Amicus Curiae Brief — James City County v. Environmental Protection Agency

r™ Buprems Court, U.S,

3 _ te eS ae oa

No. 93-2045 AUG 2 2 1934

In The OFFICE Gf (HE C123:

SUPREME COURT of the UNITED STATES~ rer ies

October Term, 1993

JAMES CITY COUNTY, VIRGINIA,

Petitioner,

V.

U.S. ENVIRONMENTAL PROTECTION AGENCY

U.S. ARMY CORPS OF ENGINEERS,

Respondents.

Brief for the City of Colorado Springs, CO and

the Metropolitan Water Providers and Participants as

Amici Curae Supporting Grant of the Petition for

Writ of Certiorari

MARK T. PIFHER

Counsel of Record

ANDERSON,

GIANUNZIO,

DUDE, PIFHER

& LEBEL, P.C.

104 S. Cascade Ave. # 204

Colorado Springs,

CO 80901

(719) 632-3545

Attorney for Amicus

City of Colorado Springs

MARCIA M. HUGHES

MARCIA M. HUGHES, P.C.

390 Union Blvd., # 415

Lakewood, CO 80228

(303) 980-8668

Attorney for Amici

The Metropolitan Water

Providers and The

Metropolitan Water

Participants

Sane atau eee

QUESTIONS PRESENTED

1. Whether the Environmental Protection

Agency, having long interpreted § 404(c) of the Clean

Water Act to require consideration of whether a

"practicable" alternative to a project is or is not available,

may ban construction of a public water supply reservoir

without ever considering a final judicial determination that

no "practicable" alternative exists?

2. Whether the Environmental Protection

Agency’s finding that placing fill for the Ware Creek

Reservoir would cause "unacceptable" effects is entitled to

undiminished deference notwithstanding that: (a) the

Agency’s original finding was judicially invalidated as

wholly without record support, (b) the Agency quickly

reached the same result on remand without any important

change in the administrative record, and (c) the Agency’s

finding is contradicted by those of other federal and state

agencies sharing similar authority under the same statute

to ban Reservoir construction for the same reasons?

TABLE OF CONTENTS

Page

QUES SIONS Pee OMe? oc ea eke ous i

TABLE OF ALIERIONGOe bo vec sco duke seas iv

INT Ee fo OF Tie AMIS os ccc k ce scence. ]

SUMMARY OF ARGUMENT ............... 7

APAFIMI os is -kk 0 ae 8

I THIS COURT SHOULD DECIDE

WHETHER SECTION § 404(c)

ALLOWS EPA TO IGNORE AN

APPLICANTS NEEDS AND THE

LACK OF ANY PRACTICABLE

ALTERNATIVE MEANS OF

MEETING SUCH NEEDS ........ 8

A. This is an Important Federal

COM ce eee y)

B. Congress Provided No Clear

Statement That EPA Could

ignore Local Needs in_ the

Absence of Viable Alternatives... 11

C. EPA Must Adhere to

Longstanding Policies ......... 14

ii

ns

TABLE OF CONTENTS - continued

Page

Il. COURTS NEED NOT DEFER

TO FEDERAL AGENCY

FINDINGS UNDER

SUCH CIRCUMSTANCES ....... 14

A. Minimal Deference Is Due the

EPA Determination .......... 15

B. EPA Bears the Burden of Proof . 15

C. EPA’s Decision Merits an

Especially Close Examination... 17

eo Ne ee eee ee a area 18

ill

TABLE OF AUTHORITIES

Page

Case Law

Alameda v. Browner, C.A. No. 91-M-2047,

ee Sa I 8 a se aw ka ew 6 eae oles oo 5

Barnard v. Carey, 60 F. Supp. 539

Ge OE OEE ooo wn be sees oe he 88 15

Bersani v. Robichaud, 850 F.2d 36

Ce I I os os a aes A Hike wk ke eae 15, 17

California Oregon Power Co. v. Beaver

Portland Cement Co., .

Pog Ue ae 2... | eae 2

Camp v. Fits, 411 US. IS6 C1975) . 1... 2... cass 10

Chevron U.S.A. v. Natural Resources Defense

Council, 467 U.S. 837 (1984) ............ 14

Citizens to Preserve Overton Park v. Volpe,

Oe Gia Me ERT ob be ees ees os 10, 15, 17

Colorado River Water Conservation Dist.

v. United States, 424 U.S. 800 (1976) ........ 2

Colorado v. New Mexico, 467 U.S. 310 (1984) ...... 2

EPA v. National Crushed Stone Ass'n, 449 U.S. 64

a eae ee ee ee es 15

Florida Power & Light Co. v. Lorion, 470 U.S.

Te Ce ae wR ee es 10

General Electric Co. v. Gilbert, 429 U.S. 125

Ce ee ee eee a ees 15

Gregory v. Ashcroft, 111 S.Ct. 2395 (1991) ....... 8, 11

Hazardous Waste Treatment Council v. EPA,

Soe &.26 soo CIS, Cae, FR) nn ce cs. 17

Holy Cross Wilderness Fund v. Madigan, 960 F.2d

ae Cee es Se ee eae 4

iV

TABLE OF AUTHORITIES - continued

Page

Illinois Central R.R. v. Public Utilities Comm’n

of Illinois, 245 U.S. 493 (1918) ........... 13

James City County, Virginia v. EPA, 955 F.2d 254

TS Ag | Bp rere ren arr aa eae 16

Nebraska v. Wyoming, 325 U.S. 589 (1945) ........ 2

Pennzoil Co. v. FERC, 789 F.2d 1128

Lee | ee re ee oe ee 17

Rice v. Santa Fe Elevator Corp.,

CEU MUR Seo Uh i; er errr 13

Rust v. Sullivan, 500 U.S. 173 (1991) ........... 8, 14

Ohio v. EPA, 997 F.2d 1520 (D.C. Cir. 1993) ..... 14

Sullivan v. Stroop, 496 U.S. 478 (1990) ........... 9

United States v. District Court for Eagle County,

OB. US. Sa Cre i ie ee ee ew 2

United States v. New Mexico, 438 U.S. 696

CIRM 5 caches ee ere ee kes 3

United States v. Northern Colorado Water

Conservancy Dist., 608 F.2d 422

Ee SL, Fees ee eye eer eee ee 3

United States v. Rio Grande Dam and Irngation

Ca, THOU Oe Ce hh haw iewe ss eae 2

Wyoming v. Colorado, 259 U.S. 419 (1922) ...... aia

Statutes and Regulations

5 U.S.C. § 556(d) (1977 & Supp. 1994) ........... 17

Clean Water Act

33 U.S.C. § 1251 (1986 & Supp. 1994) ...... 13

33 US @ TE Cie we ea ie 9

33 US. § TSS Cree oe es os ences 2

TABLE OF AUTHORITIES - continued

Page

3D Un & Dae Ce 6 hk be hse ae neues 13

33 USA. @ TARP TRIED 5 ce vc ccesecess 9

33 U.S.C. § 1344 (1986 & Supp. 1994) .... 4,9

33 UA. § TSGRE) CEFGGD ccc cece ccense 9, 16

SD Uae OS ee oii co censeaxeas es 10

40 (FB § ec. ec a csa ee eeouss 17

As USA. 6 es ek Oe esa ee 2

44 Fed. Reg. 58076, at 58080 (1979) ............ 17

45 Fed. Reg. 85336, at 85338 (1980) ............ 17

Water Administrative and Adjudication Act

C.R.S. §§ 37-92-101, et seq. (1990 &

SU TIPPS a acon eR ee eee e ee 2

Guidelines for Specification of Disposal Sites

for Dredged or Fill Material

SS UGK. § THRs GED 6 ce ces wacnes 16

40 C.F.R. §S 230.1(c), 230.10(a)(3)

0) ee re rr ey ee aie 16

44 Fed. Reg. 5876, 5878 (1979) ................ 14

Miscellaneous

B. Schwartz, Administrative Law § 10.35 at 664

(Ee Tee ied Pea err ae 15

Colorado Constitution, Article XVI,

TOC 5 SE Oo oe hee eee 2

Hobbs and Railey, "Water Rights Protection and

Water Quality Law," 60 Univ. Colo. L. Rev.

