Amicus Curiae Brief — Leslie Salt Co. v. United States

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No. 90-792 JAN 72 Wl

IN THE

Supreme Cut of the United States

OCTOBER TERM, 1990

LESLIE SALT Co. AND CARGILL, INC.,

Petitioners,

Vs

UNITED STATES, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE FOUNDATION FOR

ENVIRONMENTAL AND ECONOMIC PROGRESS

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

ALBERT J. BEVERIDGE, III *

VIRGINIA S. ALBRECHT

THOMAS C. JACKSON

DAVID G. ISAACS

BEVERIDGE & DIAMOND, P.C.

1350 I Street, N.W.

Suite 700

Washington, D.C. 20005

(202) 789-6000

Attorneys for Amicus Curiae

Foundation for Environmental

and Economic Progress

* Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

er

TABLE OF CONTENTS

pg NF Bi ge iy 2 i st | eee e eee

INTEREST OF AMICUS CURIAE ................. saptereasente

SUMMARE OF ARGUMENT q.......-......2-ccccccrcccceceeavess

FREES Rete eno ONC ON Le een ROE

I.

II.

ITI.

THIS CASE WARRANTS SUPREME COURT

REVIEW BECAUSE THE NINTH CIRCUIT’S

DECISION IMPROPERLY EXPANDS THE

CORPS’ REGULATORY AUTHORITY TO

VIRTUALLY ANY PROPERTY ...........00000......

THE NINTH CIRCUIT’S DECISION IS UN-

SUPPORTED BY THE LEGISLATIVE HIS-

TR I I I a ate crc capeasiteeennsasinns

A. The Migratory Bird Policy Is Unrelated to

the Act’s Purpose of Protecting Water

Bet esas. 1 ve PSO EO Ae A

- B. The Corps’ Interpretation of the Act is Not

Entitled to the Deference Typically Accorded

to an Agency’s Interpretation of a Statute...

SUPREME COURT GUIDANCE IS RE-

QUIRED TO RESOLVE THIS IMPORTANT

ISSUE THAT HAS DIVIDED THE COURTS

Be MII sehen agaeteratedc icscgeih tne oe tacan adres

RE anette NA alto aioe Seer

11

ii

TABLE OF AUTHORITIES

CASES: Page

Bowen v. American Hospital Ass’n, 476 U.S. 610

C2006) =... ate wr ieee ches Se ae Sone Died 11

Chevron U.S.A., Inc. v. Natural Resources De-

fense Council, 467 U.S. 887 (1984) _........000022... 11

Daniel Ball, The v. United States, 77 U.S. (10

. £5 ht 5 |) RD Mre aks fier Mier ie TS Smee 10

Economy Light & Power Co. v. United States, 256

Gh RE COE eka ees 10

Leslie Salt Co. v. United States, 896 F.2d 354 (9th

Ce ROD a eee passim

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

4.8: oe S| ERR eee Sat ei 6

Lowe v. Security and Exchange Comm’n, 472 U.S.

RE CD veikateencee ee cee 11

Natural Resources Defense Council, Inc. v. Calla-

way, 392 F. Supp. 685 (D.D.C. 1975) -.............. 12

Oklahoma v. Guy F. Atkinson Co., 318 U.S. 508

¢ | | BBRemEne Reon eee core. Cee ee ee 10

Tabb Lakes, Ltd. v. United States, 885 F.2d 866

(Table) (4th Cir. 1989), 20 Env. L. Rep. (Env.

L. Inst.) 20008 (4th Cir. 1989) (per curiam) .... 15

United States v. Appalachian Elec. Power Co.,

BS Sy Bi Re Se ee ee 10

United States v. Riverside Bayview Homes, Inc.,

Py ik es SG) ee ee eee meee passim

Utah v. United States, 403 U.S. 9 (1971) ............... 10

STATUTES:

Administrative Procedure Act

Be I nar cst uccacconaaetbciacsancancconckidsbekwnratamseccaen 14

Clean Water Act

a I I asain in paced teed 10

ana eeanaie, 3

88 U.S.C. § 1844 (c) .................. i ee ee ee 4

GE te SS eC EE Beer CCE ee 4

REGULATIONS:

Poe 2s BS Rs! | ee ere 12

BS Ci Bhs BC, BODIE EGO) aecvcecincsvcnnncssesccsucnnsecsasncensons 4

iii

TABLE OF AUTHORITIES—Continued

oe ee) (LOOO) .................-......--noccecnerorses

40 C.F.R. § 328.3(a) (3) (1990) — 2.2. Le ameieh

5

ai I OD nnn naan ccencernnnnenenreces

40 C.F .E. Ft. 280.3(s8) (1990) ...................... Raa

FEDERAL REGISTER:

40 Fed. Reg. 31,320 (July 25, 1975)...

51 Fed. Reg. 41,206 (November 13, 1986)

55 Fed. Reg. 24,138 (June 14, 1990)...

LEGISLATIVE HISTORY:

Oversight Hearings on Section 404 of the Clean

Water Act: Hearings Before the Subcommittee

on Environmental Pollution of the Senate (Gom-

mittee on Environment and Public Works, 99th

ee

S. Rep. No. 414, 92d Cong., 1st Sess. (1971),

reprinted in 2 Legislative History of the Water

Pollution Control Act Amendments of 1972

NADER te eR cases

S. Rep. No. 1236, 92d Cong., 2nd Séss. (1972),

reprinted in 1 Legislative History of the Water

Pollution Control Act of 1972 (1973) .................

118 Cong. Rec. 33756-57 (1972) (statement of

Rep. Dingell), reprinted in 1 Legislative His-

tory of the Water Pollution Control Act Amend-

Re ee

MISCELLANEOUS:

In The Matter of the Hoffman Group, Inc., CWA

Appeal No. 89-2 (November 26, 1990), Notice

of Appeal filed (7th Cir. December 16, 1990).

In The Matter of the Hoffman Group, Inc., Docket

No. CWA-88-AO-24 (September 15, 1989)...

EPA Memorandum from Francis S. Blake, Gen-

eral Counsel, to Richard E. Sanderson, Acting

Assistant Administrator, “Clean Water Act Ju-

risdiction over Isolated Waters” (1985) ..........

S\N

12-13

10

iv

TABLE OF AUTHORITIES—Continued

John P. Elmore, Directorate of Civil Works, and

David G. Davis, Director, Office of Wetlands

Protection, “Clean Water Act Section 404 Ju-

risdiction Over Isolated Waters in Light of

Tabb Lakes v. United States” (January 1990)..

Patrick J. Kelly, Brigadier General, U.S. Army,

Deputy Director of Civil Works, “EPA Memo-

randum on Clean Water Act Jurisdiction Over

i a eee

F. Dunkle, Fish and Wildlife Service, R. Hanmer,

Environmental Protection Agency, R. Page,

Department of Army, W. Scaling, Soil Conser-

vation Service, Federal Manual for Identifying

and Delineating Jurisdictional Wetlands

RE eR ROA cP Bat Son ES

U.S. Fish and Wildlife Service, Wetlands of the

United States: Current Status and Recent

pS aR Tie NR = Re

“Wetlands Preservation Law Draws Complaints

in Md.,” The Washington Post (February 20,

ec Aa SI ca Hs ESAT, BD Or oe nn

Comments of David A.C. Carroll, Governor’s

Chesapeake Bay Coordinator, submitted to the

Cae ieee oe, eee

Comments of Commissioners of Chatham County,

submitted to the Corps (July 25, 1990)...

Page

15

5, 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-792

LESLIE SALT Co. AND CARGILL, INC.,

- Petitioners,

UNITED STATES, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE FOUNDATION FOR

ENVIRONMENTAL AND ECONOMIC PROGRESS

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

The Foundation for Environmental and Economic

Progress (the “Foundation”) respectfully files this brief

as amicus curiae in support of Petitioners. The Founda-

tion has obtained written consent from counsel for Peti-

tioners and Respondents to file this brief. The consent

letters have been filed with the clerk’s office.

INTEREST OF AMICUS CURIAE

The Foundation is a non-profit corporation whose

members include over 15 real estate and community de-

velopers. The Foundation’s members are involved in the

development of large-scale commercial and _ residential

projects throughout the country, and, as a result, have

substantial experience with the regulation of wetlands

2

and other waters of the United States under Section 404

of the Clean Water Act. Accordingly, the Foundation be-

lieves it can assist the Court in obtaining an additional

perspective on the issue presented in the underlying case.

Moreover, because the question raised in this case re-

stricts the development potential of vast areas of land,

this Court’s resolution of the issue presented would be of

great significance to the Foundation’s members and a

substantial number of similarly situated developers and

landowners.

SUMMARY OF ARGUMENT

The issue in this case is the scope of the U.S. Army

Corps of Engineers’ regulatory jurisdiction under Section

404 of the Clean Water Act. The U.S. Court of Appeals

for the Ninth Circuit held in the decision below that fed-

eral jurisdiction extends to isolated areas which pond

after rainfall because such areas “may” be used by migra-

tory birds and therefore could affect interstate commerce.

