Amicus Curiae Brief — Rapanos v. United States

Nos. 04-1034 and 04-1384

— —— — — — — — — — — — — — —

. In The 22

Supreme Court of the United States

JOHN A. RA PANOS, JUDITH A. NELKIE RAPANOS;

PRODO, INC.; ROLLING MEADOWS HUNT CLUB;

And PINE RIVER BLUFF ESTATES, INC.,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

*

JUNE CARABELL, et al.,

Petitioners,

UNITED STATES ARMY

CORPS OF ENGINEERS, et al.,

. Respondents.

*

On Writs Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

9

BRIEF OF AMERICAN PLANNING

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

— 06.

NANCY STROUD* Lora A. LUCERO, AICP

LEWIS, SrROoUD & DEUTSCH, L.P. 122 S. Michigan Avenue

1900 Giades Road, Suite 251 Suite 1600

Boca Raton, FL 33431 Chicago, IL 60603

(561) 826-2800 (505) 247-0844

“Counsel of Record for Amicus Curiae

American Planning Association

COOCRKLE LAS BWKIEG PRINTING, CO nod 224 duo

Oh CALL COLLECT «t02) d42 2831

QUESTIONS PRESENTED FOR REVIEW

1. Does the Clean Water Act prohibition on unpermitted

discharges to “navigable waters” extend to non-navigable

wetlands that do not even abut a navigable water?

2. Does extension of Clean Water Act jurisdiction to every

intrastate wetland with any sort of hydrological connec-

tion to navigable waters, no matter how tenuous or remote

the connection, exceed Congress’ constitutional power to

regulate commerce among the states?

1

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .. i

J ... cc ersienicsvinnssnccssccccnsssensctencovese iii

INTEREST OF AMICUS CURIAE. . .. 1

STATEMENT OF THE CASE... . . . . . . 2

SUMMARY OF AH UMENT. . . 3

/ / 4

I. Wetlands Are A Critical Natural Resource In

e.. 4

II. Waters Of The United States“ Must Be

Defined Broadly In Order Io Achieve The Fed-

eral Goal Of No Net Loss 11

III. Planning And Land Use Regulatory Tools

Provide A Range Of Options For Wetland Pro-

. ͤ 2 . . 13

— . — 20

TABLE OF AUTHORITIES

Page

CASES

City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687, 119 S.Ct. 1624, 143 L.Ed.2d

Zr r 2

City of Rancho Palos Verdes v. Abrams, 125 S. Ct.

1453, 73 USLW 4217, 161 L.Ed.2d 316 (2005) 2

Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct.

rr 2

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 107 S.Ct.

BR, SEE EE Tae Sanne 1

Headwaters, Inc. v. Talent Irrigation District, 243

EE SI xxx 11

Kelo v. City of New London, 125 S. Ct. 2655, 73

USLW 4552, 162 L. Ed. 2d 439 (2005) . . . ... 2

Lingle v. Chevron, 125 S.Ct. 2074, 73 USLW 4343,

e CEE aaoe: ka aE Ne 2

Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) 1

Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct.

RB | Ee 2

Rice v. Harken Exploration Co., 250 F.3d 264 (5th

RE, aor ee Re ee Aa eee 11

San Remo Hotel, L.P. v. City and County of San

Francisco, 125 8. Ct. 2491, 73 USLW 4507, 162

2 rr 2

iv

TABLE OF AUTHORITIES - Continued

Page

Solid Waste Agency of Northern Cook County v.

Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675,

EE I et ee te 11

Suitum v. Tahoe Reg! Planning Agency, 520 U.S.

725, 117 S.Ct. 1659, 137 L. Ed. 2d 980 (1997). . .. 2

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Reg! Planning Agency, 535 U.S. 302, 122 S.Ct.

1466, 152 L. Ed. 2d 517 (2002)... . . . . .. .. eee. eee 2

United States v. Buday, 138 F. Supp. 2d 182 (D.

I w - 11

United States v. Deaton, 332 F.3d 698 (4th Cir.

— . 11

United States v. Newdunn Associates, 195

F. Supp.2d 751 (E. D. Va. 2002)... . . . . . . . .. . 11

Village of Euclid v. Ambler Realty Co., 272 U.S. 365

— A (c 15

Williamson County Reg Planning Commn v.

Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87

1 . .. 1

Yee v. City of Escondido, 503 U.S. 519, 112 S.Ct.

1522, 118 L. Ed. 2d 153 (1992). . ... . .... . . 1

STATUTES

0 14

e 14

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

American Planning Association, POLICY GUIDE ON

WETLANDS, ratified by the Board of Directors

April 2002. Available at http//Awww.planning org

policyguides/wetlands.htm [last accessed on De-

r passim

Bates, Sarah F., David H. Getches, and Lawrence J.