OSS Clee: sx os cde ae eee ee an es 3

Lawrence Tribe, American Constitutional Law,

SS SS of 316-17 Clee) kode ass tanewes es 13

vi

7 |

No. 93-2045

In The

SUPREME COURT of the UNITED STATES

October Term, 1993

JAMES CITY COUNTY, VIRGINIA,

Petitioner,

V.

U.S. ENVIRONMENTAL PROTECTION AGENCY

U.S. ARMY CORPS OF ENGINEERS,

Respondents.

Brief for the City of Colorado Springs, CO and

the Metropolitan Water Providers and Participants as

Amici Curiae Supporting Grant of the Petition for

Writ of Certiorari

INTERESTS OF THE AMICI

Counsel for the parties to this litigation have

consented to the filing of this amicus brief by the City of

Colorado Springs, Colorado, and the Metropolitan Water

Providers and Participants (herein the "City" and the

"MWP"). Letters from counsel for the parties are on file

with the Clerk of this Court. The City and the MWP

submit this brief in support of the Petitioners’ request for

grant of a Writ of Certiorari.

| As this court is well aware, long ago Congress

severed the waters upon the public domain from the lands,

and conceded that rights to the use of water were to be

determined under state law. California Oregon Power Co.

v. Beaver Portland Cement Co., 295 U.S. 142 (1935); United

States v. Rio Grande Dam and Imation Co., 174 U.S. 690

(1899); United States v. New Mexico, 438 U.S. 696 (1978).

Colorado chose to be governed by the doctrine of prior

appropriation as set forth in the Colorado Constitution,

Article XVI, Sections 5 and 6, and Colorado statutes,

primarily the 1969 Water Rights Administration and

Adjudication Act, C.R.S. §§ 37-92-101, et seg. (1990 &

Supp. 1993). In addition, Colorado has participated in

nine interstate compacts and several equitable apportion-

ment cases. See e.g., Colorado v. New Mexico, 467 U.S.

310 (1984); Nebraska v. Wyoming, 325 U.S. 589 (1945);

Wyoming v. Colorado, 259 U.S. 419 (1922).'

Section 101(g) of the Clean Water Act ("CWA"),

33 U.S.C. § 1251(g) (1986), provides that the authority of

each state to allocate quantities of water shall not be

superseded, abrogated or otherwise impaired by the

provisions of the CWA. In addition, the Act is not to

supersede or abrogate rights to quantities of water which

have been established by any State. Federal agencies are

directed to cooperate with state and local agencies "to

prevent, reduce and eliminate pollution in concert with

programs for managing water resources." Hence, the

CWA is an exercise in fundamental federalism. It estab-

lishes a national program of water quality control which is

implemented on a State by state basis and designed to

protect identified beneficial uses. It therefore should

support, and not undermine, the allocation, administration

and development of each state’s allocated water resource.

' Colorado is also the home of the McCarran Amendment cases

which interpret and apply the provisions of 43 U.S.C. § 666 (1986)

governing the joinder of the United States water rights claims in staie

forums. See United States v. District Court for Eagle County, 401 U:S.

520 (1971); Colorado River Water Conservation Dist. v. United States,

424 U.S. 800 (1976).

See generally, Hobbs and Railey, "Water Rights Protection

and Water Quality Law," 60 Univ. Colo. L. Rev. 841

(1989).

The Front Range of Colorado, east of the Conti-

nental Divide, is semi-arid and receives annual precipita-

tion of only twelve to fifteen inches. As is true with other

Western states carved out of the public domain by settle-

ment policies fostered by the federal government, see

United States v. New Mexico, 438 U.S. 696 (1978),

Colorado’s strength and well-being is directly dependent

on its ability to store spring snowmelt high in the water-

shed, to divert directly from streams at times of greatest

flow, and to release from storage when such flows decline

to low levels. Without reservoir storage and releases, it

could not meet the year round water demand of cities,

businesses, and farms. However, even such in-basin

storage is often times inadequate, and hence East Slope

municipalities must rely in part on supplemental trans-

mountain diversions from Colorado’s Western Slope. See

United States v. Northern Colorado Water Conservancy Dist.,

608 F.2d 422 (10th Cir. 1979). Colorado’s hydrologic

cycle, and the key role of water storage and development

in the Western states was addressed by this Court in

Wyoming v. Colorado, 259 U.S. 419, 457-458 (1922).

The City of Colorado Springs is the second largest

municipal entity in the State of Colorado. It is located on

the Eastern Slope, approximately sixty miles south of

Denver. Colorado Springs receives only fifteen inches of

rain per year, and is not located adjacent to any major

river system. Local water supplies, both surface and

groundwater, are inadequate to meet its domestic supply

requirements. Therefore, the City imports water from the

Arkansas drainage to the east and south of the City, and

engages in transbasin diversions from the Colorado River

drainage, which is west of the Continental Divide. As

noted above, the City depends upon the storage of winter

3

snowmelt in its numerous reservoirs, and the transport of

those supplies to the City as demands warrant. In addi-

tion to its extensive water storage and delivery system, the

City also owns and operates gas, electric and wastewater

utility systems.

In the construction of its water storage and delivery

facilities, and at times in meeting its other municipal

obligations, the City has found it necessary to secure § 404

permits, 33 U.S.C. § 1344 (i986 & Supp. 1994). See, e.g.

Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515

(10th Cir. 1992). Additional permits will be required in

the future as the C:iy water system expands and existing

facilities are modified. The ability of the City to obtain

such permits, free of unwarranted actions by federal

regulatory agencies, is of paramount interest to the City as

it prepares to meet future water supply and other infra-

structure needs.

The Metropolitan Water Providers and Participants

("MWP") are an association of over twenty (20) local

governments and quasi-local governments working

together to develop water supplies for the greater

metropolitan Denver, Colorado, area. The MWP mem-

bership is made up of both large and small cities as well

as water and sanitation districts. The cities include the

City of Aurora, the third largest city in the state of

Colorado with a population of 235,381. Other city and

county members include Adams County, the City of

Arvada, the City of Broomfield, the City of Glendale, the

City of Littleton, the City of Sheridan, the City of Lake-

wood, and the City of Thornton. Member water and

Sanitation districts include: Alameda Water & Sanitation

District, Bear Creek Water & Sanitation District, Centen-

nial Water & Sanitation District, Cherry Creek Valley

Water & Sanitation District, Green Mountain Park Water

& Sanitation, Havana Water & Sanitation District,

Lakehurst Water & Sanitation District, Platte Canyon

4

Water & Sanitation District, South-East Englewood Water

District, Southgate Water District, Southwest Group,

Southwest Metro Water & Sanitation District, Valley

Water District, Wheat Ridge Water District, and Willows

Water District.

Members of the MWP are located on the Eastern

Slope of Colorado and constantly must deal with the

consequences of surviving in a semi-arid, water short state.

The MWP members import water from the Colorado

River and the Arkansas River. The ability of the MWP to

provide water to their constituents is dependent on

adequate storage of winter snowmelt. Members of the

MWP hold Section 404 permits issued pursuant to the

federal Clean Wate Act.

The MWP are acutely aware of the Section 404(c)

veto process under the Clean Water Act. They worked

closely with the City and County of Denver in an effort to

seek a federal 404 permit for Two Forks Dam and

Reservoir, which was vetoed by the EPA pursuant to

§ 404(c) of the Act on November 23, 1990. EPA exer-

cised its veto authority even though the Corps had an-

nounced it was ready to issue the permit after an exhaus-

tive eight-year review process which cost approximately

forty (40) million local government dollars.”

The Two Forks process reflected extensive local

government collaboration. Recognizing the value, includ-

ing the environmental benefits, of cooperation in a single

project, numerous local governments and quasi-local

governments throughout a six county region in the Denver

metropolitan area spent years negotiating an intergovern-

mental contract allowing them to jointly develop a water

project. Beginning in 1982, the MWP joined with the City

The veto has been challenged in Alameda v. Browner, C.A. No. 91-

M-2047 (D. Colo. 1991).

and County of Denver to seek necessary federal permits

for the project.

Included among the federal requirements was the

need to obtain a § 404 permit. The permit was to be for

a 100% locally funded water supply project aad would

serve over half the population of the state of Colorado.

