Amicus Curiae Brief — Pozsgai v. United States

Supren.e Court, U.ds

. FiLED

Pb wu we

No. 89-1735 JOSEPH £. SPANIOL, JR,

CLERK

ea

i, ne oe eten

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

JOHN POZSGAI,

Petitioner,

VS.

THE UNITED STATES OF AMERICA,

Respondent.

On Petition For Certiorari to the

United States Court of Appeals

For the Third Circuit

BRIEF AMICI CURIAE OF

FERCOM AQUACULTURE CORPORATION,

RICKY LEE MCGOWN, JAMES ALLEN MOSELEY

AND MARY ANN MOSELEY

IN SUPPORT OF PETITIONER

EDWIN G. HARVEY

(Counsel of Record)

CoOBURN, CROFT & PUTZELL

One Mercantile Center

Suite 2900

St. Louis, MO 63101

(314) 621-8575

Counsel for Amici Curiae

St. Lcuis Law Printing Co., Inc., 13307 Manchester Road 63131 314-231-4477

~

.

ee ee eee ee eee

TABLE OF CONTENTS

ee re cleeinpusanatemmanabanaaandoaeaauaiars

er - eabanaveeaseeinumbunadecianbicees

Summary of Reasons for Granting the Writ...................0.0.

Argument

1.

Poe ee URE UP OCOOUOCCOCOCOCOCOOCOCOC OTC e Ieee eee eee)

The New Approach: Regulating Dry Land..........

a. The Corps’ Regulations Purport to Regulate

Only Truly Aquatic Areas ................cceeeeees

b. The New Federal Wetlands Delineation

Manual: The Tool for the Agencies’ Emerg-

ing “Land-Grab” Doctrine ...................000

c. Nationwide Reaction to the Corps/EPA’s

NIT sacalbsindiicassintiasinddaicsantorestinencets

Impact Upon the Regulated Community .............

a. The Permitting Process: ““Take-it-or-Leave-

b. Declaratory Relief: A Costly Remedy ........

The Agencies Overzealous Policies, Their New

Attempts to Expand CWA Jurisdiction, and the

Harsh Punishment Imposed on Mr. Pozsgai, Re-

quires that this Court Strictly Scrutinize the Fatal

Absence of Proof in the Pozsgai Case .................

a. The Government Failed to Prove that

Pozsgai’s Property is Subject to Federal CWA

ee

i

14

16

16

b. The Government Failed to Prove that Peti-

Conclusion

tioner Discharged “Pollutants” “Into Water”

06 Defined 62 Ce CWA. cccecceccsessossescsesssescesee

FOOTE TEETH HEHEHE EHEEEEE EE EE EEE EE EEEEEE TEESE EE EE EE EE EEE EE OE ESET HEHEHE EES

ON LOE A RARER —

TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)..........

Blue Cross Association v. Harris, 622 F.2d 972 (8th Cir.

Columbia Pictures v. Professional Real Estate Investors, 866

I Oo sc encpnniiiineebinneeeneninns

Harrison v. P.P.G. Industries, 446 U.S. 578 (1980) ..............

Hodel v. Virginia Surface Mining and Reclamation Asso-

I ME OF I WOE ovevcececsvinecerevecsonessnevesteoves

Katzenbach v. McClung, 379 U.S. 241 (1964) 0.

Leslie Salt Company v. United States, 700 F.Supp. 476

a css ccacickcinseunsnivennnntnevineiieentvsen

Mulberry Hill Development Corporation v. U.S., Cause No.

PN89-2639 (D.Md. 1989) (pending) .............. ccc

N.L.R.B. v. Jones and Laughlin Steel Corporation, 301 U.S.

Se CTS SE

N.L.R.B. v. Wyman Gordon Corporation, 394 U.S. 759

acti so cnainettaphsnibaneeenenchekeieenseeinianenns

Souther Pines Association v. United States, Cause No. C-89-

453-N (E.D.Va. Aug. 11, 1989), Appeal docketed No.

89-1790 (4th Cir. Aug. 28, 1989) .................scccsssseceseees

Swanson v. United States, 600 F.Supp. 802 (D.Idaho 1985,)

aff d 789 F.2d 1368 (9th Cir. 1986) ............ eee eeeeeee

Tabb Lakes, Ltd. v. United States, 715 F.Supp. 726 (E.D. Va.

1988), aff d without published op. No. 89-2905, slip. op.

I, CIMIID wrceccereserssvesearewsersseessonsnsonss

11,14

11,15

16

11

14

T.L. Hunt, Incorporated v. C.1.R.,562 F.2d 532 (8th Cir. 1977)

United States v. Darby, 312 U.S. 100 (1941) 0...

United States v. Darby, 312 U.S. 100, 121 (1941)......00000.....

United States v. Key West Towers, Incorporated, 720 F.Supp.

RPT STINE seccinecinicsanitiantensntenshinitasinamasioniess

United States v. Larkins, 852 F.2d 189 (6th Cir. 1988) cert.

Gama TED SAX. FIDE CHI coerce ccivsesecetvnsinsscscccsavionisee

United States v. Riverside Bayview Homes, Incorporated, 474

8, SS eA nn Se | PN

1902 Atlantic Ltd. v. Hudson, 574 F.Supp. 1381 (E.D.Va.

Code of Federal Regulations:

33 C.F.R. §328.3(b)......... ECE SOL ACRE a BRINE ROT NTT

EP IIE sstensestanciclitamasccddadonnaiacenmaaadishcinieaien

Be ae ae Pe III es cocsinsichciceiecucnccantuntcesbonededainasmenrersivons

Statutes:

Administrative Procedure Act, 5 U.S.C. §553 ........e eee

Clean Water Act, 33 U.S.C. §§1251-1376 .00... eee

Se Re IE sea eccternipslectnotosanidddineitcbhanidnjdineiiaiirteemeineenios

Ba eae Te a cob ccctceentecasesisaecntcetovsibdinepnintedabdchdbeasennepunien

es PT siiovidiuvibssiedchasitbedcnsiconiasicainaesaabaosebnctpeibasaanaaaloun

FS UB. USUI) cccrccovecesiies seca Sipsiaebiaiedia duiputaliacndaadaanics

33 U.S.C. §13179 .......... Stree iret ae ssevesevcsvnsensenscessenscreseesenecseees

Be aes INE peiaitsassiciciesisensbon baci shessnliccpiehetitnipdlbaciinaiatadas

Be See es cet kuicienlerikseainininiviceelidbannditiaemanbianiibes

16

14

5 ok SRE ACER EAA Ree ORE TR ee SOE ne AA ours passim

ee eee I cic cishiccsniiensaieniishisninienniocnanceditenesiiiinsaibccanbitine 17