The Supreme Court should grant the petition for a writ

of certiorari because of the pressing need for Supreme

Court guidance regarding the proper scope of federal reg-

ulatory authority under Section 404.

The “migratory bird” policy is of critical importance

to any person who wants to use and develop property.

The Ninth Circuit’s approval of this policy gives the

federal government authority to regulate virtually any

property determined to be a “water” simply because the

property “could” be used by migratory birds, even ab-

sent actual use. The Corps of Engineer’s migratory bird

policy, coupled with its recent policy claiming jurisdic-

tion over previously unregulated “waters,” constitutes a

broad expansion of federal regulation under the Clean

Water Act. Such a major expansion of regulatory au-

thority should not be approved by this Court absent evi-

dence that Congress had granted this authority, which is

not present here. Furthermore, the Corps’ interpretation

of the Clean Water Act is not entitled to deference since

3

the policy did not emerge from its experience indicating

that the assertion of such authority was necessary to ef-

fectuate the goals of the Act.

Finally, the Fourth Circuit has held that the Corps’

migratory bird policy is invalid, while the Ninth Circuit

has upheld this policy. This Court should resolve this

split between the circuits.

ARGUMENT

The present case involves the issue left unresolved in

United States v. Riverside Bayview Homes, Inc., 474

U.S. 121 (1985): whether the U.S. Army Corps of En-

gineers (the “Corps’”) has authority under the Clean

Water Act (the “Act’”) to regulate isolated waters that

are not adjacent to and have no hydrological or other

connection to navigable waters.’ In the case below, a di-

vided panel of the Ninth Circuit held that the Corps’

regulatory jurisdiction under the Act extends to isolated

waters that are unconnected to other “waters of the

United States,” simply because such areas “may” be used

by migratory birds. See Leslie Salt Co. v. Uni'ed States,

896 F.2d 354, 355, 360 (9th Cir. 1990). Accordingly,

this case tests the limits of federal authority under Sec-

tion 404 of the Act, 33 U.S.C. § 1344.

Under Section 404, a person must obtain a permit

from the Corps in order to discharge dredged or fill ma-

1In Riverside Bayview, the Court held that the Corps’ jurisdic-

tional authority extended to the regulation of intrastate wetlands

that are “adjacent” to other “waters of the United States.” Jd. at

131-39. The Court, however, expressly declined to rule on the

validity of federal jurisdiction over the type of waters at issue

here: intrastate, isolated waters (i.e., waters that are neither nav-

igable nor adjacent to navigable waters). See id. at 131 n.& (“We

are not called upon to address the question of the authority of the

Corps to regulate discharges of fill material into wetlands that are

not adjacent to bodies of open water... and we do not express any

opinion on that question”).

4

terial into “navigable waters.” The term “navigable

waters” is defined as “the waters of the United States,

including the territorial seas.” Jd. at § 1362(7). The

Act does not define the phrase “waters of the United

States”; instead, this phrase has been defined by the

Corps and the U.S. Environmental Protection Agency

(“EPA’’)? in identical regulations. The Corps’ and EPA’s

regulatory definitions of “water of the United States”

include, in relevant part, the following:

(1) All waters which are currently used, or were

used in the past, or may be susceptible to use in

interstate or foreign commerce, including all waters

which are subject to the ebb and flow of the tide;

(2) All interstate waters including interstate wet-

lands;

(3) All other waters such as intrastate lakes, rivers,

streams (including intermittent streams), mudflats,

sandflats, wetlands, sloughs, prairie potholes, wet

meadows, playa lakes, or natural ponds, the use,

degradation or destruction of which could affect in-

terstate or foreign commerce including any such

waters:

(i) Which are or could be used by interstate or

foreign travelers for recreational or other pur-

poses; or |

(ii) From which fish or shellfish are or could be

taken and sold in interstate or foreign com-

merce; or

(iii) Which are used or could be used for indus-

trial purpose by industries in interstate com-

merce |. |

2 The Corps has primary administrative responsibility for imple-

menting Section 404 of the Act, including the initial review of

permit applications in accordance with both its own regulations,

see 33 C.F.R. Pts. 320-330 (1990), and EPA’s regulations governing

Section 404 permits. See 40 C.F.R. Pt. 230 (1990). EPA has au-

thority to “veto” the Corps’ permit decisions. See 33 U.S.C.

§ 1344(c).

5

83 C.F.R. §328:3(a) (1990) (emphasis added). See

also 40 C.F.R. § 230.3(s) (1990).