MacDonnell, Charles F. Wilkinson, SEARCHING

OUT THE HEADWATERS — CHANGE AND REDISCOV-

ERY IN WESTERN WATER POLICY, Island Press,

Burke, David, Eric Meyers, Ralph Tiner, Jr. and

Hazel Groman, Protecting Non-Tidal Wetlands.

Chicago: American Planning Association, Plan-

ning Advisory Service, Report Number 412/413,

r 7

Dahl, T. E., STATUS AND TRENDS OF WETLANDS IN

THE COTERMINOUS UNITED STATE: 1986-1997.

U.S. Department of the Interior, Fish & Wildlife

Service, Washington, DC, 2000 . 6, 7

Daniels, Tom and Katherine Daniels, THE ENVI-

RONMENTAL PLANNING HANDBOOK FOR SUSTAIN-

ABLE COMMUNITIES AND REGIONS, Planners Press,

Leopold, Aldo, The Round River, Luna B. Leopold,

ed. ROUND RIVER: FROM THE JOURNALS OF ALDO

LEOPOLD, Minocqua, WI: Northwood Press, 1991 .......... 4

Maltby, Edward, WATERLOGGED WEALTH: WHY

WASTE THE WORLD’S WET PLACES? Washington,

DC: International Institute for Environment and

vi

TABLE OF AUTHORITIES - Continued

Page

McElfish, James M., Jr., NATURE-FRIENDLY ORDI-

NANCES, Environmental Law Institute,

Z— 8, 15, 16, 17, 18, 19

McHarg, Ian L., DESIGN WITH NATURE, Doubleday &

eee gy

Nolon, John R., FLEXIBILITY IN THE LAW: THE RE-

ENGINEERING OF ZONING TO PREVENT FRAG-

MENTED LANDSCAPES, New York Law Journal,

February 18, 1998. Available at http://www.law.

pace.edu/landuse/reengine html 16, 18, 19

Noss, Reed F. and Allen Y. Cooperrider, SAVING

NATURE'S LEGACY: PROTECTING AND RESTORING

GEOGRAPHY, LAW, AND PUBLIC Po.icy, Island

Pruetz, Rick, BEYOND TAKINGS AND GIVINGS -

SAVING NATURAL AREAS, FARMLAND AND HISTORIC

LANDMARKS WITH TRANSFER OF DEVELOPMENT

Sibbing, Julie M., Nowhere Near No-Net-Loss, National

Wildlife Federation. Available at http//www.cwn_org/

cwn/files/Nowhere_Near_No-Net-Loss.pdf [last ac-

Te casccanecernsccentanssqennsecemnceenees 7

Strand, Margaret N. and Lowell Rothschild, Wet-

land Basics in the Twenty-First Century, LAND

Use Law & Zoninc Dicest, Vol. 55, No. 10,

USDA, Natural Resources Conservation Service,

httpſſwww.nres usda gov/ programs w] rr. 14

1

INTEREST OF AMICUS CURIAE’

The American Planning Association (“APA”) is a

nonprofit, public interest and research organization

founded in 1978 to advance the art and science of planning

at the local, regional, state, and national levels including

land use, economic, and social planning. The APA resulted

from a merger between the American Institute of Plan-

ners, founded in 1917, and the American Society of Plan-

ning Officials, established in 1934. The organization has

46 regional chapters and 19 divisions devoted to special-

ized areas of planning, including the Environment, Natu-

ral Resources and Energy Division, which promotes the

adoption of scientifically sound and effective policies to

promote protection of the environment and the wise and

sustainable use of natural resources and energy. The APA

represents more than 38,500 professional planners,

commissioners, and citizens involved in formulating and

implementing planning policies and land-use regulations.

The APA has submitted amicus curiae briefs in many

landmark cases of importance to the planning profession,

including: Williamson County Reg] Planning Comm'n v.

Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d

126 (1985), First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96

L.Ed.2d 250 (1987), Yee v. City of Escondido, 503 U.S. 519,

112 S.Ct. 1522, 118 L.Ed.2d 153 (1992); Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886,

The parties have consented to the filing of this brief.

Counsel for a party did not author this brief in whole or in part. No

person or entity, other than the Amicus Curiae, its members, or its

counsel made a monetary contribution to the preparation and submis-

sion of this brief.

2

120 L.Ed.2d 798 (1992); Dolan v. City of Tigard, 512 U.S.

374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); Suitum v.

Tahoe Regl Planning Agency, 520 U.S. 725, 117 S.Ct.

