the Act for the District Court’s

determination that whether the discharge of a particular

substance listed in § 502(6) constitutes the discharge of a

‘pollutant’ under the Act depends upon the purpose for

which the discharge is made.”).

* The court decision cited by petitioners (at 22) unpersuasively

indicates that, where material is deposited in order to replace United

States waters or change their bottom elevation, and where that activity

is undertaken in order to facilitaty a subsequent use (in that case a

landfill), it is the subsequent use, not the replacement or changed

elevation of waters, that is the “primary purpose.” Resource Investments

v. U.S. Army Corps of Engineers, 151 F.3d 1162, 1168 (9th Cir. 1998).

The intentional replacement of United States waters, and the inten-

tional change of their bottom elevation, are virtually always under-

taken to facilitate some subsequent use. To define that subsequent use

as the “primary purpose” would eliminate or drastically reduce the

applicability of the definition.

17

IV. PETITIONERS “ADDED” POLLUTANTS TO

UNITED STATES WATERS.

Noting the Act’s definition of discharge as any “addi-

tion” of any pollutant to United States waters, § 502(12),

petitioners argue (at 21-23) that they “added” no pollut-

ants to the Borden Ranch swales and streams. They are

wrong.

A. Petitioners Added Pollutants Drawn From

Uplands.

The district court found that petitioners’ equipment

conveyed earth from outside United States waters (i.e.,

from the upland areas of Borden Ranch) into those waters

(i.e., into the swales and streams). See p. 7, supra. Peti-

tioners do not and could not explain how taking pollutants

from uplands and placing them into United States waters

is not an “addition.” See, e.g., Rybachek v. USEPA, 904

F.2d 1276, 1285 (9th Cir. 1990) (if “the material discharged

is coming not from the streambed itself, but from

outside it, this clearly constitutes an ‘addition.’”)

(emphasis added).

Confronted with this fundamental flaw in their

“addition” argument, petitioners change the subject,

arguing (at 22) that the material at issue is not “fill

material.” For reasons already stated, they are wrong. But

even if they were correct, the material would still contain

“rock,” “sand,” “cellar dirt,” and “biological materials” —

and thus would still be a “pollutant” within the meaning of

the Act. § 502(6). Section 301(a) bans “the discharge of any

pollutant” (emphasis added), not just some of them. Thus,

regardless of whether a given pollutant constitutes

“dredged or fill material” within the meaning of § 404(a),

its discharge falls within the § 301(a) prohibition.

18

B. Petitioners Added Pollutants Drawn From

United States Waters.

Petitioners also added pollutants by excavating earth

from the swales and streams, and relocating that material

to various other places within those features. That reloca-

tion constitutes an “addition” under every appellate

decision to consider the issue — including the National

Mining decision that petitioners characterize (at 22)

as “persuasive.” Indeed, National Mining expressly

concluded that “plowing ... may ... produce actual

discharges, i.e., additions of pollutants.” National Min-

ing, 145 F.3d at 1405 (emphasis added). See also United

States v. Deaton, 209 F.3d 331 (4th Cir. 2000); United

States v. M.C.C., 772 F.2d 1501 (11th Cir. 1985), vacated on

other grounds, 481 U.S. 1034 (1987), “redeposit” analysis

reaffirmed, 848 F.2d 1133 (llth Cir. 1988), modified on

other grounds, 863 F.2d 802 (llth Cir. 1989); Avoyelles

Sportsmen’s League v. Marsh, 715 F.2d 897 (5th Cir. 1983).

