Amicus Curiae Brief — Rapanos v. United States

Congressional codification of the role of mitigation

banking was built upon a long process of regulatory,

scientific and policy acknowledgment of the benefits of

commercial mitigation banking. Since the seminal report,

Protecting America’s Wetlands: An Action Agenda, The

Final Report of the National Wetlands Policy Forum (The

Conservation Foundation, 1988), mitigation banking has

been recognized as most appropriate for CWA compensatory

mitigation. Indeed, after a comprehensive two-year study,

the National Academy of Sciences recently affirmed that

mitigation banking offers advantages over traditional

mitigation approaches. National Research Council,

Compensating For Wetland Losses Under the Clean Water

Act (National Academy Press 2001) at 160-164.*

Federal regulatory agencies have 'ong recognized the

importance of mitigation banking in carrying out the

purposes of the Section 404 program. As early as 1983, the

U.S. Fish and Wildlife Service adopted a policy directive to

guide use of mitigation banking, most of which was

advanced | consolidated mitigation for transportation

activities.” In 1993 and 1995, the Corps of Engineers and the

Environmenta! Protection Agency concluded that mitigation

banking offered substantial advantages,'° and established

* See also, Society of Wetland Scientists, Wetland Mitigation Banking,

—— Paper, se 2004, oon at

ttp://wy landconcerns/bankir

> html (site last visited

* U.S. Fish and Wildlife Service, Interim Guidance on Mitigation

Banking, ES Instruction Memorandum No. 80 (June 23, 1983).

"° See, Army Corps of Engineers and Environmental Protection Agency

Regulatory Guidance Letter No. 93-2. “Memorandum to the

Fieid. Subject: Establishment and Use of Wetland Mitigation Banks in

6

the Clean Water Act Section 404 Regulatory Program,” 60 Fed. Reg.

13,711 (Aug. 23, 1993). eo aine Te Salt Carpe ef Ragpanas ne arn

Guidance, 60 Fed. Reg. at 58,607, providing:

Mitigation banks provide greater flexibility to applicants

needing to comply with mitigation requirements and can have several

advantages over individual mitigation projects, some of which are listed

below:

1. It may be more advantageous for maintaining the integrity of

the aquatic ecosystem to consolidate compensatory mitigation

into a single large parcel or contiguous parcels when

ecologically appropriate;

2. Establishment of a mitigation bank can bring together

financial resources, planning and scientific expertise not

practicable to many project-specific compensatory mitigation

proposals. This consolidation of resources can increase the

potential for the establishment and long-term management of

successful] mitigation that maximizes opportunities for

contributing to biodiversity and/or watershed function;

3. Use of mitigation banks may reduce permit processing times

and provide more cost-effective compensatory mitigation

opportunities for projects that qualify;

4. Compensatory mitigation is typically implemented and

functioning in advance of project impacts, thereby reducing

temporal losses of aquatic functions and uncertainty over

whether the mitigation will be successful in offsetting project

impacts;

5. Consolidation of compensatory mitigation within a mitigation

bank increases the efficiency of limited agency resources in the

review and compliance monitoring of mitigation projects, and

thus improves the reliability of efforts to restore, create or

enhance wetlands for mitigation purposes;

6. The existence of mitigation banks can contribute towards

attainment of the goal for no overall net loss of the Nation's

wetlands by providing opportunities to compensate for

7

procedures for the approval and management of mitigation

banking. After Congress enacted the 1998 preference for

mitigation banks to compensate for impacts from highway

projects, the Federal Highway Administration promulgated

regulations to govern mitigation banking for interstate and

national highway projects.'' Congress has maintained a

consistent oversight of the wetland mitigation industry,

investigating and seeking periodic reports from the

Congressional Research Service and Government

Accounting Office on the progress of compensatory

mitigation projects. '?

Since the early 1990s, mitigation banks have

proliferated across the country. The construction of

mitigation banks and the offering and sale of credits from

those banks are quintessentially interstate commercial

activities. The Environmental Protection Agency estimates

that mitigation banking has grown from 46 banks in 1992, to

219 banks by the end of 2001, to an estimated more than 450

in 2005.'* According to Corps of Engineers data, as of 2000,

authorized impacts when mitigation might not otherwise be

appropriate or practicable.

