Amicus Curiae Brief — Borden Ranch Partnership v. United States Army Corps of Engineers
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No. 01-1243
ee 2002.
Woe Ti CLARK
In The
Supreme Court of the Cnited States
BORDEN RANCH PARTNERSHIP, ANGELO K. PSAKOPOULOS,
Petitioners.
Vv.
UNITED STATES ARMY CORPS OF ENGINEERS, ef ai.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
as _ for the Ninth Circuit
>on
BRIEF OF DR. JOY ZEDLER, DR. GENE LIKENS,
DR. RONALD JONES, DR. REBECCA SHARITZ,
DR. JOSEPH LARSON, DR. BARBARA BEDFORD,
DR. JUDITH MEYER, DR. LEIGH FREDRICKSON,
DR. ORIE LOUCKS, DR. RAYMOND SEMLITSCH,
DR. CHRISTOPHER WOLTEMADE, DR. JOHN
CALLAWAY, DR. KLAUS RICHTER,
DR. STUART FINDLAY, DR. FREDERICK SHORT
ig. AS AMICI CURIAE
~~——IN SUPPORT OF RESPONDENT
John D. Echeverria*
Georgetown Environmental
Law and Policy Institute 1875 Connecticut Avenue, NW
600 New Jersey Ave.,N.W. Washington, D.C. 20009
Washington, DC 20001 (202) 387-3500
(202) 662-9850
* Counsel of Record
Timothy D. Searchinger
Environmental Defense
Attorneys for Amici Curiae
TABLE OF CONTENTS
Page
SOE Ge CFE TEED ccccernsesveesserecseeeememesemensin ili
ee l
SUMMARY OF ARGUMENT ................:csccssssssssesesseseeesenees l
SS ccs 4
I. Congress’s intent to regulate the conversion of
wetlands to uplands would have little significance if
conversions to croplands were not regulated. ..................0000+. 4
Bo FIR CG cccerssscsccneetemnscsneimennasnnnnd 4
B. Significance of conversion of grazed or
forested wetland to cropland ............csscssesseeeeeeeeees 6
C. Environmental affects of wetland
COMVEEIGR 0D COGBERIAG. .:...cccccccscccccccccccccsecossosccssossces 9
D. Cropping and grazing have different
environmental affects and are treated as
different uses by federal agricultural
SGTREEED, ccsnssscesesescascscosnpmneenpnauensnsessepeneansapennumenseqnenses 13
E. Section 404(f)(1) has robust significance
without Petitioners’ expansive reading. ................. 17
II Relocation of sediments or soil dredged from
beneath the surface in wetlands, streams and bays
adds and therefore discharges pollutants .................00000esee+ 18
A. Chemical and biological significance of this
EE WO
| IS
B. Congress's desire to regulate even
“incidental” discharges associated with the
drainage of wetlands counsels against a
limitation of regulation to large soil
SUMP WIEIEETEED cscessesnesesevsccsssssesossscomssnsecsssssesoccssscscecooes 25
C. Congress did not exclude “plowing” from
the definition of a discharge... ............ccccccececsceeeeeeees 27
D. The broad definition of the term pollution
favors a broad definition of a discharge. ............... Jae
as
EE 29
APPENDIX A ~ Brief Biographies of Ammici ..........cccccc000. la
—_— s_
TABLE OF AUTHORITIES
CASES
Page(s)
Avoyelles Sportsmens League, Inc. v. Marsh, 511 F.
Supp. 278, aff'd, 715 F.2d 897, 96 (5" Cir.
TT cotrsicnpenneenstensendemensmnenennannmpennsasienenmmnmansenennensenees 5,6
Borden Ranch v. U.S. Army Corps of Engineers,
Lexis 21389 (E.D. Cal. 1999) ...........cccccccceeeeeeees 2, passim
Minnehaha Creek Watershed District v. Hoffman,
597 F.2d 617, 626 (8™ Cir. 1979) .......cceccsesssessseeesneeeneen 28
National Mining Association v. U.S. Army Corps of
Engineers, 145 F.3d 139 (D.C. Cir. 1998) ..........c.ceseees 27
Ratzlaf v. U.S., 510 U.S. 140 (1994)........cccssesseseeseereeseeneenens 28
United States v. Deaton, 309 F.3d 331 (4" Cir. 200)..... 19-21
United States v. Riverside Bayview Homes, Inc., 474
FR ee 28
Washington Market Co. v. Hoffman, 101 U.S. 112,
BD cxcnconsnensmassemnsnsntiernanmennemmecamanennemnnssensesecscnens 28
STATUTES & REGULATIONS
Page(s)
Farm Security and Rural Investment Act of 2002,
P.L. 107-171, 161 Stat. 134 (2002) .........cccccecsereeeereeees 14
16 U.S.C.
iv
TID TER cccccenesnnsscssnsussenntnenenensesnnnstnmmecsamsenstentts 14
Oe 14
33 U.S.C
RETRO BOG cancensensssnsscsssnmnssssssenssessnsenessccnssescenent 2, passim
DD DE crccenessesssssnermenemeememenene 2, passim
7 C.F.R.
ee 17
II Taped cnnscssensansnnsennesnesensennenisnenemenesstinemanensmnsenes 17
ce E 10, 20
Environmental Protection Agency, Department of
Defense, Further Revisions to the Clean Water
Act Regulatory Definition of Discharge of
Dredge Material, 66 Fed. Reg. 4550 (2001).............00++- 21
LEGISLATIVE HISTORY
Page(s)
S. Rep. 95-370, 76, reprinted in 1977 U.S.C.C.A.N.
IIIB ccssesnsssecsssessnsescenscnessnssnssenssosnssensssnessnensssnsrscssnmsesssassae 4
123 Cong. Rec. $26767 (daily ed. August 4, 1977) ............... 5
OTHER AUTHORITIES
Page(s)
Adamus, Paul, A Process for Regional Assessment
TN 14
Aller, Josephine Y., Sarah A. Woodin, and Robert
Allert (eds.), Organism—Sediment Interactions:
Proceedings of the 1998 Organism-Sediment
Interactions Symposium (1998).................cessceeeeeeeeeeees 21
Vv
Amador, Josea A. G. Hafiza Richany & Ronald
Jones, Factors Affecting Phosephate Update by
Peat Soils of the Florida Everglades, 153 Soil
I a i crrctrenenneinmnenennn 23
Amador, Jose A. & Ronald Jones, Nutrient
Limitations in the Microbial Respiration in Peat
Soils with Different Total Phosphorus Content,
25 Soil Biol. Biochem. 793 (1993).............ccccscccceeeeeeees 23
Bosselman, Fred P., Limitations Inherent in the Title
to Wetlands at Common Law, 15 Stanford Envt'l
is ii ETT dinsentacsieinenereesiensinnanipesiteaniiacepameenpneemel 6
Cochrane, H. & S.D. Williams, Nutrient & Sediment
Loads in a Channelized Stream and a
Nonchannelized Wetland Stream in the Beaver
Creek Watershed, West Tennessee, in Intream
Investigations in the Beaver Creek Watershed in
West Tenneessee 1991 through 1995, USGS
Water Resources Investigations Report 96-4186
GRD cnctetaiaminmsmnsinennmcmmel 9
Dahl, T.E. Wetland Losses in the United States,
1780’s to 1980’s (U.S. Department of. the
Doren, R.F., T.V. Armentano, L.D. Whiteaker and /
R.D. Jones., Marsh Vegetation Patterns and Soil
Phosphorus Gradients in the Everglades
Ecosystem. 56 Aquat. Bot. 145-63 (1999) ...............c000+ 25
Economic Research Service, Agricultural Resources
and Environmental Indicators (2000) .....................-eeeeeee+ 7
Frayer, W.E., T.J. Monahan, D.C. Bowden, and F.A.
Graybill, Status and Trends of Wetlands and
Deepwater Habitats in the Conterminous United
States, 1950’s to 1790’s at __ (U.S. Dept. of
vi
Galat, D.L., J.W. Robinson, and L.W. Hesse. 1994.
Restoring Aquatic Resources to the Lower
Missouri River: Issues and Initiatives, in
Overview of the River-Floodplain Ecology in
the Upper Mississippi River Basin (D.L. Galat
EE
Gambrell, R.P. Trace and Toxic Metals in Wetlands,
A Review, 23 J. Env’! Qual. 883-91 (1994)...