1659, 137 L.Ed.2d 980 (1997); City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687, 119 S.Ct.

1624, 143 L.Ed.2d 882 (1999); Palazzolo v. Rhode Island,

533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001);

Tahoe-Sierra Preservation Council, Inc. u. Tahoe Regl

Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152

L.Ed.2d 517 (2002); and most recently in Kelo v. City of

New London, 125 S.Ct. 2655, 73 USLW 4552, 162 L.Ed.2d.

439 (2005); Lingle v. Chevron, 125 S.Ct. 2074, 73 USLW

4343, 161 L.Ed.2d 876 (2005); City of Rancho Palos Verdes

v. Abrams, 125 S.Ct. 1453, 73 USLW 4217, 161 L.Ed.2d

316 (2005); and San Remo Hotel, L u. City and County of

San Francisco, 125 S.Ct. 2491, 73 USLW 4507, 162

L.Ed.2d 315 (2005).

As the need arises, the APA develops policy guides

that represent the collective thinking of its membership on

both positions of principle and practice. Such policies are

developed through a strenuous process that involves

examination and review by both the chapters and divi-

sions of APA. In April 2002, the Policy Guide on Wetlands

was ratified by the Board of Directors. Available at http

www.planning org/policyguides/wetlands.htm (last accessed

on December 30, 2005).

4

Ww

STATEMENT OF THE CASE

Amicus American Planning Association adopts the

statement of the case as set forth by Respondent.

nan

vy

3

SUMMARY OF ARGUMENT

At the heart of Petitioners’ position, and the amici

that support them, is their desire to escape the jurisdic-

tional requirements of the Clean Water Act in order to

avoid the regulatory oversight needed to protect wetland

resources. While this position may be consistent with the

immediate and short-term needs of the current property

owners, it is short-sighted and in conflict with the public

interest and the needs of society in the long-term.

Wetlands are complex and critical resources which

should be protected, enhanced and restored, where feasi-

ble, in order to increase the quality and quantity of the

nation’s wetland resource base. The American Planning

Association supports the goal of no net loss of the nation’s

remaining wetlands. This goal requires reasonable regula-

tory oversight of activities which may impact wetlands

and a broad interpretation of “navigable waters” to include

isolated and non-navigable waters.

Although voluntary wetland conservation efforts are

commendable and should be encouraged, they cannot

replace regulatory oversight and permitting processes.

Effective planning must engage and inform the public and

property owners about the importance of wetland protec-

tion. In addition to the important incentive programs that

encourage property owners to conserve wetlands, there are

a number of regulatory mechanisms that can successfully

address the goal of wetland protection in the context of

growth and development.

4

ARGUMENT

I. Wetlands Are A Critical Natural Resource In

Need Of Protection

The great naturalist and writer Aldo Leopold elo

quently explained in his essay “The Round River”:

If the land mechanism as a whole is good,

then every part is good, whether we understand

it or not. If the biota, in the course of aeons, has

built somethung we like but do not understand,

then who but a fool would discard seemingly use-

less parts? To keep every cog and wheel is the

first precaution of intelligent tinkering.’

Wetlands are perhaps the most over-worked, under-

valued and least understood and appreciated natural

resource on the planet. In their natural state, they per-

form ecological functions which are vitally important to

the environment and economic health of the nation and

are impossible or costly to replace. From flood protection,

erosion control, storm water absorption, filtering of sedi-

ment and pollutants, aquifer recharge, fish and wildlife

habitats, carbon sinks, and open space — wetlands are

unsurpassed in their ability to moderate the damaging

impacts from human activities and development.

* Leopold, Aldo, The Round River, Luna B. Leopold, ed. ROUND

RIVER: FROM THE JOURNALS OF ALDO LEOPOLD, Minocqua, WI: North-

wood Press, 1991.

* See, Bates, Sarah F, David H. Getches, Lawrence J. MacDonnell,

Charles F Wilkinson, SEARCHING OUT THE HEADWATERS — CHANGE AND

REDISCOVERY IN WESTERN WATER POLICY, Island Press, 2003.

* See, Noss, Reed F., and Allen Y. Cooperrider, SavinG NATURE'S

LEGACY: PROTECTING AND RESTORING BIODIVERSITY, stand Press, 1994.

5

Planners have an important role and responsibility in

protecting wetlands. They help the public and elected

officials understand the importance of the wetland re-

sources; they assist in the preparation of community plans

which balance the rights of the property owner with the

needs of the community-at-large and the natural environ-

ment; they understand the multitude of land use tools

available and prepare appropriate local regulations to

implement the adopted plans; they help the property

owner and developer navigate through the oftentimes

complex regulatory world involved in wetlands protection;

they continually reassess the effectiveness of their plans

and land use tools; and they engage in public planning

processes to update and amend the plans and regulations.