This conclusion is compelled by the plain language of

the Act, which grants the Corps peimit jurisdiction over

inter alia discharges of “dredged ... material” — ie.,

“material that is excavated or dredged from waters of

the United States.” 33 C.F.R. § 323.2(c) (emphasis

added). As Senator Ellender observed, in introducing the

floor amendment that first proposed assigning dredged

material permitting authority to the Corps: “The disposal

of dredged material does not involve the introduction of

new pollutants; it merely moves the material from one

location to another.” 1972 Legis. Hist. at 1386 (empha-

sis added). Accord, id. 1387 (Sen. Ellender: “moving spoil

material from one place in the waterway to another,

without the interjection of new pollutants”) (emphasis

added). Thus, the Fifth Circuit long ago noted that pollut-

ants need not “come from an external source in order to

19

constitute a discharge,” because “ ‘dredged’ material is by

definition material that comes from the water itself. A

requirement that all pollutants must come from outside

sources would effectively remove the dredge-and-fill

provision from the statute.” Avoyelles, 715 F.2d at 924

n.43 (emphasis added).

Petitioners apparently believe that the statutory term

“addition” must be interpreted more narrowly for agricul-

ture, such that “plowing” can never involve an addition.

See Pet. Br. 21. But neither § 502(12) nor any other provi-

sion of the Act supports that interpretation. To the con-

trary, § 404(f) expressly indicates that plowing and other

normal agricultural activities can involve discharges, and

that such discharges are subject to the Act’s permit pro-

gram in specified circumstances. See pp. 5-6, 11-12, supra

(quoting § 404(f)).

Petitioners’ reading of “addition” would flout not only

the plain meaning of the Act’s substantive provisions, but

also the Act’s central purpose of restoring and maintain-

ing the integrity of United States waters. See p. 3, supra

(quoting § 101(a)). The environmental impacts Congress

intended § 404 to address include “the destruction and

degradation of aquatic resources that results from replac-

ing water with dredged material or fill material,” and “the

contamination of water resources with dredged or fill

material that contains toxic substances.” 1977 Legis. Hist.

at 707 (Senate Report). Such impacts “are no less harmful

when the dredged spoil is redeposited in the same wetland

from which it was excavated. The effects on hydrology and

the environment are the same.” Deaton, 209 F.3d at 336.

Petitioners’ recourse to the caselaw is equally unavail-

ing. They characterize as “persuasive” the D.C. Circuit’s

decision in National Mining. Pet. Br. 22. However, that

decision rests on the untenable notion that “there can be

20

[no] ... addition of dredged material when there is no

addition of material.” 145 F.3d at 1404 (emphasis in

original). As the Fifth Circuit made clear in Avoyelles, the

discharge of dredged material inherently involves mate-

rial drawn from United States waters. See pp. 18-19,

supra. Likewise, the Fourth Circuit considered but re-

jected National Mining’s fundamental rationale: “The

idea that there could be an addition of a pollutant with-

out an addition of material seems to us entirely unre-

markable, at least when an activity transforms some

material from a nonpollutant into a pollutant, as occurred

here.” Deaton, 209 F.3d at 335 (emphasis added).

Because National Mining could not deny that some

redeposits are properly subject to regulation, 145 F.3d at

1405, 1407, it sought to distinguish between redeposits

based on their size and their distance from the point of

excavation. Specifically, it held that the Act’s permit

requirement does not encompass “incidental fallback,”

which occurs when “material is removed from the waters

of the United States and a small portion of it happens to

fall back,” “virtually to the spot from which it came.”

145 F.3d at 1404, 1403 (emphasis added). Such tests,

however, have no basis in the text or environmental goals

of the Act. To the contrary, when soil is excavated, serious

harm to United States waters can result, regardless of

whether it is relocated horizontally before being rede-

posited. See Deaton, 209 F.3d at 336; United States v.

Wilson, 133 F.3d 251, 273-74 (4th Cir. 1997) (separate

opinion of Payne, J.).

Even assuming the correctness of National Mining,

that-decision fully supports regulation of the discharges at

issue here, which are a far cry from the incidental fallback

at issue there. First, here the material redeposited into the

Borden Ranch swales and streams encompassed not

merely a “small portion” of the material excavated, but

21

virtually all of it. Second, instead of falling back “virtually

to the spot from which it came,” 145 F.3d at 1403, here

“soil was wrenched up, moved around, and redeposited

somewhere else.” Pet. Br. 21 (quoting Ninth Circuit

opinion) (emphasis added).