Heimlich, Ralph E., Keith D. Wiebe, Roger
Claassen, Dwight Gadsby, Robert M. House,
Wetlands and Agriculture: Private Interests and
Public Benefits (USDA, Economic Research
SD Sipe ccesseenncccnssccemnennmans 7, 8, 11,
Interagency Floodplain Management Review
Committee, Sharing the Challenge: Floodplain
Management Into the 21st Century (1994)....................
Ivari, T.A., Effect of Choptank Watershed Drainage
Project on Suspended Sediment Concentration,
in Proceedings of the 1991 National Conference
Sponsored by the Irrigation and Drainage
Division of the American Society of Civil
Engineers and the Hawaii Section 223-230
CUD cxseusescssnnestmnemenennstienaiinitietanionnemammmnenae
Letter to Mike Smith & John Lishman from Dr. Joy
Zedler et al. (October 16, 2000) .............ccecceceeseeseseeeeeees
Licht, D.S., Ecology & Economics of the Great
Ludwig, J.P., Caspian Tern Reproduction in
Saginaw Bay Ecosystem Following a 100-Year
Flood Event, 19 J. Great Lakes Research 96-108
Mitsch, William J., John Day, Jr., Wendell Gilliam,
Peter M. Groffman, Donald E. Hey, Gyles W.
17
a ee eg
vii
Randall & Naiming Wang, Reducing Nitrogen
Loading to the Gulf of Mexico from the
Mississippi River Basin: Strategies to Counter
a Persistent Ecological Problem, 51 Bioscience
| ee 12
Mitsch, William. J. & James G. Gosselink, Wetlands
COED cccrcssnsustecsnsnessnrenecsssasensasserssnssnmensnsneenanens 11, 15,22
National Research Council, the National Academy of
Science, The Missouri River Ecosystem:
Exploring the Prospects for Recovery (2002) ............... 12
National Research Council, National Academy of
Sciences, Wetlands: Characteristics and
Ee 17,
Natural Resources Conservation Service, Summary
Report, National Resources Inventory (Revised
Natural Resources Conservation Service, A
Geography of Hope (1996)...........csseseesensenseneenees 15,
Neely, R.K., J.L. Baker, J.R. Jones, V.P. Borofka &
R.W. Bachman, Factors Affecting Nutrient
Loads in Some Iowa Streams, 10 Water Res.
0 eee 9,
O’Connor, Sandra Day and H. Alan Day, Lazy B:
Growing Up on a Cattle Ranch in the American
Office of Technology Assessment, U.S. Congress,
Wetlands: Their Use and Regulation (1984)................ 2,9
Padgitt, Merritt, Doris Newton, Renata Penn,Carmen
Sandretto, Production Practices for Major Crops
in U.S. Agriculture 1990-97 (Economic
Research Service 20D) ...........c.cssccccrscrssecsecssesscssenseees
viii
Peterson, W., E. Wiler & C. Williamowski,
Remobilization of Trace Elements from Polluted
Anoxic Sediments After Resuspension in Oxic
Water, 99 Water, Air & Soil Pollution 515
a eT ee
Portney, John W., Salt Marsh Diking and
Restoration: biogeochemical Implications of
Altered Wetland Hydrology, 24 Env’] Man. 111
GENO) consicinnesiernesiteinnensensiensiitiasingiiiiaasinanadaaaaaaaaniataasitattasiaatl
Ryan, P.A., Environmental Effects of Sediment on
New Zealand Streams: A Review, 25 New
Zealand J. of Marine and Freshwater Research
ee a aretiatiaieteiesiaiaiati atin a iitninatta ia!
Simmons, C.E. & S.A. Watkins, The Effects of
Channel Excavation on Water Quality
Characteristics of the Black River and Ground-
Water Levels Near Dunn North Carolina, U.S.
Geological Survey Water Resources
a Te
South Florida Water Management
Everglades Interim Report (1998) ............c.cssssssesseeeesers
U.S. Army Corps of Engineers, Central and Southern
Florida Project Comprehensive Review Study,
Final Integrated Feasibility Report and
Programmatic Environmental Impact Statement
ER ee
U.S. Army Corps of Engineers, Florida’s Everglades
Program Everglades Construction Project
Environmental Impact Statement (1996)....................... 25
U.S. Army Corps of Engineers, U.S. Fish &
Wildlife Service, Memorandum of Agreement
Concerning Wetland Determinations for
_——y
Purposes of Section 404 of the Clean Water Act
and Subtitle B of the Food Security Act (1994)............ 17
U.S. Environmental Protection Agency, Summary
Fact Sheet: Contaminated Sediments, EPA's
Report to Congress (1998)..........ssssssesssersnesreensenenenenes 24
U.S. Environmental Protection Agency, Office of
Water, The Quality of Our Nation’s Waters
(2O0D) ..ecrerscrersrrcrsesverererseerereoseseoseseoseosescesonssssssoososooseosess 15
U.S. Fish & Wildlife Service, Biological Opinion for
the Missouri River (2002) ............ssesseereeereneeeeeeeneens 12
U.S. National Science and Technology Council,
Committee on Environment and National
Resources, Integrated Assessment, Hypoxia in
the Northern Gulf of Mexico (2000) ............ceeeseeeeeeeees 12
Webster's Third New International Dictionary
(unabridged) (1981)..........sseeserersnsersnnerenesesnnsnsnsnerneners 25
Wilcove, David, The Condor’s Shadow: The Loss
and Recovery of Wildlife in America (1999)............. 7,16
Woltemade, Christopher, Ability of Restored
Wetlands to Reduce Nitrogen and Phosphorus
Concentration in Agricultural Drainage Water,
J. Soil & Water Cons. 303 (2000) ...........ccccereereerrerenenees 9
Lo Se...
_s
ee
— me — —
STATEMENT OF INTEREST
Pursuant to Supreme Court Rule 37, fifteen scientists file
this brief with the consent of the parties as amici curiae in
support of Respondent, the United States.’
Amici are scientists with broad expertise in America’s
aquatic ecosystems. They include leading authors on
wetlands, hydrology, and aquatic systems, and they have
together won many distinguished awards, including the
National Medal of Science. Many amici have chaired or
served on panels of the National Academy of Sciences
established to advise Congress or federal agencies on issues
related to wetlands. As discussed below, many amici filed
extensive scientific comments in a recent rulemaking related
to the issues in this case, which the federal agencies found to
present highly relevant and credible evidence. An appendix
with a brief biography of each scientist is attached.
SUMMARY OF ARGUMENT
The central question in this case is whether Congress
intended to regulate the conversion of wetlands to uplands
for use in crop production. According to the District Court,
Borden Ranch Partnership accomplished this conversion
through the use of mechanized equipment that both drained
the swales at issue, and filled them “partially” or “fully.”
Petitioners equate their activities with normal plowing, and
contend that they should not be regulated any more than the
normal, ongoing plowing that occurs in many wetlands
without draining them. As a matter of science, this argument
ignores how drastically deep-ripping differs from normal
plowing, principally because it can transform and eliminate
wetlands.
, This brief was not authored in whole or in part by counsel for a
party, and no person or entity, other than amici curiae or their counsel,
made a monetary contribution to the preparation or submission of the
brief.
2
Section 404(f)(2) requires regulation of discharges
“incidental” to "any" activities that change the use and
reduce the reach of waters. The legislative history of this
section indicates that Congress intended to regulate the
drainage of wetlands for other uses. There is therefore an
obvious distinction between the deep ripping and filling of
the swales at issue in this case and normal plowing.
Petitioners claim that any change to cropland from a
wetland used for rangeland or forestry should not be
considered a change in use. However, this interpretation
would exempt from the Clean Water Act the majority of the
wetland conversion in the United States, including 80% of
the wetland conversion that occurred in the twenty years
prior to the adoption of Section 404(f).? This conversion has
been a major source of pollution and of degradation of rivers,
wetlands and bays in the United States, including the
Everglades, the Gulf of Mexico and the Missouri River.
The fact that the swales at issue in this case were
previously grazed does not distinguish these wetlands from
nearly 8 million acres of wetlands used as rangelands that
retain most or all of their valuable wetland functions.
According to USDA, there are also 61 million acres of
forested wetlands. Petitioners’ interpretation of Sec. 404(f)
attempts to define cropping, ranching and silviculture as one
use. Under Petitioners’ interpretation, Section 404(f) would
allow the great majority of the roughly 100 million acres of
wetlands in the United States to be converted to uplands for
crop use without any regulatory review. It is not possible to
reconcile Petitioners’ views with Congress’s goals to subject
the “drainage” of wetlands to review.