Is protection of our nation’s wetland resources worth this

effort? The American Planning Association believes it is,

because all wetlands, including isolated wetlands, perform

valuable ecological functions.

Wetlands protect the quality of surface waters by

retarding the erosive forces of moving water. They provide

a natural means of flood control, protecting against the

loss of life and property. The catastrophic flooding in New

Orleans heightened the public’s awareness of the critical

role of wetlands as a natural approach to flood control.

Wetlands improve water quality by intercepting and

filtering out waterborne sediments, excess nutrients,

heavy metals and other pollutants. Wetlands hold enor-

mous amounts of carbon and thus are important in regu-

lating climate as well as recycling carbon.“

* Daniels, Tom and Katherine Daniels, THE ENVIRONMENTAL

PLANNING HANDBOOK FOR SUSTAINABLE COMMUNITIES AND REGIONS,

Planners Press, American Planning Association, 2003, at 229.

6

They act as a buffer between land and waterways, and

stabilize shorelines. They remove significant amounts of

biological oxygen demand (BOD), which leaves more

oxygen available for fish and wildlife.“ By acting as reser-

voirs or sponges, wetlands accumulate and then slowly

release the water they retain, either into streams and

rivers or into groundwater to recharge aquifers. This

process is especially helpful in maintaining water supplies

during times of drought.’

Wetlands are also sources of food, shelter, essential

b-veding, spawning, nesting and wintering habitats for

fish and wildlife. These include migratory birds, endan-

gered species and commercially and recreationally impor-

tant species. By some estimates wetlands are worth tens of

thousands of dollars per acre each year for the environ-

mental services they perform.”

At the time of the nation’s settlement, wetlands

represented approximately 221 million acres of the land

area in the lower 48 states.” By 1997, only 105.5 million

acres remained, leaving just 47.7% of the original wetland

acreage.” Wetlands now occupy about 5.5% of the land

surface of the lower 48 states. Three-fourths of the remaining

wetlands in the continental United States are privately

Id.

Id.

* Maltby, Edward, WATERLOGGED WEALTH: WHY WASTE THE

WoRLD’s Wet PLACES? Washington, DC: International Institute for

Environment and Health, 1986.

Dahl, T.E., 2000, Srærus AND TRENDS OF WETLANDS IN THE

COTERMINOUS UNITED StaTEs 1986-1997. U.S. Department of the

Interior, Fish & Wildlife Service, Washington, D.C.

Id.

7

owned and only about 0.5% of these are under some form

of conservation protection.”

Wetland losses have varied over time.” Between the

mid-1950s and the mid-1970s, about 11 million acres of

wetlands were lost, while 2 million acres of new wetlands

were created — an annual loss of approximately 458,000

acres.” The net loss of 9 million acres of wetlands in those

20 years was about twice the size of New Jersey. More

recently, between 1986 and 1997, the estimated total net

loss of wetlands was 644,000 acres or 58,500 acres each

year. This significant decline in the rate of wetland loss

* Burke, David, Eric Meyers, Ralph Tiner, Jr. and Hazel Groman.

Protecting Non-Tidal Wetlands. Chicago: APA, PLANNING ADVISORY

SERVICE, Report Number 412/413, 1988.

e first conservation oriented wetland survey was conducted

during the mid-1950s by the U.S. Fish and Wildlife Ser-

vice (FWS) (1956). In 1974, the FWS launched the Na-

tional Wetlands Inventory (NWI), a massive project to

classify and map virtually all the nation’s wetlands... .

The NWI has estimated total wetlands in the early 1980s

to be about 99 million acres in the contiguous states, of

which 93.7 million were inland freshwater wetlands and

the rest coastal. This acreage represented a loss since the

mid-1950s of approximately 14.8 million acres of fresh-

water wetlands and 482,000 acres of saltwater wetlands.

(Frayer et al. 1983).

Platt, Rutherford, H., LAND USE AND SOCIETY - GEOGRAPHY, LAW, AND

PUBLIC POLICY, Island Press, 2004.

American Planning Association, POLICY GUIDE ON WETLANDS,

ratified by the Board of Directors April 2002. See, http/Awww. planning org

policyguides/wetlands.htm [last accessed on December 30, 2005].