Be es ES sipticiainnteinscccensicciberigijarinheniaitiaanibinanie 17

Fe a i icvinnniovnrnteiensnesiniitienidisutstevinighiiamisanicuniia 13,17,18

Fa es SEED centirncicisnsenncnlabeanhaniaiiaddniaiiendiiabeaiansaan 17,18

River and Harbors Act of 1899, 33 U.S.C. §403 oo... 6

Federal Register:

Fe Pe Fe, Bee Ne OD teccercteicniievitlipsrentuinnnanntennssceahnbienns 9

Executive Order 12630, Mar. 15, 1988, 53 Fed. Reg. 8859

“Govermmental Actions and Interference with Consti-

tutionally Protected Property Rights”’................0.:.000 8

Memorandum of Agreement between Corps/EPA, Feb. 7,

1990, 1990 Fed. Reg., Vol. 55, No. 48, p. 9210........... 14

Miscellaneous:

Rs FI Fa: GEE snieieciccsestcincesionninpataiiaancidasieain 10

Environmental Protection Agency: America’s Wetlands: Our

Vital Link Between Land and Water, p. 1 (Feb., 1988) 13

Farm Journal, June/July, 1990, p. 117 .........ccccsocssscseccsseseseses 13

Emerson, Congressman, February 28, 1990, Testimony of

Congressman Emerson before Sub-committee on Water

Resources, Committee on Public Works of Transporta-

ee WEIN UII sdnsecchsiiecestcnicaavnciobueinouneiabewcetnes 12

Federal Manual for Identifying and Delineating Jurisdictional

OUTED Sinn ccincbilaicdsusinnidcpaibniaiiiasadeca oedema 10,11,12

E. Gibbon, Decline and Fall of the Roman Empire,Ch. 8..... 4

T. Settespom, Weitiongs, Vol, HE. BUF cicicncseccsssnenrsneccscensewens 3-4

vi

Legislative History of Clean Water Act of 1977, Vol. 3-4, pp

Fy ee LIPO tsreectteinvcternccnninsemnminnnen

New York Times, April 24, 1990, “For Farmers, Wetlands

Ie IE CIS cvveceivcncesscesvevncpmessnassvananentnnes

IU 8 a ho celaeaieanienad

Regulatory Guidance Letter 86-9 issued August 27, 1986 by

I TEI chic shduiideie veuntbicatinaceleeuonndaeesianicaienomeneinn

S. Rep. No. 414, 92d Cong., Ist Sess. 77 (1971) ........... ee.

D. Webster, Remarks on Agriculture, Boston, 13 Jan.,

1]

16

No. 89-1735

IN THE

Supreme Court of the United States

OcTOBER TERM, 1989

JOHN POZSGAI,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

On Petition For Certiorari to the

United States Court of Appeals

For the Third Circuit

BRIEF AMICI CURIAE OF

FERCOM AQUACULTURE CORPORATION,

RICKY LEE MCGOWN, JAMES ALLEN MOSELEY

AND MARY ANN MOSELEY

IN SUPPORT OF PETITIONER

With the written consent of all parties, FERCOM Aquaculture

Corporation, Ricky Lee McGown, and James Allen and Mary Ann

Moseiey respectfully submit this brief as Amici curiae. Amicihave filed

the consents of the parties with the Clerk of the:Court.

Amici curiae, FERCOM Aquaculture Corporation, Ricky Lee

McGown, and James Allen and Mary Ann Moseley, pray that a Writ

of Certiorari be issued to review the judgment of the United States

Court of Appeals for the Third Circuit in this case.

a,

INTEREST OF AMICI CURIAE

Amici curiae are a company and individuals who have been ag-

grieved by thie actions of United States Army Corps of Engineers

(“Corps”) and the Environmental Protection Agency (“EPA’’) in

connection with those agencies’ unprecedented attempts to gain con-

trol of amici’s dry, solid-ground preperty under the guise of enforcing

the anti-water pollution provisions of the Clean Water Act (“CWA”),

§§33 U.S.C. 1251-1376.

FERCOM Aquaculture Corporation (“FERCOM”’) is a Missouri

company engaged in the business of raising certain aquaculture

products, primarily catfish, in farm ponds it has constructed in areas

which previously consisted mainly of cultivated com and soybean

fields. In August, 1989, the Corps and EPA asserted CWA jurisdiction

over these cultivated fields and claimed that the construction of catfish

ponds in the fields constituted a violation of the CWA. Ironically, the

government claimed that FERCOM was destroying the government’s

“valuable wetlands” (i.e. the corn and bean fields) by building water

thereon. In September, 1989, FERCOM responded by bringing an

action for a declaratory judgment, FERCOM Aquaculture Corpora-

tion v. United States, et al., Cause No. N89-0116-C (E.D.Mo.), secking

a declaration that the Corps/EPA have no CWA jurisdiction over

FERCOM'’s dry, solid-ground property. The government responded

by filing and vigorously briefing a Motion to Dismiss (now pending),

contending that FERCOM has no right to bring such a suit and that

FERCOM'’s sole redress must be to wait until the government brings

an enforcement action against it; the government claims that then, and

only then, can FERCOM assert lack of jurisdiction.

Similarly, in August, 1989, amicus Rick McGown filed a declara-

tory judgment action, McGown v. United States, et al., Cause No. N89-

0103-C (E.D.Mo.), seeking a judicial declaration that the Corps/EPA

have no jurisdiction overhis farm fields. McGown filed his action only

after extensively, but unsuccessfully, attempting to negotiate for a

“$404 permit” (which was unnecessary in the first place) with the

Corps/EPA in order to repair his half-century old levee along a small

~—

creek and to relocate/construct the levee in an area landward of its

former location. Using so-called “$404 mitigation” as a device more

akin to “economic extortion,” the Corps/EPA refused to give Mr.

McGown a §404 permit unless he would “‘set aside”’ for the govern-

ment one-fourth of his 255 acres of farm property. Only after a year-

and-a-half of “running the 404 permitting gauntlet,” and after having

been repeatedly called a “flagrant and multiple violator” of the CWA,

did Mr. McGown file his action seeking judicial intervention. As is the

case in FERCOM, the govemment responded by vigorously attempting

to have Mr. McGown’s case dismissed — contending that he too has

no remedy butto sit and wait forthe govemment to bring anenforcement

action against him.