Indeed, National Mining expressly confirmed that it

did not intend to question the regulation of “redeposits at

some distance from the point of removal.” 145 F.3d at

1407 (emphasis added). The amount of relocation the

National Mining court considered sufficient to trigger

§ 404 jurisdiction was minimal. Jd. 1407, 1402 (confirming

that the court was not questioning § 404 jurisdiction over

“sidecasting,” a practice that “involves placing removed

soil ... by the side of an excavated ditch”) (emphasis

added). Accord, Deaton, 209 F.3d at 333, 335-37 (relocation

from a ditch to the sides of the ditch); M.C.C., 772 F.2d at

1505-06 (relocation from navigation channel to adjacent

sea grass beds). That minimal relocation test is clearly

met here — and indeed, as indicated above, National

Mining expressly confirmed that plowing suffices to

constitute an addition. Id. 1405.

The other arguments offered by petitioners are

equally meritless. First, even if the material excavated by

petitioners “never loses contact with the immediately-

surrounding ground,” Pet. Br. 21, it still was excavated

and moved to a different location. Appellate courts have

repeatedly applied § 404 to movements of pollutants that

never left United States waters. See, e.g., M.C.C., 772 F.2d

at 1505-06 (tugboat propellers added dredged material by

stirring up sediment that then settled on adjacent sea-

grass beds); United States v. Huebner, 752 F.2d 1235,

1241-43 (7th Cir. 1985) (§ 404 permit required for farmer’s

use of earthmoving equipment to spread soil around

wetlands); United States v. Brace, 41 F.3d 117, 127-29 (3d

Cir. 1994) (same).

22

Indeed, a ruling that no “addition” exists unless

dredged material has first been removed from United

States waters — rather than relocated within those waters

— would open a major loophole in the Act. Excavated

material could be piped underwater in rivers and estuaries

or pushed along the surface of wetlands, thus damaging or

destroying those waters’ hydrology and releasing toxic

pollutants formerly immobilized in sediment — precisely

the loss of aquatic integrity the Act was designed to

prevent.

Finally, § 404(a)’s reference to discharge of dredged or

fill material “at specified disposal sites” (see Pet. Br. 23)

offers no support for petitioners’ position. First, the Na-

tional Mining concurrence cited by petitioners simply

reads that statutory language as “suggest[ing]” “either a

temporal or geographic separation between excavation

and disposal.” 145 F.3d at 1410 (Silberman, J.) (emphasis

added). By joining the panel opinion, Judge Silberman

expressed his agreement that the amount of geographic

separation required is minimal, and that plowing qualifies

as an addition. See p. 21, supra. Second, even if certain

discharges were to be exempted from § 404(a) based on the

phrase “specified disposal sites,” they would still be subject

to § 301(a)’s ban on “the discharge of any pollutant by any

person.” (Emphasis added.) Unlike § 404(a), § 301(a) does

not contain the phrase “specified disposal sites.”

V. PETITIONERS’ EARTHMOVING ACTIVITIES,

WHICH DESTROYED SOME UNITED STATES

WATERS AND DAMAGED OTHERS, DO NOT

FALL WITHIN THE ACT’S AGRICULTURAL

EXEMPTIONS.

Because petitioners’ earthmoving activities constitute

discharges, they are prohibited by §301(a), and thus

Doe ee ee

~-

23

cannot proceed without a § 404 permit. Petitioners’ at-

tempt to avoid this result by invoking the § 404(f) exemp-

tions must be rejected.

Section 404(f) includes a conditional exemption for

enumerated activities, combined with a “recapture”

provision confirming that “[a]ny discharge of dredged or

fill material into the navigable waters incidental to any

activity having as its purpose bringing an area of

the navigable waters into a use to which it was not

previously subject, where the flow or circulation of

navigable waters may be impaired or the reach of

such waters be reduced, shall be required to have a

permit under this section.” § 404(f)(2) (emphasis added).