Petitioners here excavated soil from five to seven feet
below the wetland and mounded it and pushed it into furrows
2
Office of Technology Assessment, Wetlands: Their Use and
Regulation 87, 92 (1984) (using data from U.S. Fish & Wildlife Service
Status and Trends analysis).
3
two feet high. Borden Ranch v. U.S. Army Corps of
Engineers, Lexis 21389 at 2 (E.D. Cal. 1999). As the Court
of Appeals for the Fourth Circuit recognized in United States
v. Deaton, the excavation of soils beneath a wetland and their
redeposit on the surface “adds” and therefore discharges the
statutorily identified pollutant, dredge spoil, which was not
present when the material existed only in a more benign form
buried under the wetland. 33 U.S.C. Sec. 1362(12). The
Deaton court recognized that soils, sediments and attached
pollutants a few feet below the surface of a wetland or other
water body are far less bioavailable and therefore less able to
cause harm than those same sediments and pollutants when
brought up and spread along the surface. When sediments
are deeply buried, it is appropriate to question whether they
are part of the water body at all.
The potential harm from these additions of dredge
material does not turn on whether the material brought to the
surface moves horizontally only a few feet. Neither does a
small volume of sediment mean insignificant pollutants have
been added since pollutants of concern, such as toxics
embedded in the sediment, can cause pollution in
microscopic amounts. There is no significant distinction
between the soil relocations at issue in this case and those in
the many other lower court cases that Petitioners
acknowledge involve discharges.
Furthermore, in Section 404(f)(2) Congress required the
regulation of discharges that were merely “incidental” to
“any” activity that converts wetlands and streams to upland
uses. This suggests that Congress wished to reach broadly
to cover essentially any movements of sediment associated
with the conversion of wetlands. That counsels against
Petitioners’ efforts to dismiss as too small the soil relocations
at issue in this case. They were sufficient to fill and convert
the wetland and therefore were the exact type of activity
Congress sought to regulate through Section 404(f)(2).
4
ARGUMENT
I Congress’s intent to regulate the conversion of
wetlands to uplands would have little significance if
conversions to cropland were not included.
A. Statutory Background
A brief summary of the language and legislative history
of Section 404(f) is necessary to appreciate the relevance of
the scientific information presented here.
Section 404(f)(2), 33 U.S.C. Sec. 1344(f)(2), requires a
permit for discharges “incidental” to "any activity" that are
designed to “change” the “use” and “reduce the reach” of
regulated waters. Since wetlands can be waters of the United
States, this language on its face applies to activities that
change the use and “reduce the reach” of wetlands by filling
or draining them and thereby eliminating them or reducing
their extent as waters of the United States. This concern
about the drainage of wetlands is also reflected by Section
404(f)(1), which exempts only “minor” drainage, not major
drainage. The desire to regulate drainage is also implied by
Section 404(f)(1)(c), which exempts both the “construction”
and “maintenance’ of irrigation ditches, but exempts only the
“maintenance” not the new construction of “drainage
ditches” that effects new drainage.
The legislative history of Section 404(f) articulates this
intent to regulate fill and dredging activities that convert
wetlands to uplands through drainage. The report of the
Senate Committee, which crafted 404(f), stated: “The
exemption for minor drainage does not apply to the drainage
of swampland or other wetlands." S. Rep. 95-370, 76,
reprinted in 1977 U.S.C.C.A.N. 4326, 4401 (emphasis
supplied). In discussing Section 404(f)(2), the report also
stated, “[P]Jermit review is necessary for placement of fill to
Sa _ ss «=.
—_—_
5
convert a hardwood swamp to another use through
construction of dikes or drainage channels.” Jd. at 4402. On
the floor, Senator Muskie, the principal author of the
amendments, explained, “Permits are required . . . where
ditches or channels are dredged in a swamp, marsh, bog, or
other truly aquatic area.” See 123 Cong. Rec. S26767 (daily
ed. Aug. 4, 1977).° Indeed, the requirement to regulate
conversion was part of an overall goal to exempt only those
activities that would have "’little or no adverse affect" on the
nation's waters. Avoyelles Sportsmens League, Inc. v. Marsh,
715 F.2d 897, 926 (5" Cir. 1983) (quoting floor statement of
Senator Muskie).
The District Court found that the activities by Borden
Ranch converted wetlands used for grazing into uplands for
the purpose of planting a vineyard both by filling and
draining them. E.R. 1011- 12.* Petitioners argue, however,
that converting grazing land to cropland is not a change in
use and so is not subject to Section 404(f)(2). Petitioners
argue, in fact, that "normal farming, silviculture and
ranching” should all be treated as the same use because they
are all listed in Section 404(f)(1) (even though Congress
considered them to be different enough to list them
separately.) This interpretation would allow conversion of
both grazed and timbered wetlands to uplands used for crops
3 Even those who favored broader legal changes agreed that at least
SD Ne ee ee Senator Dole
stated: “I agree that the construction of major canals and waterways
designed to modify significantly or to drain an entire swamp or
marshland should not fall within the category of ‘minor drainage." 123
Cong. Rec. S26767 (daily ed. Aug. 4, 1977).
* — Petitioners repeatedly assert that the land was capable of being
“farmed” even before this conversion. The legal significance of this
capability is not clear, but in any event, the District Court specifically
found that Petitioners deliberately deep-ripped the land to drain it for the
purpose of being able to plant vineyards and orchards that could not
otherwise be planted on the land because it was too wet. ER-1011-12.
without regulatory review. Science relevant to these
discussions is presented below.
B. Significance of conversion of grazed or forested
wetlands to cropland
By the 1980’s, the contiguous Unitted States had Jost
more than half of the estimated 221 million acres of wetlands
that existed in the 1780’s and had only slightly more than
100 million acres left.’ The “vast majjority” of this loss
resulted from conversion to croplands. id. at 9. In the two
decades preceding Congress’s enactment of Section 404(f) in
1977, rates of loss were averaging 550,(000 acres per year,
and eighty percent of this loss resulted ‘from conversion to
croplands.° Moreover, much of thiis conversion was
concentrated in the southeast, where boittomland hardwood
swamps (the wetlands specifically identtified in the Senate
report for Section 404(f)) were being reapidly converted to
soybean fields as described in Avoyelles.’
Petitioners contend that there is no change in use
because the wetland swales at issue were ‘already grazed. But
grassed wetlands have been used extensiively for grazing by
farmers since at least the Middle Ages. )Fred P. Bosselman,
Limitations Inherent in the Title to Weetlands at Common
Law, 15 Stanford Envt’] L.J. 247, 279) (1996) (discussing
common use of grazing lands in ‘English wetlands).
5 TE. Dahl, Wetland Losses in the United Stats, 1780's to 1980's.
(U.S. Department of the Interior 1990).
© — OTA, supra note 2, at 87, 92; W.E. Frayeer, T.J. Monahan, D.C.
Bowden, & F.A. Graybill, Status and Trends of Wetlands and Deepwater
Habitats in the Conterminous United States, 1950"''s to 1790's (1983).
? See OTA, supra note 2, at 108; Dahl, suprra note 5, at 9 (mapping
conversion of wetlands to cropland). To undeerstand that the wetland
conversion at issue in Avoyelles was for the crezation of a soybean field,
see the District Court opinion at 511 F. Supp. 2783, 287 (W.D. La. 1981).
7
Throughout the United States, in fact, both wetland and
upland grasslands were grazed naturally by bison, deer and
other ungulates, and therefore are compatible with at least
some grazing. (See discussion infra at 15-16). USDA
estimates that these kinds of rangelands occupy 578 million
acres, roughly 30% of the contiguous United States,* and
wetlands used as rangeland occupy an estimated 7.8 million
acres.” Under Petitioners’ theory, all these wetlands could be
converted to uplands for cropping purposes without any
regulatory review.
Moreover, more than half of the remaining wetlands in
the United States are forested (roughly 61 million acres
according to USDA),'° and nearly all of these wetlands have
been subject to periodic silvicultural use through at least
timber harvest.'' Wetlands subject to extensive forestry
. Economic Research Service, Agricultural Resources and
Environmental Indicators |:1-3 (2000).
® Ralph E. Heimlich, Keith D. Wiebe, Roger Claassen, Dwight
Gadsby, Robert M. House, Wetlands and Agriculture: Private Interests
and Public Benefits 22 (USDA, Economic Research Service 1998).