In deciding to issue the Section 404 permit after years of

hard work and extensive review, the Corps concluded that

the public needed a reliable and safe water supply and

that Two Forks was the most practicable alternative.

In addition to the Corps’ approval, the project had

been accepted, as mitigated, by the U.S. Fish and Wildlife

Service, the Governor of Colorado, and numerous state

agencies, including the Colorado Division of Wiidlife and

the Colorado Department of Health, the latter having

issued a Section 401 certificate. The Forest Service was

in its final permitting stage.

At the last minute, new EPA Administrator,

William Reilly, after only six weeks in office, intervened

and directed EPA’s Regional Administrator to initiate a

veto action under § 404(c) of the Clean Water Act. EPA

stated that it vetoed Two Forks, in part, because it found

ihree purportedly practicable alternatives.”

In finding that these alternatives existed, EPA

changed the project purpose identified by the permit

applicants, once again dictating local government deci-

sions. EPA’s approach thus leaves local governments

unable even to decide why they file a permit application.

*This joint effort to develop a regional project was a significant

change for Colorado municipalities. In the past, the entities had fought

each other, at great cost to their constituents.

“However, EPA did not find that the practicable alternatives it

named were permittable.

At the same time that the full financial responsibili-

ty for developing these facilities falls on local entities,

EPA is attempting to constrain local water supply options

in an unwarranted fashion. If EPA’s actions, such as its

decisions in the Ware Creek and Two Forks matters are

upheld, EPA will become the sole arbiter as to whether

local infrastructure projects, such as vital water resource

facilities, can in fact be developed. Each of the last five

EPA veto actions has involved a public water resource

project. Those actions include James City County’s Ware

Creek project (twice), Two Forks, Lake Alma in Georgia

and Big River in Rhode Island. If the principles of

federalism are to mean anything, it is essential that some

balance be maintained, with deference to local determina-

tions upon matters of vital local interest.

The City and the Metropolitan Water Providers

and Participants have become increasingly concerned with

(1) the use of federal water quality laws to undermine

State water allocation principles and decisions, and (2) the

unwarranted deference paid to EPA determinations in the

face of contrary findings by state and local governmental

entities with a more thorough understanding of the site

specific issues and the consequences of the decisions being

made. The Fourth Circuit decision being challenged by

James City County continues this trend toward federal

usurpation of state and local prerogatives. It is contrary

to existing law and sound public policy and must be

reversed.

SUMMARY OF ARGUMENT

Allowing EPA to veto a public water supply project

in the absence of a viable alternative is contrary to the

clearly expressed intent of Congress under the Clean

Water Act. Congress desired to protect the nation’s

waters for purposes of preserving those waters fi. ~ this

7

very use, i.e., domestic consumption, while deferring to

State and local determinations regarding the location and

timing of that use. This is apparent from §§ 101, 102 and

510 of the Act. Had Congress intended to usurp, under its

Commerce Clause authority, the power of state and local

governments to implement local land and water allocation

decisions, it would have had to provide a "clear statement"

of its intent. Gregory v. Ashcroft, 111 S. Ct. 2395 (1991).

No such clear statement can be found in the CWA.

Further, even EPA historically acknowledged that

the existence of alternative water supply options was to be

considered in determining if the impacts of a particular

project were unacceptable. Therefore, EPA impliedly

admitted the significance of the local need for such

undertakings. However, in this instance, EPA impermis-

sibly changed its course of conduct, offering no reasoned

explanation therefore. See Rust v. Sullivan, 500 U.S. 173

(1991).

Finally, though deference is normally accorded the

decisions of administrative agencies, no such deference is

warranted in this situation where (1) one agency is making

a determination contrary to the findings of one or more

other agencies; and (2) the normal burden of proof is

reversed, and is born by EPA. At the very least, the

findings of EPA must be the subject of more exacting

scrutiny by the reviewing court.

ARGUMENT

I. THIS COURT SHOULD DECIDE

WHETHER SECTION 404(c) ALLOWS

EPA TO IGNORE AN APPLICANT’S

NEEDS AND THE LACK OF ANY

PRACTICABLE ALTERNATIVE MEANS

OF MEETING SUCH NEEDS

A. This is an Important Federal Question

As indicated by James City County, if EPA can

ignore both the need for a public water supply project and

the absence of any viable alternatives in vetoing a project,

the ability of state and local governments to engage in the

construction of necessary public infrastructure projects will

be severely undermined. This is contrary to Congressional

intent.” Section 404(c) of the CWA, 33 U.S.C. § 1344(c)

(1986), the very section of the Act utilized by EPA in this

instance, calls specifically for the protection of "municipal

water supplies” against unacceptable adverse effects. The

language of § 404(c) reflects the language of § 102(a), 33

U.S.C. § 1252(a) (1986), which mandates the develop-

ment, in cooperation with state agencies and municipali-

ties, of comprehensive water pollution control programs

with "due regard... given to... the withdrawal of such

waters for public water supply . . . and other purposes.”

These provisions are, in turn, consistent with the language

found in § 101(b) of the Act, 33 U.S.C. § 1251(b) (1986),

which recognizes and preserves "the primary responsibili-

ties and rights of States .. . to plan the development and

use of land and water resources," and § 510 of the Act,

*Courts must reject administrative constructions of a statute which

are contrary to clear Congressional intent. Sullivan v. Stroop, 496

U.S. 478, 493 (1990).

ini

33 U.S.C. § 1370 (1986), which provides that nothing in

the Act shall "be construed as impairing or in any manner

affecting any right or jurisdiction of the States with respect

to the waters ... of such States." See also 33 U.S.C.

§ 1251(g) (1986). The Fourth Circuit would, nevertheless,

endorse an agency interpretation which allows the impair-

ment of state water allocations and subordinates municipal

water supply functions to other values--without even

demanding the existence of a viable water supply alterna-

tive.

Further, it is a well established maxim that deci-

sions of this nature are to be based on the administrative

record as developed before the agencies. Florida Power &

Light Co. v. Lorion, 470 U.S. 729 (1985); Camp v. Pitts,

411 U.S. 138 (1973); Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402 (1971). The Fourth Circuit failure to

base its decision solely on the administrative record

developed during the permitting process is a fatal defect

which, if allowed to stand, will severely hinder the exercise

of local governmental responsibilities by amici and others

who are similarly situated.

Responsible planning demands that projects provid-

ing basic public services be permitted well in advance of

actual need. In the case of large infrastructure develop-

ments by public entities, extensive lead times are involved.

An attempt is made to account for both substantial design,

engineering and construction periods, as well as the

lengthy administrative and judicial review proceedings

which often times accompany major undertakings.° To

*The Two Forks process actually began with the formation of the

Metropolitan Roundtable and the initiation of the Corps of Engineers’

Environmental Impact Statement in 1982, and is now before the

Federal District Court for Colorado. The permitting process for the

Homesiake water supply project of the Cities of Aurora and Colorado

Springs began in the early 1980’s, with the final permit appeal currentiy

10

allow the consideration of "new" non-record evidence

developed after close of the administrative record will

remove that element of finality which is vital to cost

effective and responsible public planning, while depriving

public agencies of fundamental fairness.

B. Congress Provided No Clear Statement

That EPA Could Ignore Local Needs in

the Absence of Viable Alternatives

In order to conclude that EPA had the authority to

ignore the local need for a water supply project in the

absence of alternatives to meet that need, this Court must

find a clear statement by Congress that this was its intent.

In Gregory v. Ashcroft, 111 §.Ct. 2395, 2399-2401 (1991),

this Court provided an insightful discussion of the princi-

ples of federalism which apply in the instant situation.

As every schoolchild learns, our Constitu-

tion establishes a system of dual sovereignty

between the States and the Federal Govern-

ment. This Court also has recognized this

fundamental principle. In Tafflin v. Levitt,

493 U.S. 455, 458, 110 S.Ct. 792, 107

L.Ed.2d 887 (1990), "[w]Je beg[a]n with the

axiom that, under our federal system, the

States possess sovereignty concurrent with

that of the Federal Government, subject

oniy to limitations imposed by the

Supremacy Clause.". . .

(footnote continued)

pending before the Colorado Court of Appeals.

il

Perhaps the principle benefit of the federalist

system is a check on abuses of government pow-

er. ... (Emphasis added.)

