Opposition Brief — Pozsgai v. United States

No. 93-733

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Jn the Supreme Court of the Cinited States

OCTOBER TERM, 1993

JOHN POZSGAI AND GIZELLA POZSGAI, PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III

Solicitor General

LOIS J. SCHIFFER

Acting Assistant Attorney General

ROBERT L. KLARQUIST

VICKI L. PLAUT

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the Commerce Clause of the Constitution,

Article I, Section 8, Clause 3, authorizes congressional

regulation of wetlands that are adjacent to, but above the

headwaters of, tributaries of navigable waters, as pro-

vided for by Section 404 of the Clean Water Act, 33

U.S.C. 1344, and applicable regulations.

2. Whether the definition of “pollutant” in Section

502(6) of the Clean Water Act, 38 U.S.C. 1362(6), to in-

clude certain materials “discharged into water” includes

the discharge of materials onto wetlands.

(III)

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TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Heart of Atlanta Motel, Inc. v. United States, 379 U.S.

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Hodel vy. Virginia Surface Mining & Reclamation Asso-

Comteon, Fec., SEB UTS. BBG CIGB1) ....ccccccccccoccecccccccoccccccss &, 9

Perez v. United States, 402 U.S. 146 (1971)... iioiein 10

Pozsgai v. United States, No. 89-1735 (O.T. 1990) ........ 11

Quivira Mining Company v. EPA, 765 F.2d 126 (10th

Cir. 1985), cert. denied, 474 U.S. 1055 (1986) .....0.00000.... 10

United States v. Ashland Oil and Transportation Co.,

ee ee occ ssandnstnbvsascondne 10

United States v. Byrd, 609 F.2d 1204 (7th Cir. 1979) ... 10

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

ERI EPERE SSE eal 2, 4, 9, 11

United States v. Tull, 769 F.2d 182 (4th Cir. 1985),

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Constitution, statutes and regulations:

U.S. Const.:

Art. I, § 8, Cl. 3 (Commerce Clause) ..................... 6, 7, &, 9, 10

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Clean Water Act, 33 U.S.C. 1251 ef seq. ...........cccceeseeeees 2

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Statutes and regulations—Continued: Page

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§ 404(a)(1), 33 U. | RR GER ARS SW. 3

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——————————————————e

In the Supreme Court of the Gnited States

OCTOBER TERM, 1993

No. 93-733

JOHN POZSGAI AND GIZELLA POZSGAI, PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

27a) is reported at 999 F.2d 719. The orders of the dis-

trict court (Pet. App. 28a-32a, 34a-37a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 25, 1993. A petition for rehearing was denied on

August 10, 1993. Pet. App. 39a. The petition for a writ

of certiorari was filed on November 8, 1993. The

jurisdiction of this Court is invoked under 28 U.S:C.

1254(1).

(1)

STATEMENT

This case involves a civil enforcement action

instituted by the United States in the United States

District Court for the Eastern District of Pennsyl-

vania under Section 309(b) of the Clean Water Act, 33

U.S.C. 1819(b). The district court found petitioners

liable. The court of appeals affirmed. Pet. App. la-

27a.!

1. The Clean Water Act, 38 U.S.C. 1251 et seq., isa

comprehensive statute designed “to restore and main-

tain the chemical, physical, and biological integrity of

the Nation’s waters.” § 101(a), 38 U.S.C. 1251(a).

Section 301(a) of the Act, 33 U.S.C. 1311(a), provides

that “the discharge of any pollutant by any person

shall be unlawful” unless it is authorized by a permit

issued by the Army Corps of Engineers pursuant to

Section 404, 38 U.S.C. 1344. See United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 123

(1985). The definitional Section of the Act, in turn,

defines “pollutant” to include any dredged or fill

material, Section 502(6), 33 U.S.C. 1362(6); it defines

“discharge of a pollutant” to include “any addition of

any pollutant to navigable waters,” Section 502(12), 33

U.S.C. 1362(12); and it defines “navigable waters” to

mean “the waters of the United States,” Section

502(7), 33 U.S.C. 1362(7).

1 In related criminal proceedings, petitioner John Pozsgai

was convicted of criminal violations of Section 309(c) of the

Clean Water Act, 33 U.S.C. 1319%(c). The district court sen-

tenced him to three years of imprisonment, to be followed by

five years of probation, and a $200,000 fine (which subsequently

was reduced to $5,000). The court of appeals affirmed, 897

F.2d 524, and this Court denied a petition for a writ of certio-

rari, 498 U.S. 812 (1990).