Id., citing STATUS AND TRENDS OF WETLANDS IN THE CONTERMI-

NOUS UNITED STATES 1986-1997. http://training.fws.gov/library/Pubs9/

wetlands86-97_highres.pdf [last accessed January 10, 2006] U.S. Fish

and Wildlife Service (2000). See also, Sibbing, Julie M., Nowhere Near No-Net-

Loss, Nationa] Wildlife Federation. Available at http://www.cwn.org/cwn/

(Continued on following page)

8

— be attributed, in large part, to the “Swampbuster”

provisions in the 1985 Food Security Act and agricultural

set-aside programs which accounted for a significant

reduction of lands converted to agricultural uses.” Be-

tween 1986 and 1997, urban development accounted for an

estimated 30% of all losses, with agriculture responsible

for 26%, silvicultural activities 23% and 21% attributed to

rural development.” Isolated, non-navigable wetlands are

perhaps most vulnerable to the pressures of development

because of their location and the relative ease of altering,

dredging and filling these particular wetlands.”

Twenty-one states have lost more than half of their

original wetlands.” In the major farming states of Califor-

nia, Illinois, lowa, Missouri, and Ohio, roughly nine-tenths

of the original wetlands are gone, mostly to cropland.”

About 100 million acres of wetlands remain in the United

States, of which about 20 million acres are isolated wet-

lands and are not part of navigable waterways.”

Isolated wetlands have important functional values

that warrant protection — stormwater management, water

files/Nowhere_Near_No-Net-Loss.pdf flast accessed on January 6,

2006].

2

Id.

See, e. g., Daniels, Tom and Katherine Daniels, THE ENVIRONMENTAL

PLANNING HANDBOOK FOR SUSTAINABLE COMMUNITIES AND REGIONS,

Planners Press, American Planning Association, 2003; McElfish, James M.,

Jr., NATURE-FRIENDLY ORDINANCES, Environmental Law Institute, 2004;

Noss, Reed F. and Allen Y. Cooperrider, SAVING NATURE'S LEGACY: PROTECT-

ING AND RESTORING BIODIVERSITY, Island Press, 1994.

„Daniels, supra note 5 at 230.

* Id.

3

9

quality improvement, and wildlife habitat. Removing

isolated, non-navigable wetlands from the jurisdiction of

the Clean Water Act“ will result in the loss of critical

wetlands across the country.”

Thirty-five years ago, lan McHarg - a teacher, plan-

ner, and landscape architect - wrote the seminal book on

connecting the built and natural environments in a sus-

tainable fashion. DESIGN WITH NATURE remains in the

curriculum of every first-year planning student today.”

Professor McHarg understood the tension between man

and nature as few had before him.“ He also appreciated

the interconnectedness of natural systems.

* 33 U.S.C. § 1251-1376.

American Planning Association, POLICY GUIDE ON WETLANDS,

ratified by the Board of Directors April 2002. Available at http/Avww.planning.

org/policyguides/wetlands.htm [last accessed on December 30, 2005).

lan L. McHarg, Design with Nature, Doubleday & Company, Inc.,

Garden City, New York (1969). “Ian McHarg died in 2001 at the age of

80. His brilliance was recognized world-wide, and he went on to be

rewarded with the Harvard Lifetime Achievement Award, the National

Medal of Art, the Thomas Jefferson Foundation Medal in Architecture,

and 12 other international medals and awards, including the very

prestigious Japan Prize in City and Regional Planning.” Available at

http://www.upenn.edu/gazette/050 I/mcharg.html.

If the highest values in a culture insist that man must sub-

due the earth and that this is his moral duty, it is certain

that he will in time acquire the powers to accomplish that

injunction. It is not that man has produced evidence for his

exclusive divinity, but only that he has developed those

powers that permit the fulfillment of his aggressive destruc-

tive dreams. He can now extirpate great realms of life: he is

the single agent of evolutionary regression.

Id., at 26.

10

A single drop of water in the uplands of a water-

shed may appear and reappear as cloud, precipi-

tation, surface water in creek and river, lake and

pond or groundwater; it can participate in plant

and animal metabolism, transpiration, condensa-

tion, decomposition, combustion, respiration and

evaporation. This same drop of water may ap-

pear in considerations of climate and microcli-

mate, water supply, flood, drought and erosion

control, industry, commerce, agriculture, forestry,

recreation, scenic beauty, in cloud, snow, stream,

river and sea. We conclude that nature is a single

interacting system and that changes to any part

will affect the operation of the whole.

If we use water as an indicator of the interaction

of natural processes, we see that the forests

felled in the uplands may have an identical effect

upon the incidence of flood that is accomplished

by filling estuarine marshes. Pollution of

groundwater may affect surface water resources

and vice versa; urbanization will affect the rate

of tage erosion and sedimentation, causing wa-

ter turbidity, diminution of aquatic organisms,

and a reduction in natural water purification.