10 Heimlich, et al., supra note 9, at 22. (Sometimes figures of roughly
50 million acres are used by the Fish & Wildlife Service, separating
forested wetlands from shrub wetlands.)
'| ‘The fact that forested wetlands have been harvested for timber is
simply a reflection of the fact that nearly all the country’s forests have
been periodically subject to timber harvest and other silvicultural
activities. See David Wilcove, The Condor’s Shadow: The Loss and
Recovery of Wildlife in America 18 (1999) (“So thorough were the
settlers and timber companies that, over the course of about two
centuries, almost every acre of virgin forest from Maine south to Florida
and west to the Great Plains fell to the ax or saw.”). See also Reed Noss,
Edward T. Laroe III, J. Michael Scott, Endangered Ecosystems of the
United States: A Preliminary Assessment of Loss and Degradation,
National Biological Survey Biological Report 28, 37 (1995) (95-98% loss
of virgin forests in contiguous U.S. by 1990); Reed F. Noss & Robert L.
Peters, A Status Report on America's Vanishing Habitat and Wildlife 68
(1995) (southern forested wetlands have been “extensively logged”);
include the category of “bottomland hardwood swamps”
identified in the Senate Report as lands whose conversion to
other uses would be regulated. These wetlands too, under
Petitioners’ theory, would be subject to conversion to uplands
for cropping purposes without any regulatory review.
The potential for conversion under Petitioners’ theory is
not merely theoretical. In 1998, the Economic Research
Service of the U.S. Department of Agriculture estimated that
if legal restrictions were dissolved, farmers would likely
convert another 5.8 to 13.2 million acres of wetlands purely
for farming purposes. Interestingly, ERS also estimated that
overall farm income would decline since the increased
production would depress farm prices. '”
Of course, once wetlands are converted to upland crops,
the lands are no longer waters of the United States under the
Clean Water Act. They can then be converted to roads,
buildings or other developed uses without a permit. [If
Petitioners’ theory were accepted, therefore, wetlands would
likely be extensively converted to upland crops as a
temporary step toward developing them.
For Petitioners’ interpretation of Section 404(f) to be
correct, Congress in 1977 must have wished to ignore the
vast majority of conversions from wetlands to uplands
occurring at the time and throughout American history. And
if Petitioners’ interpretation were correct, even conversion of
wetlands to developed uses could easily circumvent any
regulatory review. Petitioners’ interpretation of 404(f) is
inconsistent with Congress's intent to regulate wetland
conversion.
Mitsch & Gosselink, supra, at 56 (Great Dismal Swamp in Virginia and
North Carolina subject to extensive forestry).
12 Heimlich et al, supra note 9, at 31-38.
9
C. Environmental affects of wetland conversion to
cropland
The significance of wetlands to the chemical, physical
and biological integrity of the nation’s water bodies is
difficult to overestimate. They filter pollutants that could
otherwise clog, poison or over-fertilize deeper portions of
rivers and bays. They transform these pollutants into plant
materials and small animals that form the base of much of the
streams in agricultural areas when wetlands are drained and
converted to cropland.'* As these studies reveal, this kind of
- See generally, Office of Technology Assessment, Wetlands: Their
Use and Regulation 43-61 ere ee See
'4 See generally, Christopher Woltemade, Ability of Restored Wetlands
experienced great wetland drainage, the other of which retained its
wetlands, the U.S. Geological Survey documented downstream sediments
loads 32 times greater and nitrogen loads 23 times greater in the
channelized system, and also documented more rapid flood flows and
stream erosion. H. Cochrane & S.D. Williams, Nutrient & Sediment
Loads in a Channelized Stream and a Nonchannelized Wetland Stream in
the Beaver Creek Watershed, West Tennessee, in instream Investigations
in the Beaver Creek Watershed in West Tennessee 1991 through 1995,
USGS Water Resources Investigations Report 96-4186 (1996). See also
10
drainage also increases soil erosion along the stream banks,
bringing a new source of sediment downstream. See
generally 40 C.F.R. Sec. 230.41.
In describing her home ranch, Justice O'Connor
colorfully depicts the erosive effect of channelizing flow on
agricultural landscapes.
“In an effort to keep floodwater away from the railroad
tracks, the railroad company built levees and diversions
to channel the water [of Railroad Draw] out from the rail
bed. In time these efforts led to massive erosion, cutting
a channel in the draw as deep as fourteen feet in places.
Where formerly the rainwater had spread out over wide
areas of the draw and produced thick grass in the rainy
seasons, after the levee and diversion work, gullies
formed, which in turn developed into steep defined
canyons.”
Sandra Day O’CUnor and H. Alan Day, Lazy B: Growing
Up on a Cattle Ranch in the American Southwest 260 (2002).
Although this channelization was not undertaken for
agricultural purposes, and the passage does not clearly
defines the characteristics of “Railroad Draw," the results
precisely reflect the consequences that often occur when
wetlands are drained to produce crops.
The ecological significance of this conversion can be
illustrated by a few examples.
Of the historic Everglades, roughly the northern quarter
have been drained through a complicated system of ditches
and pumps to form the Everglades Agricultural Area,
predominantly used for sugarcane. Ongoing drainage of this
117-121, 120-21 (1976) (watersheds with fewer wetlands and more
drainage have increased nutrient loads in streams).
11
cropland dramatically alters the flow of water into the
Everglades, pouring in too much water during rainy seasons
rag tyr tpn ag noe pra
years. These changes have greatly contributed to major
ecological declines, including pollution that has transformed
major chunks of the historic “river of grass” to dense stands
of cattail, major declines in fish populations and the loss of
90% of the historic populations of wading birds. Reversing
the hydrologic effects is a major focus of the $7.8 billion
Everglades restoration plan authorized by Congress in
2000.
The corn belt states of Ohio, Indiana, Illinois, lowa and
Missouri have lost at least 85% of their wetlands (25 million
acres total), almost all to agricultural conversion.’®
Similarly, the lower Mississippi Valley has lost three quarters
of its 21 million acres of forested wetlands, primarily to
cropland conversion.'’ This drainage of wetlands for
cropland has allowed excess “nutrients” to flow to the Gulf of
Mexico creating a large "dead zone." Nitrogen fertilizer
running off cropland is no longer filtered by wetlands, and
the nitrogen creates explosions of algae. When they die, the
bacteria that eat them suck the oxygen out of the water that is
'S Good explanations of this Everglades problem can be found in
South Florida Water Management District, Everglades Interim Report
(1998) (a peer reviewed publication that describes both the major water
Feasibility Report and Programmatic Environmental Impact Statement
(April 1999). For discussions of the declines in fish and wading bird
populations see pages 3-1, 3-2, 3-9 and 3-11.
1© See Dahl, supra note 5, at 6, 9 (listing losses by state and mapping
extent of drainage for agriculture).
17 William. J. Mitsch & James G. Gosselink, Wetlands 49 (1993).
Heimlich et al, supra note 9, at 20 (attributing losses primarily to
cropland conversion).
12
needed for fin and shellfish, leaving an area the size of
Massachusetts devoid of aquatic life.” In order to make up
for the historic loss of wetlands, scientists working for the
federal government to design a solution have identified the
need to restore millions of acres of wetlands.'®
Levee and drainage activities along the lower Missouri
River have contributed to the extensive loss of wetlands, and
other shallow habitats such as oxbow lakes and mudflats, as
the habitats were converted to cropland. These wetlands and
related habitats originally provided critical spawning and
rearing grounds for the river’s fish, and they produced much
of the insects and plant material that supported the river's
food web. In part to protect this new cropland that would
otherwise flood each year, dams on the upper river are
managed to control the natural rise and fall of the river.
According to a recent report of the National Academy of
Sciences, “Of the 67 native river fish living along the
mainstem fof the river], 51 are now listed as rare,
uncommon, and/or declining... .””°
'8 See generally, U.S. National Science and Technology Council,
Committee on Environment and National Resources, Integrated
Assessment, Hypoxia in the Northern Gulf of Mexico (2000).
'9 See William Mitsch, John Day, Jr., Wendell Gilliam, Peter M.