3

The Act divides responsibility for administration

between the Environmental Protection Agency

(EPA)—which has general responsibility for admin-

istering the Act, “le]xcept as otherwise expressly

provided,” Section 101(d), 33 U.S.C. 1251(d)—and the

Army Corps of Engineers—which has the authority

to issue permits allowing discharges into navigable

waters, Section 404(a), 33 U.S.C. 1344(a).2 The Corps

has promulgated regulations that define “waters of

the United States” to include:

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

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

interstate or foreign commerce * * * ;

tee <

(5) Tributaries of waters identified in para-

graphs (a)(1) through (4) of this section;

** * * *

(7) Wetlands adjacent to waters * * * identified

in paragraphs (a)(1) through (6) of this section.

33 C.F.R. 328.3(a) (1987).*

Those regulations also define the term “wetlands”

to mean:

2 Section 404(a) refers to the “Secretary,” but Section

404(d) defines the term “Secretary” to mean “the Secretary of

the Army, acting through the Chief of Engineers.” 33 U.S.C.

1344(d).

%’ The 1987 regulations, originally promulgated at 51 Fed.

Reg. 41,239 (1986), were in effect at the time of the conduct at

issue in this case. The EPA also promulgated substantially

identical regulations. 40 C.F.R. 230.3(s) (1981). For the sake of

clarity, this brief refers only to the Corps regulations.

4

those areas that are inundated or saturated by

surface or ground water at a frequency and dura-

tion sufficient to support, and that under normal

circumstances do support, a prevalence of vegeta-

tion typically adapted for life in saturated soil

conditions. Wetlands generally include swamps,

marshes, bogs, and similar areas.

33 CPLR. 328.3(b) (1987). In Riverside Bayview

Homes, this Court sustained that regulatory frame-

work, explaining that it was “reasonable for the

Corps to interpret the term ‘waters’ to encompass

wetlands adjacent to waters as more conventionally

defined.” 474 U.S. at 133.

2. This case involves a 14-acre site in Morrisville,

Pennsylvania. As the court of appeals explained, that

site is “a forested wetland dominated by arrowwood,”

with “areas of standing water * * * scattered

throughout the site.” Also, “[a] stream flows along

the east border of the-property * * * [that] is a trib-

utary to the Pennsylvania Canal,” which flows into

the Delaware River. When the Corps learned in April

1987 that fill material was being dumped onto the

property, Martin Miller (a Corps field investigator)

examined the property. He determined that the great

majority of the property was wetland and that peti-

tioner John Pozsgai* had deposited “fill (concrete

rubble, earth, and building scraps) in three portions of

the wetland for the purpose of raising the elevation.”

After his examination, Miller advised petitioner that

he should not place any more fill in the wetland por-

* For convenience, references in this brief to “petitioner” in

the singular refer to petitioner John Pozsgai.

5

tions of the property until petitioner obtained a

permit from the Corps. Pet. App. 2a-3a; see id. at 34a.

In June 1987, petitioners purchased the property.

After Miller observed in August 1987 that additional

fill had been placed on the property, the Corps issued

a September 3, 1987, cease and desist letter, ordering

petitioners to cease “conducting, contracting, or

permitting” further filling of the property. Miller

observed additional filling on each of two subsequent

visits to the property in October and November 1987,

as a result of which the Corps issued a second cease

and desist letter, on December 17, 1987. In May 1988,

the Corps discovered that petitioner had discharged

several hundred truckloads of fill onto the property.

See Pet. App. 3a-4a.

3. On August 24, 1988, the United States insti-

tuted this action under 33 U.S.C. 1319(b), seeking

civil penalties and an order that petitioners and the

companies that had discharged the fill restore the

property to its original condition. The government

simultaneously moved for a temporary restraining

order and a preliminary injunction; the court granted

the temporary restraining order. After petitioner

continued dumping, the court held him in contempt

and granted a preliminary injunction against further

dumping. See Pet. App. 4a-5a.

On January 8, 1990, the district court issued an

order concluding that the property was protected

wetland because of its physical characteristics and

because it is adjacent to an unnamed tributary of the

Pennsylvania Canal, which flows into the Delaware

River. The court accordingly entered a permanent

injunction against any further filling and ordered the

land to be restored. Pet. App. 34a-37a.

6

4. Petitioners filed a motion to reconsider, con-

tending (among other things) that their activities did

not violate the Clean Water Act because the dis-

charge of fill onto wetlands is not a discharge of a

pollutant “into water” within the meaning of Section

502(6) of the Clean Water Act, 33 U.S.C. 1362(6). The

district court denied the motion. Pet. App. 28a-32a.

The court reasoned that the term “water” in the

Clean Water Act includes “wetlands.” Jd. at 3la.

5. The court of appeals affirmed. Pet. App. la-27a.

a. The court first considered petitioners’ statu-

tory argument, that the filling of wetlands does not

constitute a discharge “into water” within the

meaning of the Clean Water Act. Pet. App. 8a-16a.

The court noted that the Act applies only to a

“discharge of any pollutant,” 33 U.S.C. 13811(a), and

that the definition of “pollutant” is limited to materi-

als that are “discharged into water,” 33 U.S.C.

1362(6). The court relied heavily, however, on the

definition of “discharge of a pollutant” in 33 U.S.C.

1362(12), which refers to the addition of materials “to

navigable waters.” The court rejected petitioners’

contention that the reference to “water” in Section

1362(6) cannot include wetlands, even though this

Court had already concluded (in Riverside Bayview

Homes) that the term “navigable waters” does include

wetlands. Accordingly, in the court’s view, the

breadth of the reference to “navigable waters” applies

throughout the Act, which thus applies to any

discharge of covered materials into navigable waters.

Pet. App. 9a-10a.

b. The court also rejected petitioners’ claim that

application of the Act in this case extended beyond the

powers bestowed on Congress by the Commerce

Clause of the Constitution. Pet. App. 2la-24a. The

7

court explained that application of the statute is

constitutional “if there is a rational basis for the con-

gressional determination that the regulated activity

affects interstate commerce, and if the means chosen

to regulate the activity are reasonable.” Jd. at 2la

(internal quotation marks omitted). The court re-

jected petitioners’ argument that the government

must establish an individualized impact on commerce

in each case, explaining that the cases on which peti-

tioner relied interpreted statutes in which “Congress

chose to satisfy the Commerce Clause by requiring

an individualized interstate commerce effect in each

application of the law.” Jd. at 22a.

The court of appeals also rejected petitioners’

argument that any effect on commerce was insuffi-

ciently substantial to satisfy the Constitution be-

cause the discharge in question was- made into

wetlands above the headwaters.’ Pet. App. 22a-24a.

The court explained that the government has made an

“expert determination that, in the aggregate, dis-

charge into wetlands above the headwaters which are

adjacent to tributaries of waters used or usable in

interstate commerce, increases water pollution,” id.

at 23a, and accordingly upheld application of the

statute in this case.

® Applicable regulations define “headwaters” as “the point

on a non-tidal stream above which the average annual flow is

less than five cubic feet per second.” 33 C.F.R. 330.2(b) (1987).

The regulations grant a blanket, nationwide permit for certain

discharges into wetlands above headwaters, but that permit did

not apply to petitioners’ discharges. 33 C.F.R. 330.5(a)(26)

(1987); see Pet. App. 19a-20a.

8

ARGUMENT

1. Petitioners’ primary argument (Pet. 8-19) is

that Congress’s power under the Commerce Clause of

the Constitution, Article I, Section 8, Clause 3, is not

sufficient to support application of the Clean Water

Act to restrict filling of wetlands that are adjacent to

tributaries of navigable waters at a location above the

headwaters of those tributaries, except in cases

where the government can make a specific showing

that the filling has a substantial effect on interstate

commerce. That claim is meritless.

Petitioners’ argument hinges on their view that

the government must establish that “in a majority of

[cases, a discharge] would have significant effects on

water quality or interstate commerce.” Pet. 11. That

view misapprehends this Court’s modern decisions

regarding the Commerce Clause, under which an

exercise of the Commerce Clause power is valid if

there is “a rational basis for finding that [the

regulated activity] affected [interstate] commerce.”

Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241, 258 (1964). Furthermore,

[jJudicial review in this area is influenced above

all by the fact that the Commerce Clause is a

grant of plenary authority to Congress [that] * * *

extends not only to the use of channels of inter-

state or foreign commerce and to protection of the

instrumentalities of interstate commerce * * * but

also to activities affecting commerce.

Hodel v. Virginia Surface Mining & Reclamation

Association, Inc., 452 U.S. 264, 276-277 (1981)

(internal quotation marks omitted).