These, in turn, will result in channel dredging

costs, increased water treatment costs, and, pos-

sible, flood damages and drought costs.

Id., at 56.

The best way to protect wetland resources is to iden-

tify them in plans and develop mechanisms to avoid

adverse impacts.”

American Planning Association, PoLicy GUIDE ON WETLANDS,

ratified by the Board of Directors Apri] 2002. Available at http://www.

(Continued on following page)

11

II. Waters Of The United States“ Must Be De-

fined Broadly In Order To Achieve The Fed -

eral Goal Of No Net Loss

With the wetlands resource base continuing to disap-

pear, comprehensive resource planning is essential for

laying the foundation to coordinate permitting programs

and to save these resources. We need to focus our efforts in

that direction, rather than to continue to litigate over

what qualifies as a wetland. This Court can provide much-

needed clarity and confirm that isolated wetlands are

included so that we can get on with the important work of

protecting these resources and fulfilling the “no net loss”

goal.

Since much of the wetlands litigation in recent years

has focused on what does, or does not, qualify as “naviga-

ble waters” and “waters of the United States” under the

CWA,” it is fair to say that both the private and public

sectors would benefit from some much-needed clarity in

defining what qualifies as jurisdictional waters, particu-

larly for non-navigable tributaries, such as ephemeral

planning.org/policyguides/wetlands.htm [last accessed on December 30,

2005]. Replacement of existing wetlands should be considered only after

avoidance and minimization of wetland impacts and only where the

wetland function in-kind can be replaced within the same sub-

watershed.

See, Solid Waste Agency of Northern Cook County v. Corps of

Engineers, 531 U.S. 159 (2001). The following cases have taken a very

broad view of what a tributary is, tracing the tributary far upstream:

United States v. Deaton, 332 F.3d 698 (4th Cir. 2003), Headwaters, Inc.

v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001), and United

States v. Buday, 138 F. Supp.2d 182 (D. Mont. 2001). Other courts have

taken a more narrow view. See, Rice v. Harken Exploration Co., 250

F.3d 264 (5th Cir. 2001) and United States v. Newdunn Associates, 195

F. Supp.2d 751 (E. D. Va. 2002).

12

(seasonal) and intermittent streams, and small water

segments located great distances from navigable waters.

Petitioners urge this Court to bring clarity by estab-

lishing a strict nexus requirement” which would have the

practical effect of removing many thousands of acres from

federal protection. The American Planning Association

believes both clarity and the goal of “no net loss” can be

achieved by affirming a broad definition of “waters of the

United States” which encompasses non-navigable, isolated

wetlands. Indeed, it is difficult to imagine how the Presi-

dent’s goal of restoring, improving, and protecting the

quality and quantity of three million acres of wetlands by

2009 can be achieved without acknowledging the impor-

tance of isolated wetlands in meeting that goal.”

When isolated wetland resources are identified,

categorized and mapped, property owners and regulatory

agencies are often able to move beyond the contentious

stage where one party is asserting jurisdiction, while the

other is hoping to escape regulatory oversight because

property owners have greater certainty about how their

property can, and cannot, be developed. Early evaluation of

potential wetlands is the best way to avoid surprises that can

derail a project. Likewise, regulatory agencies have greater

clarity about which wetlands they need to focus their atten-

tion, staff and fiscal resources on — hopefully resulting in

pet. Brief at 34.

On Earth Day 2004, President Bush celebrated the opportunity

to move beyond the federal policy of “no net loss” of wetlands and called

for a new commitment to attain an overall increase in the quality and

quantity of wetlands in America. Available at http//www.coastalamerica.

gov/News_ release final. pdf.

13

more conservation planning with broad public involvement

and support.

The private and public sectors can then jointly explore

creative solutions to accomplish both development and

wetland protection. Encompassing non-navigable and

isolated wetlands within the “waters of the United States”

will not wipe-out development potential for property

owners of such resources because there are many regula-

tory tools and options available to maximize development

potential on such property while protecting the clearly

identified wetland resources.

III. Planning And Land Use Regulatory Tools

Provide A Range Of Options For Wetland Pro-

tection

In most cases, avoiding wetlands is the preferable

option for both the property owner and the government.

This option is enhanced when wetlands are clearly deline-

ated and mapped. Public-private partnerships to improve

wetlands management, which incorporate private stew-

ardship and federal, state and local cooperation, is desir-

able and feasible. Such a partnership approach to

wetlands management can be more flexible in achieving

goals than just through reliance on governmental agen-

cies. Partnership arrangements have the potential for

developing a broad base of citizen support for wetlands

management. By adopting zoning and/or development

performance standards for wetlands and adjacent lands,

local government can achieve comprehensive wetlands

protection that, in many cases, may obviate the need for

federal or state permits.