Id. at 2399-2400. Though acknowledging that "Congress

may legislate in areas traditionally regulated by the

States," the Court carefully noted that this "is a power

that we must assume Congress does not exercise lightly.”

Id. at 2400. The Court then continued:

... We explained recently: "[I]f Congress

intends to aler the ‘usual constitutional

bounds between the States and the Federal

Government,’ it must make its intention to

do so ‘unmistakably clear in the language of

the statute.’ Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 242 [105 S.Ct. 3142,

3147, 87 L.Ed.2d 171] (1985); see also Penn-

hurst State School and Hospital v. Halder-

man, 465 U.S. 89, 99 [104 S.Ct. 900, 907, 79

L.Ed.2d 67] (1984). Atascadero was an

Eleventh Amendment case, but a similar

approach is applied in other contexts.

Congress should make its intention ’clear

and manifest’ if it intends to pre-empt the

historic powers of the States, Rice v. Santa

Fe Elevator Corp., 331 U.S. 218, 230 [67

S.Ct. 1146, 1152, 91 L.Ed. 1447] (1947). ...

‘In traditionally sensitive areas, such as

legislation affecting the federal balance, the

requirement of a clear statement assures

that the legislature has in fact faced, and

intended to bring into issue, the critical

matters involved in the judicial decision.’

[Citations deleted. ]

12

This plain statement rule is nothing more

than an acknowledgement that the States

retain substantial sovereign powers under

Our constitutional scheme, powers with

which Congress does not readily interfere.

(Emphasis added.)

Id. at 2401.’ See also, Lawrence Tribe, American Consti-

tutional Law, §§ 5-8 at 316-17 (1988) ("The Supreme

Court has invoked the clear statement requirement most

notably where a judgment that a federal statute reached

to the outer limits of the commerce power would be

obviously inconsistent with state institutional interests.")

There is no "plain statement" in the CWA indicat-

ing Congressional intent to allow EPA to ignore the

pressing infrastructure needs of a local community, or to

dictate the use of local land and water resources, thereby

usurping the local planning function. In fact, §§ 101, 102,

and 510 of the Act, 33 U.S.C. §§ 1251, 1252, and 1370

(1986 & Supp. 1994), as referenced above, constitute ©

plain statement against such federal interference.

” See also Illinois Central R.R. v. Public Utilities Comm’n of Illinois,

245 U.S. 493, 510 (1918) ("in construing federal statues enacted under

the power conferred by the Commerce Clause of the Consutution, it

should never be held that Congress intends to supersede or suspend the

exercise of the reserved powers of a state, even where that may be

done, unless, and except so far as, its purpose to do so is clearly

manifested"); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)

(where Congress legislates in a field which the states have traditionally

occupied, one must "start with the assumption that the historic police

powers of the states were not to be superseded by the Federal Act

unless that was the clear and manifest purpose of Congress’).

13

C. EPA Must Adhere to Longstanding

Policies

As noted in the Petition of James City County,

EPA had a long standing policy to "take into account the

fact that the alternative sites or methods are or are not

available, so that the loss of resources is avoidable or

unavoidable.” 44 Fed. Reg. 5876, 5878 (1979). This is

only logical in view of the competing interests that are

being balanced. However, in the case of James City

County, EPA departed from that policy without providing

a "reasoned analysis" therefore. This is impermissible.

Rust v. Sullivan, 500 U.S. 173 (1991); Ohio v. EPA, 997

F.2d 1520, 1542 (D.C. Cir. 1993) (EPA must offer a

"reasoned explanation,” and not a "general cursory expla-

nation" for any significant change in policy). In addition,

as also noted by James City County, the Fourth Circuit

erred in accepting EPA’s "new" regulatory interpretation.

See Chevron U.S.A. v. Natural Resources Defense Council,

467 U.S. 837 (1984). To allow such actions to stand would

run contrary to existing law, and would place public

entities in the unenviable position of facing yet additional

uncertainty in the permitting process.

II. COURTS NEED NOT DEFER TO FEDER-

AL AGENCY FINDINGS UNDER SUCH

CIRCUMSTANCES

The present action, though based upon an adminis-

trative record, does not call for the "presumption of

regularity" which would normally be the case. First,

deference should not be given to EPA’s findings when

they are contrary to the findings of other agencies with

overlapping jurisdiction. In addition, by the EPA’s own

admission, it bears a burden of proof to support its

14

findings. Hence, minimal deference is due the EPA under

such circumstances.

A. Minimal Deference Is Due the EPA

Determination

As noted above, this is a proceeding where one

federal agency, EPA, has made a determination contrary

to the conclusions reached by another federal agency, the

Corps of Engineers. Hence, though agency action is

ordinarily entitled to a presumption of regulatory, Citizens

to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415

(1971), and the factual findings of an agency usually are

given deference, EPA v. National Crushed Stone Ass'n, 449

U.S. 64, 83 (1980), such should not be the case in this

instance. To the extent this Court would defer to the

findings of EPA, it would be disregarding the findings of

the Corps. According to Professor Bernard Schwartz, "{i]f

the interpretation of the administrative expert whose act

is being reviewed is contradicted by that of other adminis-

trators, the reviewing court should decide the question for

itself." B. Schwartz, Administrative Law § 10.35 at 064

(2nd Ed. 1984).° See also, General Electric Co. v. Gilbert,

429 U.S. 125, 144-45 (1976) and Bamard v. Carey, 60 F.

Supp. 539 (N.D. Ohio 1945).

Bb. EPA Bears the Burden of Proof

The fact that the initial burden of proof in a veto

scenario lies with EPA further demonstrates that the

normal deference to agency action is not appropriate in

“It should be noted that the Second Circuit did not give deference

to EPA in a similar situation. Bersani v. Robichaud, 850 F.2d 36, 45

(2nd Cir. 1988).

15

the review of a Section 404(c) decision. The nature of

EPA’s responsibility is identified in Section 404(c) of the

Act, 33 U.S.C. § 1344(c) (1986), which provides in part:

The Administrator is authorized ... to deny

or restrict the use of any defined area for

specification . . . as a disposal site, whenever

he determines, after notice and opportunity

for public hearings, that the discharge of

such materials into such area will have an

unacceptable adverse impact on municipal

water supplies, shellfish beds and fishery

areas, .. . wildlife, or recreational areas. . .

. The Administrator shall set forth in writ-

ing_and make public his findings and his

reasons for making any determination under

this subsection. (Emphasis added).

Thus, EPA must prove that the activity under review "will"

have an unacceptable adverse effect, James City Count,

Virginia v. EPA, 955 F.2d 254, 257 (4th Cir. 1992). EPA

carries the burden of proof upon this issue.’

EPA’s acknowledgement of its burden of proof with

respect to the unacceptability of a proposed discharge of

dredged or fill material was reaffirmed in the preamble to

EPA’s § 404(b)(1) Guidelines. EPA stated therein that

"{iJf the Administrator uses his § 404(c) ‘veto’, then he

does have the burden to justify his action. . . .". Guidelines

for Specification of Disposal Sites for Dredged or Fill

*This is a burden which should not be easily surmounted. for the

Corps, in issuing its Notice of Intent to permit, has already determined

that applicants have overcome their burden relative to certain presump-

lions against permitting a project. See Section 404(b)(1) Guidelines for

Specification of Disposal Sites for Dredged or Fill Material, (33 U.S.C.

§ 1344(b)(1)), 40 C.F.R. §§ 230.1(c), 230.10(a)(3) (1990).

16

Material, 45 Fed. Reg. 85336, at 85338 (1980). See also,

44 Fed. Reg. 58076, at 58080 (1979), Bersani v. Robichaud,

850 F.2d 36, 40 (2nd Cir. 1988), cert. denied 489 U.S. 1089

(1989) ("the burden of proving that the discharge will have

an ‘unacceptable adverse effect’ is on EPA.")."” Hence,

EPA must come forward with sufficient evidence, not

mere conclusory statements, to support its position. See,

Hazardous Waste Treatment Council v. EPA, 886 F.2d 355,

366 (D.C. Cir. 1989); 5 U.S.C. § 556(d) (1982).