“Read together, the two parts of Section 404(f) provide

a narrow exemption for agricultural activities that have

little or no adverse effect on the waters of the United

States.” Brace, 41 F.3d at 124 (emphasis added) (citing

Avoyelles). The committee where §404(f) originated

emphasized that wetlands, bays, estuaries and deltas “are

the Nation’s most biologically active areas,” and that “the

systematic destruction of the Nation’s wetlands is causing

serious, permanent ecological damage.” 1977 Legis. Hist.

644. Accordingly, the committee drafted § 404(f), not to

provide a blank check for agricultural wetlands destruc-

tion, but on the contrary to impose “a degree of disci-

pline over the extent to which these activities destroy

wetlands or pollute navigable waters.” Jd. (emphasis

added). In short, the exemption encompasses “those

narrowly defined activities that cause little or no ad-

verse effects either individually or cumulatively.”

See p. 6, supra (quoting legislative history) (emphasis

added).

Consistent with all previous appellate decisions, the

Ninth Circuit properly rejected petitioners’ attempt to use

24

these exemptions to destroy various United States waters,

and seriously damage others.

A. Draining and Destroying United States

Waters Does Not Constitute “Plowing”

Within the Meaning of § 404(f)(1).

Petitioners argue that their discharges fall within the

§ 404(f(1A) exemption for “plowing.” This argument is

triply flawed.

First, the use of bulldozers equipped with four- to

seven- foot-long tines and other attachments to break

apart the subsurface clay pan of ranchland swales and

streams and to fill those features in — thus destroying

their aquatic characteristics — does not constitute “plow-

ing.” As the Corps’ regulations confirm, plowing “does not

include the redistribution of soil, rock, sand, or other

surficial materials in a manner which changes any area

of the waters of the United States to dry land. For

example, the redistribution of surface materials by blad-

ing, grading, or other means to fill in wetland areas is

not plowing.” 33 C.F.R. § 323.4(a\1\iiiXD) (emphasis

added).

Second, even if petitioners’ activities could be consid-

ered plowing, § 404(f)(1)(A) does not encom all plow-

ing, but only plowing that constitutes “normal”

agricultural activity. Thus, to fall within § 404(f)(1)A), the

activities “must be part of an established (i.e., on-going)

farming, silviculture, or ranching operation.” 33 C.F.R.

§ 323.4(aX(1Xii). By contrast, “[aJctivities which bring an

area into farming, silviculture, or ranching use are not

part of an established operation.” Jd. Indeed, even on

previously farmed areas, the exemption is unavailable

when the area “has been converted to another use or has

lain idle so long that modifications to the hydrological

regime are necessary to resume operations.” Id. See also

25

Brace, 41 F.3d at 126. Here, hydrological modifications

were necessary to bring the swales and streams into the

farming use.

Third, § 404(f(1)(A)’s use of the term “plowing” must

be read in the context of that same paragraph’s reference

to “minor drainage.” (Emphasis added.) “The exemption

for minor drainage does not apply to the drainage of

swampland or other wetlands.” 1977 Legis. Hist. 709

(Senate Report) (emphasis added). Accord, 33 C.F.R.

§ 323.4(aX1\iiiXCX2) (minor drainage “does not include

drainage associated with the immediate or gradual con-

version of a wetland to a non-wetland”). Having com-

pletely converted some wetlands to dry land, and partly

converted others, see pp. 7-8, supra, petitioners have gone

well beyond what would qualify as “minor drainage.” See

Pet. App. 8 (Ninth Circuit: “by ripping up the bottom layer

of soil, the water that was trapped can now drain out”)

(emphasis added). By using § 404(f1A) to authorize

major drainage under the guise of “plowing,” petitioners’

untenable reading would defeat Congress’s careful choice

of the word “minor.”

B. The Change from Ranched Wetlands to

Farmed Uplands Is a Change in Use Trig-

gering the § 404(f)(2) Requirement for a

Permit.

