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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 823

## Text

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 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1765%3A3. Public record. Not legal advice.