Groffman, Donald E. Hey, Gyles W. Randall & Naiming Wang,
Reducing Nitrogen Loading to the Gulf of Mexico from the Mississippi
River Basin: Strategies to Counter a Persistent Ecological Problem, 51
Bioscience 373-88 (2001). “Because of extensive artificial drainage over
the past 200 years, many of the once-ubiquitous freshwater wetlands and
riparian zones associated with the streams and rivers of the basin no
longer exist. Gone with them is their capacity to mitigate water
pollution.” /d. at 376.
20 National Research Council of the National Academy of Science,
The Missouri River Ecosystem: Exploring the Prospects for Recovery 3
(2002). In addition to the National Research Council report, for a good
summary of the changes to the Missouri River and its impacts, see D.L.
Galat, J.W. Robinson, and L.W. Hesse, Restoring Aquatic Resources to
the Lower Missouri River: Issues and Initiatives, in Overview of the
13
The uncontrolled conversion of wetlands to uplands used
for crops is inconsistent with Congress's intent to exempt
only activities with “little or no adverse effects" on the
nation’s waters, Avoyelles, 715 F.2d at 926.
D. Cropping and grazing have different environment
affects and are treated as different uses by federal
agricultural policies.
Cropping and grazing should be treated as different uses,
among other reasons, because they have dramatically
different environmental and economic consequences and as a
result have been treated differently by the U.S. Department
of Agriculture and federal agricultural policy. For example,
USDA conducts a private land census on a periodic basis,
and in doing so, distinguishes five major land uses:
cropland, grassland pasture and range, forestland, urban uses,
special uses and miscellaneous. Within the contiguous
United States, grassland pasture and range is the largest use
at 589 million acres and exceeds cropland at 460 million
acres and forestland at 559 million acres.”"
River-Floodplain Ecology in the Upper Mississippi River Basin (D.L.
Galat & A.G. Frzer eds.) (1994); U.S. Fish & Wildlife Service, Missouri
River Biological Opinion 116 (2000) (describing habitat losses and their
significance). Another good summary of the Missouri River changes
stated as follows: “The Missouri River’s natural riparian ecosystem has
been nearly eliminated and presently consists of a discontinuous, single
row of trees. Missouri River floodplain forest coverage decreased from
76 percent in 1826 to 13 percent in 1972, while cultivated lands increased
pt ge ete pall Population densities of fish species
of chubs, and two species of minnows have been reduced by as mUch as
eo, Interagency Foodplain Management Review
Committee, Sharing the Challenge: Floodplain Management Into the 21"
Century 56-57 (1994).
21 Economic Research Service, Agricultural Resources and
Environmental Indicators 1:1-3 (2000), page 1:1. See also National
Resources Conservation Service, Summary Report, 1997 National
14
Reflecting the different environmental effects of
ranching and cropping, agricultural conservation programs
seek to limit the conversion of rangeland to crops but do not
restrict grazing. For example, both the Sodbuster and
Swampbuster provisions of the Food Security Act of 1985
deny certain farm subsidies to farmers who convert
potentially erodible grasslands or wetlands to cropland, but
there are no consequences for grazing such lands.” The
Conservation Reserve Program pays farmers to reconvert
cropland to grasslands or forests to control soil erosion, and
improve water quality and wildlife habitat, but the law allows
controlled grazing of such lands. 16 U.S.C. Sec. 1232(1)(7),
as amended by Section 2101 of the Farm Security and Rural
Investment Act of 2002, P.L. 107-171, 161 Stat. 134 (2002).
And a new Grassland Reserve Program pays farmers not to
convert grasslands to croplands, but allows grazing to
continue. Section 2401, P.L. 107-171 (2002).
These policies reflect Congressional awareness of the
environmental consequences of converting grazed lands,
including grazed wetlands, to croplands. The policies reflect
the significant environmental distinctions between growing
crops and ranching.
First, a wetland grazed under natural conditions
maintains its basic water quality and flow-slowing
Resources Inventory 18-24 (Revised 2001) (separating cropland from
range and pasture land).
22 16 U.S.C. Sec. 3801(a)(1)A) (defining agricultural commodity, the
production of which can lead to the loss of crop benefits, only as an
a. eee
fe) soil").
15
functions.” Water quality filtration, for example, occurs
through the contact between water and the plants and the
wetland soil. The conversion to an upland crop will greatly
reduce or eliminate functions like water quality filtration,
particularly of long swales that provide a long distance for
water to interact with the soils.
Second, cropping typically involves the regular turnover
of soil, leaving it exposed to water and wind erosion.” Soil
erosion on cropland is one of the largest water quality
problems in the United States. ° There can be some erosion
on rangeland, but it is typically minimal by comparison
because the grasses and their roots hold the soil in place. The
23 paul R. Adamus, A Process for Regional Assessment of Wetland
Risk, ch. 4.5 (1992) (reviewing literature regarding impacts of grazing on
northern prairie wetland functions and finding no effects on runoff
volume, timing and groundwater recharge, only limited effect on capacity
to retain sediment and phosphorus and possibly enhanced breakdown of
nitrogen).
24 See Mitsch & Gosselink, supra note 17, at 139-58 (discussing
transformation of pollutants in wetland soils).
25 It is poss le to plant some crops without complete annual tillage,
but such no-till cropping was used by only 15% of cropland in the U.S. in
1997, and 63% of farmers have yet to adopt any form of conservation
tillage, which includes leaving residue on the crop fields to limit erosion.
Merritt Padgitt, Doris Newton, Renata Penn, Carmen Sandretto,
Production Practices for Major Crops in U.S. Agriculture, 1990-97, 67
(Economic Research Service 2000).
= Natural Resources Conservation Service, A Geography of Hope 40
(1996) (hereinafter "Geography of Hope") (“One of the major sources of
water quality impairment from agriculture is the sediment . . . that enters
streams as a result of soil erosion.”) A national map of estimated
sediment delivered to rivers and streams from soil erosion shows heavy
delivery in intensively cropped regions and little delivery from areas
dominated by rangeland. Jd. at 41. In general, state reports to the EPA
list agricultural runoff as the most prevalent source of water quality
problems. U.S. EPA, Office of Water, The Quality of Our Nation's
Waters 64, 87, 107 (2000).
16
vineyards at issue here would not be replanted every year,
but vintners typically keep soil uncovered between the plants.
Third, cropland typically involves heavy inputs of
fertilizer and pesticides, while such uses on rangeland are far
smaller or non-existent.”” The runoff of these chemicals
creates significant water quality problems.
Finally, rangeland typically maintains far greater habitat
values for the grassland species that used them.” Indeed,
some grazing is critical for many species that depend on
grazing lands. The conversion of grasslands to is
considered a major cause of concern for much wildlife.
All human uses of the land can have some adverse
environmental effects, and excessive or inappropriate grazing
can do so as well. However, science bears out Justice
O’Connor’s statement that “good grazing practices could be
good for the land.” O’Connor & Day, supra, at 262-63.
” Geography of Hope at 43, 46 (maps of national potential runoff of
nitrogen, phosphate and pesticides show high cropping areas as areas of
concern and rangelands as of little concern). While more than 600
million pounds of active pesticide ingredients were applied to corn,
wheat, soybeans, cotton, vegetables, potatoes and fruit, so few pesticides
are applied to rangeland that USDA does not survey uses on rangeland.
See Economic Research Service, supra note 21, chapter 4.3
28
As one summary states: “A convincing argument can be made that
grazing is necessary for a healthy grassland ecosystem. Light to
returns nutrients to the soil through excreta. In fact the variety of life in
the great grasslands of North America was shaped in large part by
——¢ D.S. Licht, Ecology & Economics of the Great Plains 67
29 “In recent decades, many farmers have converted their hayfields and
pasturelands to the more profitable row crops, a change that has
decimated populations of some [grassland] birds.” Wilcove, supra note
11, at 98 (summarizing grassland bird declines).
17
Treating the conversion from a grazed wetland to an
upland crop as a change in use is consistent with common
usage, sound science and obvious environmental differences.
E. Section 404(f) has robust affects without
Petitioner’s expansive reading.
Applying Section 404(f) to regulate conversion of
wetlands to uplands used for crops does not deprive the
“normal farming” exemption in 404(f)(1) of major
significance. Of the remaining wetlands in the United States,
roughly 10.5 million acres are estimated to be so-called
“cropped wetlands” by the U.S. Department of Agriculture.*°
These are wetlands that remain inundated in the late winter or
spring, but in which the water runs off early enough to allow
farmers to plow and grow crops at least in some years. Some
of these wetlands have been subject to some drainage but not
enough to eliminate wetland conditions; others are not
drained at all. The functions of these wetlands are’ degraded,
but they can still be valuable in many cases. Depending on
30 Heimlich et al at 22; see also National Research Council, National
Academy of Sciences, Wetlands: Characteristics and Boundaries 158
(1995) (10 million acres of farmed wetlands). For identifying which
cropped wetlands are still flooded enough to be considered wetlands, the
EPA and Corps of Engineers use the same standards used by the U.S.