Even if petitioners’ discharges fit within § 404(f)(1),

they still require a permit under § 404(f)(2). Petitioners do

not and could not deny that their activities - which de-

stroyed some swales and streams and seriously damaged

others — caused the “flow or circulation” of United States

waters to be “impaired,” and “the reach of such waters” to

be “reduced.” § 404(f)(2). Instead, petitioners argue that

their discharges were not “incidental to any activity

having as its purpose bringing an area of the navigable

waters into a use to which it was not previously subject.”

Id. This argument is untenable.

As the Ninth Circuit held here, “(cJonverting ranch

land to orchards and vineyards ... clearly” satisfies the

changed use prong of § 404(f(2). Pet. App. 10. This conclu-

sion tracks the wording of § 404(f{1XA), which lists

“farming” separately from “ranching,” thus recognizing

that they do not constitute a single use.

Moreover, here petitioners have not simply changed

from a ranching use to a farming use — they have changed

from a wetland ranching use to an upland farming use —

and have done so by destroying waters of the United

States. To exempt unpermitted drainage of United States

waters, of a severity sufficient to convert those waters to

uplands, would override Congress’s express intent to

exempt only “minor” drainage, § 404(f(1A) — mot “the

drainage of swampland or other wetlands.” See pp. 5-6,

supra (quoting Senate Report). Moreover, by opening the

door to wholesale conversions among various § 404(f) 1A)

uses (e.g., from forested wetlands to upland row crops),

such an approach would fundamentally contravene Con-

gress’s intent that the § 404(f) exemptions encompass only

“those narrowly defined activities that cause little or no

adverse effects either individually or cumulatively,” see p.

6, supra (quoting legislative history), as well as the Act’s

core purpose of restoring and maintaining the integrity of

United States waters. § 101(a).

Thus, the Corps has properly provided that “[a]

conversion of a section 404 wetland to a non-

wetland is a change in use of an area of waters of the

United States.” 33 C.F.R. § 323.4(c) (emphasis added). See

also Br. of American Forest & Paper Assn. at 6, 16-17

(agreeing with this interpretation, under which the

27

§ 404(f) exemption encompasses only activities that are

“fully compatible with long-term operations that main-

tain the wetland’s status and function,” but not the “abuse

of the exemption to destroy wetlands”) (emphasis added).

Petitioners do not and could not dispute that they effected

such a conversion.

Petitioners themselves concede (at 33) that activities

“done for the primary purpose of draining and drying out

significant water bodies to convert them to uplands capa-

ble of being farmed” are not exempt. Here petitioners’

activities included dragging four- to seven-foot long metal

tines behind a bulldozer to rip the wetland soil in order to

dry it out and convert the swales and streams to orchards

and vineyards. This deep ripping was necessary to render

the soil suitable for orchards or vineyards or, in other

words, “capable of being farmed” for the new use of or-

chards and vineyards. Thus, petitioners’ own characteriza-

tion of § 404(f) would preclude exemption of their deep

ripping activities.’

VI. PROTECTION OF WATERS THAT UNDIS-

PUTEDLY CONSTITUTE “WATERS OF THE

UNITED STATES” POSES NO FEDERALISM

ISSUES.

Contrary to the suggestions of petitioners and amici,

see, e.g., Pet. Br. 45-46, application of the Act’s permitting

* Petitioners attempt to avoid this result through the untenable

claim that the swales and streams were previously “subject” to cropping

use within the meaning of § 404(f2), even if they had not been

“subjected” to that use. See Pet. Br. 34. The argument simply ducks the

fundamental point: the new use could not occur until petitioners had

first destroyed United States waters by draining and filling them.

requirements as written poses no federalism issues. The

observations of this Court in SWANCC concerning the

federalism implications of regulating waters that do not

qualify as “waters of the United States” under § 502(7) in

no way support petitioners’ and amici’s attempts to inject

federalism concerns into the present case, which addresses

only waters that concededly do qualify. Preventing dam-

age or destruction of United States waters — including the

swales and streams at issue here as well as the rivers,

lakes, perennial streams, and estuaries threatened by

petitioners’ and amici’s sweeping arguments - is a proper

focus of the federal government’s regulatory power.