C. EPA’s Decision Merits an Especially

Close Examination

It is fundamental that the courts are to undertake

a searching and careful” examination of the factors relied

upon by the agency. Citizens to Preserve Overton Park, 401

U.S. at 416. However, in the unique circumstances of this

case, that examination should be particularly exhaustive.

The determination of EPA Headquarters to exercise its

§ 404(c) veto authority was a reversal of the Corps and

State water quality decisions. When such different conclu-

sions have been reached by reviewing authorities, "the

court subjects the record to particular scrutiny.” Pennzoil

Co. v. FERC, 789 F.2d 1128, 1135 (Sth Cir. 1986). Such

scrutiny must be demanded in this instance.

‘In determining whether the discharge will have an unacceptable

adverse effect, the regulations implementing § 404(c) of the Clean

Water Act require the Administrator to “take into account all the

information available to him, including any written determination of

compliance with the § 404(b)(1) Guidelines made in 40 C.F.R. Part

230... ." 40 C.F.R. § 231.1(a) (1993).

17

CONCLUSION

For the foregoing reasons, the petition of James

City County for a writ of certiorari should be granted.

Respectfully submitted,

MARK T. PIFHER MARCIA M. HUGHES

Counsel of Record MARCIA M. HUGHES, P.C.

ANDERSON, 390 Union Blvd., # 415

GIANUNZIO, DUDE, Lakewood, CO 80229

PIFHER & (303) 980-8668

Lema... FA.

104 S. Cascade Ave. # 204

Colorado Springs,

CO 80901

(719) 632-3545

Attorney for Amicus Attorney for Amici

City of Colorado The Metropolitan Water

Springs Providers and the

Metropolitan Water

Participants

August 22, 1994

18

‘AMICUS CURIAE |

BRIEF

ee

Bupreme Court, U.S.

a FILED

4

No. 93-2045

In the

Supreme Court of the United States

October Term, 1994

+

JAMES CITY COUNTY, VIRGINIA,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY and

UNITED STATES ARMY CORPS OF ENGINEERS,

Respondents.

5 aa

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

+

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER,

JAMES CITY COUNTY, VIRGINIA

+

RONALD A. ZUMBRUN

* ROBIN L. RIVETT

GERALYNN PATELLARO

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

TABLES OF AUTHORITIES CITED ..................

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

Co ja EE ae nae

I. PROHIBITING A COUNTY FROM

MAINTAINING ITS WATER SUPPLY HAS

SIGNIFICANT PRACTICAL CONSEQUENCES

BECAUSE WATER IS ITS LIFEBLOOD .............

II. THIS CASE PRESENTS IMPORTANT

ISSUES OF FEDERAL LAW BECAUSE

THE FOURTH CIRCUIT’S RULING

UPHOLDS EPA’S ARBITRARY AND

CAPE UE of ek wd ae seas

A. _ EPA Regulations Provide Clear

Guidelines for the Agency To

Follow in Determining if a

Section 404 Permit Should Be Vetoed ............

B. EPA Did Not Consider All Relevant

Factors, as Required by Its Own

Guidelines, in Vetoing the Ware

A A eee

li

Page

C. Without Justification or Notice,

EPA Abandoned Its Long-Standing

Policy of Considering All Relevant

Factors as Part of the Section 404(c)

te I itch er rc ee 12

Ill. EPA’S ACTIONS ARE CONTRARY 10

THE CONGRESSIONAL INTENT BEHIND

THE CWA WHICH PROTECTS STATES’

RIGHTS TO DEVELOP AND USE LAND

AED WATER TOMAR 6 hed sce nen sun 15

CARE cn ck a kw aie ee ee ee 19

TABLE OF AUTHORITIES CITED

Page

CASES

Alameda Water & Sanitation District v.

Reilly, No. Civ. A. 91-M-2047

et ES A ee a 15

Bersani v. Robichand, 850 F.2d 36 (2d Cir. 1988),

cert. denied, 489 U.S. 1089 (1989) ................... 12

Chevron U.S.A., Inc. v. Natural Resources Defense

Fo” 13

Citizens to Preserve Overton Park, Inc. v.

er x

Dolan v. City of Tigard, 512 U.S. ___, 62 U.S.L.W.

ee 2

Euclid v. Ambler Realty Co, 272 U.S. 365 ere 16

Greater Boston Television Corp. v. Federal

Communications Commission, 444 F.2d 841

(D.C. Cir. 1970), cert. denied, 403 U.S.

aerate le ac as k's nk a cc cc eecccne 14-15

Lucas v. South Carolina Coastal Council,

SOS U.S. __, 120 L. Ed. 2d 798 (1992) ................ 2

Motor Vehicle Manufacturers Association v. State Farm

Mutual Automobile Insurance Co., 463 U.S. 29 ( rare i

National Wildlife Federation v. Gorsuch,

eT ol 17

iv

Page

Natural Resources Defense Council, Inc. v.

Securities and Exchange Commission,

ee a ee a I PD ie ks ee ccs awavess 13-14

Nollan v. California Coastal Commission,

eS ee er are 2

Riverside Irrigation District v. Andrews,

Fe ee Se Cs BD oo Po ewer e ences ear eees 17

United States v. Riverside Bayview Homes,

ae ee Se GE A es ale ee oe 5 5 ees CORRS 2

STATUTES

i ES on aoa bd eae ea a ee ee ae ee 7-8

ee as Te ne a ak 4 one oe he 0 OE 2

Bo re es ee re ee ee ee 16

Ce Soak cease OPeS ee Fe we eee eee 16

30 re ee en eee ee area 16-17

SE <w d oc oe oe eee a a a eee ee 3,8

RULES AND REGULATIONS

et Me 0 RETO EPEC e Toe ee Por 4,16

ee a oo ok bh he ww 4 ee wee Oe eee 3,9

ED ad 6 3 aca aoe a) ae eles ay ee 3,9

OE doa a hans ba a Re Cie a eae 9

Page

En uae wie eee bene snes dhe ee ee 9

rere err er wae farmer awe ee eS 9

4 rrr rarer err er wor ere rn je 9

eS SPP rrrereeeeerr: or Trae Ce. 8

CRP nc stcetenas cb eeupaaesescean eee ens 9-10

| + Peeerevrerrr ry yer reer i yey ere ee 9

Supreme Court Rules, Rule 10.1 ..........5-- +e ee eees 5

ere ee eer nr ee ee ee eg ee 1

MISCELLANEOUS

George A. Gould and Frank J. Trelease, Water Law (1986) ... 546

Jonathan Tolman, Attack of the Wetland Enforcers,

Weald Sa a, Ce Fy UD we he Se eee eaaas 18

Frank J. Trelease, A Water Management Law

for Arkansas, 6 U. Ark. L. Rev. 369 (1983) ...........-. 56

S. Rep. No. 92-1236, 92d Cong. 2d Sess., reprinted in

A Legislative History of the Water Pollution Control

Act Amendments of 1972, Vol. 1 (Jan. 1973) ........... 9-10

United States Army Corps of Engineers, Analysis

of the Proposed Discharge with Respect to

Section 404(b)(1) of the Clean Water Act

ST TD as bee oe CEN EG eS ee eee ERS 11

No. 93-2045

In the

Supreme Court of the United States

October Term, 1994

°

JAMES CITY COUNTY, VIRGINIA,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY and

UNITED STATES ARMY CORPS OF ENGINEERS,

Respondents.

+

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

*

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER,

JAMES CITY COUNTY, VIRGINIA

5 a

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully submits this brief amicus curiae

in support of petitioner, James City County. Written consent to

the filing of this brief has been granted by counsel for all parties.

Copies have been lodged with the Clerk of the Court.

2

PLF is a nonprofit, tax-exempt corporation organized under

the laws of the State of California for the purpose of litigating in

the public interest. PLF has litigated numerous public interest

cases which involve environmental issues in general and the

interpretation of the Clean Water Act (CWA) (33 U.S.C. § 1251,

et seq.) in particular. See, e.g., United States v. Riverside

Bayview Homes, 474 U.S. 121 (1985), where PLF participated as

amicus curiae. Other cases in which PLF has participated before

the United States Supreme Court include Nollan v. California

Coastal Commission, 483 U.S. 825 (1987), where its attorneys

were counsel of record; and more recently Dolan v. City of

Tigard, 512 U.S. ___, 62 U.S.L.W. 4576 (1994), and Lucas v.