'! 93 CFR. § 777.9. See also, Mitigation of Impacts to Wetlands and

Natural Habitat, 65 Fed. Reg. 82,913 (Dec. 29, 2000).

2 See, e.g., Jeffrey Zinn, Wetland Mitigation Banking: Status and

Prospects, Congressional Research Service, CRS 97-849 (1997); U.S.

General Accounting Office, Wetiands Protection: Assessments Needed to

Determine Effectiveness of In-Lieu Fee Mitigation, GAOQ-01-325 (May 4,

2001); Jeffrey A. Zinn and Claudia Copeland, Wetland Issues,

Congressional Research Service, CRS IB97014 (updated June 2, 2005).

Environmental Protection Agency, Mitigation Banking Fact Sheet,

available at http://www.epa.gov/owow/wetlands/facts/fact16.huml (site

~ last visited-January 5, 2006).

there were between 370 and 400 mitigation banks

nationwide, in more than 35 states. '*

Companiés in this industry often have mitigation

banks or other operations in multiple states.'> The industries

providing other services for compensatory mitigation, such

as vegetation and materials for restoration, also are interstate

enterprises." While most mitigation banks are located

'4 see, “Existing Wetland Mitigation Bank Inventory”, Institute for

Water Resources (IWR), U.S. Army Corps of Engineers (Spring 2000),

available at:

a tias tant visihed Ianaany 4, 2006). odin fein and Pcs: The

Status of Off-Site Wetland Mitigation In the United States, Environmental

Law Institute, 2002; Wetland Mitigation Banking, Environmental Law

Institute, 1993.

'S For example, EarthMark Companies is an environmental development

company based in Florida and is active in mitigation in multiple states in

the eastern United States through its affiliate companies in North

Carolina (Mid-Atlantic Mitigation, LLC) and West Virginia

(EarthMarkWV Mitigation, LLC). Current projects are located in Florida,

manent alan, pantie on

p://www.mitigationbank.com/mi inks. htm (site last visited

January 10, 2006) and hetp://werwcarthmark. ua/ (site last visited Jenuary

10, 2006). Wildlands, Inc., based in California, has mitigation banks and

Se eee

: i p.htm (site last visited January 6,

7 Creative Environmental Solutions , aN engineering and

ssadieaineeatisetmaaenisiamastamndtetnett mmameeiae teen

en Sonepat

21. 2005). Lcodead Wane tmanen, ba. based in Rosemont, Illinois

operates banks in Illinois, Colorado and Mississippi.

http://www.lawrinc.conybanks html (site last visited January 10, 2006).

'° E.g., Huffman & Carpenter, based in Reno, Nevada, provides wetland

mitigation (and delineation services) projects in Nevada, California and

other states, http://www.nvwetlands.com/comprehensive.html (site last

visited December 21, 2005). Envirotech Consultants, a provider of

9

within and offer credits within one state, some mitigation

banks are authorized to operate in multiple states.'’ Indeed,

the Environmental Protection Agency has recognized that

“entrepreneurial providers of bank credits have emerged as a

nationally-organized industry contributing hundreds of

millions of dollars annually to the domestic product.”'* With

respect to wetland restoration in general, the Fish and

Wildlife Service estimated that more than $139 million

would be spent in 25 states and one territory by the end of

wetland nursery services, is involved in projects in Ohio and other states,

http://www. envirotechcon.com/services | html (site last visited Dec. 21,

2005). Applied Ecological Services is a company is based in Wisconsin,

witb offices in [llinois, Minnesota and Kansas, which provides plant and

nursery services to wetland restoration projects in Illinois, Missouri,

Kansas and other states. http://www.appliedeco.conYWetland.cfm (site

last visited January 9, 2006). JFNew is an ecological services company

providing native plants, wetland restoration and mitigation banking

services in multiple states primarily in the Midwest,

http://www jfnew.convhabitat-restore-root.asp (site last visited January

9, 2006). Habitats Native Plant Nursery provides wetland plants in

Kentucky and Ohio, http://www.habitatsnursery.org (site last visited

January 9, 2006). The Society of Wetlands Scientists maintains a listing

of vendors in wetlands services, reflecting a small portion of the national

ee

lest visited January 9, 2006).