Three business days after Mr. McGown filed his lawsuit, the

government brought-an action against Mr. McGown’s neighbors,

amici Moseleys, (United States v. James Allen and Mary Ann Moseley,

Cause No. N89-0107-C (E.D.Mo.)), claiming that the construction of

a levee in the Moseley’s farm fields located near a small creck

constituted an act of water pollution. Consequently, the Moseleys also

find themselves embroiled in litigation with the Corps/EPA, revolving

largely around the question of whether their dry, solid-ground soybean

fields are “navigable waters” subject to regulation by the Corps/EPA.

All three of the above mentioned cases arise from the Corps/EPA’s

rapidly evolving “‘land-grab” strategy. The issues before this Court in

Pozsgai have nationwide significance to amici and other farmers,

landowners, contractors, and developers across the country — espe-

cially in light of the recent attempts by the Corps/EPA to capitalize on

a bottomless environmental pork-barrel by drastically expanding their

regulatory jurisdiction (without notice and comment to the public) far

beyond the scope of the CWA and the boundaries of the United States

Constitution.

Amici are all engaged in farming activities in the heartland of

America. Farming has long been recognized as the backbone of this

nation:

— vom

Whenever there are in any country uncultivated lands and

unemployed poor it is clear that the laws of property have been

so far extended as to violate natural right. The earth is given as

a common stock for men to labor and live on.. .. The small

landowners are the most precious part of the State.

T. Jefferson, Writings, Vol. XIX, p. 17. As stated by Daniel Webster:

“Let us never forget that the cultivation of the earth is the most

important labor of man.” D. Webster, Remarks on Agriculture, Bos-

ton, 13 Jan., 1840. It is noteworthy that the policies the Corps/EPA

would impose on our citizens are also not without historical precedent:

“All taxes must, at last, fall upon agriculture.” E. Gibbon, Decline and

Full of the Roman Empire, Ch. 8. As demonstrated herein, the im-

plications of the Pozsgai case far transcend Mr. Pozsgai’s individual

situation and are indicative of problems of a nationwide magnitude —

problems which make this Court’s intervention necessary.

SUMMARY OF ARGUMENT

The CWA is an anti-water pollution statute. It is not a “land-use

zoning act’ nor is it even a “wetlands protection act.” Indeed, CWA

does not prohibit the “destruction” of a wetland by draining or the

removal of all vegetation; however, the placement of rock, sand or

certain other enumerated materials on wetlands “violate” Section 301

of the CWA. This feature of the law is significant, for Congress did not

intend that the mere placement of fill on dry areas constitutes a

discharge of a “pollutant” “into water.” Even assuming the Corps did

have jurisdiction over Mr. Pozsgai’s property, the Corps and all

federal agencies had already approved a nationwide permit for the fill

work conducted. 33 C.F.R. §330.5(a)(26). Far from being a “‘raper of

the publicenvironment,” Mr. Pozsgai’s activities cleaned upa vacant

lot/dumpsite. See Petition for Writ of Certiorari, pp. 3-6.

The harsh punishment imposed upon Mr. Pozsgai is, according to

the lower court’s admonition, intended to send a chilling message —

supposedly to “environmental water polluters.” The true message and

practical effect of “Pozsgai justice,” however, is not to wam real large-

scale polluters, but to bludgeon into submission those farmers and

~

landowners who might otherwise oppose the government’s recently

energized attempts to take over their property. The combination of the

agencies’ long-recognized penchant for overregulation and their new

attempt to expand CWA jurisdiction to regulate dry land presents an

alarming dilemma to farmers, landowners, and developers. If the

agencies’ “bargaining position” is fortified with the threat of “Pozsgai

justice” — it will be a rare landowner indeed who would dare to risk

his freedom and economic survival in order to defend his property.

Regulatory “compliance” will be little more than “capitulation” and

the cost of compliance will be justice and fair play. The horrors

experienced by Amici curiae are, unfortunately, only the tip of the

iceberg of regulatory nightmares which await landowners if the

agencies are allowed to continue unchecked in their emerging land-

grab fervor. In light of these recently developing circumstances,

Amici curiae respectfully submit that it is imperative that this Court

review the compelling issues raised by Mr. Pozsgai.

This Court is Mr. Pozsgai’s last resort to prevent injustice from

occurring — injustice not limited to Mr. Pozsgai but with widespread

ramifications to the “regulated public” across the country. Amici fully

adopt and incorporate by reference all portions of Mr. Pozsgai’s

Petition for Writ of Certiorari, and focus primarily upon issues I and

II. Amici respectfully submit that the government’s failure to prove

both (1) the requisite interstate commerce connection with the activity

sought to be regulated, and (2) the discharge of a “pollutant” “into

water” as required by the CWA — results in a conviction woven from

threads far too loose and thin for hanging Mr. Pozsgai.

— >

ARGUMENT

Introduction: “Section 404”:

The Government's Penchant for Overregulation

The Clean Water Act (““CWA’’), which was known as the Federal

Water Pcllution Con:rol Act at the time of its enactment in 1972, is a

comprehensive effort by Congress to restore and maintain the “chemi-

cal, physical, and biological intregrity of the nation’s waters.” 33

U.S.C §1251(a). However laudatory these goals may be, the actual

legal requirements are found in other sections of the law. The corner-

stone of the regulatory scheme established by the CWA is Section 301,

33 U.S.C. §1311, which prohibits the discharge of “any pollutant” into

“navigable waters,” except when in compliance with various sections

of the CWA, including section 404, 33 U.S.C. §1344. Section 404

establishes a program whereby the Corps issues permits for the

“discharge of dredged and fill material.” The section 404 program is

somewhat of an orphaned hybrid which arose out of the combination

of the historic regulation by the Corps of obstructions to navigation

under the Rivers and Harbors Act of 1899, 33 U.S.C. §403, and the

environmental concems of the CWA. A troublesome shortcoming of

the section 404 program is that it bears, at best, a strained relationship

to the purposes of the CWA, particularly with respect to the enforce-

ment action brought against Mr. Pozsgai. The purpose of the CWA is

to protect water quality, not to regulate land use.'

The substance of the CWA’’s jurisdictional boundaries has not been

altered by Congress since 1977. Even then, when Congress considered

the 1977 amendments to section 404, it attempted to curb what many

members of Congress have perceived as “the Corps’ penchant for

overregulation, particularly in cases of de minimus environmental

concem.” 1902 Atlantic, Ltd. v. Hudson, 574 F.Supp. 1381, 1397-98

(E.D.Va. 1983). The 1902 Atlantic, Ltd. Court’s quotation from a

' The CWA does not even mention the term “wetlands,” and section 404

was mainly concerned with the open water disposal of dredged material. The

Corps’ role in operating the section 404 program emanated from its historic

role in regulating obstructions in navigable waters.

go

colloquy during floor debate on the Senate bill (S.1952) between

Senator Muskie (the Senate manager of the 1977 amendments) and

Senator Bentsen is illustrative of Congress’ concem for the Corps’

penchant for overregulation:

MR. BENTSEN: Mr. President . . . . Section 404 has become a

symbol to many Americans of how a well-intentioned legislative

initiative can turn into a quagmire of disruption, frustration, and

bureaucratic entanglement for the ranchers, farmers, foresters,

and average citizens of this country.

* * *

Section 404 has become synonymous with Federal

overregulation, overcontrol, cumbersome bureaucratic proce-

dures, and a general lack of realism... .

* * *

During Senate consideration of the conference report on the

Clean Water Act of 1977, Senator Muskie, who also was one of

the Senate conferees, stated that the statements made during

Senate debate, such as the statements above, adequately reflect

the legislative intent with respect to Section 404.

1902 Atlantic Ltd., 574 F.Supp. at 1398, n. 16 (emphasis added)

quoting Legislative History of the Clean Water Act of 1977, Vol. 3-4,

pp. 470, 901-02 (1978).

Unfortunately, despite the concems expressed in 1977 by Senators

Bentsen and Muskie, things have become worse — not better. The

“penchant for overregulation” (by both the Corps and the EPA) now

victimizes farmers and landowners nationwide, including amici cu-

riae, as the Corps/EPA attempt to use the CWA to expand their

we ee

“regulatory turf” out of the water, out of the s .vamps and marshes, and

straight onto the dry land.”

? Recently, in United States v. Larkins, 852 F.2d 189 (6th Cir. 1988), cert.

denied, 109 S.Ct. 1131 (1989), Circuit Judge Merritt sua sponte went out of

his was to criticize the Corps’ over-expansive jurisdictional approach:

[T]he Corps has now expanded the definition of “navigable waters” to

include any creek or stream or moist area... . “Under such a

construction [as proposed by the Corps of Engineers] low lying

backyards miles from a navigable waterway would become wetlands.”

[citation omitted]. The Corps’ definition has apparently detached and

untied the “wetlands” jurisdiction of the Corps from any concept of

“open waters” or navigable waters. A farmer's low lying farmland or

a homeowner's low lying backyard — adjacent to a small stream or

creek but many miles fromany navigable waterway — has apparently

been converted into government property no longer subject to control

or improvement by the owner without government permission. A

Statute that does not mention “wetlands” has apparently been read to

include simply “moist land adjacent to a creek.”

The framers of the Constitution were solicitious of the rights of

landowners — especially small farmers struggling for survival — not

to have land appropriated by the government. They therefore adopted

the provision of the Fifth Amendment of the Constitution prohibiting

the taking of private property for public use without just compensation.

United States v. Larkins, 852 F.2d at 193 (Meiritt, J., concurring) (emphasis

added). (Unlike amici’s cases, Larkins involved land covered in part with

“knee deep water” and cypress trees, see 659 F.Supp. 76, 79, containing

numerous sloughs and depressions which defendants filled, 852 F.2d at 190,

and which previously “tended to be covered by standing water.” /d. at 191.)

Although this Court has held that a “taking” claim is no defense to a §404

enforcement action, see United States v. Riverside Bayview Homes, Inc.,474

U.S. 121, 127-28 (1985), as indicated by Judge Merritt in Larkins, it is

fundamentally wrong for the government to try te seize control of its citizens’

property under the pretext of enforcing an “anti-water pollution” statute. See

Exec. Order 12630, March 15, 1988, 53 Fed. Reg. 8859, “Governmental

Actions and Interference with Constitutionally Protected Property Rights”

(directing each agency to account for Fifth Amendment “taking” concerns in

Carrying Out actions, including regulatory and permitting functions).

a

1. The New Approach: Regulating Dry Land

a. TheCorps’ Regulations Purport to Regulate Only

Truly Aquatic Areas

The new trend (i.e., regulating under §404 as if it were a “land

preservation statute” instead of an “anti-water pollution statute”’),

stands in direct contradiction to the Corps/EPA’s regulations. The

agency regulations defining wetlands have remained unchanged since

1977. After defining “wetlands,” the regulations ‘hen clarify the

definition by stating that “[wJetlands generally include swamps, bogs,

marshes, and similar areas.” 33 C.F.R. §328.3(b). As stated in the pre-

ambie to the 1977 regulations, this language was included to demon-

strate the intent of the Corps to include “only truly aquatic areas.” 42

Fed.Reg. 37,129 (1977) (emphasis added).?

Notably, the Corps’ clarifying sentence of its “wetlands definition”

does not state that “[w]etlands generally include swamps, bogs,

marshes, and com fields, soybean fields, and vacant lots.”’ Thus, unless

com fields, soybean fields, and vacant lots are “similar areas”’ to

“swamps, marshes, and bogs,” 33 C.F.R. §328.3(b), regulatory juris-

diction should not attach. See Blue Cross Association v. Harris, 622

F.2d 972, 977 (8th Cir. 1980) (under commonly accepted rules of

statutory construction, if the plain language is clear in its context, it is

controlling); 7. L. Hunt, Inc. v. C.1.R., 562 F.2d 532, 535 (8th Cir.

1977). Furthermore, the rule of ejusdem generis demands that “where

general words follow an enumeration of specific things, the general

words are read as applying only to other items akin to those specifically

enumerated.” See Harrison v. P.P.G. Industries, 446 U.S. 578, 588

(1980); Columbia Pictures v. Professional Real Estate Investors, 866

>This was further restated by Regulatory Guidance Letter 86-9, issued

August 27, 1986, by Brig. Gen. Offringa:

Neither do we intend the definition of “weuands” to be interpreted as

extending to abnormal situations including non-aquatic areas that have

aquatic vegetation. Thus, we have listed swamps, bogs and marshes at

the end of the definition at 323.2(e) to further clarify ourintentio include

only truly aquatic areas....

(RGL 86-9) (emphasis added).

ost Sl eae

F.2d 278 (9th Cir. 1989). The general words “similar areas” follow the

more specific words “swamps, marshes, bogs” in the definition of

wetlands contained in 33 C.F.R. §328.3. Consequently, for land to be

considered a “wetland,” it must be the same kind of area as a swamp,

marsh, or bog. The Corps/EPA, however, have recently attempted to

discard such a reading, and now would interpret the phrase “similar

areas” to mean “other areas” — including cultivated farm fields and

other typically non-aquatic areas.