14

There are a multitude of regulatory tools and options

available to the states, local governments, planners and

property owners to protect wetlands. Since most wetlands

are privately owned, private incentive programs are

essential. The Food Security Act of 1985” contains a

number of incentive programs that foster wetland conser-

vation. These programs have been highly successful in

protecting wetlands and should be expanded. The Wet-

lands Reserve Program” (WRP) is a voluntary program

offering landowners the opportunity to protect, restore,

and enhance wetlands on their property. The USDA

Natural Resources Conservation Service (NRCS) provides

technica] and financial support to help landowners with

their wetland restoration efforts. The NRCS goal is to

achieve the greatest wetland functions and values, along

with optimum wildlife habitat, on every acre enrolled in

the program. This program offers landowners an opportu-

nity to establish long-term conservation and wildlife

practices and protection.”

Section 404 protection should be augmented by state legisla-

tion and local ordinances, as appropriate, to regulate human-

controlled activities which cause adverse impacts to wet-

lands; to provide protection for isolated wetlands; to

strengthen the biological component of the permitting

process by recognizing the value of wetlands for wildlife

habitat; and to provide incentives to encourage landowners

to protect existing wetlands. Local government's role in

* 16 U.S.C. §§ 3801-3862.

716 U.S.C. §§ 3837-3837f.

* Available at http//www.norcs.usda.gov/programs/wrp/ - USDA,

Natural Resources Conservation Service.

15

the federal permit decision-making process needs to be

legitimized and federal law should provide the option for

local protection to exceed that which is required by federal

statutes.”

A sound public planning process, along with the

adoption of resource conservation plans, should logically

precede preparation of regulations. State, regional and

local planning activities are important precursors to

drafting and implementing effective regulations. Fortu-

nately, a number of innovative land use planning tools

have become widely authorized and used around the

country to effectively protect isolated and non-navigable

wetlands once those resources have been identified and

mapped.” The days of Euclidean zoning are rapidly fad-

ing.”

Professor John R. Nolon explains it this way:

Why the natural landscape tends to be “fractured”

is explained, largely, by Euclidean zoning. The lay-

out of zoning districts very seldom has much to do

with the topography or boundaries of natural re-

sources. The lines one would draw, for example, to

protect a vernal pool habitat or a watershed area

would bear little relationship to the development

blueprint of the municipal government found in its

American Planning Association, Polucy GUIDE ON WETLANDS,

ratified by the Board of Directors April 2002. Available at http//www.

— org/policyguides/wetlands htm flast accessed on December 30,

8 * eg., McElfish, James M., Jr., NATURE-FRIENDLY ORDI-

NANCES, Environmental Law Institute, 2004.

Village of Euclid u Ambler Realty Co., 272 U.S. 365 (1926).

16

often fails to create cost-effective development

zones where developers are encouraged to build,

Planning professionals are taking Ian McHarg’s

lessons to heart, recognizing that it is critical to have

"grod" information es the basis for planning and subse-

quent regulations.” Many familiar land use tools (eg,

subdivision and zoning) have been refashioned to address

the new challenges that communities face with growth and

development today; when combined with the appropriate

biological and ecological information, these tools can be

used to protect and conserve isolated wetlands, while

redirecting development to appropriate locations.

A few of these land use tools include:

* Transfer of Development Rights (TDR) - Development

potential can be transferred from one area to another

(known as sending and receiving zones) so that property

owners in the sending area are compensated for not

developing, while development in receiving zones is

encouraged. The Long Island Pine Barrens Act of 1993

utilized TDRs, among other things, to protect lands

mapped in the Core Preservation Area and transferred

that development potential to lands in the Compatible

* Nolon, John R. FLEXIBILITY In THE Law: THE RE-ENGINEERING OF

ZONING TO PREVENT FRAGMENTED LANDSCAPES, New York Law Journal,

February 18, 1998. Avaidable at http//www_law.pace.edu/landuse/reengine.

html.

* McElfish, James M., Jr., NATURE-FRIENDLY ORDINANCES, Environ-

mental Law Institute, 2004, Chapter 3.

17

Growth Area.” On a regional scale, isolated wetlands could

be mapped within sending zones if the community or state

had a TDR program in place.

Purchase of Development Rights (PDR) — Very similar

in concept to the TDR but instead of transferring devel-

opment potential from the property to be protected, the

development potential is purchased outright.” If the

government or a land trust wants to purchase the devel-

opment rights, an independent appraisal is completed to

determine the value of the development rights and, upon

agreement, a permanent easement is recorded and the

development rights are held in perpetuity.