Application of that standard to the activity in ques-

tion here demonstrates that the Commerce Clause

9

clearly authorizes the regulations at issue. As the

Court recognized in Riverside Bayview Homes, the

government reasonably has concluded that the goal of

the Clean Water Act—“protection of water quality

and aquatic ecosystems”—can effectively be pursued

only if the protection extends beyond the open waters

themselves to wetlands adjacent to those waters. 474

U.S. at 133. The reason for that conclusion is

obvious: “Water moves in hydrologic cycles, and the

pollution of this part of the aquatic system, regard-

less of whether it is above or below an ordinary high

water mark * * * will affect the water quality of the

other waters within that aquatic system.” Jd. at 134

(quoting 42 Fed. Reg. 37,128 (1977)). To put it more

simply, it is unquestionably rational to conclude that

a discharge of materials into wetlands adjacent to a

body of water that flows into a navigable stream will

affect the quality of the adjacent water, and thus

eventually the navigable stream itself.

It is clear (as petitioner implicitly concedes) that

the Commerce Clause authorizes regulation of the

pollution of navigable streams. See Hodel, 452 U.S. at

282 (“[W]e agree with the lower federal courts that

have uniformly found the power conferred by the

Commerce Clause broad enough to permit congres-

sional regulation of activities causing air or water

pollution.”). Because it is rational to conclude that

the discharge of materials into the category of

wetlands such as the wetlands at issue here has an

effect on commerce subject to congressional regula-

tion, petitioners’ Commerce Clause argument fails.°

® Petitioners’ argument (Pet. 17-19) that “the agency has

the burden of proving” in each case that there is an effect on

interstate commerce is similarly inconsistent with this Court’s

10

We are unaware of any decision of any court

upholding a Commerce Clause attack on application of

the Clean Water Act. Indeed, when the courts of

appeals have addressed the question, they uniformly

have upheld the constitutionality of the Act as

interpreted by the Executive Branch, albeit in factual

settings differing from those at issue here. See

United States v. Tull, 769 F.2d 182, 185 (4th Cir. 1985)

(wetlands adjacent to navigable waterway), rev’d on

Seventh Amendment grounds, 481 U.S. 412 (1987);

Quivira Mining Company v. EPA, 765 F.2d 126, 129-

130 (10th Cir. 1985) (creeks that flowed into navigable

stream), cert. denied, 474 U.S. 1055 (1986); United

States v. Byrd, 609 F.2d 1204, 1209-1211 (7th Cir. 1979)

(wetlands adjacent to an inland lake); United States v.

Ashland Oil and Transportation Co., 504 F.2d 1317,

1325-1329 (6th Cir. 1974) (wetlands adjacent to

nonnavigable tributaries of navigable waterways).

2. Petitioners also repeat their argument that the

Clean Water Act does not apply to the discharge of

materials onto wetlands because that is not a dis-

charge “into water” for purposes of Section 502(6) of

the Act, 38 U.S.C. 1362(6). The court of appeals

explication of congressional power in the area. As the Court

explained in Perez v. United States, 402 U.S. 146, 156-157

(1971), the Commerce Clause does not require “particularized

findings”; it is enough for Congress to determine rationally

that an activity in its “national setting” is one that has a

substantial effect on interstate commerce. Petitioner offers no

sound reason for rejecting the legislative conclusion that the

cumulative nationwide effect of discharges into wetlands

adjacent to bodies of water that flow into navigable streams has

a sufficiently substantial effect on interstate water quality to

justify congressional action, even if the inquiry is limited to

discharges that occur above the headwaters.

1]

addressed that contention at length (Pet. App. 8a-16a),

and we previously have responded to that claim in our

brief in opposition to petitioner’s challenge to his

criminal conviction, Br. in Opp. at 12-18, Pozsgai v.

United States, No. 89-1735 (O.T. 1990). The funda-

mental flaw in that contention is that it rests on the

premise that the reference to “water” in Section

502(6) should be construed to exclude “wetlands” even

though this Court already has held that the (arguably

narrower) term “navigable waters” in Section 502(12)

includes “wetlands,” Riverside Bayview Homes, 474

U.S. at 133. The Court denied petitioner’s earlier

petition raising that question, 498 U.S. 812 (1990), and

there is no reason for a different disposition in this

case.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAYS, III

Solicitor General

Lois J. SCHIFFER

Acting Assistant Attorney General

ROBERT L. KLARQUIST

VICKI L. PLAUT

Attorneys

JANUARY 1994