Department of Agriculture. See U.S. Soil Conservation Service, U.S.
Environmental Protection Agency, U.S. Army Corps of Engineers, U.S.
Fish & Wildlife Service, Memorandum of Agreement Concerning
Wetlands Determinations for Purposes of Section 404 of the Clean Water
Act and Subtitle B of the Food Security Act (1994) (stating that
“agricultural lands” which are defined not to include rangelands, shall be
identified using USDA standards). USDA's standards are set forth at 7
C.F.R. Section 12.31 and 12.32(a)(3) and provide that a wetland is not
considered fully converted, even if converted for cropping, if “surface
water is present for extended periods especially early in the growing
season even though it may be absent by the end of the season in most
years.”
18
the circumstances, they can still store and hold floodwaters,
filter sediments and other pollutants, provide Spawning areas
for fish, and feeding grounds for water birds.*"
Section 404(f) guaranties that farmers can, without a
permit, continue to plow, maintain drainage systems and
engage in any other normal activity used to grow crops.
They may similarly switch to other crops. Section 404(f)
similarly guaranties that foresters can continue to build roads
and harvest timber without a permit. Section 404(f) therefore
has significant effects without Petitioners’ overly expansive
reading.
IL Relocations of sediments and soils dredged from
beneath the surface in wetlands, streams and bays add
and therefore discharge pollutants.
Borden Ranch Partnership’s activities in this case
involved dredging materials from five to seven feet down
from the bottom of the wetland, and pushing it in a manner
that in some cases "mounded” the material and in other cases
created raised rows at least two feet high. District Court
Opinion, E.R.1028-30. The District Court found that these
soil movements “filled” drainages hundreds of feet long
either “partially” or “fully,” ER 1028-30, and that pollutants
moved “horizontally and vertically.” E.R. 1012. Petitioners
characterize their activities as simply “turn[ing) soil in
place,” Brief of Petitioners at 18, but this description ignores
the environmental significance of the relocation, which
3! National Research Council, supra note 30, at 160-61 (stating that
“{ajgricultural wetlands” although reduced in function “are generally
an a SENS ae eee See
important for controlling water quality, preventing floods,
ame taeda as dean eed aie ts tee
agricultrural runoff).
19
exposed soil immediately at or near the surface that
previously had only been buried several feet.
Petitioners claim that these movements do not make
an “addition” of "any pollutant" to the water body and
therefore cannot constitute "discharges" under Section
502(12). Petitioners do not appear to dispute the many lower
court cases that have found pushing soil around in a wetland
to be discharges. Brief of Petitioners at 26-27. Close
inspection of these cases reveals that they address activities
hard to distinguish from this case, ranging from cutting
vegetation and pushing it into wetlands to the construction of
drainage ditches by pushing material to the side of the ditch.
Petitioners’ wish to distinguish the soil-moving activities at
issue in this case in part on the theory that anything that can
be described as plowing cannot be a discharge, and in part on
a theory that the relocations are somehow too minor to add
pollutants. Both distinctions are unfounded.
A. Chemical and biological significance of this
relocation.
In United States v. Deaton, 209 F.3d 331 (4 Cir.
2000), the United States Court of Appeals for the Fourth
Circuit explained well why even relatively small-scale
excavation and relocation of materials from beneath the
surface of a wetland or stream adds pollutants: It may not
add material, but it adds a pollutant, "dredge material" that
did not exist when materials were present only in a more
benign form:
“Contrary to what the Deatons suggest, the statute
does not prohibit the addition of material; it prohibits
‘the addition of any pollutant.’ The idea that there
could be an addition of a pollutant without an
addition of material seems to us_ entirely
unremarkable. . . . It is of no consequence that what is
ee
20
now dredged spoil was previoussly preseut on the
same property in the less threatenitng form of dirt and
vegetation in an undisturbed state.””
209 F.3d at 335.
Moreover, the Deaton court didd a good job of
explaining the scientific basis for conccern with material
dredged from wetlands, particularly wheen associated with
drainage.
“Wetlands perform a vital role inn maintaining water
quality by trapping sediment and toxic and nontoxic
pollutants before they reach streaams, rivers, or other
open bodies of water. See Offfice of Technology
Assessment, U.S. Congress, Wetlaands: Their Use and
Regulation 48-50 (1984). Givven sufficient time,
many (but not all) of these pollutaants will decompose,
degrade, or be absorbed by wetldand vegetation. See
id. at 48-49. When a wetland iss dredged, however,
and the dredged spoil is redeposkited in the water or
wetland, pollutants that had beeen trapped may be
suddenly released. See id. at 499 ("Natural or man-
made alterations of the wetland caused by lowering
the water table, dredging, and the : like, could mobilize
large quantities of toxic materiahls."); id. at 124 ("A
long-term effect of the dispossal of contaminated
dredged spoil in or near wetlannds is the potential
bioavailability of toxic chemicaals such as oil and
grease, pesticides, arsenic, and | heavy metals, when
the sediments are resuspended peeriodically."). At the
same time, the increased drainage brought about by
the dredging may render the ssurrounding wetland
unable to reabsorb and filter tthose pollutants and
sediment (the very purpose of diiredging is to destroy
wetland characteristics). See 400 C.F.R. § 230.41(b)
(explaining how discharge of dreedged or fill material
21
in wetlands “can degrade water quality . . . by inter-
fering with the filtration function of wetlands . . . “).
Even in a pristine wetland or body of water, the
discharge of dredged spoil, rock, sand, and biological
materials threatens to increase the amount of
suspended sediment, harming aquatic life. See id.;
Office of Technology Assessment, supra, at 48.”
209 F.3d at 336 (some citations deleted, elipsis added).
The basic scientific fact recognized by the court in
Deaton is that sediments and their associated pollutants
buried even a few feet beneath the surface of a bay, river or
wetland are far less biologically available than those same
sediments and pollutants when spread across the surface. In
a recent rule-making on the activities that cause discharges,
many of the amici scientists submitted comments identifying
dozens of scientific references that show the significance of
this change.” These comments were extensively summarized
in the preamble to the final report and found to be credible by
the EPA and the Army Corps of Engineers. Environmental
Protection Agency, Department of Defense, “Further
Revisions to the Clean Water Act Regulatory Definition of
‘Discharge of Dredge Material," 66 Fed. Reg. 4550, 4563-64
(July 13, 2001). The discussion below is largely drawn from
these comments.
The upper foot or even smaller portion of a wetland
or stream or river bottom is of great ecological significance.”°
32 Letter to Mike Smith & John Lishman from Dr. Joy Zedler et al.
(October 16, 2000).
33 See generally Josephine Y. Aller, Sarah A. Woodin, and Robert
Allert (eds.), Organism —Sediment Interactions: Proceedings of the 1998
Organism-Sediment Interactions Symposium (1998) (discussing
importance of upper sediment layer for biochemical interactions between
sediments and water column and use by marine animals). As the leading
textbook on wetlands states, "Wetland soil is both the medium in which
en EEE
22
Large numbers of aquatic organisms from worms to shellfish
live in this surface layer, in which many fish also lay their
eggs. The sediment characteristics required for these
organisms may be precise. (As one well known example,
salmon eggs require gravel beds.) A major concern with the
redeposit of dredge material is that when new sediments
replace the old, they may bury these organisms, or they may
no longer be compatible with the needs of the organisms.™
Increased loads of chemical pollutants attached to the
sediment below the wetland are also a concern because
bottom dwelling organisms tend to absorb chemicals, such as
metals, and may pass them up the food chain to fish and
ultimately humans in increasingly concentrated form.*> And
redeposited material and its chemical pollutants are also
typically left in less compact form than normal wetland soils
or sediments, and therefore are more easily swept up into the
water column or down a stream or drainage ditch where they
may cause other harm. Studies have repeatedly found
many of the wetland chemical transformations take place and the primary
storage of available chemicals for most wetland plants.” William. J.