It is noteworthy that these regulations do not include

use or potential use by migratory birds as a basis for

asserting jurisdiction over isolated waters.* Notwithstand-

ing this regulatory omission, the Ninth Circuit held that

the Corps has jurisdiction over isolated waters simply

because migratory birds “may” use these waters. See

Leslie Salt Co., 896 F.2d at 360.

I. THIS CASE WARRANTS SUPREME COURT RE-

VIEW BECAUSE THE NINTH CIRCUIT’S DECI-

SION IMPROPERLY EXPANDS THE CORPS’

REGULATORY AUTHORITY TO VIRTUALLY ANY

PROPERTY

Under the Ninth Circuit’s reading of the geographic

scope of the Corps’ authority under Section 404, the

Corps may regulate virtually any property.

In determining whether to assert jurisdiction over a

parcel of land, the Corps employs a two-part test. First,

it determines whether the area is a “water.” and then

whether it is jurisdictional because of its effect on inter-

state commerce. One category of “waters” is open bodies

of water such as rivers, streams, and lakes. The Corps,

however, has expanded this concept to include areas that

rarely contain water at the surface. In Leslie Salt, for

example, the “waters” at issue are small, man-made pits

that pond at times during the winter rainy season.

As the district court recognized, “[a]ny land subjected

3 As discussed below, see infra at 12-14, the Corps did not develop

the migratory bird policy until 1985 as a result of oversight hear-

ings before a Senate subcommittee. After those hearings, the

Corps issued an unpublished internal memorandum to its dis-

trict offices directing them to assert jurisdiction over isolated waters

on the basis of use or potential use by migratory birds. See Patrick

J. Kelly, Brigadier General, Deputy Director of Civil Works, “EPA

Memorandum on Clean Water Act Jurisdiction Over Isolated

Waters” (November 8, 1985) (copy lodged with Clerk’s Office).

a ee

6

to enough temporary rainfall will collect water which

stands until it runs off or percolates into the ground.”

Leslie Salt Co. v. United States, 700 F. Supp. 476, 483

(N.D. Cal. 1989), rev'd, 896 F.2d 354 (9th Cir. 1990).

The other principal category of “waters” is “wetlands.”

See 33 C.F.R. §§ 328.3(a) (3); 328.3(b) (1990). Under

the “Federal Manual for Identifying and Delineating

Jurisdictional Wetlands,” the criteria for identifying

“wetlands” are so broad that the term includes areas

with no discernible water for most of the year.* An area

will be considered to be at wetland even if water is never

present at the surface; it is sufficient if the underground

water table rises to within 18 inches of the surface for as

little as seven days during the growing season.°

When this expansive definition of “waters” is com-

bined with the Corps’ migratory bird policy, vast areas

*The expansion of the Corps’ jurisdiction since issuance of

the Manual has been dramatic, particularly in coastal areas. For

instance, the governor’s office in Maryland has stated that the

Manuval has resulted in the regulation of “hundreds of thousands

of areas not previously subject to federal jurisdiction.” See Com-

ments of David A.C. Carroll, Governor’s Chesapeake Bay Coordina-

tor (July 27, 1990), submitted to the Corps in response to notice

in 55 Fed. Reg. 24138 (June 14, 1990) (copy lodged with Clerk’s

Office). The jurisdictional wetlands in one Maryland county have

been estimated to have increased more than five-fold as a result of

the Manual; indeed, some Maryland counties may now contain up

to 65 percent wetlands under the Manual. See “Wetlands Preserva-

tion Law Draws Complaints in Md.,” The Washington Post, Febru-

ary 20, 1990, p. Al. Similarly, under the Manual as much as 75

percent of Chatham County, Georgia qualifies as jurisdictional

wetlands, representing an increase of over 50 percent. See Com-

ments of Commissioners of Chatham County (July 25, 1990), sub-

mitted to the Corps in response to notice in 55 Fed. Reg. 24138

(June 14, 1990) (copy lodged with Clerk’s Office).

5 See F. Dunkle, Fish and Wildlife Service, R. Hammer, Environ-

mental Protection Agency, R. Page, Department of Army, W.

Scaling, Soil Conservation Service, Federal Manual for Identifying

and Delineating Jurisdictional Wetlands §§ 2.8, 2.9 (January 1989).