Indeed, invocation of federalism principles here would

reduce them to a caricature. Surely the applicability of

constitutionally driven clear statement canons cannot turn

on such minutiae as whether excavated earth loses contact

with the ground before being redeposited (Pet. Br. 21) or

whether discharges are accomplished using a backhoe or

bulldozer (id. 26). In either case, waters of the United

States - in whose protection there is a iegitimate federal

interest — are destroyed or damaged.

Nor can the applicability of clear statement canons

hinge on whether petitioners believe the activity at issue

to be “traditional.” See Pet. Br. 46. Aside from the obvious

implausibility of positing a “tradition” of using modern,

mechanized technologies unknown a hundred years ago (in

this case, bulldozing wetlands with four- to seven-foot

metal prongs), our environmental statutes would be

eviscerated if “traditional” activities were insulated from

regulation. After all, piping untreated sewage and indus-

trial effluent into rivers was “traditional” before passage of

the Act, but petitioners presumably would not argue that

29

federalism concerns are implicated by regulating those

practices.’

“Traditional” or not, control of agricultural point

source discharges is essential to preserving the integrity of

United States waters. During the two decades prior to

1977, the annual rate of wetland loss in the conterminous

United States was 458,000 acres — nearly all of it agricul-

tural. 1983 Wetlands Trends Report at 3, 26. Without

control of agricultural point source discharges, the rate of

wetland loss could not have been reduced so dramatically

in recent decades. See 2000 Wetland Trends Report at 9,

46 (from 1986 to 1997, the annual rate of wetland loss in

the conterminous United States dropped to 58,000 acres,

of which agriculture still accounts for 26%). Impacts on

United States waters — whether from individually large

projects, or from a collection of smaller ones — is a proper

focus of federal regulatory authority. See, e.g., United

States v. Lopez, 514 U.S. 549, 558 (1995) (“where a general

regulatory statute bears a substantial relation to com-

merce, the de minimis character of individual instances

arising under that statute is of no consequence”) (citation

and emphasis omitted).

In short, where the waters at issue are undisputedly

United States waters, federalism concerns require no

* Equally if not more far-fetched, amici representing proponents of

mining, roadbuilding, and other infrastructure projects seek to invoke

federalism-driven clear statement canons based on the allegedly

“routine” nature of those projects. Br. of Natl. Stone, Sand & Gravel

Assn., et al., at 16-19. Amici themselves describe these projects as

“large scale,” id. 12, and make no effort to deny their devastating

impacts on United States waters. There is no basis for asserting that

such projects qualify any less as “water pollution issues of national

importance” (id. 17) than discharges from, say, a small town’s sewage

treatment plant, or a small factory.

30

narrowing interpretation of the Act - and in any event the

plain meaning of the Act precludes any such narrowing.

See, e.g., Whitman v. American Trucking Assns., 531 U.S.

457, 471 (2001).

CONCLUSION

Petitioners’ sweeping arguments threaten to produce

major damage and destruction of wetlands, rivers,

streams, lakes, and estuaries around the Nation — not just

by agriculture, but by (inter alia) mining, channelization,

commercial and residential development, and roadbuild-

ing. Those arguments, so inimical to the Act’s core pur-

poses, are refuted by the plain meaning of its substantive

provisions. Compliance with the permit system enacted by

Congress is an essential tool for preventing this devastat-

ing environmental damage, and will not harm the legiti-

mate interests of industry. See, e.g., Huebner, 752 F.2d at

1245-46 (“[W]e decline to be persuaded by [the farmers’)

highly speculative prophecies of doom.... [P]Jroper com-

pliance with the permit process is all that is required

under the Clean Water Act to ensure that the use of the

nation’s wetlands proceeds with care.”). The judgment

below should be affirmed.

DATED: October 25, 2002.

Respectfully submitted,

HOWARD I. Fox

EARTHJUSTICE

1625 Massachusetts Ave., NW, Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Counsel of Record for National Wildlife

Federation, Sierra Club, Natural

Resources Defense Council, and

National Audubon Society