South Carolina Coastal Council, 505 U.S. __, 120 L. Ed. 2d 798

(1992), where PLF participated as amicus curiae. PLF policy is

set by a Board of Trustees composed of concerned citizens, the

majority of whom are attorneys. The Board authorizes active PLF

involvement in a case only when there is broad community support

and societal impacts are significant. PLF’s Board of Trustees has

authorized the filing of an amicus curiae brief in this matter.

Amicus seeks to augment the argument in the James City

County petition for writ of certiorari. It is believed that PLF’s

public policy perspective and litigation experience in support of

property rights and balanced environmental regulation will provide

an additional viewpoint with respect to the constitutional and legal

issues presented.

OPINION BELOW

The opinion of the United States Court of Appeals for the

Fourth Circuit is published at James City County v. Environmental

Protection Agency, 12 F.3d 1330 (4th Cir. 1993).

3

—@——

STATEMENT OF THE CASE

James City County, Virginia, is running out of water. Over

15 years ago the county determined that severe water shortages

were inevitable and it would not have sufficient resources to meet

demands of the 21st century. James City County later applied to

the Army Corps of Engineers (Corps) for a permit, under

Section 404(b) of the CWA, to construct a dam and reservoir

across Ware Creek within the county. After thorough evaluation

of all available alternatives, local, state, and federal agencies

determined that only one adequate water source would be capable

of supplying future needs. The Corps proposed to grant the permit

in 1988 after receiving certification from the Virginia State Water

Control Board that the project would not violate state water quality

standards. The Environmental Protection Agency (EPA) blocked

permit issuance, however, pursuant to its authority under

Section 404(c) of the CWA, claiming that the project would have

"unacceptable adverse effects" on the environment because the

county had practicable alternatives to building the dam.' The

county won a summary judgment against EPA in the Federal

District Court for the Eastern District of Virginia. The United

States Court of Appeals for the Fourth Circuit affirmed the District

Court’s holding, finding that EPA’s claim of practicable

' Section 404(c) reads in pertinent part that EPA can veto a project

if "the discharge ... will have an unacceptable adverse effect on

municipal water supplies, shellfish beds and fishery areas ...,

wildlife, or recreational areas." 33 U.S.C. § 1344(c). Addit-

ionally, EPA must consider practicable alternatives to the proposed

discharge which might have less adverse impact on the aquatic

ecosystem. 40 C.F.R. § 230.10(a). “An alternative is practicable

if it is available and capable of being done after taking into

consideration cost, existing technology, and logistics in light of

overall project purposes." 40 C.F.R. § 230.10(a)(2).

4

alternatives was unsupported by the evidence. Nevertheless, the

appellate court remanded the case to afford EPA an opportunity to

decide whether the adverse environmental impacts of the project

would be "unacceptable" even though no practicable alternative

was available.

On remand to the District Court, EPA argued it had the

authority to veto Corps permits solely by considering the adverse

effects on the environment. In response, the county asserted that

EPA was required to consider a wide range of factors in

determining what was "unacceptable." This included EPA’s past

practice of reviewing the project’s importance to the local water

supply and whether practicable alternatives existed. The District

Court once again ruled for the county, noting EPA "completely

ignore[d] ... the [c]ounty’s desperate need for water." James City

County v. Environmental Protection Agency, 23 ENVTL. L. REP.

20,228, 20,229 (1992). The Fourth Circuit Court of Appeals

reversed, however, entering judgment on December 30, 1993.

The court held that while the Corps must consider all relevant

factors, EPA’s "authority to veto to protect the environment is

practically unadorned." James City County v. Environmental

Protection Agency, 12 F.3d at 1336.

James City County’s petition to the Fourth Circuit for a

Rehearing and Suggestion for Rehearing In Banc was denied on

March 25, 1994. The petition for writ of certiorari followed on

June 22, 1994. The county has no other options. It needs water.

e

SUMMARY OF ARGUMENT

A community’s water supply is its lifeblood. "Water is an

essential resource, basic to human survival, economic growth, and

the natural environment." 33 C.F.R. § 320.4(m). In the EPA’s

eagerness to clean up the nation’s waters, however, it has lost

5

sight of balancing the importance of protecting clean water with

providing life sustaining water.

The Fourth Circuit’s ruling allows EPA to exalt certain

environmental effects over all other consideratiois, sentencing

James City County to a certain doom. This is contrary to

(1) EPA’s own specific regulations and long-standing procedures

which call for weighing all available information, resulting in

a violation of the Administrative Procedure Act (APA) and

(2) congressional intent of the CWA.

EPA’s seif-expanded and inconsistent interpretation of its

veto power over a community’s water supply will have frightening

implications nationwide. Such a result cannot be condoned by this

Court. Thus, pursuant to Supreme Court Rule 10.1, this case

represents important issues of federal law resulting in significant

practical consequences which warrant this Court’s review.

+

ARGUMENT

(

PROHIBITING A COUNTY FROM MAINTAINING ITS

WATER SUPPLY HAS SIGNIFICANT PRACTICAL

CONSEQUENCES BECAUSE WATER IS ITS LIFEBLOOD

It is undisputed that water is the lifeblood of any community.

Professor Frank Trelease, a renowned water law expert, once

commented:

"People benefit from water use or nonuse. Law is

man’s creation; law should serve man, not things or

governments. If the law 1s to be comprehensive it

must, of course, protect the resources and promote the

public good, but it is people who want to preserve the

6

natural features of lakes and streams; it is people

whose farms and factories contribute not only profit to

them but prosperity to the state, and it is people who

make up the population of cities."

George A. Gould and Frank J. Trelease, Water Law at 11 (1986)

(citing Frank Trelease, A Water Management Law for Arkansas,

6 U. ARK. L. REV. 369, 371-72 (1983) (emphasis in original).

Comprehensive laws, like the CWA, that protect water

resources are designed and should be employed to promote the

overall public good. This instant case, however, demonstrates

how the CWA has been interpreted by EPA and the Court of

Appeals to serve fish and wildlife regardless of the needs of the

people.

James City County is running out of water. According toa

Corps District Engineer, "the consequences of not developing a

reliable water supply ... are too dangerous and damaging to

contemplate as an alternative." Record of Decision, 84-0614-06,

July 11, 1988, reprinted in Petition for Writ of Certiorari

(Petition) at A-3. The engineer also indicated that if a water

project is not commenced soon, evidence suggests that by 1999 the

area could face a "potential disastrous [water] system failure." /d.

The practical consequences of such a disaster are devastating.’

? As stated in the initial District Court opinion, James City County

is the second fastest growing county in Virginia. James City

County v. United States EPA, 758 F. Supp. 348, 349 (E.D. Va.

1990). Consequently, the county has projected a need of at least

10.5 million more gallons of water per day if it is to meet water

demands through the year 2030. Jd. For obvious reasons, if not

met, this demand will have major social impacts on the

community. Economic impacts will also be staggering because

(continued...)

7

Despite these consequences, the Fourth Circuit opinion held

that Congress intended EPA’s veio authority to be "practically

unadorned." James City County v. Environmental Protection

Agency, 12 F.3d at 1336. The ruling portrays EPA as the ultimate

protector due to its focus on environmental concerns. The citizens

of James City County, however, will certainly not view the

decision that way once they have no more water. It is not an

understatement to conclude that EPA could wipe out entire

communities by completely controlling municipal water supplies.

This extraordinary holding virtually allows EPA unfettered

discretion in assessing Section 404 permit applications. If the

judgment is allowed to stand, EPA will have no obligation to

consider the significant practical consequences of its Section 404

decisions.

II

THIS CASE PRESENTS IMPORTANT ISSUES OF

EDERAL LAW BECAUSE THE FOURTH CIRCUIT’S

RULING UPHOLDS EPA’S ARBITRARY AND

CAPRICIOUS ACTIONS

Courts must set aside agency action found to be "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with law" because such action violates the APA. 5 U.S.C.