"” See, e.g., “Existing Wetland Mitigation Bank Inventory,” Institute for

Water Resources (IWR), U.S. Army Corps of Engineers (Spring 2000),

which identifies two banks authorized to operate in both Louisiana and

Mississippi, the Delta Land Trust Umbrella Mitigation Bank Agreement

and the TL James (umbrella) bank.

'* EPA, Mitigation Banking Fact Sheet at 3 (Nov. 25, 2005), available at

http://www.epa.gov/owow/wetlands/facts/fact16.html. (site last visited

January 9, 2006).

10

Fiscal Year 2004 to restore or protect more than 167,000

acres of wetlands. '°

In sum, wetland mitigation in general and wetland

mitigation banking in particular are interstate commercial

activities regulated and encouraged under the CWA, other

federal statutes and regulations of multiple federal agencies.

Il, APPLICATION OF THE CLEAN WATER

ACT TO WETLANDS ADJACENT TO

NON-NAVIGABLE WATERS FALLS

WITHIN CONGRESSIONAL AUTHORITY

TO REGULATE INTERSTATE

COMMERCE THROUGH ITS EFFECT ON

MITIGATION INDUSTRIES.

For purposes of the arguments presented in this brief,

Amicus assumes the following facts, as found by the Court

of Appeals: In Rapanos, the wetlands were adjacent to non-

navigable waters that had some hydrological connection to

navigable waters. United States v. Rapanos, 376 F.3d 629,

632-33 (6th Cir. 2004). In Carabell, the wetlands were

separated from non-navigable waters by a man-made berm,

allowing no regular hydrological connection. Carabell v.

United States Army Corps of Engineers, 391 F.3d 704, 705-

06 (6th Cir. 2004). For purposes of this brief, both

circumstances are referred to as wetlands adjacent to non-

navigable waters.

As this Court has reiterated, Congress has authority

under the Commerce Clause to regulate in three broad

categories: (1) the channels of interstate commerce, (2) the

instrumentalities of interstate commerce, and (3) activities

'? Jeffrey A. Zinn and Claudia Copeland, Wetland Issues, CRS 1B97014

(updated June 2, 2005) at 12.

1)

substantially affecting interstate commerce. United States v.

Lopez, 514 U.S. 549, 558-59 (1995); United States v.

Morrison, 529 U.S. 598, 617 (2000). If the Court reaches

the third, “substantially affecting” branch of the analysis,

Amicus submits that regulation of wetlands adjacent to non-

navigable waters meets this standard because it impacts a

significant form of interstate economic activity based on

these wetlands — mitigation banking.

Under Lopez and Morrison, the Court evaluates four

considerations in determining whether conduct “substantially

affects" interstate commerce: (1) Is the regulated activity

commercial or economic in nature, (2) Is there a

jurisdictional element in the statute, (3) Do Congressional

findings or legislative history link the regulated activity to

interstate commerce, and (4) How attenuated is the link

between the regulated activity and interstate commerce.”

This brief addresses the first and fourth factors.

Amicus submits that the economic activity in these

cases, the dredging and filling of wetlands adjacent to non-

navigable waters for commercial purposes, substantially

affects the interstate commercial activity in the mitigation

banking and restoration industries.

A. The Regulated Activity Is Commercial and

Economic.

The activity regulated under the CWA is the

discharge of fill material into wetlands adjacent to non-

navigable waters. A person wishing to undertake such

© The second factor has been described as neither necessary nor

sufficient to establish constitutionality. Morrison, 529 U.S. at 613.

Amicus defers to the briefs of others who will address the CWA

legislative history that may be pertinent to the third factor.

12

activity must first apply for and obtain a permit, which

triggers an integrated system of compensatory mitigation for

authorized discharges. Congress expressly recognized that

discharges under Section 404 involve the commercial

activities of mitigation, as reflected in its enactment of a

statute that requires the Army Corps ©. Engineers to

promulgate regulations concerning mitigation and mitigation

banks (see note 7, above).

The literal language of the statute demonstrates that

Congress understood that destruction of wetlands through

filling involves commercial activities that may substantially

affect interstate commerce. In fact, in Section 404(f),

Congress created specific exemptions from the permit

requirement for five types of economic activity. 33 U.S.C. §

1344(f)(1 XA)-(E) illustrate the kinds of activities Congress

knew were regulated by the CWA. Discharges of dredged or

fill material associated with farming, mining, forestry and

associated road building — all interstate commercial activities

- are exempted from the permit requirement.”' The statute

does not exempt the kinds of discharges of dredged and fill

material involved here, which literally would support

commercial activity involving a condominium complex and

a shopping center.

To find that wetlands adjacent to non-navigable

waters are included in the jurisdictional reach of the statute,

this Court need find only that Congress could rationally have

concluded that the intrastate discharge of dredged or fill

material and its compensatory mitigation, taken in the

?' Amicus cites Section 404(f) to illustrate Congressional intent to

regulate commercial activity, not as illustrative, itself, of the geographic

scope of the CWA. See, Solid Waste Authority of Northern Cook County

v. U.S. Army Corps of Engineers ("“SWANCC"), 531 U.S. 159, 171, 2.7

(2001).

13

aggregate, have a substantial effect on interstate commerce.”

“(E}ven if appellee's activity be local and though it may not

be regarded as commerce, it may still, whatever its nature, be

reached by Congress if it exerts a substantial effect on

interstate commerce.” Gonzales v. Raich, 125 S. Ct. 2195,

2205-06 (2005) (quoting Wickard v. Filburn, 317 U.S. 111,

125 (1942)). The “substantially affecting” standard often

involves aggregation of individual actions that, alone, would

not affect interstate commerce. Lopez, 514 U.S. at 558-561.

The regulated activity here at issue — the dredging and fill of

intrastate wetlands and its attendant mitigation — affects

interstate commerce in the aggregate.

As this Court stated in United States v. Riverside

Bayview Homes, 474 U.S. 121, 135 n.9 (1985), “it may well

be that not every adjacent wetland is of great importance to

the environment of adjoining bodies of water. But the

existence of such cases does not seriously undermine the

Corps’ decision to define all adjacent wetlands as waters.” In

Raich, this Court had “no difficulty concluding that Congress

had a rational basis for believing that failure to regulate the

intrastate manufacture and possession of marijuana would

leave a gaping hole in the CSA.” Raich, 125 S. Ct. at 2209.

The same is true for the regulation of intrastate wetlands

under the CWA.

In certain respects, the Congressional actions

regarding mitigation banking reflect a mirror image of the

statute at issue in Raich. In the CSA, Congress sought to

2 “In assessing the scope of Congress’ authority under the Commerce

Clause, we stress that the task before us is a modest one. We need not

determine whether respondents’ activities, taken in the aggregate,

substantially affect interstate commerce in fact, but only whether a

‘rational basis’ exists for so concluding.” Raich, 125 S. Ct. at 2208-09;

see also, Lopez, 514 US. at 557.

14

extinguish a market; in the CWA and transportation laws,

Congress seeks to encourage a market in wetland mitigation

banking. In both cases, however, Congress clearly has

authority to do so under the Commerce Clause. To conclude

that there is no federal jurisdiction over wetlands adjacent to

non-navigable waters would have a devastating impact on

the mitigation industry and would frustrate Congress’s intent

to promote this market-based approach to environmental

protection. For example, after the SWANCC decision,

mitigation banks in the Chicago District of the Corps of

Engmeers lost approximately half of their sales volume and

gross income.”

B. There is a Direct Link between the Regulated

Activities and Interstate Commerce.

The fourth factor in the Lopez / Morrison analysis

considers the degree of attenuation between the regulated

tolerate reasoning that would “convert congressional

authority under the Commerce Clause to a general police

power of the sort retained by the States.” Lopez, 514 U.S. at

567.

The relationship between the discharge of dredged or

fill material into intrastate wetlands adjacent to non-

navigable waters, compensatory mitigation, and interstate

commerce is direct. A robust national market exists in

wetlands mitigation banking that would be undermined if the

provision at issue here were struck down. Development of

encouraged and steered by Congress, through its express

preference for use of this market-based mechanism as

” See, Royal C. Gardner & Theresa J. Pulley Radwan, What Happens

When a Wetland Mitigation Bank Goes Bankrupt?, 35 Envtl. L. Rep.

10590, 10591 2.10 (2005).

15

compensatory mitigation for highway projects and other

authorized CWA discharges. As discussed above, there is

robust interstate economic activity in wetland mitigation and

mitigation banking.

Several courts of appeals have recognized that the

restoration and mitigation industries associated with

environmental regulation form an appropriate linkage to

interstate commerce. See United States v. Ho, 311 F.3d 589,

604 (5" Cir. 2002) (“illicit asbestos removal project likely

would reduce the number of companies providing asbestos

removal services,” and would give Ho a “commercial

advantage over conscientious property owners who must pay

higher prices for asbestos removal.”). See also, United

States v. Olin Corp., 107 F.3d 1506, 1511 (11th Cir. 1997)

(“to the extent a chemical plant can dispose of its waste on-

site free of regulation, it would have a market advantage over

chemical companies that lack on-site disposal options; Olin’s

actions, therefore, have an economic character.”’)

The analysis and conclusions relying upon restoration

industries as a basis for federal regulation are similar to

determinations that interstate tourism provides a sufficient

nexus to wildlife and species protection. See, Gibbs v.

Babbitt, 214 F.3d 483, 492-93 (4" Cir. 2000) ("{tJhe

relationship between red wolf takings and interstate

commerce is quite direct — with no red wolves, there will be

no red wolf related tourism . ..."). See also, Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241, 256 (1964)

(“Commerce among the states, we have said, consists of

intercourse and traffic between their citizens ... ") (quoting

Hoke v. United States, 227 U.S. 308, 320 (1913)).

16

CONCLUSION

Amicus submits that if the Court evaluates the

constitutional issues presented in these cases under the

“substantially affecting” standard, it should uphold CWA

jurisdiction over wetlands adjacent to non-navigable waters

based on the substantial effects on the interstate commerce in

wetland mitigation banking and restoration.

Respectfully submitted,

Margaret N. Strand

(Counsel of Record)

John F. Cooney

Michael Munson

Venable LLP

575 7™ Street N.W.

Washington, D.C. 20004

(202) 344-4000

Royal C. Gardner

1401 61" Street South

Gulfport, Florida 33703

(727) 562- 7864

Counsel for Amicus Curiae

National Mitigation Banking

Sennuitill

January 13, 2006

17

‘S \> 4 eee - 0 wade

Nos. 04-1034, 04-1384 |

IN THE

SUPREME COURT OF THE

JOHN A. RAPANOS, ET AL.

Petitioners,

Vv

UNITED STATES OF AMERICA,

Respondents.

JUNE CARABELL, ET AL.

Petitioners,

Vv

U.S. ARMY CORPS OF ENGINEERS, ET AL.

Respondents.

On Writs Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

BRIEF OF AMICI CURIAE NATIONAL STONE, SAND

AND GRAVEL ASSOCIATION, THE AMERICAN ROAD

AND TRANSPORTATION BUILDERS, THE CITY OF

VICTORVILLE, CALIFORNIA, AND THE NATIONWIDE

PUBLIC PROJECTS COALITION

IN SUPPORT OF PETITIONERS

LAWRENCE R. LIEBESMAN *

RAFE PETERSEN -

ETHAN ARENSON

STUART TURNER

HOLLAND & KNIGHT LLP

2099 Pennsylvania Ave., NW

Washington, DC 20006

(202) 955-3000

*Counsel of Record

i

TABLE OF CONTENTS

INTERESTS OF THE AMICI CURIAE.............ccccseessersersenes

SUMMARY OF ARGUMENT ..........:essesssseesseesssessereeseensens

I. THE EXPANSIVE JURISDICTIONAL

APPROACH URGED BY THE

GOVERNMENT AND ALREADY ADOPTED

IN SOME AREAS OF THE COUNTRY BY

THE ARMY CORPS OF ENGINEERS HAS

RESULTED IN INCONSISTENCY AND

CONFUSION AND HAS DONE

SIGNIFICANT HARM TO THE PUBLIC

PROJECTS COMMUDNITY..........0scssessssssssssessenserseees

A. The Lack Of Clear And Consistent

Guidance Over The Scope Of CWA

Geographic Jurisdiction Has Created

Confusion In The Regulated

B. Adoption Of The Mere Hydrological

Connection Or The "Migratory

Molecule" Standards Urged By The

Government And Adopted By The

Sixth Circuit In Rapanos And Carabell

Would Have Severe Consequences

For The Public Works Community.............. 12

Il.

