# 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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0547%3A19. Public record. Not legal advice.