Why the new quest to regulate dry land? A recent environmental

group’s publication sheds light on the Corps’ motive — bureaucratic

self-preservation:

For civil engineers in general, environmental projects offer a

boundless future. For the Corps in particular they mean job

security. The day of huge new river basin projects has passed;

with growing public resistance to such projects, and tightening

budget constraints, the Corps could be relegated to custodian

status. Environmental engineering offers the Corps steady work,

an image pure and true —and analmost bottomless pork barrel.

Audubon, July, 1990, at 111 (emphasis added). Thus from the Corps’

own self-interest arose anew Manual for making “jurisdictional calls”’

over supposed “wetlands.”

b. The New Federal Wetlands Delineation Manual: The

Tool for the Agencies’ Emerging “Land-Grab” Doc-

trine

Encouraged by the “pork barrel” opportunities, and apparently

emboldened by President Bush’s 1988 pledge of “no net loss of

wetlands,” on January 10, 1989, the Corps, EPA, and two other

agencies “jointly” published a document entitled “Federal Manual for

Identifying and Delineating Jurisdictional Wetlands” (the ““Manual’’)

which sets forth “mandatory” technical criteria and methods for iden-

tifying and delineating jurisdictional wetlands. Formerly using a

“three-parameter test” to define “wetlands,” the 1989 Manual at best

gives lip service to this concept. In practice, the Manual purports to

allow the Corps/EPA to remove the “wet” from “wetlands.’* The new

Manual has resulted in major substantive expansions of wetland

boundaries to areas which are clearly non-aquatic. Nevertheless, in

promulgating the Manual, the agencies failed to follow the notice and

comment requirements set forth in the rulemaking provisions of the

Administrative Procedure Act, 5 U.S.C. §553, which seek to ensure

public participation, fairness, and mature consideration of rules of

general application. N.L.R.B. v. Wyman Gordan Co., 394 U.S. 759,

764 (1969); see Taob Lakes, Ltd. v. United States, 715 F.Supp. 726,

728 (E.D.Va. 1988), aff dwithout published op., No. 89-2905, slip. op.

at 1 (4th Cir., Sept. 19, 1989) (documents published by federal agency

which purport to establish methods for delineating “wetlands” are

substantive decisions which require notice and comment). Amici are

challenging the validity of the Manual, as are others. See Mulberry Hill

Development Corp. v. United States, Cause No. PN89-2639 (D.Md.

1989) (pending).

c. Nationwide Reaction tothe Corps/EPA’s “Land-Grab”

The magnitude of the concem over the Corps/EPA’s wetlands

regulatory expansion (and abuse) is growing nationwide. See Exhibit

1 hereto, New York Times, Apri! 24, 1990: “For Farmers, Wetlands

Mean a Legal Quagmire.” The new Manual and the expanding

regulatory policies of the agencies have recently met with sharp

criticism by Congress. For example:

“The Corps’ earlier guidance manual required that an area contain weuand

hydrology, hydrophytic vegetation, and hydric soils in order to constitute a

wetland. Under the 1989 Manual, however, the principle focus is on whether

the soil type is “hydric.” If so, the Corps/EPA will imply the remaining two

parameters (vegetation and, most significanuly, hydrology). This “methodol-

ogy” carries frightening implications to farmers and owners of bottomland

property where almost all soils are “hydric.” This is because hydric soils are

formed at a glacial pace — not reflecting current conditions. As noted by one

Court, the term “hydric soils” generally pertains “to the wetness condition

when those layers were laid down in long-past geological history. Use of the

term ‘hydric soils’ does not really assist in a determination of whether the root

zone soil meets the requirement of the regulation.” Leslie Salt Co. v. United

States, 700 F.Supp. 476, 487 (N.D.Cal. 1989).

a, ve

Unfortunately, the current direction of our wetlands policy is

progressing in ways that were never envisioned by Congress.

The changes that are being attempted do not follow Congres-

sional intent. Rules and regulations are being written by bureau-

crats who believe they have long been stifled over at EPA during

the past eight years, and now, giving them an inch, they are taking

a mile.

The Federal Manual for Identifying and Delineating Jurisdic-

tional Wetlands, written from within the bowels of the Interior

Department makes serious changes in our definition of wetlands.

These changes were never proposed or discussed before a

Committee of this Congress, nor were the changes proposed in

the Federal Register. This new definition substantially impacts

our nation, particularly rural areas, and enhances our

government's “land grab” abilities.

** *

If we want to shut down our farms — our agriculture producers,

the breadbasket of the world — then, yes, include our farms and

agricultural productive land. This will have a tremendous, untold

effect on rural America. And if that is the case, let’s talk about just

compensation for the taking of privately held land. Landowners

in this country deserve respect and rights that many other

countries in this world do not even acknowledge. We cannot in

good conscience trample one of our most basic freedoms in this

country.

February 28, 1990 Testimony of Congressman Emerson before Sub-

committee on Water Resources, Committee on Public Works Trans-

portation: “Wetlands Hearing” (emphasis added).

Similarly, President Bush, who announced the “no net loss of

wetlands” policy which energized the Corps/EPA to draft the Manual

in question, has stated the Executive Department’s concems with the

agencies’ overregulation:

=

We are trying to do a better job of getting these agencies to work

together, but you have zealots in various levels of the bureau-

cracy. We will try very hard from the top on down to get the

Clarification that is needed to avoid this frustration among

farmers. I am not happy with this... .

June/July, 1990, Farm Journal, p. 17 (emphasis added).

2. Impact Upon the Regulated Community

The national significance of Pozsgai, and the nationwide magni-

tude of the problem faced by farmers and landowners is heightened by

the newly-energized Corps/EPA’s attempts to slither out from their

aquatic jurisdictional boundaries onto land which is normally dry. A

revealing (and alarming) portrait of the agencies’ view of theirexpand-

ing jurisdiction is found in a recent EPA publication which states: “If

there’s not a wetland in your neighborhood, there’s probably one

nearby.” EPA: America’ s Wetlands: Our Vital Link Between Land and

Water, p. 1 (Feb., 1988). Landowners across the nation have become

outraged and adamantly disagree with the agencies’ claims that their

dry, solid-ground constitutes “navigable water” under the CWA, and

that merely moving dirt (not “cellar dirt,” 33 U.S.C. §1362(6)) in a

field is considered a “discharge of a pollutant into water.”