? (...continued)

the county’s "Master Water Plan states that major commercial

and industrial customers account for approximately 70 percent of

the County’s 1985 water demand." Final Determination of the

U.S. Environmental Protection Agency’s Assistant Administrator

for Water Pursuant to Section 404(C) of the Clean Water Act

Concerning the Proposed Ware Creek Water Supply Impoundment

James City County, Virginia, July 10, 1989, reprinted in Petition

at D-74.

8

§ 706(2)(A). To find that an agency’s action is arbitrary and

capricious,

the court must consider whether the decision was based

on a consideration of the relevant factors and whether

there has been a clear error of judgment. [Citations

omitted.] Although this inquiry into the facts is to be

searching and careful, the ultimate standard of review

is a narrow one. The court is not empowered to

substitute its judgment for that of the agency.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

416 (1971). See also Motor Vehicle Manufacturers Association v.

State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43

(1983).

Therefore, this Court should ensure that EPA’s analysis of

unacceptable adverse effects includes consideration of all relevant

factors.

A. EPA Regulations Provide Clear Guidelines

for the Agency To Follow in Determining

if a Section 404 Permit Should Be Vetoed

EPA has authority to veto Section 404 permits if the

"discharge of ... materials into [an] area will have an unacceptable

adverse effect on municipal water supplies, shellfish beds and

fishery areas ..., wildlife, or recreational areas. Before making

such determination, the [EPA] Administrator shall consult with the

[Corps] Secretary." 33 U.S.C. § 1344(c).

Accordingly, EPA’s own regulations provide the relevant

factors it must consider when determining if a project will have

unacceptable adverse effects on the environment, justifying a

Section 404 veto. 40 C.F.R. § 231, ef seg. Pursuant to these

regulations, "[i]n evaluating the unacceptability of such impacts,

9

consideration should be given to the relevant portions of the

section 404(b)(1) guidelines (40 CFR Part 230)." 40 C.F.R.

§ 231.2(e). The 404(b)(1) guidelines read in pertinent part, that

"no ... fill material shall be permitted if there is a practicable

alternative to the proposed discharge which wouid have less

adverse impact on the aquatic ecosystem, so long as the alternative

does not have other significant adverse environmental conse-

quences." 40 C.F.R. § 230.10(a). "An alternative is practicable

if it is available and capable of being done after taking into

consideration cost, existing technology, and logistics in light of

overall project purposes." 40 C.F.R. § 230.10(a)(2). Moreover,

[iJn making this determination [to veto a project],

the [EPA] Administrator will take into account all

information available to him, including any written

determination of compliance with the section 404(b)(1)

Guidelines made in 40 CFR Part 230, and will consult

with the Chief of Engineers or with the state.

40 C.F.R. § 231.1(a).’

The above guidelines clearly indicate that veto decisions are

not to be made in a vacuum. EPA has an obligation to consider

all available information. This requirement is further underscored

by a review of CWA’s legislative history which declares that

[vJirtually every action required of the Administrator

by the [CWA] ... involves some degree of agency

discretion, judgments involving a complex balancing of

> EPA guidelines at 40 C.F.R. address several other factors

including minimizing adverse effects on the environment

(Section 230.70), evaluating material to be _ discharged

(Section 230.60), the effect on endangered species

(Section 230.30), and the effect on municipal water supplies

(Section 230.50).

10

factors that include technological considerations,

economic considerations, and others.

S. REP. No. 92-1236, 92d Cong. 2d Sess., reprinted in A Legis-

lative History of the Water Pollution Control Act Amendments of

1972, Vol. 1, at 332 (Jan. 1973) (emphasis added).

Thus, EPA has articulated standards, in accordance with

the APA and congressional intent, requiring it to consider all

information available, including practicable alternatives, before

vetoing a Section 404 permit.

B. EPA Did Not Consider All Relevant Factors, as Required

by Its Own Guidelines, in Vetoing the Ware Creek Project

EPA’s own rules require it to evaluate myriad factors,

including all available information when making a veto decision.

40 C.F.R. § 231.1(a). It is axiomatic, therefore, that when

determining the fate of the Ware Creek project, EPA should have

considered the critical importance of the county’s dwindling water

supply and that no practicable alternatives existed. It refused to

do so, however.

Of course the Corps District Engineer did factor in this

concern when he concluded,

[w]ere it not for the overpowering need for the project

and the lack of practicable alternatives, I could not

justify this project as being in the public interest.

The need cannot be overlooked by any responsible

party, though, and the evidence concerning the lack

of practicable alternatives is overwhelming.

Record of Decision, 84-0614-06, July 11, 1988, reprinted in

Petition at A-3-4 (emphasis added).

il

In support of his conclusion, the engineer also noted that

significant mitigation measures would substantially reduce the

projected adverse effects because “an impressive effort has been

made to avoid, minimize and compensate for these wetland losses,

to the extent that the net loss has been reduced so as not to cause

a significant degradation to the water of the United States." Jd.

at 1.

Further, he determined:

There [was] no evidence whatever that this project

would: (1) cause or contribute to violations of any

State water quality standards ..., (2) violate any toxic

effluent standard, (3) jeopardize any threatened or

endangered species, or (4) affect any marine

sanctuaries.

United States Army Corps of Engineers, Analysis of the Proposed

Discharge with Respect to Section 404 (b)(1) of the Clean Water

Act (July 11, 1988), reprinted in Petition at B-10.

Yet the Fourth Circuit held only the Corps responsible for

considering all factors in the Corps’ "public interest review.”

James City County v. EPA, 12 F.3d at 1336. It determined that

“Congress gave the final decision whether to permit a project to

[EPA]" and that EPA need only consider matters of water purity.

Id. The Fourth Circuit explained its conclusion only by stating

"[EPA’s] authority to veto to protect the environment is practically

unadorned." /d.

Basically, EPA can now veto a project solely based on

anticipated environmental harm, to the exclusion of all other

factors. The Fourth Circuit is blatantly disregarding congressional

intent and EPA’s own established standards that require the agency

to weigh carefully all relevant factors. This Court has the

opportunity to instruct EPA that the checks and balances provided

12

by Congress in the Section 404 permit process must not be

ignored.

C. Without Justification or Notice, EPA

Abandoned Its Long-Standing Policy of

Considering Ail Relevant Factors as

Part of the Section 404(c) Veto Process

In the past EPA has indeed considered more factors than

solely the environmental harm of a project. For example, in

Bersani v. Robichand, 850 F.2d 36 (2d Cir. 1988), cert. denied,

489 U.S. 1089 (1989), EPA vetoed the construction of a mall

based on the existence of practicable alternatives. /d. at 38.

No better example can be found, however, than in this case

when even EPA acknowledged that it "reasonably determined that

the ‘acceptability’ of adverse effects on the environment can

best be evaluated in light of all relevant factors." Reply

Memorandum in Support of Defendants’ Motion for Summary

Judgment (Sept. 14, 1990), Court Record (CR) 37 at 2-3,

reprinted in Petition at 11 (emphasis added). Moreover, EPA

later reinforced its position by admitting that

[t]he statutory term "unacceptable" must certainly

authorize the Agency to consider and balance a wide

variety of pertinent factors, including the scope and

severity of a project’s environmental effects in light of

the benefits to be obtained from it.

Reply Brief for Appellants EPA and Corps of Engineers (May 16,

1991), filed in James City County v. EPA, No. 91-2612 (4th Cir.

1992), reprinted in Petition at 13 (emphasis added).

These statements indicate that consideration of James City

County’s water supply should have been one of the pertinent

factors to be balanced in EPA’s decision making process.

13

Yet EPA had the temerity to later claim on remand before the

District Court that it had absolutely no obligation to consider

James City County’s water needs. James City County v. EPA,

Civ. Action No. 89-156-NN. Transcript (July 28, 1992), CR 72

at 31, reprinted in Petition at 15. This complete reversal of

position is indicative of EPA’s disregard for its own regulations

as written and its own long-standing interpretation of those

regulations.

EPA may claim that the interpretation of its Section 404

permit veto power is entitled to a presumption of validity based on

this Court’s general deference to agency actions. Chevron U.S.A.,

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

844 (1984). However, heightened scrutiny is warranted

where an agency has a history of "ad hoc and incon-

sistent judgments" on a particular question; where the

agency has arrived at an identical result after remand

from a reviewing court for further explanation of

reasons; or when an agency has departed from its

consistent and long-standing precedents or policies.