Mitsch & James G. Gosselink, Wetlands 115 (1993). In general, the
particular characteristics of wetland soils, particularly those in the upper
foot, determine the ways in which they take up, transform the form of and
effects on adjacent and downstream waters. /d. at 139-42,152-58.
as The scientist submittal discusses numerous studies finding impacts
of sediment from dredge material on mussel populations. It also
discusses the sensitivity of salmon and trout species to sedimentation of
their nests, called “redds.”
55 One study that followed the chain of toxicity effects up the food
chain following disturbance of sediments, in that case by a major flood, is
J.P. Ludwig, Caspian Tern Reproduction in Saginaw Bay Ecosystem
Following a 100-year Flood Event, 19 J. Great Lakes Research 96-108
(1993).
,
23
increased levels of runoff of suspended sediment during and
after excavation of drainage projects.”
In addition, there tends to be continuous interchange
between the chemical constituents in the water column and
those either attached to the sediments in the upper layer or in
the water between the sediments.*’ These are active areas,
for example, in which pollutants may be transformed,
removed or released into the water column.*® Changes in
the composition of soil and sediment by the redeposit of
material can alter these important interactions.
As the Deaton court explained, wetland soil movements
associated with drainage activity cause particular concerns
because the drainage reverses many of the chemical
processes that allow wetlands to bind up or break-down
%© TA. Ivari, Effect of Choptank Watershed Drainage Project on
Suspended Sediment Concentration, in Proceedings of the 1991 National
Conference Sponsored by the Irrigation and Drainage Division of the
American Society of Civil Engineers and the Hawaii Section 223-230,
230 (1991); C.E. Simmons and S.A. Watkins, The Effects of Channel
Excavation on Water Quality Characteristics of the Black River and
Ground-water Levels Near Dunn North Carolina, US. Geological Survey
Water Resources Investigations (1982).
*? For this reason, studies of the Everglades pollution problem
described below include careful analysis of the factors that affect how
soil and water concentrations of phosphorus affect each other. See Jose
A. Amador, G. Hafiza Richany and Ronald D. Jones, Factors Affecting
Phosphate Update by Peat Soils of the Florida Everglades, 153 Soil
Science 46370 (1992); Jose A. Amador & Ronald D. Jones, Nutrient
Limitations on Microbial Respiration in Peat Soils with Different Total
Phosphorus Content, 25 Soil Biol. Biochem. 793 801 (1993).
>8 In mined streams and lakes below them, studies in New Zealand,
Australia have shown both increased turbidity, that blocks light to bottom
dwelling plants, and heavy toxic releases from the mined sediments. P.A.
Ryan, Environmental Effects of Sediment on New Zealand Streams: A
Review, 25 New Zealand J. Marine and Freshwater Research 207-221
(1991).
|
24
pollutants. Wetlands have this capacity in part because their
top soil layer tends to lose its oxygen (become anaerobic)
when flooded or saturated, and biochemical interactions in
the absence of oxygen include the binding of many toxic
materials and the breakdown and release of nitrate into
harmless forms. The drainage restores the oxygen to the
soils and leads to the release of pollutants, including both
toxic metals and nutrients.”
resources with dredged or fill material that contains toxic
substances." S. Rept. No. 95-370 at 74, reprinted in 1977
U.S.C.C.A.N. at 4399.
The Everglades provides an acute illustration of how
dredging activities that drain wetlands can lead to water
*° See R.P. Gambrell, Trace and Toxic Metals in Wetlands, A Review
23 J. Env’! Qual. 883-91 (1994)(summarizing studies showing the release
of toxics when canals are constructed through wetlands and the removed
material is placed to the side of the constructed channel as spoil); John W.
Portnoy, Salt Marsh Diking and Restoration: Biogeochemical
Implications of Altered Wetland Hydrology, 24 Env’| Management | 11-
Se enn Sie Se ee inn Se ae
drained salt marshes can release large concentrations of nutrients); W.
Peterson, E. Wiler & C. Williamowski, Remobilization of Trace Elements
from Polluted Anoxic Sediments After Resuspension in Oxic Water, 99
Water, Air and Soil Pollution 515-22 (1997) (discussing release of toxics
from newly exposed sediments).
“© US. Environmental Protection Agency, Summary Fact Sheet:
Contaminated Sediment, EPA's Report to Congress 2 (January 1998).
25
quality problems. Phosphorus running off sugarcane fields
through drainage ditches carved out of wetlands is
transforming the historic “river of grass” into dense stands of
cattail with limited oxygen and limited aquatic life. *' Most
of this phosphorus is believed to originate in phosphorus
once bound and long stored in those wetland soils but
released because of the effects of drainage.“ The plan being
implemented to fix this problem has an estimated cost to
agriculture and taxpayers of roughly $700 million. Yet, this
phosphorus, like many pollutants, causes problems in
miniscule amounts, measured in parts per billion. The fact
that significant water pollution can often be based on such
miniscule ‘additions” makes it particularly inappropriate for
this Court to require any kind of “volume” or distance test
before an addition of a pollutant can be treated as an addition.
B. Congress's desire to regulate even “incidental”
discharges associated with the drainage of wetlands
counsels against a limitation of regulation to large
soil movements.
Petitioners ask this Court to distinguish the activities in
this case from what it views as the more “major” relocations
of wetland soils at issue in many other lower court cases.
(Brief of Petitioners at 26-27 & n. 17). But apart from the
fact that significant pollution can occur in tiny concentrations
and Borden Ranch’s activities were “major” enough to “fill”
*! Doren, RF., T.V. Armentano, L.D. Whiteaker and R.D. Jones,
Marsh Vegetation Patterns and Soil Phosphorus Gradients in the
Everglades Ecosystem, 56 Aquat. Bot.145-163 (1997).
42 U.S. Army Corps of Engineers, Florida's Everglades Program
Everglades Construction Project Environmental Impact Statement 2-3
(1995) (drainage of wetland soils in agricultural area leads to the
formation of soluble phosphorus that drains into network of canals and
pumping facilities and is pumped into Everglades); id. at 3-49 (estimated
cost of clean-up project is $674 million).
SEES
26
multiple swales 700, 800 and 1000 feet long, ER 1028-29,
any distinction based, in essence, on the magnitude of the
addition of dredge material would be inconsistent with
Section 404(f)(2).
Section 404(f)(2) requires that even “incidental”
discharges be regulated if they are associated with “any”
activity that changes the use and reduces the reach of waters,
including wetlands. The term "incidental" means
“subordinate, nonessential, or attendant in position or
significance as a: occurring merely by chance or without
intention or calculation, [or]. b: being likely to ensue as a
chance or minor consequences ... ." Webster's Third New
International Dictionary (unabridged) (1981). The choice of
the term “incidental” means that a discharge need be neither
intentional nor large.
Section 404(f)(2) also does not require that the
ecological affect of the discharge be big enough to cause
harm: The language Congress selected focuses on whether
the broader activity, to which the discharge is “incidental,”
reduces the reach or impairs the flow of a regulated wetland
or other water body. As previously discussed, Congress was
aware that this is achieved typically through drainage, which
can be achieved in a variety of ways, including deep-ripping
for some wetlands. This focus too indicates that an addition
of a pollutant during drainage of swamps should not be
disregarded even if the addition itself were minor.
Finally, Section 404(f)(2) applies to a discharge
incidental to "any" activity that involves a change in land use
and alteration of wetland hydrology. Because Petitioners
believe that Congress intended to exempt all agricultural
activities, they believe that drainage accomplished through
activities that look like plowing cannot be recaptured. But
the fact that Section 404(f)(2) applies to “any” activity with
27
the requisite effects -- whether plowing like or even plowing
itself — contradicts Petitioners’ argument.
- To be sure, normal plowing does not have the effect of
draining wetlands and so will not be recaptured. But as the
District Court found, deep ripping does.
Petitioners rely heavily on National Mining Association
v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir.
1998) ("NMA"),which held that the agencies could not
regulate something the court referred to as “incidental
fallback." The court believed such fallback occurs when
materials fall back to the "same spot" as a result of a specific
technique for constructing drainage ditches used by some
developers. Id. at 1401. NMA is not applicable because the
relocations at issue in this case are far more extensive than
the "incidental fallback" described in NMA. However, the
analysis here does support the view that NMA was wrongly
decided. For reasons discussed above, the excavation of a
drainage ditch in a wetland will almost certainly involve an
addition of sediment and associated pollutants previously
buried under the wetland, and many of these pollutants are
likely to eventually move down the drainage ditch.
Moreover, the “incidental” nature of the discharge did not
appear to matter to Congress, which wanted to regulate
discharges “incidental” to activities that drain wetlands.
While this Court need not reach the merits of NMA in this
decision, that decision was not based on a sound scientific
understanding of how pollutants are added during excavation
activities in wetlands.
C. Congress did not exclude "plowing" from the
definition of a discharge.
Much of Petitioners brief seems premised on the
assumption that Congress exempted “plowing” in all cases
from the definition of the term “discharge,” so the claim that
28
their activities can be analogized to plowing should dispose
of the case. This contention has no textual support. Instead
of amending the word “discharge” in 1977, Congress only
decided to exempt “plowing” conditionally from a permit
requirement if not recaptured under Section 404(f)(2). If any
activity that could be analogized to plowing could never be a
discharge, there was no reason to exempt it and no reason to
subject the exemption to recapture. The common sense
implication is that even plowing can be a discharge in some
cases. And oy choosing the approach it did, Congress was
able to draw the line between exempt plowing and regulated
activities Pe the point at which soil relocation converts
wetlands.”
D. The broad definition of “pollution” supports a
broad reading of the term discharge.
It seems reasonable that the determination of whether
an activity “adds" a pollutant should be influenced by
whether it is deemed likely or capable of causing “pollution.”
33 U.S.C. Sec. 1362(19). The Clean Water Act defines
“pollution” as “the man-made or man-induced alteration of
the chemical, physical, biological, and radiological integrity
of water.” As this Court explained in United States v.
Riverside Bayview Homes, Inc., 474 U.S. 121, 132 ((1985),
“the word ‘integrity’ . . . refers to a condition in which the
natural structure and function of ecosystems is [are}
maintained.’” (quoting House Report; ellipsis and insertions
in original). For the reasons discussed above, activities that
“See also Minnehaha Creek Watershed District v.
Hoffman, 597 F.2d 617, 626 (8° Cir. 1979): “{I}t is obvious that an
to Sec. 404 permitting requirements.” See generally Ratzlaf v. U.S., 510
U.S. 140 (1994) (“judges should hesitate so to treat statutory terms” as
“words of no consequences,”), Washington Market Co. v. Hoffman, 101
U.S. 112, 115 (1879) (it is a “cardinal rule of statutory construction that
significance and effect shall, if possible, be accorded to every word.”).
29
relocate material from beneath the surface of a wetland to the
surface, and activities that convert wetlands, do not preserve
this integrity of aquatic ecosystems.
CONCLUSION
For the foregoing reasons, Petitioners’ activities were
properly regulated under the Clean Water Act.
Respectfully submitted,
Timothy D. Searchinger John D. Echeverria*
Environmental Defense Georgetown Environmental
1875 Connecticut. Ave. NW Law & Policy Institute
Washington, DC 20009 600 New Jersey Ave,. NW
(202) 387-3500 Washington, DC 20001
(202) 662-9850
*Counsel of Record
October 25, 2002
1-A
Appendix A — Brief Biographies of Amici
Dr. Joy Zedler is Aldo Leopold Chair of Restoration Ecology
at the University of Wisconsin and a former member of the
National Academy of Science’s Water Science and
Technology Board. She recently chaired a panel of the
National Academy of Sciences National Research council
studying wetland mitigation and previously served on panels
that analyzed wetland identification and classification and
restoration of aquatic ecosystems.
Dr. Gene Likens is President and Director of the Institute for
Ecosystem Studies, Vice President of the New York
Botanical Garden, Director of the Mary Flagler Arboretum
and Professor of Biology at Yale University. A member of
the National Academy of Sciences and Past President of the
Ecological Society of America, he has been awarded nine
honorary degrees from Universities around the world among
numerous international professional awards. His more than
400 articles and 14 books explore a wide range of ecological
fields with a particular emphasis on biogeochemistry. This
year, Dr. Likens also won the National Medal of Science, the
nation’s highest science award.
Dr. Ronald Jones is Professor of Biology and Director of the
Southeast Environmental Research Program at Florida
International University. A specialist in the biochemistry of
wetland soils, he has published more than 40 peer-reviewed
articles, many related to the impact of phosphorus on the
Everglades and its relationship to soil interactions. Dr. Jones
has been the lead researcher on separate projects related to
the protection and restoration of the Everglades funded by
Everglades National Park, the U.S. Army Corps of
Engineers, the Environmental Protection Agency and the
South Florida Water Management District.
2-A
Dr. Orie Loucks is Ohio Eminent Scholar in Applied
Ecosystem Studies and Professor of Zoology at Miami
University of Ohio. The author of more than 200 scientific
publications, he served ten years on the National Academy of
Science’s Board on Water Science and Technology and also
on the Science Advisory Board of the International Joint
Commission, and the Board of Governors of The Nature
Conservancy. He is an elected Fellow of the Ohio Academy
of Sciences and the American Association for the
Advancement of Science, and was given the Distinguished
Service Award of the American Institute for Biological
Sciences in 1994.
Dr. Rebecca R. Sharitz is a Professor of Botany at the
University of Georgia and a Senior Research Ecologist at the
Savannah River Ecology Laboratory, where she previously
served as director. She has served as Secretary General of
the International Association of Ecology and on the National
Academy of Science Committee for the Restoration Aquatic -
Ecosystem and Restoration of the Greater Everglades
System.
Dr. Raymond Semlitsch is professor of Biology at the
University of Missouri. One of this country’s leading experts
on amphibians, he has published more than 100 articles,
including many of the leading papers on the use of isolated
wetlands by amphibians.
Dr. Leigh H. Fredrickson is Rucker Professor of Fisheries
and Wildlife at the University of Missouri and Director of the
Gaylord Memorial Laboratory. He has published more than
100 articles, primarily on waterfowl, water birds and
wetlands.
Dr. Barbara Bedford is Senior Research Associate in the
Department of Natural Resources at Cornell University, and
former director of the Ecosystems Research Center of
3-A
Excellence. She has published many articles on the
interactions between wetland plant communities, hydrology
and nutrient loading, and has been a member of a peer review
panel established to advise the Florida agencies on the clean-
up of the Everglades.
Dr. Judith Meyer is a Research Professor at the Institute of
Ecology and the University of Georgia and is Co-Director of
the River Basin Science and Policy Center at the University
of Georgia. She has served as the president of the Ecological ~
Society of America. She has published numerous journal
articles on the influence of watershed land uses on river
Structure and function and riparian zones as sinks for
agricultural inputs.
Dr. Joseph Larson, Professor Emeritus of the University of
Massachusetts, developed the first models for functional
assessment of freshwater wetlands and for predicting wildlife
species habitat in New Englend freshwater wetlands. He has
been a U.S. delegate to the meetings of the contracting
nations under the Ramsar treaty on wetlands of international
importance. He was awarded the national Chevron
Conservation Award for his work on wetlands and was the
founding Executive Chairman of the National Wetlands
Technical Council.
Dr. John Callaway is an Assistant Professor in the
Department of Environmental Science at the University of
San Francisco and served as Associate Director of the Pacific
Estuarine Research Laboratory at San Diego State
University. He has published many articles regarding the
restoration of wetland soils and plants and their sediment
dynamics.
Dr. Christopher Woltemade is an Associate Professor of
Geography at Pennsylvania State University at
4-A
Shippensburg. A hydrogeomorphologist, his published
work has examined watershed influences on flood flows,
wetland capability to improve water quality, and the
relationship between river management and wetland
quality.
Dr. Klaus O. Richter is the Senior Wetland Ecologist in King
County’s Department of Natural Resources in Washington
State. For the past 15 years Dr. Richter has specialized in
freshwater wetland science, management, protection and
regulation. A recipient of the 1996 National Wetlands
Award in Science Research sponsored by the Environmental
Law Institute and EPA, Klaus has authored numerous
scientific papers on the monitoring, distribution, and decline
of amphibians, particularly near Puget Sound.
Dr. Stuart Findlay is a Scientist at the Institute for Ecosystem
Studies in Millbrook, New York and holds a Ph.D. in
Zoology from the University of Georgia. He has published
numerous journal articles on the effects of human activities
of tidal march vegetation, including nutrient retention other
wetland functions.
Dr. Frederick Short is Professor in the Department of Natural
Resources at the Jackson Estuarine Laboratory at the
University of New Hampshire. He has published journal
articles and taught courses on the habitat values and
functions of estuarine and coastal sea grass, wetland
restoration and mitigation.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.