Ii.

li

THE REQUISITE "SIGNIFICANT NEXUS"

BETWEEN A NON-NAVIGABLE WETLAND

AND A NAVIGABLE-IN-FACT WATER CAN

ONLY BE ESTABLISHED BY PROOF OF A

SIGNIFICANT HYDROLOGICAL

CONNECTION AND EVIDENCE THAT

POLLUTANTS DISCHARGED INTO THE

WETLAND WOULD BE HARMFUL TO THE

CHEMICAL, PHYSICAL, OR BIOLOGICAL

INTEGRITY OF THE NAVIGABLE WATER......

A. The Extension Of CWA Jurisdiction

To Waters That Have Only An

Intermittent, Indirect, Tenuous Or

Remote Hydrological Connection To

Navigable Waters Exceeds The

Corps's Authority Under The CWA.............

B. Evidence Of Significant Impact To

The Water Quality Of A Navigable

Water Is Necessary To Demonstrate

That A Non-Navigable Water Is

“Inseparably Bound Up" With A

DRIED Cee icctncatccsnesstssnctnrewsnseicseeipenis

THE SIXTH. CIRCUIT'S BROAD

INTERPRETATION OF #£"“NAVIGABLE

WATERS" VIOLATES THE FUNDAMENTAL

PRINCIPLE OF FEDERALISM THAT

ABSENT A "CLEAR STATEMENT" FROM

CONGRESS, A REVIEWING COURT

SHOULD NOT SANCTION USURPATION OF

STATE AND LOCAL CONTROL OF LAND

AND WATER RESOURCEG............c0ccesseverseevenneees

iii

Nothing In The CWA Evinces A Clear

Statement That Congress Intended To

Encroach Upon Local Regulation of

Activities That Do Not Add Pollutants

to Navigable Water ................ccsssseeseeeresees

The Sixth Circuit Would Upset The

Delicate Balance Between The CWA

And Comprehensive State And Local

Programs For Controlling Water

ee saicaprecigueresniiiisuanitiinittadidendmmiieed

iv

TABLE OF AUTHORITIES

CASES

"t of T v ic Citi

Rf REE Soe me renee 23

FD&P Enters., Inc. v. U.S. Army Corps of Eng'rs,

239 F. Supp. 2d 509 (D.N.J. 2003) .....cccccccescescsessessesnessee 22

Fed. Energy Regulatory Comm'n v. Miss.,

SEE US, FE Ce ecccnissssincieabditnanaindieiitediiaice seinen 27

Gregory v. Ashcroft,

UE ChE. GE GUN crccrntovsinnsistttieess cpnsaniitieceaiiall 25, 26

In re Needham,

354 F.3d 340 (Sth Cir. 2003)......ccccccccccccssessssseseseceesneeereee 17 -

Rice v. Harken oratio .

