CHAPTER 2 JURISDICTION—WHAT EXACTLY IS A "WATER OF THE UNITED STATES"

• Jurisdiction: United States

Wetland Issues in Resources Development
(Nov 1993)
CHAPTER 2
JURISDICTION—WHAT EXACTLY IS A "WATER OF THE UNITED STATES"
John Echeverria
National Audubon Society
Washington, D.C.

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

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No. 90-3810

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HOFFMAN HOMES, INC.,

Petitioner

v.

ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

Respondent.

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BRIEF AMICI CURIAE OF EIGHT WETLAND SCIENTISTS IN SUPPORT OF RESPONDENT'S SUGGESTION FOR REHEARING EN BANC

-----------------------------------WILLIAM A. BUTLERDOUGLAS W. SMITHJACK CHOROWSKYPowell, Goldstein,Frazer & Murphy1001 Pennsylvania Ave., N.W.Washington, D.C. 20004(202) 347-0066

DATED: June 4, 1992

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TABLE OF CONTENTS

SYNOPSIS

Page

Interest of Amici Curiae

Summary of Argument

Argument

I. The Panel Decision Overreaches, Without Adequate Factual Basis, to Invalidate the Regulation of "Isolated" Wetlands Under Section 404

A. The Panel Erred in Invalidating Federal Protection of the Entire Class of "Isolated" Wetlands Where the Validity of the Generic Regulation Was Not Before the Court and the Record Relates Only to One Particular Wetland

B. The Panel Erred in Asserting That Non-adjacent "Isolated" Wetlands Do Not Provide Flood Prevention and Water Quality Benefits Analogous to Those Provided by Adjacent Wetlands

C. The Panel Erred in Assuming That "Isolated" Wetlands Do Not Contribute to the Biological Integrity of the Nation's Waters

D. The Panel Failed to Accord Any Deference to the Agency's Interpretation of the Statute and Its Expert Judgment in Determining Which Wetlands are Jurisdictional

CONCLUSION

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TABLE OF AUTHORITIES

Page

Cases

Aluminum Co. of America v. Central Lincoln People's Util. Dist., 467 U.S. 380 (1984) 14Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) 14Marlowe v. Bottarelli, 938 F.2d 807 (7th Cir. 1991) 14United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) 5, 9-10, 14Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901 (7th Cir. 1990) 14Statutes and Regulations33 U.S.C. § 1251 533 U.S.C. § 1251(a) 1033 U.S.C. § 1251(a)(2) 1033 U.S.C. § 1344 340 C.F.R. § 230.3(s)(3) 1 , 340 C.F.R. § 230.3(s)(7) 3Scientific AuthoritiesL.J. Bachman, L.D. Zyukuk, & P.J. Phillips, "The Significance of Hydrologic Landscapes in Estimating Nitrogen Loads in Base Flow to Estuarine Tributaries of Chesapeake Bay," in 73 Transactions of the American Geophysical Union (1992) 9F.C. Bellrose, Jr., Ducks, Geese and Swans of North America (1980) 12M.T. Brown & M.F. Sullivan, "The Value of Wetlands in Low Relief Landscapes," in The Ecology

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and Management of Wetlands (D.D. Hook ed. Timber Press 1988) 8L.J. Brun, J.L. Richardson, J.W. Enz & J.K. Larsen, Stream Flow Changes in the Southern Red River Valley, 38 M.D. Farm. Res. 1 (1981) 7K.L. Campbell & H.P. Johnson, Hydrologic Simulation of Watersheds with Artificial Drainage, 11 Water Resour. Res. 120 (1975) 7R. Conant, & J.T. Collins, A Guide to Reptiles and Amphibians of Eastern and Central North America (1991) 13Council on Environmental Quality, Executive Office of the President, Environmental Trends (1989) 4, 12L.M. Cowardin, V. Carter, F.C. Golet & E.T. LaRoe, Classification of Wetlands and Deepwater Habitats of the United States (U.S. Fish and Wildlife Service 1979) 6W.E. Duellman & L. Trueb, Biology of Amphibians (1988) 13M.J. Dvoracek, "Modification of the Playa Lakes in the Texas Panhandle," in Playa Lakes (U.S. Fish and Wildlife Service 1981) 5, 11D. Gersib, J. Cornely, A. Trout, J. Hyland & J. Gabig, Concept Plan for Waterfowl Habitat Protection, Nebraska Rainwater Basin of Nebraska, Category 25 of the North American Waterfowl Management Plan (Nebraska Game and Parks Commission, U.S. Fish and Wildlife Service, Ducks Unlimited, Inc. 1990) 12D.E. Hubbard, Glaciated Prairie Wetland Functions and Values: A Synthesis of the Literature (U.S. Fish and Wildlife Service 1988) 11, 13J.R. Jones, V.P. Borofka & R.W. Bachman, Factors Affecting Nutrient Loads in Some Iowa Streams, 10 Water Research 117 (1976) 7H.A. Kantrud, G.L. Krapu & G.A. Swanson,

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Prairie Basin Wetlands Community Profile (U.S. Dept. of Interior 1989) 4, 6, 7, 8, 11, 12I.D. Moore & C.L. Larson, Effects of Drainage Projects on Surface Runoff From Small Depressional Watersheds in the North-Central Region, Water Resour. Res. Cent. Bull. 99 (Univ. of Minn. 1979) 7D. Ripley, "An Overview of North Dakota's Water Resources," in North Dakota Water Quality Symposium (North Dakota State Extension Service March 20-21, 1990) 11R.J. Shedlock, P.J. Phillips, J.L. Bachman, P.A. Hamilton, & J.M. Denver, "Effects of Wetlands on Regional Water Quality Patterns in the Delmarva Peninsula of Delaware, Maryland and Virginia," in Proceedings of the Society of Wetland Scientists Twelfth Annual Meeting (May 28-31, 1991) 9R.W. Skaggs, J.W. Gilliam, T.J. Sheets & J.S. Barnes, Effect of Agricultural Land Development on Drainage Waters in the North Carolina Tidewater Region, WRRI Report No. 159.1 (Univ. of North Carolina 1980) 7T.C. Winter, "Hydrologic Studies of Wetlands in the Northern Prairie," in Northern Prairie Wetlands (A. Van der Valk ed.) (Iowa State Univ. Press 1989) 7T.C. Winter, "Numerical Simulation Analysis of the Interaction of Lakes and Groundwater" (U.S. Geological Survey, Professional Paper 1001, 1976) 8U.S. Fish and Wildlife Service, 1985 National Survey of Fishing, Hunting and Wildlife Associated Recreation (1988) 12

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INTEREST OF AMICI CURIAE

Amici are eight leading specialists in the science of wetlands. (See Attachment for names and positions of amici.) Amici are concerned that the panel's decision in Hoffman Homes, Inc. v. U.S. Environmental Protection Agency is founded on critical factual errors concerning the science of wetlands, and offer this brief amici curiae to point out the most important errors in the panel's factual analysis.

SUMMARY OF ARGUMENT

Amici urge this Court to vacate the panel opinion and grant rehearing en banc in Hoffman Homes v. EPA for several reasons.

First, the panel decision reaches far beyond the narrow question presented — whether the particular wetland denominated "Area A" is properly subject to Section 404 regulation under 40 C.F.R. § 230.3(s)(3) — to invalidate the regulation of the entire class of "isolated" wetlands. The limited factual record developed below relates only to Area A, not "isolated" wetlands in general, and therefore does not support the panel's sweeping action.

Second, the panel's invalidation of the entire regulatory program concerning "isolated" wetlands is based on critical factual assumptions about this class of wetlands that are both incorrect and unsupported by the record. In particular, the panel is wrong and without support in concluding that "isolated"

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wetlands do not contribute to the chemical, physical and biological integrity of the Nation's waters.

Third, the panel's determination that EPA's regulation is unsupported by the Clean Water Act turns the established Supreme Court law on its head. The panel's decision fails either to defer to the EPA's reasonable interpretation of the Clean Water Act, a statute the agency is charged with implementing, or to EPA's considered scientific judgment and expertise on the hydrological, biological and other functions of wetlands.

By concluding that the Clean Water Act does not authorize the EPA to regulate "isolated" wetlands, the panel decision invalidates Federal protection for millions of acres of fragile hydrologic ecosystems. This broad holding hamstrings the agency's ability to fulfill its mandate under the Clean Water Act, and will lead to grave damage to a critically important natural resource.

It is critical for the full Court to reconsider the sweeping implications of the panel's decision which reach far beyond the factual record and issues presented to invalidate a critical federal environmental program on the basis of incorrect factual assumptions.

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ARGUMENT

I. THE PANEL DECISION OVERREACHES, WITHOUT ADEQUATE FACTUAL BASIS, TO INVALIDATE THE REGULATION OF "ISOLATED" WETLANDS UNDER SECTION 404.

A. The Panel Erred in Invalidating Federal Protection of the Entire Class of "Isolated" Wetlands Where the Validity of the Generic Regulation Was Not Before the Court and the Record Relates Only to One Particular Wetland.

The question presented by Petitioner on appeal was whether Area A is a wetland properly subject to EPA's regulatory authority under Section 404 of the Clean Water Act, 33 U.S.C. § 1344. Br. of Pet. at 4. Petitioner questioned whether Area A was properly found to be an intrastate wetland covered by 40 C.F.R. § 230.3(s)(3); Petitioner did not challenge the general validity of that regulation. Nonetheless, the panel reaches far beyond the question presented and invalidates an important facet of a major federal environmental protection program, concluding that the regulation of "isolated" wetlands¹ is not authorized by the Clean Water Act:

[W]etlands which are not adjacent to open bodies of water, isolated wetlands, do not

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control pollution or flooding of any waters. Isolated wetlands do not contribute to maintaining "the chemical, physical, and biological integrity of the Nation's waters." Accordingly, they are not within the scope of the Act. The EPA's construction of section 404 to include authority over isolated wetlands, including Area A, is unreasonable. 40 C.F.R. § 230.3(s)(3), as it applies to isolated wetlands, is contrary to the Act and therefore invalid.

Slip op. at 13.

In so ruling, the panel did not have before it scientific evidence regarding the nature and function of isolated wetlands generally. The factual record developed below relates only to one particular "isolated" wetland in...