7

of previously unregulated land are brought within Corps

jurisdiction. Birds travel throughout the Western Hem-

isphere and may potentially use any land in the United

States. In one study, for example, birds marked in North

Dakota were recovered in 46 states, ten Canadian prov-

inces and territories, and 23 other countries.* In addi-

tion, actual “use” by birds is not even required; poten-

tial use is sufficient. There is no minimum size require-

ment, nor does it matter whether birds use the site for

nesting, feeding, or breeding, or simply as a place to fly

over and land. Similarly, federal jurisdiction is exercised

regardless of whether the use is regular and ongoing, or

more limited, such as seasonal, temporary, or even a single

incident of bird “use.” Likewise, any bird will qualify—

non-water dependent species such as robins, sparrows, and

bluejays, are treated identically to waterfowl such as

Canada geese and mallards. All that matters is that the

bird happens to cross a state line.

The effect of the Ninth Circuit’s decision is to enable

the Corps to regulate minuscule depressional areas in

the midst of, for example, upland corn fields, simply be-

cause the depressional areas collect water after rainfall

or experience a “high” water table for a short time dur-

ing the spring if the area could be used by birds.

The Foundation is aware of several instances in which

the federal government has asserted jurisdiction over areas

that are a mere fraction of an acre. For example, in Jn

the Matter of the Hoffman Group, Inc.,’ the government

sought a $125,000 administrative penalty for an alleged

filling of ‘“‘waters of the United States,” which included a

0.8-acre clay-lined depressional area located in a 40-acre

6 See U.S. Fish and Wildlife Service, Wetlands of the United

States: Current Status and Recent Trends 1 (1984).

7 See In the Matter of the Hoffman Group, Inc., CWA Appeal

No. 89-2 (November 26, 1990), notice of appeal filed, (7th Cir.

December 19, 1990) (copy lodged with Clerk’s Office).

8

cornfield in Cook County, Illinois. The landowner ap-

pealed the administrative penalty, and, after a hearing,

EPA’s Chief Administrative Law Judge (“ALJ”) deter-

mined that this tiny piece of land had no surface or

groundwater connection with any other water body; it

became wet after rain and dried through evaporation.‘

The ALJ also found that there was no evidence that

migratory birds actually used the area, or that the area

“contains any characteristic that would render it any

more attractive to birds than any other land that at one

time er another contains water.” Jd. at 48. Indeed, the

ALJ noted that the government’s expert had testified that

birds would use any site: “I have seen ducks sitting in

puddles in a parking lot.” Jd. at 48. Holding that the

government had to estabdiish more than the “theoretical

possibility” that the area could be used by migratory

birds, id. at 49, the ALJ rejected the government’s asser-

tion of jurisdiction over this area and reduced the penalty

to $50,000.

The EPA regional office appealed this ruling to EPA’s

Chief Judicial Officer, claiming that “potential” use is

sufficient for federal jurisdiction. EPA’s Chief Judicial

Officer agreed and reinstated $50,000 in penalties with

respect to the 0.8-acre area that will filled. Although

the Chief Judicial Officer accepted the ALJ’s findings that

this area had no relationship to other waters and that it

was not actually used by migratory birds, the Chief Ju-

dicial Officer concluded that this area was a “water of

the United States” because it “could” be used by migra-

tory birds.®

As the Chief ALJ observed in Hoffman, if the isolated

0.8-acre depressional area is a jurisdictional “water of

8In the Matter of the Hoffman Group, Inc., Docket No. CWA-

88-AOQO-24 at 45, 45 n.133 (September 15, 1989), rev’d on other

grounds, CWA Appeal No. 89-2 (November 26, 1990) (copy lodged

with Clerk’s Office).

9 In the Matter of the Hoffman Group, CWA Appeal No. 89-2 at

25 (November 26, 1990).

9

the United States,” the decision “is tantamount to mak-

ing all wetlands subject to Section 404 jurisdiction.” ”

Without any minimum requirements as to size, type or

frequency of use, or type of bird, the consequence of the

Ninth Circuit’s decision in Leslie Salt is to sweep countless

isolated areas into federal jurisdiction regardless of their

value in promoting water quality, their real effect cn in-

terstate commerce, or even their significance to migratory

birds."

II. THE NINTH CIRCUIT’S DECISION IS UNSUP-

PORTED BY THE LEGISLATIVE HISTORY OF

THE ACT

A. The Migratory Bird Policy is Unrelated to the Act’s

Purpose of Protecting Water Quality

No one disputes that Congress intended to give the

term “navigable waters” in the Act a broad interpreta-

tion. See Riverside Bayview, 474 U.S. at 132-39; S. Rep.