250 F.3d 264 (Sth Cir. 2001)......ccccccssecsesseceesessveee 21, 22, 23

Solid Waste Agency v. U.S. Army Corps of Eng'rs,

SOE UE, BED IIE cecccsconsisttiinicecnteiithaieaaiaailaias passim

Treacy v. Newdunn Associates,

344 F.3d. 407 (4th Cir. 2003)...........ssssssessrssssesscsssererserees 19

U.S. v, Bass,

ENT

U.S. v. Deaton,

332 F.3d 698 (4th Cir, 2003)......ccccccssessversessesvesvesnreveeeveees

U.S. v. Lopez,

ee te ecrsicenersnsessssssssnatanssnsmnsessseinoennoveees

U.S. v. Newdunn Assocs.,

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

U.S. v. RGM Corp.,

222 F. Supp. 2d 780 (E.D. Va. 2002) .....ccccccscssssssssesesereee

U.S. v. Rapanos,

190 F. Supp. 2d 1011 (B.D. Mich. 2002)...........cccceccseeseee

US. v. Riverside Bayview Homes, Inc.,

i he 15, 16,

US. v. Rueth Dev. Co.,

189 F. Supp. 2d 874 (N.D. Ind. 2001) ...ccccccccsssssseeevssssee

U.S. v. Rueth Dev. Co.,

335 F.3d 598 (7th Cir, 2003).......ccccccecseseessesessessvssesseenvenes

Water Keeper Alliance v. US EPA,

399 F.3d 486 (2d Cir, 2005).....ccccccccescsscsressesessesresesseseveves

vi

LEGISLATIVE MATERIALS

Federal Wetland Protection Policy, 1993: Hearings

on S. 1304 Before the Subcomm on Clean Water,

Fisheries and Wildlife of the Senate Comm. on

Environment and Public Works, 103d Cong.,

i caiscttinthatihinnattintastilieh titetaslatideatniedetiasetiattiaiied 27

Testimony provided to Committee of Transportation

and Infrastructure: Before Subcomm. on Highways,

Transit, and Pipelines, 109th Cong, (2005)

(statement of Johnny B. Bradberry, Secretary of

Louisiana Department of Transportation and

Development) http://www.house.gov/transportation/

highway/10-27-05/oradberry pdf ..............csccereeeereereevereees 13

REGULATIONS

SR ee 20

ee ee crested nteeerensattuitincsninctntionrssmnitninibieges 16

51 Fed. Reg. 41206 (Nov. 13, 1986)........cccccccecsererereeeeeneees 19

65 Fed. Reg. 12818 (Mar. 9, 2000)...........cccssessersereeserserenees 20

Federal Wetland Regulation, 29 Envtr. L. (1999)................ 28

STATUTES

RS 16, 22

33 U.S.C. § 1251(©) (2000)..........ccssererrcersererseseerererserseereres 26

CE ee 26

33 U.S.C. § 134460) (2000) .cssacsceressecesecsovrseseeeessornseens 16

Ce el | 16

SD UBL. © 1SGRLT) CODED ccceaccncecsserrcssoncesscseosnsesessen 16

Clean Water Act § 404(f) (1989) ..cccsccoccssssesesnsseenesseeeneeee 7

Cal. Water Code § 13050 (1992) ..cccsccccsesnsssesnesseensseenee 28

Md. Code Ann., Envir. § 5-102 (1996) .scccccssovesessvsesesnsee 28

OTHER AUTHORITIES

43 Op. Att'y Gen. 15 (1979)..cccssscssssssceessssessnessesnssseesneeee 7

David L. Sunding & David Zilberman,

snaienemnaiiieed 1 Remstetion |

Licensing, An Assessment of Recent Changes to the

Wetlands Permitting Process, Nat. Resources J. (2002). .12

Margaret N. Strand,

Wetlands Deskbook, (2d 6d. 1997) ...cccccsveservesesesvesneeene 7

State or Tribal Assumption of the Section 404 Permit

The National Stone, Sand and Gravel Association,

the American Road and Transportation Builders Association,

the City of Victorville, California, and the Nationwide Public

Projects Coalition, as amici curiae, respectfully submit this

brief in support of Petitioners John A. Rapanos, et al. and

June Carabell, et al.

INTERESTS OF THE AMICI CURIAE

The Amici are private entities, public sector agencies

and associations, and local governments that provide

essential services to the public including flood control and

water supply management, construction of vital public

infrastructure projects and the production of aggregates that

are utilized in construction projects across the county.

On a daily basis, Amici are forced to navigate the

confusing and ever-changing maze of regulations and policy

statements issued by the Army Corps of Engineers in order

to determine the answer to what should be a simple question:

does a given wetland fall under federal jurisdiction pursuant

to the Clean Water Act ("CWA")? Under the current

framework, determining the answer to this simple inquiry is

exceedingly difficult and, even more troubling for Amici,

often varies depending on in which part of the Country the

wetland is located or which particular agency staff member

is consulted. Amici firmly believe that the time has come for

this Court to provide clear criteria for CWA jurisdiction that

' All parties have consented to the filing of this brief. The

Amici have filed letters of consent with the Clerk. Pursuant

to this Court's Rule 37.6, Amici state that no counsel for any

party in this case authored this brief in whole or in part, and

no person or entity other than the Amici and their counsel

have made a monetary contribution to the preparation and

submission of this brief.

; |

recognizes the proper limits of federal jurisdiction over non-

navigable waters, and eliminates the inconsistency and lack

of clarity that has been the hallmark of this area of the law

for far too long.

The Amici consist of the following:

The National Stone, Sand and Gravel Association

("NSSGA") is a trade association that represents more than

895 members and approximately 120,000 working men and

women in the aggregates and related industries. During

2004 alone, a total of more than 2.86 billion metric tons of

aggregate materials (crushed stone, sand, and gravel), valued

at more than $16 billion, were produced and sold in the

United States. NSSGA's members are responsible for over

90 percent of the annual production of crushed stone and

over 70 percent of the annual production of sand and gravel

in the United States. Due to how aggregates are formed,

sand and gravel are often located near or under streams and

other wetlands. Consequently, NSSGA's members

frequently excavate materials from these areas. The vast

majority of these materials are utilized in public

infrastructure projects. NSSGA's members also regularly

undertake land reclamation activities that include wetland

restoration, creation and enhancement, as well as flood

storage enhancement.

The American Road and Transportation Builders

Association ("ARTBA"), is made up of more than 5,000

member organizations in the transportation construction

industry, including construction contractors, professional

engineering firms, federal, state and local transportation

administrators, heavy equipment manufacturers, and

materials suppliers. These member companies employ more

than 2.5 million people in the transportation construction

industry in the United States. ARTBA's members are

responsible for construction of vital public infrastructure

3

projects such as highways, bridges, airports, railroads, and

transit facilities.

The City of Victorville, California has a population

of approximately 78,000 and is located approximately 97

miles Northeast of Los Angeles and 35 miles Northeast of

San Bernardino at the edge of the Mojave Desert. The

Southern California Logistics Airport ("SCLA"), formerly

the George Air Force Base, is located in the City and has

become the primary focus of the City's development plans.

The City is located within the Mojave River Watershed in

the high desert region of Southern California. The Mojave

River, the primary source of surface water for the basin, is

normally dry, except for a small stretch of perennial flow and

periods of flow after intense storms. The Mojave River

actually flows underground for much of its 120 miles. The

City is very concerned that, if the Court upholds the Sixth

Circuit's decisions below, normally dry desert washes found

in the Mojave River basin that are wet only after intense

storms would be considered "Waters of the United States."

Such expanded jurisdiction could have a severe impact on

the expansion of the SCLA and other development projects,

including manufacturing and industrial production, as well as

public infrastructure projects that are vital to the City's

economic growth and integral to the City's long-term growth

plans.

The Nationwide Public Projects Coalition

("NPPC") is a not-for-profit association that is made up of

regional and local government agencies that are involved in

water supply, flood control, irrigation, wastewater and

stormwater management, street and highway construction

and maintenance, aggregate mining, and environmental

quality amenities. These agencies represent over 12 million

constituents, extending from Connecticut to California and

from Alaska to Georgia. NPPC works on behalf of members

of the public to ensure that vital public infrastructure services

4

are provided in a safe, timely and environmentally-beneficial

fashion. Consisting of public agencies and firms that

provide vital infrastructure and services, NPPC’s members

must ensure that a responsible balance is achieved between

environmental, health, and safety goals and the protection of

human lives and property. NPPC's members are typified by

the following agencies:

The West Valley Water District of Rialto,

California ("WVWD") is an independent special district that

serves water customers living in southwestern San

Bernardino County and northern Riverside County. WVWD

depends on local surface water resources, five groundwater

basins ane Go Coame Stats Welw Peqent 0 ment Ge

needs of more than 50,000 persons.

The Metropolitan Denver Water Authority of

Littleton, Colorado ("MDWA\") is a political subdivision

and public corporation of the State of Colorado. MDWA is

made up of twenty cities and special districts that provide

municipal water and/or wastewater services for the

Metropolitan Denver area and serve more than 1.5 million

persons. MDWA's member agencies serve some of the

fastest-growing counties in the nation.

The Semitropic Water Storage District of Wasco,

California ("SWSD") supplies agricultural water for more

than 140,000 irrigated acres of growing crops such as alfalfa,

cotton, nuts, vegetables, grains and grapes. SWSD operates

one of the largest groundwater storage projects in the world,

and help meet the drought-year needs of more than 20

million California residents.