Significant, and not surprising, is that many, if not most, landown-

ers find themselves confronted with the agencies’ jurisdictional claim

only after they have already commenced work on what any reasonable

person would view as a non-aquatic area. When the agencies assert

jurisdiction and inform the landowner that he or she is a “violator” and

a “water polluter’ subject to the wide gambit of potential penalties and

injunctive relief sct forth in the CWA, sce 33 U.S.C. §1319, the

landowner is placed in a precarious position indeed. He can capitulate,

face an “enforcement action,” or attempt to obtain judicial declaratory

relief. The agencies, however, typically capitalize on their superior

bargaining position and the extreme imbalance of economic and other

resources to in effect “extort mitigation” by (1) “offering the carrct” of

the permit while (2) “wielding the club” of enforcement, including the

threat of imprisonment, fines, costly litigation and/or “‘restoration’* —

="

alternatives and risks the agencies know the unfortunate landowner

can ill-afford.

a. The “Permitting Process’: “Take-it-or-Leave-It”

As amici and numerous others nationwide have leamed from bitter

first-hand experience, the so-called “section 404 permitting process”

essentially amounts to a “‘take-it-or-leave-it” proposition by the agen-

cies. An example of the “carrot/stick” coercive tactics used by the

agencies is that amicus McGown was informed by the Corps that if he

did not go along with the Corps’ mitigation demands (give up one-

fourth his farm) then “you will find out just how expensive it will be

[to fight the Corps].” He has.

Thus, on the one hand, the landowner can capitulate to the “‘no net

loss” and “‘full restoration/mitigation” demands of the agencies. (See

February 7, 1990 Memo. of Agreement between Corps/EPA (regard-

ing “mitigation sequencing,” “no net loss,” etc., 1990 Fed. Reg., Vol.

55, No. 48, p. 9210)). Capitulation means that the landowner “saves

his hide”’ but forfeits his property rights to do so.

b. Declaratory Relief: A Costly Remedy

On the other hand, having no identifiable administrative remedy

under which to dispute the “jurisdictional call,” Swanson v. United

States, 600 F.Supp. 802, 805 (D.Idaho 1985), aff d789 F.2d 1368 (9th

Cir. 1986), the landowner can file suit contesting jurisdiction.’ Once

in court, however, the aggrieved person will be faced with an expen-

* Compare, Leslie Salt Co. v. United States,660 F.Supp. 183, 185 (N.D.Cal.

1987) (“the decision on [§404] jurisdiction is to be made by the district court

ina plenary trial and not by the Corps”) and United States v. Key West Towers,

Inc., 720 F.Supp. 963, 966, n. 8 (S.D.Fla. 1989) (“‘a declaratory judgment

action would have resolved the issue [of whether or not t he Corps had

jurisdiction in the first place]... .”), with Southern Pines Assoc. v. United

States, Cause No. C-89-453-N (E.D.Va. Aug. 11, 1989) (landowner’s de-

Cclaratory judgment action challenging CWA jurisdiction dismissed by lower

court which sua sponte ruled that the CWA precludes pre-enforcement re-

view), appeal docketed, No. 89-1790 (4th Cir. Aug. 28, 1989)

-

i . oa

sive legal battle just to keep the suit there. It is now clear that when a

landowner seeks declaratory judicial intervention, the agencies will

customarily respond by vigorously fighting for dismissal on grounds

that the landowneris seeking “pre-enforcement review.’* Consequently,

before even reaching the merits of the claim, the landowner’s re-

sources are drained from fighting an expensive and protracted “‘brief-

ing battle” simply to keep the case in court.’ The agencies’ position in

these cases — i.e., that the landowner has an adequate opportunity for

review if and when the agencies bring an enforcement action against

him — in reality offers absolutely no relief to the aggrieved citizen. No

person in his right mind would want to face “Pozsgai charges” or even

civil penalties ($25,000.00 a day) and/or injunctive relief simply to

resolve a legimately disputed jurisdictional call. See Abbott Labora-

tories v. Gardner, 387 U.S. 136 (1967). In essence, the agencies’

Strategy is: “Resist and, we will break you.” Unfortunately, if the

Corps/EPA are allowed to use “Pozsgai justice” to back up their threat,

they may be right.

* In addition to the Motions to Dismiss in the lawsuits brought by amici

FERCOM and McGown, Mulberry Hill Development Corp. v. United States,

et al., Cause No. PN89-2639 (D.Md.) is a pending case wherein the govern-

ment seeks to dismiss the developer’s declaratory judgment action which

secks judidical determination that its property is not wetlands; the developer

is specifically challenging the 1989 Manual.

’ Time and economic resources are always in the hand of the government.

For example, amicus McGown’s costs in merely trying to keep his case in

court have already far surpassed his annual income — with a devastating

effect on his family of five who subsist at or near the poverty level. Amicus

FERCOM has lost over a million catfish, accompanying revenues, and

reduced its work force while it has foregone further pond construction in an

effort to simply try to avoid being characterized as an “environmental

polluter,” and while attempting to make clear that it fully intends to comply

with the law — which is in itself in dispute.

—

3. TheAgencies Overzealous Policies, Their New Attempts

to Expand CWA Jurisdiction, and the Harsh Punish-

ment Imposed on Mr. Pozsgai Requires that this Court

Strictly Scrutinize the Fatal Absence of Proof in the

Pozsgai Case

a. The Government Failed to Prove that Pozsgai’s

Property is Subject to Federal CWA Jurisdiction

As ably discussed in Mr. Pozsgai’s Petition for Writ of Certiorani,

pp. 10-17, the government’s case is fatally flawed in that the govern-

ment totally neglected to introduce any evidence of the requisite

interstate commerce connection with the property which the govern-

ment sought to regulate.

Even if Congress somehow intended to regulate dry property under

the CWA, to do so would violate the constitutional limits on Congress’

commerce clause power. While the legislative history of the CWA

includes a Senate Report which “explains” that “water moves in

hydrological cycles and it is essential that the discharge of pollutants

be controlled at the source,” S. Rep. No. 414, 92d Cong., Ist Sess. 77

(1971), Congress’ power to regulate “dredge and fill” “pollution” is

nevertheless constrained by its power to regulate interstate commerce.

Otherwise CWA jurisdiction would be co-extensive with rainfall, (part

of the “hydrological cycle’’), extending into every backyard and lawn

in suburbia. Placing a large pile of rocks/sand on dry land could hardly

be called an act of “water pollution.” Most would readily agree,

however, that the same pile in the middle of the Everglades or in the

Potomac River might affect the “waters of the United States.”’ There

must, however, be a rational basis for any congressional finding that

regulated activities substantially affect interstate commerce and the

means chosen by Congress must be reasonably adapted to the end

permitted by the Constitution. N.L.R.B. v. Jones & Laughlin Steel

Corp., 301 U.S. 1, 37 (1937); United States v. Darby, 312 U.S. 100,

121 (1941); Katzenbach v. McClung, 379 U.S. 241, 258, 304 (1964).