No. 1236, 92d Cong., 2d Sess. 144 (1972), reprinted in

1 Legislative History of the Water Pollution Control Act

Amendments of 1972 at 327 (1973). This Court has

stated:

In adopting this definition of “navigable waters,”

Congress evidently intended to repudiate limits that

10 Hoffman, Docket No. CWA-88-AO-24 at 49.

11 The Act provides no mechanism for direct judicial review of

jurisdictional determinations. Such determinations are subject to

review only after a landowner has endured the lengthy and expen-

sive permit application process and a permit has been denied, or

the landowner defies the Corps and risks an enforcement action

and large administrative penalties (up to $25,000 per day). Because

of the expense and risk of seeking review under either method and

the low value of most small isolated waters, few property owners

have the resources to challenge the assertion of jurisdiction over

these areas, even though this issue is of great importance to prop-

erty owners. Accordingly, this case is an appropriate vehicle for

this Court to review this important jurisdictional question. We

believe that this is a significant practical reason why the petition

should be granted.

10

had been placed on federal regulation by earlier water

pollution control statutes and to exercise its powers

under the Commerce Clause to regulate at least some

waters that would not be deemed “navigable” under

the classical understanding of that term.

Riverside Bayview, 474 U.S. at 133.

Congress’ concern was that the legislative objective of

the Act—“to restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters” *—could

not be accomplished if the term “navigabie waters” was

restricted to its traditional meaning. The term “naviga-

ble waters” had historically been applied under the Com-

merce Clause to waters that serve as avenues of com-

merce. See e.g., Utah v. United States, 403 U.S. 9, 11

(1971).1% While the traditional approach makes sense

when the issue involves the shipment of goods, Congress

recognized that it would be inadequate in protecting the

Nation’s water quality. With this goal in mind, Con-

gress determined that the hydrological connection of

12 33 U.S.C. § 1251 (a).

13 The legislative history cites a number »f Supreme Court cases

expanding the definition of navigable waters. See 118 Cong. Rec.

33756-57 (1972) (statement of Rep. Dingell), reprinted in 1 Legis-

lative History of the Water Pollution Control Act Amendments of

1972 at 250 (1973). These cases are The Daniel Ball v. United

States, 77 U.S. (10 Wall.) 557, 563 (1871) (holding that a river

was a navigable water because it was “navigable in fact” in its

natural state and had the capacity to be used for interstate com-

merce); Economy Light & Power Co. v. United States, 256 U.S.

118, 121-24 (1921) (a river having navigable capacity in its nat-

ural state but, as a result of various alterations and man-made

obstructions was presently incapable of use for navigation is navi-

gable) ; United States v. Appalachian Elec. Power Co., 311 U.S. 377,

407-08 (1940) (waters which are suitable for navigation by means

of reasonable improvements are navigable). See also Oklahoma v.

Guy F. Atkinson Co., 313 U.S. 508, 523-26 (1941) (Congress’ au-

thority extends to non-navigable tributaries of navigable waters).

Simply because Congress sought to move beyond the definition of

waters established in these cases, it does not follow that Congress .

intended to abandon the concept of navigability and regulate waters

wholly unconnected to navigable waterways.

11

waters was of primary importance. As the Senate Com-

mittee on Public Works stated:

Through narrow interpretation of the definition of

interstate waters the implementation [of the] 1965

Act was severely limited. Water moves in hydrologic

cycles and it is essential that discharge of pollutants

be controlled at the source. Therefore, reference to

the control requirements must be made to the navi-

gable waters, portions thereof and their tributaries.

Comm. on Public Works, Federal Water Pollution Control

Act Amendments of 1971, S. Rep. No. 414, 92d Cong.,

Ist Sess. 77 (1971), reprinted in 2 Legislative History of

the Water Pollution Control Act Amendments of 1972 at

1495 (1973). To the extent it is discernible, the con-

gressional goal was to regulate water linked in the

hydrological chain to navigable waters. Insofar as a

“water” or “wetland” is isolated from the interconnected

system, it will not affect the water quality of the system,

and therefore its regulation is unrelated to the Acts pur-

pose.

B. The Corps’ Interpretation of the Act is Not Entitled

to the Deference Typically Accorded to an Agency’s

Interpretation of a Statute

We recognize the general principle that courts should

grant deference to an agency’s construction of the stat-

ute it is entrusted to administer. See Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, 467 U.S. 837,

844 (1984). Courts typically give weight to an agency’s

statutory interpretation where, for example, the policy is

formulated and justified in a “detailed and reasoned

fashion,” id. at 865, is announced contemporaneously

with the enactment of the statute, see Lowe v. Securities

and Exchange Comm’n, 472 U.S. 181, 216 (1985) (White,

J., concurring), or has been interpreted in a consistent

and longstanding manner. See Bowen v. American Hos-

pital Ass’n, 476 U.S. 610, 646 n.34 (1986).

12

The migratory bird policy was not adopted until 1985,

thirteen years after the enactment of the Federal Water

Pollution Control Act Amendments of 1972, when the

original debate over the reach of “waters of the United

States” took place, and eight years after the Act’s revi-

sion in 1977, when the jurisdictional issue was revisited

by Congress.'* The issue was first raised by one Senator

during oversight hearings before the Subcommittee on

Environmenta! Pollution of the Senate Committee on En-

vironment and Public Works. Seeking to extend federal

regulation under the Act, Senator Mitchell asked the Act-

ing Assistant Secretary of the Army, Civil Works,

whether Corps jurisdiction under Section 404 reached iso-

lated wetlands “used by migratory fowl, waterfowl, which

establishes the interstate commerce basis for jurisdic-

tion.” '* The witness declined to respond, stating that he

needed legal advice prior to answering this question.’

One month later, EPA’s Acting Assistant Administrator

14The Corps initially applied a narrow definition of the term

“navigable waters” after the enactment of the Federal Water

Pollution Control Act of 1972, but a federal court ordered the Corps

to promulgate new regulations. See Natural Resources Defense

Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975). As a

result, the Corps promulgated interim final regulations that ex-

panded the definition of navigable waters to include traditional

navigable waters and their non-navigable tributaries, coastal wet-

lands, interstate waters, inland wetlands adjacent to navigable

waters, and intrastate waters utilized in interstate commerce for

recreational, fishing, industrial, or agricultural purposes. See 40

Fed. Reg. 31320, 31324 (July 25, 1975). This definition was codi-

fied at the time at 33 C.F.R. § 209.120(d) (2).

15 Oversight Hearings on Section 404 of the Clean Water Act:

Hearings Before the Subcommittee on Environmental Pollution of

the Senate Committee on Environment and Public Works, 99th

Cong., lst Sess. 115 (June 10, 1985) (statement of Sen. Mitchell).

16 Jd. It seems reasonable to conclude that if the migratory bird

policy had already emerged as a reasoned outgrowth of the Corps’

administration of the Act, the Army’s highest officer in charge of

the Corps’ regulatory policies would have been able to answer this

question at the hearing.

13

for External Affairs appeared before the same panel. Ap-

parently prepared for the Senator’s question, the As-

sistant Administrator listed several examples of effects

on interstate commerce that would subject waters to reg-

ulation under the Act, including waters used as habitat

by birds protected by Migratory Bird Treaties and

waters used as habitat by other migratory birds which

cross state lines.'’ Senator Mitchell questioned the wit-

ness’ failure to include waters that “could be” used by

migratory birds. Jd. at 169-70. The Assistant Admin-

istrator then indicated a need to confer with counsel prior

to answering this question.

Eight weeks later EPA gave the Senator the answer

he wanted. In a legal memorandum, EPA General Coun-

sel Francis S. Blake stated that “if the evidence reason-

ably shows that the waters ‘are used or would be used’

by migratory birds or endangered species, it is covered

by EPA’s regulation.” '* The Corps circulated this memo-

randum to its district offices, and the migratory bird

policy came to life."

Significantly, at the time the Corps was embracing the

Senator’s position, it was consolidating its various per-

mitting regulations pursuant to the requirements of the

Administrative Procedure Act, 5 U.S.C. § 553. Although

17 See Oversight Hearings on Section 404 of the Clean Water Act:

Hearings Before the Subcommittee on Environmental Pollution of

the Senate Committee on Environment and Public Works, 99th

Cong., Ist Sess. 163 (July 15, 1985).

18 EPA Memorandum from Francis S. Blake, General Counsel,

to Richard E. Sanderson, Acting Assistant Administrator of the

Office of External Affairs, “Clean Water Act Jurisdiction over

Isolated Waters” at 3 (September 12, 1985) (copy lodged with

Clerk’s Office) .

19 Patrick J. Kelly, Brigadier General, Deputy Director of Civil

Works, “EPA Memorandum on Clean Water Act Jurisdiction Over

Isolated Waters” (November 8, 1985) (copy lodged with Clerk’s

Office) .

14

one of the regulatory provisions under review was the

definition of “waters of the United States,” the Corps

did not revise its definition to incorporate the new migra-

tory bird policy. 51 Fed. Reg. 41206, 41250 (November 13,

1986) (codified at 33 C.F.R. § 328.3(a) ).”

As this background demonstrates, the Corps did not

have a “detailed and reasoned” justification that such

broad jurisdiction is needed to “restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” Similarly, the migratory bird policy

was not enunciated contemporaneously with the enact-

ment of the Act, and the interpretation has not been

applied in a consistent and longstanding manner. Instead,

the policy appears to be the result of pressure by a single

Senator. In the absence of clear congressional authoriza-

tion or a demonstrated justification that such jurisdiction

is needed to attain the purposes of the Act, the Corps’

migratory bird policy is not entitled to deference by this

Court.

III. SUPREME COURT GUIDANCE IS REQUIRED TO

RESOLVE THIS IMPORTANT ISSUE THAT HAS

DIVIDED THE COURTS OF APPEALS

The migratory bird policy has also divided the two

Courts of Appeals that have reviewed this issue. As

stated above, the Ninth Circuit held that the Corps may

assert jurisdiction over isolated waters since they are

encompassed within the regulatory definition of “other

waters,” because migratory birds use or could use these

properties. See Leslie Salt, 896 F.2d at 360. Over one

year ago, however, the Fourth Circuit invalidated the

Corps’ assertion of jurisdiction over isolated wetlands on

20 The preamble to the regulations, which has no legal authority,

noted, however, that “EPA has clarified that waters of the United

States” also includes waters “[w]hich are or would be used as

habitat by birds protected by Migratory Bird Treaties” and

“Cwlhich are or would be used as habitat by other migratory birds

which cross state lines.” Jd. at 41217.

15

the basis that they could be used by migratory birds.

See Tabb Lakes, Ltd. v. United States, 885 F.2d 866

(Table), 20 Env. L. Rep. (Env. L. Inst.) 20008 (4th

Cir. 1989) (per curiam). In that case, the Fourth Cir-

cuit determined that the Corps’ migratory bird policy

was announced in violation of the notice and comment

provisions of the Administrative Procedure Act.”

This split among the courts of appeals has resulted in

a lack of uniformity in implementing the geographic

reach of Section 404 of the Act to isolated waters. In

response to the Fourth Circuit’s Tabb Lakes decision, the

Corps and EPA issued a directive to their field offices

stating that they would not apply the migratory bird

policy in the Fourth Circuit (i.e., the states of South

Carolina, North Carolina, Virginia, West Virginia, and

Maryland), but would continue to apply this policy out-

side these states.** This differing application of the reach

of Section 404 lacks any legal or equitable basis, and

warrants resolution by the Supreme Court.*°

*1 The Ninth Circuit in Leslie Salt did not address the procedural

issue raised by the Fourth Circuit in Tabb Lakes. Thus, we have

focused on the substantive issues raised by the migratory bird

rule. As the Fourth Circuit held in Tabb Lakes, however, we note

that the Corps’ failure to promulgate this rule in accordance with

public notice and comment constitutes a violation of the Administra-

tive Procedure Act and is an independent basis for reversing the

decision of the court below.

“2 John P. Elmore, Directorate of Civil Works, and David G.

Davis, Director of Office of Wetlands Protection, “Clean Water Act

Section 404 Jurisdiction Over Isolated Waters in Light of Tabb

Lakes v. United States” (January 24, 1990), Petition for a Writ of

Certiorari of Petitioners, Appendix E at A-46.

*8 The Corps also stated in this memorandum that the Corps and

EPA “intend to undertake as soon as possible an [Administra-

tive Procedure Act] rulemaking process regarding jurisdiction over

isolated waters.” Jd. at § 2, Petition for a Writ of Certiorari of

Petitioners, Appendix E at A-48. More than 20 months after Tabb

Lakes and one year after issuance of this memorandum, however,

the Corps and the EPA have not initiated rulemaking on this issue.

16

CONCLUSION

This Court should grant the petition and clarify the

extent of federal jurisdiction under the Act. The issue

raised by this case affects property owners throughout

the United States. If the decision of the Ninth Circuit

is left to stand, the Corps can exercise jurisdiction over

virtually any isolated “wet” area on the premise that it

“could” be used by migratory birds. This result is un-

supported by the legislative history of the Act, and is in

conflict with another federal appellate decision. For these

reasons, the Supreme Court should grant the petition for

a writ of certiorari.

Dated: January 22, 1991

Respectfully submitted,

ALBERT J. BEVERIDGE, III *

VIRGINIA S. ALBRECHT

THOMAS C. JACKSON

DAVID G. ISAACS

BEVERIDGE & DIAMOND, P.C.

1350 I Street, N.W.

Suite 700

Washington, D.C. 20005

(202) 789-6000

Attorneys for Amicus Curiae

Foundation for Environmental

and Economic Progress

* Counsel of Record