Wetland Protection Ordinances — Loca] wetland protec-

tion ordinances can require design review, review of

grading and building permits, and limit grading and other

land disturbance on the wetlands. Local governments can

also protect wetlands by locating their infrastructure

projects, such as sewage facilities, outside of such areas.

Steep slope ordinances prevent grading on hillsides in

order to avoid the drainage and run-off into the wetlands.

The village of Schaumburg, Illinois, as an example,

adopted such a wetland protection overlay district as an

amendment to its zoning ordinance.”

Cluster development zoning - Isolated wetlands are

often located in the path of new residential subdivisions.

Id. at 87-91, See also, Pruetz, Rick, BEYOND TAKINGS AND

GIvINGS - SAVING NATURAL AREAS, FARMLAND AND HISTORIC LANDMARKS

WitH TRANSFER OF DEVELOPMENT RIGHTS AND DENSITY TRANSFER

CHARGES, Arje Press, 2003.

* McElfish at 91-95. —

* McElfish at 118-125.

18

Rather than scatter new housing units on large, equally-

sized lots throughout the subdivision, a community might

require the applicant to cluster the same number of

housing units closer together on a portion of the property,

leaving the remaining acreage undeveloped in its natural

state. Calvert County, Maryland adopted such an ordi-

nance in 1993, requiring all subdivisions larger than 20

acres to cluster. Clustering is voluntary on parcels less

than 20 acres.“

Floating zones A floating zone defines a use, such as

an office complex, research laboratory, or multifamily

housing, that the community wants to encourage. The

floating zone ordinance contains a number of provisions

intended to mitigate the impact of the development on the

surrounding area, including wetlands. Normally for a

parcel to be eligible for rezoning under a floating zone, it

must be of a sufficient size to insure that the development

can be fitted properly into its surroundings.“

* Wetland mitigation banking “In some communities,

wetland mitigation banking may be a profitable use for

wetland parcels. A wetland mitigation bank is a location

that is available to satisfy a requirement under a Section

404 permit for off-site compensatory mitigation. The bank

generally is a restored or enhanced wetland (previously

degraded in some manner). The developer of a wetland

mitigation bank sells credits; purchasers of credits are

other persons who are allowed by a Section 404 permit to

“ McElfish at 51-55.

“ Nolon, supra note 35.

19

fill their wetlands if they perform mitigation elsewhere.

The mitigation banks can sell credits on the open market.

* Subdivision Regulations — Lot-averaging is “a technique

that allows flexibility in lot size and subdivision design while

maintaining a desired density. Under lot averaging, the

resulting lots may be different sizes and shapes — thus facili-

tating the protection of natural features - while maintaining a

prescribed average density of development Subdivision

regulations can require setbacks of buildings, not only from

the lot line but from ecological resources such as wetlands.“

* Incentive zoning — Incentive zoning can be used to encour-

age development in appropriate areas away, for example, from

wetlands and other vulnerable resource areas and concentrate

development in other districts where it can be properly

serviced. In setting up such a system, the existing zoning is

left in place, but more intensive development is permitted in

exchange for certain community benefits.“

Isolated, non-navigable wetlands are facing continued

pressure from development and piecemeal efforts to

protect these resources. Acknowledging that these wet-

lands exist, that they require protection, and that the

appropriate land use tools are available, will be consistent

with our nation’s goal of “no net loss.”

¢

Strand, Margaret N. and Lowell Rothschild, Wetland Basics in

the Twenty-First Century, LAND Use Law & Zo DicEst, Vol. 55, No.

10, American Planning Association, October 2003, at 3-13.

© McElfish at 78-79.

“ Id.

“ Nolon, supra note 36.

20

CONCLUSION

The land use tools exist to address wetiand protection

in a meaningful way to benefit both the public and the

property owner. Isolated, non-navigable wetlands have

important ecological functions and benefits which must be

preserved and protected. This can only be accomplished if

“the waters of the United States” is broadly interpreted.

The American Planning Association urges the Court to

acknowledge that isolated wetlands are important wetland

resources that require protection under Section 404 that,

coupled with the use of appropriate and available land use

tools, can help ensure that the nation achieves its long-

standing goal of “no net loss.”

Respectfully submitted,

NANCY STROUD* Lora A. LUCERO, AICP

LEWIS, STROUD & DEUTSCH, L.P. 122 S. Michigan Avenue

1900 Glades Road, Suite 251 Suite 1600

Boca Raton, FL 33431 Chicago, IL 60603

(561) 826-2800 (505) 247-0844

*Counsel of Record for Amicus Curiae

American Planning Association

DATED: January 13, 2006