See Hodel v. Virginia Surface Mining & Reclam. Ass’ n.,452 U.S. 264,

310-311 (1981) (Rehnquist, C.J., concurring) (regulated activity must

have substantial effect on interstate commerce). Indeed, even in this

—,

case, the prosecution proported to predicate jurisdiction on a waterbody

used in commerce over 100 years ago; but there was no proffer of any

nexus to interstate commerce today. See Petition for Certiorari, p. 9.

b. The Government Failed to Prove that Petitioner

Discharged “Pollutants” “Into Water” as Defined

in the CWA

Similarly, the harsh criminal punishment imposed requires that the

Court strictly scrutinize the government’s wholesale failure to prove

beyond a reasonable doubi that Mr. Pozsgai commited an act of “water

pollution” by placing the supposed “pollutants” “into water.” 33 U.S.C.

§1262(6). As pointed out by Mr. Pozsgai’s Petition, the underlying

jury instruction was erroneously at odds with §1362(6) in that it

substituted the term “wetlands” in lieu of the statutory term “water.”

Petition for Writ of Certiorari, p. 19, n. 9.

The “comerstone” of the CWA is 33 U.S.C. §1311(a), which simply

prohibits the discharge of any “pollutant,” except in accordance with

provisions as established elsewhere in the CWA, including section

404. Read logically, the “permitting” established under section 404 is

only necessary for the discharge of “fill materials” which are “‘pol-

lutants,” as defined in 33 U.S.C. §1362(6). Accordingly, Mr. Pozsgai

did not need a section 404 permit to discharge “fill material” unless

the “fill material” involved was a specifically enumerated “pollutant”

set forth in §1362(6). Section 1362(6) lists a number of matenals,

otherwise innocuous, (e.g., rock, sand, etc.) which do not become

“pollutants” until and unless they are placed “into water.” 33 U.S.C.

§1362(6).

Any claim by the government that the term “water” means “navigable

waters” or “waters of the United States” should be rejected. First, as

Petitioner correctly notes, no extrinsic aids are required to discem the

plain meaning of the term “water,” particularly in this criminal

context. Second, even if legislative intent was an issue, Congress

repeatedly used terms of art such as “navigable waters” and “waters of

the United States” throughout the CWA. See U.S.C. §§ 1341(a), 1342(a),

1344(a), 1344(f), and 1362(7). The definitional section in question,

Te

§1362(6), however, uses only the term “water” — and uses it four

times in that paragraph. On all four occasions “water” is used in sin-

gular form and in these instances, it would seem beyond question that

“water” was intended to mean H,0 in its liquid state. As demonstrated

by the very next definitional paragraph, § 1362(7), Congress was very

much aware of the distinction between “‘water” and “navigable wa-

ters” or “waters of the United States,” but declined to use the latter two

terms in defining “pollutant.”

Ironically, a contrary interpretation would result in the government

being able to sustain a conviction for “water pollution” without

showing that the materials were addedto water. This Court should not

permit Mr. Pozsgai to suffer the draconian penalties imposed by the

lower court in light of the government’s absence of proof on this

crucial element.

CONCLUSION

Mr. Pozsgai’s Petition for a Wnt of Certiorari should be granted.

Respectfully Submitted,

COBURN, CROFT & PUTZELL

By: Edwin G. Harvey

One Mercantile Center

Suite 2900 :

St. Louis, MO 63101

(314) 621-8575

Attomeys for Amici Curiae

APPENDIX

APPENDIX A

EXHIBIT I

Che New York Cimes

Reprinted from The New York Times, Tuesday, April 24, 1990

For Farmer, Wetlands Means a Legal Quagmire

By WILLIAM ROBBINS

Special to The New York

Times

MARCELINE, Mo. — To

the casual visitor, Rick

McGown’s farm looks like

prime cropland. And it does

what good farmland should do,

yielding more than 150 bush-

els of corm an acre last year.

To officials of the Army

Corps of Engineers, however,

Mr. McGown’s property is

quite different. Solid as it may

seem, they say, it is wetland.

As wetland it is part of the

waters of the United States,

coming under the jurisdiction

of the Corps.

Rising Pressures Seen Anny officals say Rick McGown’s Mis-

i souri farmland is actually Federal waters.

Between those points of

view Stretches a web of argu-

ments, legal questions, claims and counterclaims involving the Clean

Water Act of 1972 — a web that has now entangled farmers, envi-

ronmentalists and Federal agencies in legal disputes across the country.

a

legal disputes across the country. What a runaway bureaucracy wants

‘them to do, farmers say, is convert good cropland into bogs and

marshland. Furthermore, they say, the Government is doing this with

total disregard of property rights guaranteed under the Constitution.

Farmers Say pressures from Federal environmental agencies have

increased since the Bush Administration took office and adopted a

policy of trying to prevent any net loss of wetlands. But they charge

that while officials have been strict with small operators, those with

larger resources, like corporations and big developers, have been able

to circumvent Administration policy.

And some of the farmers’ representatives note that the Administration

recently retreated from its own policy in response to concems of

Alaskan officials, who feared that strict application of the policy would

inhibit development of oil and other resources.

But Government officials insist they are simply enforcing the law

that gives the Corps of Engineers authority over the waters of the

United States.

“Ifmy country needs my land fora public purpose, let them have it,”

Mr. McGown, a 35-year-old farmer, said not long ago as he stood

looking out over his rich soil, blackened by overnight rains. “But if

they are going to take it for a public purpose, let them do it in a legal

way and let the public pay for it, not send individual farmers into

bankruptcy by taking away what they have spent much of their lives

working for.”

Mr. McGown said his farm, 255 acres that is mostly the rich low-

lying fields commonly known as bottom land, has never included the

“swamps, bogs and marshes” that the Corps has long regarded as

necessary to define a wetland. Part of the Government’s case to the

contrary is based on a Federal agent’s discovery of a plant that the

official said was typical of wetlands. “What he was calling ‘cattails’

was a head of grain sorghum,” Mr. McGown said, referring to a

common crop used for livestock feed.

—_ yon

His complaint, which will soon be addressed in a Federal District

Court case in St. Louis, is similar to that of several other farmers.

A neighbor, Allen Moseley, has been sued in the St. Louis court by

the Corps, which charged “pollution of waters of the United States” for

building a levee to guard his fields against floods. The Corps has

proposed a solution under which he would agree to cede half his 187

acres to Federal control for a wildlife easement, plant trees on it and

pay a fine of $7,500.

“The agreement they offered me amounted to an agreement to let

me hang myself,” said Mr. Moseley. “If I accept their plan, I lose the

farm. It’s that simple, I won’t have enough cropland left to pay the

mortgage.”

A Justice Department lawyer representing the Federal agencies in

the cases said he could not comment because they were in litigation,

but he provided copies of letters to Representative Trent Lott, Re-

publican of Mississippi, on the McGown case and to Vice President

Dan Quayle on the Moseley case.

Letters Cite Defiance

Both letters, signed by Morris Kay, regional administrator of the

Environmental Protection Agency, asserted that the property in question

involved wetlands and that the two farmers, in defiance of the Corps

of Engineers, and without first obtaining permits, had performed

levee-building and clearing operations violating the Clean Water Act.

The cases involving those landowners and many others are rooted

in changing laws, an evolution of attitudes of the United States toward

a resource that until recently was regarded as wasteland and an effort

to use the Clean Water Act of 1972, an anti-pollution statute, as a

device to protect the country’s diminishing wetlands.

When the first Europeans arrived in America, what is now the

contiguous United States had about 215 million acres of wetlands. The

most recent estimates now put that at less than 100 million acres. Much

of the wetlands that was converted has been used by land developers,

but the biggest parts have been converted by drainage and filling for

agriculture.

a NB Ie

a tog. :

The New York Times/David Hutson

Rick McGown says the Army Corps of Engineers is using the Clean Water Act to take farmlands

like his buit by bit by calling them wetlands and charging farmers with polluting United States

waters.

It was not until the last decade or so that environmentalists were able

to persuade Congress, Federal agencies and much of the general public

that wetlands had valuable functions, supporting wi!dlife and fisher-

ies, protecting against floods and droughts and helping clean up

poliutants before they could filter into groundwater and lakes and

streams. In fact, until an executive order on protection of the wetlands

was issued in 1977, the Agriculture Department actively aided and

subsidized drainage projects.

Section 404 of the Clean Water Act prohibits the discharge of

dredged or fill materials into water without a permit from the Corps.

And that restriction has been extended to property Federal agencies

have defined as wetlands — even though the word wetlands never

appears in the act.

“They are using the Clean Water Act to capture

farmers’ property.”

While the act does contain an exemption aimed at permitting

“normal farming activity,” itis the interpretation of what is normal that

is Causing much turmoil.

— Soe

The first direct Congressional action to slow the conversion rate of

wetlands for agriculture was a little-noticed provision of the Food

Security Act of 1985, the basic farm law. A provision of the law known

informally as the Swampbuster section, bars farm program benefits for

farmers who convert wetlands into tilled fields and then plant major

annual crops on the converted land.

The authority of the Corps of Engineers comes from the Clean

Water Act. Corps officials say that farmers can still plow and plant

crops in wetlands and that if they are willing give up their farm

program subsidies, they can even clear forested wetlands for farm

fields. But they are prohibited from digging up stumps and taking earth

balls with the roots: filling the stump holes and tearing through the

fields with machinery, like bulldozers not normally used in farming.

By the Corps’ interpretation, as Mr. McGown put it, “piling dirt on

dirt in my fields is polluting the waters of the United States.”

Farmer’s Plight Begins

Mr. McGown unsuspectingly stepped into his legal quagmire when

he bought the 255-acre farm in 1981. He then began to clear old fields,

which he said had been in production over much of the last century but

had been allowed to revert to brush in recent decades under an old

Agriculture Department program known as the “Soil Bank.” That

program paid farmers to take land out of production.

As he and farm program executives now tell it, because he had

started clearing his fields before passage of the Food Security Act of

1985 he ran into no real problems for a time.

The trouble, he said, began in 1987 when he set out to repair a break

in a levee caused by a flood from a small stream and to raise the rest

of the levee, which had subsided over the years, to its original height.

At that point, Mr. McGown said, agents of the Corps of Engineers

arrived and told him that he was depositing fill in wetlands and that, to

do that, he would need a permit. If he appiied for it, the permit would

cost him $10, he was told. He applied.

i ian

Except for that action, he said, he has never acknowledged that his

fields were wetlands. Meanwhile, he and his lawyer say, the

Government’s definition of wetlands was changing.

Definition of Wetlands

Ina letter issued in 1986, the Corps defined wetlands this way: “The

term ‘wetlands’ means those areas that are inundated or saturated by

surface or ground water at a frequency and duration sufficient to

support and that under normal circumstances do support, a prevalence

of vegetation typically adapted forlife in saturated soil conditions.”

For emphasis it added this sentence: “Wetlands generally include

swamps, marshes, bogs and similar areas.” It added for further

emphasis: “We have listed swamps, bogs, and marshes at the end of the

definition to further clarify our intent to include only truly acquatic

areas.”

Never since he has owned it, Mr. McGown says, has his land

included those “swamps, bogs and marshes.”

Last year, without seeking public comment, a new definition was

produced by the Corps and three other agencies: the Fish and Wildlife

Service, the Soil Conservation Service and the Environmental Protection

Agency. Under that definition, it was sufficient to class a parcel of

cultivated fields as wetlands if Federal experts found that the land, if

it were not being farmed, would sustain vegetation typical of life in

saturated soils.

It was such an expert who found on Mr. McGown’s fields the plant

that he says is a cattail and Mr. McGown says is grain sorghum.

“That $10 permit could be the costliest paper anybody ever got,”

Mr. McGown said. To allow him to continue restoration of part of his

fields and the protective levees, the Corps has proposed that, in

“mitigation” for his damage to wetlands, he cede about 25 percent of

his land to Federal control as a wildlife easement. Another condition

of the permit is that the easement be written into the property deed as

a permanent restriction for the present and all future titleholders.

a ee

— ope

Mr. McGown and his lawyer, Edwin Harvey, have sued in the

Federal District Court in St. Louis asking for a declaratory judgment

that his farm is not a wetland and seeking a restraining order requiring

that he be let alone to farm his land without hindrance of the Federal

agencies.

“Bit by bit and month by month I have lost the rights to my

property,” said Mr. McGown. “Bit by bit, they are using the Clean

Water Act to capture farmers’ property.”

The Corps has asked for dismissal of the action, arguing that he is

seeking what they cannot give — that they stop enforcing the Clean

Water Act.

I spent $105.000 to buy the farm, $140.000 to improve it and

$40,000 so farto fight them,” he said. “Butif they have their way, what

I will have left is little more than the right to walk on it.”