Natural Resources Defense Council, Inc. v. Securities and

Exchange Commission, 606 F.2d 1031, 1049 n.23 (D.C. Cir.

1979) (citations omitted).

Applying these standards, the instant case does not merit

deference to EPA’s position, rather it deserves more exacting

scrutiny. The record clearly demonstrates that (1) EPA’s

application of its veto power has been inconsistent, (2) EPA

reached the identical conclusion after remand from the appellate

court, and (3) EPA has departed from its long-standing precedent.

14

Amicus acknowledges that

[a]n agency’s view of what is in the public interest

may change, either with or without a change in

circumstances. But an agency changing its course must

supply a reasoned analysis indicating that prior policies

and standards are being deliberately changed, not

casually ignored, and if an agency glosses over or

swerves from prior precedents without discussion it

may cross the line from the tolerably terse to the

intolerably mute.

Greater Boston Television Corp. v. Federal Communications

Commission, 444 F.2d 841, 852 (D.C. Cir. 1970), cert. denied,

403 U.S. 923 (1971) (citations omitted).

In James City County EPA has switched gears with no justification

or reasoned analysis whatsoever. Indeed, EPA has ignored its

own well-established and self-proclaimed policy of balancing

relevant factors. Supra at 12. Even the District Court noted on

remand that

[w]hile the EPA provides reams of environmental

analysis, it neglects its duty to consider all of the

factors important to this project’s acceptability or

unacceptability -- namely the county’s need for water,

a need which it previously stated it should and would

consider.

James City County v. EPA, 23 ENVTL. L. REP. 20,288, 20,299,

reprinted in Petition at H-3-4. Because EPA has not articulated

any rationale for its abrupt policy change, its actions are

arbitrary and capricious and should therefore be set aside.

Natural Resources Defense Council, Inc., 606 F.2d at 1049.

—

15

Moreover, this Court needs to stop EPA’s unpredictable veto

process.

The court is in a real sense part of the total administra-

tive process, and not a hostile stranger to the office of

first instance. This collaborative spirit does not

undercut, it rather underlines the court’s rigorous

insistence on the need for conjunction of articulated

standards and reflective findings, in furtherance of

evenhanded application of law, rather than imper-

missible whim, improper influence, or misplaced zeal.

Greater Boston, 444 F.2d at 852.

James City County and myriad other project applicants have

too much at stake to fall victim to EPA’s whims and erratic

assessments.* This Court can provide the needed guidance for

petitioner and future applicants who are today faced with terrifying

uncertainty due to EPA’s inconsistent implementation of the CWA.

Il

EPA’S ACTIONS ARE CONTRARY TO THE

CONGRESSIONAL INTENT BEHIND THE CWA WHICH

PROTECTS STATES’ RIGHTS TO DEVELOP AND USE

LAND AND WATER RESOURCES

If the Fourth Circuit’s decision is permitted to stand, local

government will find that the “practically unadorned" veto power

of EPA will allow it to control municipal water supplies. In turn

it will also control local land use and community growth because

* For example, traditional state water rights and an EPA veto of a

local water project are the subject of current litigation in Alameda

Water & Sanitation District v. Reilly, No. Civ. A. 91-M-2047)

(D. Colo. 1993).

16

"[w]ater is an essential resource, basic to human survival,

economic growth, and the natural environment." 33 C.F.R.

§ 320.4(m). Land use decisions, however, are within the inherent

police power of the states. See Euclid v. Ambler Realty Co.,

272 U.S. 365, 387 (1926). Therefore, the opinion inappropriately

confers upon EPA authority which belongs to the state and local

agencies.

Land use planning was not the intent of Congress in adopting

the CWA, whose objective simply was "to restore and maintain

the chemical, physical, and biological integrity of the Nation’s

waters." 33 U.S.C. § 1251(a). In fact, Congress specifically

addressed the policy concern over local water and land use

decisions in the CWA which reads in pertinent part:

It is the policy of the Congress to recognize,

preserve, and protect the primary responsibilities and

rights of States to prevent, reduce, and eliminate

pollution, to plan the development and use (including

restoration, preservation, and enhancement) of /and and

water resources, and to consult with the Administrator

in the exercise of his authority under this chapter.

33 U.S.C. § 1251(b) (emphasis added).

Furthermore:

It is the policy of Congress that the authority of

each State to allocate quantities of water within its

jurisdiction shall not be superseded, abrogated or

otherwise impaired by this chapter. It is the further

policy of Congress that nothing in this chapter shall be

construed to supersede or abrogate rights to quantities

of water which have been established by any State.

Federal agencies shall co-operate with State and local

agencies to develop comprehensive solutions to

Desens

17

prevent, reduce and eliminate pollution in concert with

programs for managing water resources.

33 U.S.C. § 1251(g).

These statutes illustrate that congressional policy dictates a

cooperative approach to the CWA and that Congress did not grant

EPA unfettered discretion over water quantity and quality decisions

that would ultimately result ini 'ocal land use control. Rather,

“where both the state’s interest in allocating water and the federal

government’s interest in protecting the environment are implicated,

Congress intended an accommodation." Riverside Irrigation

District v. Andrews, 758 F.2d 508, 513 (10th Cir. 1985). This

accommodation reasonably should include balancing all relevant

factors when assessing a project subject to Section 404.

It is indisputable that "dams are a major component of

State water management, providing irrigation, drinking water,

flood protection etc." National Wildlife Federation v. Gorsuch,

693 F.2d 156, 182 (D.C. Cir. 1982). "[S]pecific indication

[exists] in [CWA] that Congress did not want to interfere any more

than necessary with state water management." /d. Congress did

not intend for the management of local water resources to be left

to EPA’s "practically unadorned" discretion under Section 404.

Quite the contrary, Congress intended that federal agencies would

cooperate with local and state agencies in fulfilling CWA’s goals

for large and small projects alike. Yet, the Fourth Circuit’s ruling

hardly reflects a cooperative approach to the CWA. It instead

allows EPA to control local land use and water resource decisions

without considering the real consequences of its action--a complete

interference with state water management.°

> Thousands of examples exist on a smaller scale to demonstrate

the out of balance regulation currently holding local land use

authorities and Section 404 permit applicants hostage, which was

(continued...)

18

In fact, "EPA and its enforcers have been treating wetland

regulation as an environmental crisis." Jonathan Tolman, Attack

of the Wetland Enforcers, WALL ST. J. at A12. Amicus certainly

acknowledges the imporiance and value of wetlands. Yet “[t]he

current regulations, as interpreted by the Army Corps of

Engineers, tend to treat every wetland as if it were a national

treasure" even though

"[iJn 1994, the government’s top three wetland

restoration programs will restore a combined total of

157,09 acres of wetlands. At the same time, data

from “he government’s National Resource Inventory

concluded that the U.S. will convert only 66,000 acres

of wetlands to other uses. In other words, by the end

of 1994 there should be tens of thousands more acres

of wetlands than there were at the beginning.

Id. The above figures reflect that "draconian comment and-

control wetland regulations are no longer necessary." Id.

Congress has spoken; a balanced approach to the CWA was and

is still its intent. Therefore, this Court should reestablish

the balanced approach intended by Congress and require EPA to

> (...continued)

not the intent of Congress. One such example occurred in

Washington state:

During his three-year wait for a permit, [the applicant]

gave one of his U.S. senators a tour of his property in

an attempt to explain his problem. At one point during

the tour the senator asked how long it would take them

to get to the wetland. [The applicant] replied, “You’re

standing in it."

Jonathan Tolman, Attack of the Wetland Enforcers, WALL ST. J.

at Al2 (July 18, 1994).

19

consider all relevant information and factors when considering

the propriety of a Section 404 permit, particularly when a

community’s lifeblood is at stake.

a

CONCLUSION

For the reasons stated above, this case represents important

issues of federal law with significant practical consequences which

warrant this Court’s review. Therefore, amicus respectfully

requests that this Court grant James City County’s petition for writ

of certiorari.

DATED: August, 1994.

Respectfully submitted,

RONALD A. ZUMBRUN

* ROBIN L. RIVETT

GERALYNN PATELLARO

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae