Petition for Writ of Certiorari — Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers
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No. 991 178 Jay 1 4 2000
In the Supreme Court of the Gnited States
SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,
. Petitioner,
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Seventh Circuit
PETITION FOR A WRIT OF CERTIORARI
ELIZABETH A. CLARK TIMOTHY S. BISHOP
Mayer, Brown & Platt Counsel of Record
1909 K Street, N.W. Mayer, Brown & Platt
Washington, D.C. 20006 190 South LaSalle Street
(202) 263-3000 Chicago, IL 60603
(312) 782-0600
GEORGE J. MANNINA, JR.
O’Connor & Hannan, L.L.P.
1666 K Street, N.W.
Suite 500
Washington, D.C. 20006
(202) 887-1400
Counsel for Petitioner
o3eP
QUESTION PRESENTED
Petitioner Solid Waste Agency of Northern Cook County,
which comprises 23 Cook County, Illinois municipalities,
acquired a 500-acre-plus site to construct an urgently needed
balefill facility to dispose of its communities’ non-hazardous
solid waste. Petitioner’s pians called for filling some 17 acres
of permanently or seasonally wet depressions left by earlier
strip mining operations. The U.S. Army Corps of Engineers
twice informed petitioner that it had no jurisdiction over the
site, then abruptly changed its mind on the sole basis that the
isolated waters on the site were used by migratory birds. The
Corps relied on its so-called “migratory bird rule,” which
interprets the Clean Water Act to reach isolated intrastate
waters that do or potentially could serve as habitat for
migratory birds. Because the Corps asserted jurisdiction,
petitioner was required to apply for a permit to fill the waters
on the site pursuant to Section 404 of the Clean Water Act.
The Corps denied petitioner’s permit application, thereby
destroying a significant municipal public works project
important to some 700,000 local residents.
The question presented in this case, as to which the courts
of appeals are in conflict, is as follows:
Whether the U.S. Army Corps of Engineers, consistent
with the Clean Water Act and the Commerce Clause of the
United States Constitution, may assert jurisdiction over
isolated intrastate waters solely because those waters do or
potentially could serve as habitat of migratory birds.
(I)
il
RULES 29.6 AND 14.1 STATEMENT
Petitioner is the Solid Waste Agency of Northern Cook
County, a municipal corporation created by intergovernmental
agreement under the laws of Illinois. Its member communities
are the cities and villages of Arlington Heights, Barrington,
Buffalo Grove, Elk Grove Village, Evanston, Glencoe,
Glenview, Hoffman Estates, Inverness, Kenilworth,
Lincolnwood, Morton Grove, Mt. Prospect, Niles, Palatine,
Park Ridge, Prospect Heights, Rolling Meadows, Skokie,
South Barrington, Wheeling, Wilmette, and Winnetka.
SWANCC has no parent corporations and no subsidiaries,
wholly-owned or otherwise.
Respondents are the U.S. Army Corps of Engineers, the
U.S. Environmental Protection Agency; Arthur Williams,
Lieutenant General, Chief of Engineers, U.S. Army Corps of
Engineers; Robert E. Slockbower, Lieutenant Colonel,
Chicago District Engineer, U.S. Army Corps of Engineers;
Togo D. West, Jr., Secretary of the Army; Carol M.
Browner, Administrator, U.S. Environmental Protection
Agency; and intervenors below, the Village of Bartlett and
Citizens Against the Balefill.
TABLE OF CONTENTS
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CONSTITUTIONAL AND STATUTORY
STATEMENT
PROVISIONS INVOLVED
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A. The Statutory And Regulatory Scheme .
B. SWANCC’'s Balefill Project And The
Corps’ Exercise Of Jurisdiction ... .. .
C. SWANCC's Challenge To The Mi
| rat
Bird Rule And The District raion ”
Ruling
D. The Seventh Circuit's Decision
. . . .
. + 7
REASONS FOR GRANTING THE PETITION __ .
1.
Il.
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THE CIRCUITS ARE SPLIT OVER TH
CORPS’ AUTHORITY TO REGULATE
ISOLATED INTRASTATE WATERS BASED
ON THEIR ACTUAL OR POTENTIAL USE
BY MIGRATORY BIRDS ...........
THE MIGRATORY BIRD RULE IS AN
IMPERMISSIBLE INTERPRETATI
THE CWA eons
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IV
TABLE OF CONTENTS — CONTINUED
Page
A. The Plain Language of the Act Requires
Jurisdictional Waters To Be Related To
Navigable Waters ...... 2. +--+ 55
B. Legislative History Confirms That Congress
Did Not Intend The Corps To Base
Jurisdiction Merely On The Presence Of
Migratory Birds ......-.--- +5555
C. No Deference Is Owed To The Migratory
Bird Rule Because It Raises Serious
Constitutional Concerms ............-
D. No Deference Is Owed To The Migratory
Bird Rule Because It Impinges On
Traditional State Powers ...........
Ill. THE PETITION SHOULD BE GRANTED,
NOT HELD FOR JONES v. UNITED
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_—— ”
Vv
TABLE OF AUTHORITIES
Cases:
Alden v. Maine, 119 S. Ct. 2240 (1999) __...... 27
BFP v. Resolution Trust Corp.,
oO eee te a A 26, 28
Bailey v. United States, 516 U.S. 137 (1995) ... 16, 19
Berman v. Parker, 348 U.S. 26 (1954) _......... 28
Board of Governors v. Dimension
Financial Corp., 474 U.S. 361 (1986) ........ 18
Cargill, Inc. v. United States,
| ee, ae passim
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984) ............., 15
DeLovio v. Boit, 7 F. Cas. 418
(Cir. Ct., D.Mass. 1815) .......... res ged 18
Dolan v. City of Tigard, 512 U.S. 374 (1994) __._... 28
Building & Construction Trades Council,
485 U.S. 568 (1988) _................ 22, 26
Federal Power Commission v. Union Electric
Co., 381 U.S. 90 (1965)... 2.2.0.0, 19
Gilbert v. United States, 370 U.S. 650 (1962) ...... 16
vi
— continued
TABLE OF AUTHORITIES
;
Hoffman Homes, Inc. v. United States Environmental
Protection Agency, 961 F.2d 1310 (7th Cir. 1992),
vacated, 999 F.2d 256 (7th Cir. 1993) ..... 13, 26
Japan Whaling Association v. American Cetacean
Soc'y, 478 U.S. 221 (1986) ....---- +e eee 19
Jones v. United States, No. 99-5739 .........- 29, 30
Kaiser Aetna v. United States, 444 U.S. 164 (1979) .. 19
Leslie Salt Co. v. United States, 896 F.2d 354
(Sth Cir. 1990)... 2. ee ee ee ees 11, 13, 21
Leslie Salt Co. v. United States, 55 F.3d 1388 .
(Sth Cir. 1995)... ee ee eee ees passim
Maryland v. Wirtz, 392 U.S. 183 (1968) ......--. 24
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 “
BED ccc ccs ccessereesseeseneseses
New York v. United States, 505 U.S. 144 (1992) .... 27
Perez v. United States, 402 U.S. 146 (1971) ....... 24
Presley v. Etowah County Commission, 502 U.S. 491 ”
OD nw occvecccncnscesesenteeseoss
Printz v. United States, 521 U.S. 898 (1997) ...... 27
Rewis v. United States, 401 U.S. 808 (1971) ......-. 26
Seminole Tribe v. Florida, 517 U.S. 44 (1996) ..... 27
vil
TABLE OF AUTHORITIES — continued
Page(s)
Tabb Lakes Ltd. v. United States, 715
F. Supp. 726 (E.D. Va. 1988), aff'd.
885 F.2d 866 (4th Cir. 1989)... 4
The Daniel Ball, 77 U.S. (10 Wall.) 557
(1870) 2... 16, 17, 18, 20
The Montello, 87 U.S. (20 Wall.) 430 (1874) ... 17.18
United States v. Appalachian Electric Power Co..
311 U.S. 377 (1940) ................ 16, 21
United States v. Bird, 124 F.3d 667 (Sth Cir. 1997),
cert. denied, 523 U.S. 1006 (1998)
neh eee nee 24
United States v. Larkins, 852 F.2d 189
GUO, GUD ww cc cccc ccc rccccececcn. 13
United States v. Lopez, 514 U.S. 549 (1995)... . passim
United States v. Riverside Bayview Homes.
474 U.S. 121 (1985) ............ 9. 17, 18, 21
United States v. Utah, 283 U.S. 64 (1931) ..... 20, 21
United States v. Wilson, 133 F.3d 251
Re passim
Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984) _.__. 11
Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) .. 28
Village of Euclid v. Ambler Realty Ce.,
272 U.S. 365 (1926)
Vill
TABLE OF AUTHORITIES — continued
Page(s)
Constitutional and Statutory Provisions
U.S. Const. art. 1.88 ......--- 000 eee ees 1
| ere ee 19
TRU OL OMIM .. wn. cc ccwccccccesses 1
POG BOD. onc ccscccccncsesvesvens 19
TS UBC. GIBEIED . 0... cece eee ccccecees 3
TUOS OUND 2... vccccnsseeses 1, 3, 5, 16
el eee 1, 3, 16
93 UBC. §IDEMED .. 2 cece ccc ccveces 3
ROOM OUD .. 6a ccccccs sevecntes 27
CRM. TMD) 2... cc ccc cccccces passim
MOOM COIDDD occ cccccvcesccdeserss 4
51 Fed. Reg. 41,206 (Nov. 13, 1986) ....... 1, 4,21
iene trcsccnsesennsiey sasminsicanansmnt womens PDE Ae OEE KE Se ee
ix
TABLE OF AUTHORITIES — continued
Page(s)
Other Authorities
THE ATLAS OF BIRD MIGRATION (ed. J. Elphick 1995) . 25
Bablo, Leslie Salt Co. v. United States: Does
the Recent Supreme Court Decision in
United States v. Lopez Dictate the Abrogation
of the “Migratory Bird Rule”?, 14 Temp. ENVT’L L.
& TECH. J. 277 (1995)
keebede ss sees eeu’ 15
BLACK’S LAW DICTIONARY (4th ed. 1968) ........ 16
Bueschen, Do Isolated Wetlands Substantially Affect
Interstate Commerce?, 46 AM. U. L. REV. 931
ey See nee 14
BO COU, TUB. CIRUED occ ccc ccc ccc ccces 20
THE FEDERALIST (C. Rossiter ed. 1961) .......... 27
Gilbert, The Migratory Bird Rule After Lopez:
Questioning the Value of State Sovereignty in the
Context of Wetland Regulation, 39 WM. &
MARY L. REV. 1695 (1998) ............... 14
H.R. REP. No. 92-911, 92d Cong.,
DD +5 es eGbe bebeaeh eee ké@ke 21
Holman, After United States v. Lopez: Can the Clean
Water Act and the Endangered Species Act
Survive Commerce Clause Attack?, 15 Va. ENVT’L
Dann ¢545646684 56 oe eee ween 26
xX
TABLE OF AUTHORITIES — continued
Page(s)
Leman, The Birds: Regulation of isolated Wetlands
and the Limits of the Commerce Clause,
28 U.C. DAVIS L. REV. 1237, 1267 (1995) ....- - 14
Lessner, Leslie Sait Co. v. United States: Keep the
Birds Out of Your Birdbath: It May Be
Considered The Jurisdiction of the Army Corps
of Engineers as a “Water of the United States, ”
2? VILL. ENVT’L L.J. 463 (1991) ...------ +s: 15
Linehan, Endangered Regulation: Why the Commerce
Clause May No Longer Be Suitable Habitat for
Endangered Species and Wetlands Regulation,
2? Tex. REV. L. & PoL. 365 (1998) .....----- 14
Nagle, The Commerce Clause Meets the Delhi
Sands Flower-Loving Fly, 97 MICH. L. REV.
ta Ae ee eee 14, 25
R. PETERSON, A FIELD GUIDE TO BIRDS
(4th ed. 1980) ... 2... eee eee eres 25
S. REP. No. 92-1236, 92d Cong.,
2d Sess. (1972) ....-- eee ee eet 21
1 L. TRIBE, CONSTITUTIONAL Law (3d ed. 2000) ... . 25
Warner, The Potential Impact of United States v.
Lopez on Environmental Regulation,
7 DUKE ENVT’L L. & POLICY FORUM 321 (1997) . . 14
De eth Cail OR MRM BLAS BANS nS a
PETITION FOR A WRIT OF CERTIORARI
Petitioner Solid Waste Agenc
li y of Northern Cook Cou
a petitions for a writ of certiorari to review a
judgment of the United States Court of Appea
Seventh Circuit in this case. sii
OPINIONS BELOW
The opinion of the court of appeals (A Ke
} pp., in'ra. la-13a
is reported at 191 F.3d 845. The opinion of the diswict ne
(App., infra, 14a-36a) is reported at 998 F. Supp. 946. The
US. Army Corps of Engineers’ decision denying petitioner’s
in thee permit application is set out at Pet. C.A
_ 85- ision) and U.S. C.A. . -
= A. App. 29-189 (appendi-
JURISDICTION
The judgment of the court of a
ppeals was entered on
October 7, 1999. On December 16, 1999, Justice Stevens
extended the time for filing the petition for certiorari to and
including January 14, 2000. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Commerce Clause of the Constituti i
tution provides in
relevant part that “Congress shall have ~ seg 7°
regulate Commerce * * * among the »
ConsT. art. I, § 8. g several States.” U.S.
The relevant provisions of the Clean
U.S.C. §§ 1344(a) and 1362(7), are onward bag :
infra, 37a-38a. The pertinent regulation, 33 CFR
§ 328.3(a)(3) (the “other waters rule”), and preamble to 51
Fed. Reg. 41,206 (1986) (the “migratory bird rule”), are
reproduced at App., infra, 39a-40a. )
2
STATEMENT
The issue in this case is whether, pursuant to the Clean
Water Act (“CWA” or “Act”), the U.S. Army Corps of
Engineers (“Corps”) properly has jurisdiction over isolated
waters that are not navigable and not connected or adjacent to
navigable waters, but that do or could provide habitat for
migratory birds. The Corps has asserted such jurisdiction in
this case and others through its “migratory bird rule” (App.,
infra, 40a), which interprets the navigable “waters of the
United States” subject to the CWA to include all waters that
are an actual or potential habitat for migratory birds.
The Corps’ unprecedentedly broad claim of jurisdiction
has caused sharp disagreement among the courts of appeals.
The Fourth Circuit has rejected the Corps’ jurisdictional grab
as contrary to the text of the CWA and constitutionally
impermissible. United States v. Wilson, 133 F.3d 251 (4th
Cir. 1997). The Seventh and Ninth Circuits, in contrast, have
upheld the Corps’ authority. App., infra, la-13a; Leslie Salt
Co. v. United States, 55 F.3d 1388 (9th Cir. 1995) (Leslie
Salt IT). Even the Ninth Circuit, however, recognized that
“(t]he migratory bird rule certainly tests the limits of
Congress’s commerce powers and, some would argue, the
bounds of reason.” Jd. at 1396. Mirroring this circuit split,
Justice Thomas and a number of appellate judges have
criticized the Corps’ position in individual concurrences and
dissents. Cargill, Inc. v. United States, 516 U.S. 955 (1995)
(Thomas, J., dissenting from denial of certiorari); see infra,
pp. 12-13.
The Seventh Circuit’s ruling in this case is legally
erroneous. The notion that the Corps has jurisdiction over
isolated intrastate waters based merely on the actual or
potential presence of migratory birds is inconsistent with the
plain language and legislative history of the CWA. The
migratory bird rule also raises substantial constitutional
concerns under the Commerce Clause, which mandate a
3
narrower reading of the Act to avoid the constituti
tional
difficulty. In those circumstances, the Corps’ migratory bird
tule is entitled to no deference under Chevr '
be set aside. on, and it should
Given the split among the circuits and the Statutorily and
constitutionally untenable basis of the Corps’ assertion of
jurisdiction, it is time for this Court to address the question
presented. Review of the Corps’ migratory bird rule in this
case is especially appropriate and necessary. The Corps’
unfounded claim of jurisdiction has brought to an abrupt halt
the coordinated efforts of 23 municipalities to address the
important local problem of the disposal of solid waste
generated by their 700,000 citizens, derailing a vital, $20-
million-plus public project. Cooperative, multi-municipality
efforts to address common local issues are not properly
matters for federal control. Yet so expansive is the migratory
bird rule that it is difficult to imagine any significant state or
municipal project (or private development) that would not
require the Corps’ approval.
Beyond that, the ubiquitous presence of migratory birds
which number in the billions, means that land-use matters
traditionally subject to local control are now dependent upon
federal approval by the Corps sitting as a sort of super zoning
body determining the “public interest.” That federalization of
local land-use matters is not what Congress had in mind when
it adopted the CWA, and the Commerce Clause does not
permit it.
A. The Statutory And Regulatory Scheme
The CWA prohibits the discharge of “pollutants,”
including dredged and fill materials, into “navigable waters”
without a permit from the Corps. 33 U-S.C. §§ 1311(a)
1344(a), 1362(12). “Navigable waters” are defined in the
CWA only as “the waters of the United States.” § 1362(7).
4
The Corps has defined the “waters of the United States”
in regulations to include not only navigable waters, tidal
waters, and waters adjacent to such waters, but also
{a]ll other waters such as intrastate lakes, rivers,
streams (including intermittent streams), mudflats, sand-
flats, wetlands, sloughs, prairie potholes, wet meadows,
playa lakes, or natural ponds, the use, degradation or
destruction of which could affect interstate commerce
x * *
33 CFR § 328.3(a)(3) (1998), App., infra, 39a."
In the preamble to regulations promulgated in 1986, the
Corps further defined these “other” waters:
EPA has clarified that waters of the United States at [33]
CFR 328.3(a)(3) also include the following waters:
a. Which are or would be used as habitat by birds pro-
tected by Migratory Bird Treaties; or
b. Which are or would be used as habitat by other
migratory birds which cross state lines * * *.
51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986), App., infra,
40a. It is the Corps’ reliance on this “migratory bird rule
—which the Corps never promulgated in accordance with
Section 553 of the Administrative Procedure Act ant wasn
therefore has never been subject to notice and comment —that
petitioner challenges as a legally improper basis for federal
jurisdiction over petitioner's proposed balefill site.
' The Environmental Protection Agency has issued an identical
definition, 40 CFR § 230.3(s), which is not directly at issue here.
2 See Tabb Lakes Lid. v. United States, 715 F. Supp. 726, 729
(E.D. Va. 1988) (the migratory bird rule is invalid as a substantive
rule promulgated without notice and comment), aff'd, 885 F.2d
866 (4th Cir. 1989).
iit 2 dtc nccraiita Aanidetniaebt ieee tt Obie inecie
5
B. SWANCC’s Balefill Project And The Corps’ Exercise
Of Jurisdiction
The Solid Waste Agency of Northern Cook County
(“SWANCC”) is a municipal corporation comprised of 23
municipalities located in northern and northwestern Cook
County, Illinois. SWANCC was formed to develop a system
for the safe and efficient disposal of non-hazardous municipal
waste for the approximately 700,000 people who live in its
member communities. As part of its mission, SWANCC
proposed to locate and develop a site for disposal of that
waste. App., infra, 2a.
SWANCC purchased a 533-acre parcel of land to create
a balefill—a landfill where baled, rather than loose, waste is
dumped—on 410 acres of the site located exclusively in Cook
County. Part of the balefill site was agricultural land and
part, 298 acres, an “early successional Stage forest” that had
grown up on land previously used as a strip mine for gravel.
The forested portion of the site contained “a labyrinth of
trenches and other depressions” left by the strip mining.
These trenches and depressions collect rainwater during some
or all of the year, forming “permanent or seasonal ponds”
ranging from one-tenth of an acre to several acres in size, and
from a few inches to several feet in depth. App., infra, 2a.
In 1987, after ten public hearings and 2,500 pages of
testimony, the local zoning board and the Cook County Board
of Commissioners approved SWANCC’s balefill project. Pet.
C.A. App. 54. In 1989, SWANCC further obtained a permit
for the project from the Illinois Environmental Protection
Agency, which had reviewed SWANCC’s 1,700 page appli-
cation and conducted four days of hearings. Jd. at 50-51, 55-
56. Because SWANCC planned to fill 17.6 acres of trenches
and depressions within the forested area to construct the
balefill, it also requested rulings from the Corps of Engineers
as to whether it required a permit under Section 404 of the
CWA, 33 U.S.C. § 1344(a). After conducting an on-site
6
i and again
inspection, the Corps informed SWANCC in 1986
in 1987 that those 17.6 acres were not Subject to the Corps
regulatory authority over “navigable waters and that a
Section 404 permit was not required. App., infra, 3a-4a, 16a.
The Corps changed its position after the Illinois Nature
Preserves Commission informed the Corps in July 1987 that
its staff had observed migratory bird species on the property
during a brief site visit. App., infra, 4a. Based on that
assessment, and invoking its “migratory bird rule, the Corps
concluded that the isolated, intrastate strip-mining depressions
on the balefill site were “navigable” “waters of the United
States” within its jurisdiction under the CWA because they
“are used or would be used as habitat by other migratory
birds which cross state lines.” Ibid.
In response to the Corps’ assertion of jurisdiction,
SWANCC submitted an application for a Section 404 permit,
which the Corps denied in 1991. The Corps also denied
SWANCC’s revised application in 1994. App., infra, 4a.
3 The court of appeals incorrectly assumed the Corps had
determined that migratory birds actually used waters on the balefill
site as habitat. App., infra, 10a. To be sure, the Corps stated, in
denying SWANCC’s permit application, that “the water areas are
used as habitat by migratory bird[s] which CTOs state lines. But
it did so based not on any recorded observation of birds using the
water areas as habitat, but based solely on the fact that thirteen
species of migratory birds observed at least once on the oe
site “are known to depend on aquatic environments for a signi -
cant portion of their life requirements.” Pet. C.A. App. 78; see
also id. at 94, 780-781. Nothing in this case turns, however, on
whether the balefill site was actually or only potentially habitat for
migratory birds. Though the extension of federal jurisdiction to
wet areas that might be used by migratory birds may be even more
statutorily and constitutionally problematic, there is no basis for
jurisdiction over actual habitat either.
>
C. SWANCC’s Challenge To The Migratory Bird Rule
And The District Court’s Ruling
In December 1994, SWANCC brought suit against the
Corps in the District Court for the Northern District of
Illinois. SWANCC challenged both the merits of the Corps’
decision and the theory under which it asserted jurisdiction.
Both sides moved for summary judgment on the issue of
jurisdiction, and, on March 25, 1998, the district court
granted summary judgment for the Corps on that question.
App., infra, 14a.
The district court rejected SWANCC’s contention that the
migratory bird rule exceeds the bounds of the Corps’ author-
ity to define “navigable waters” and “waters of the United
States.” The court recognized that “the Fourth Circuit
reached the opposite conclusion in United States v. Wilson.”
App.. infra, 30a. But it “decline[d) to follow” Wilson.
holding that the migratory bird rule is justifiable because one
purpose of the CWA is “to restore and maintain the chemical.
physical, and biological integrity of the Nation’s waters.” Jd.
at 29a, quoting 33 U.S.C. § 1251(a).
The district court also rejected SWANCC’s argument that
the Commerce Clause and United States v. Lopez, 514 U.S.
549 (1995), bar the migratory bird rule and require the statute
to be mead more narrowly. App., infra, 30a-31a. Distinguish-
ing Wilson and Lopez, the court relied on prior circuit
precedent and Leslie Salt I] to conclude that the “commerce
Clause power, and thus the Clean Water Act. is broad enough
to extend the Corps’ jurisdiction to local waters which may
provide habitat to migratory birds and endangered species.”
Ibid.; see also id. at 17a-24a. Subsequently, SWANCC
dismissed the remainder of its claims and the district court
entered final judgment for the Corps. /d. at 2a.
8
D. The Seventh Circuit’s Decision
The Seventh Circuit affirmed. It first rejected SWANCC’s
argument that the migratory bird rule violates the Commerce
Clause, or at least raises enough constitutional problems to
mandate a narrow interpectation of “navigable” “waters of the
United States.” App., ivjra, Sa-9a. The court acknowledged
that the migratory bird rule can be justified, if at all, only
under the third prong of federal regulatory power set forth in
Lopez: “regulation of activities that ‘substantially affect
interstate commerce.” Jd. at Sa, quoting 514 U.S. at 558-559.
It then held that although the Corps had made no showing
that the use of SWANCC’s balefill site by migratory birds
had any effect on interstate commerce, “a single activity that
itself has no discernible effect on interstate commerce may
still be regulated if the aggregate effect of that class of
activity has a substantial impact on interstate commerce ”
App., infra, 6a. Finally, the court held that destruction 0
the natural habitat of migratory birds in the aggregate
‘substantially affects’ interstate commerce” because millions
of people annually spend more than a billion dollars on
hunting, trapping, and observing migratory birds,” including
by “trave[l] across state lines.” /d. at 7a.
Turning to SWANCC’s argument that the migratory bird
rule is not a permissible interpretation of the CWA, the court
of appeals held that the “scope of the Act reaches as many
waters as the Commerce Clause allows.” Accordingly, it
concluded, “because Congress’ power under the Commerce
Clause is broad enough to permit regulation of waters based
on the presence of migratory birds, it is certainly reasonable
for the * * * Corps to interpret the Act in such a manner.
App., infra, 10a.
REASONS FOR GRANTING THE PETITION
This Court should grant review because the circuits are
split as to the jurisdictional reach of the CWA, and because
the Seventh Circuit reached a decision in this case that is
9
erroneous as a matter of statutory interpretation and constitu-
tional law and seriously infringes on prerogatives reserved to
States and municipalities in our system of federalism.
I. THE CIRCUITS ARE SPLIT OVER THE CORPS’
AUTHORITY TO REGULATE ISOLATED INTRA-
STATE WATERS BASED ON THEIR ACTUAL OR
POTENTIAL USE BY MIGRATORY BIRDS
In United States v. Riverside Bayview Homes, 474 US.
121, 129 (1985), this Court upheld the Corps’ construction of
the Clean Water Act to cover not only “navigable or inter-
state waters and their tributaries” but also wetlands “adja-
cent” to such waters. (Emphasis added). This Court reserved
and did “not express any opinion” regarding the Corps’ much
more ambitious claim of authority “to regulate discharges of
fill material into wetlands that are not adjacent to bodies of
open water” —referencing specifically the Corps’ claim in 33
CFR § 328.3(a)(3) to have jurisdiction over “other waters
* * * the use, degradation or destruction of which could
affect interstate commerce.” 474 U.S. at 131 n.8. The courts
of appeals have disagreed about the question reserved in
Riverside Bayview Homes, including about the very furthest
reach of the Corps’ assertion of jurisdiction over “other
waters,” the migratory bird rule.
1. The Fourth Circuit in Wilson held “invalid” the Corps’
“other waters” regulation, 33 CFR § 328(a)(3)—the regula-
tion that the migratory bird rule expressly purports to
“clarifly]” (App., infra, 39a)—on the ground that it “ex-
ceeded [the Corps’ regulatory power] under the Clean Water
Act.” 133 F.3d at 257. Had Congress enacted § 328(a)(3) as
a Statute, the court pointed out, “it would present serious
constitutional difficulties * * * under the Commerce Clause,”
because it “requires neither that the regulated activity have a
substantial effect on interstate commerce, nor that the covered
waters have any sort of nexus with navigable, or even
interstate waters.” Jbid. But, the court held, because the other
10
waters regulation “is not a Statute,” “[a}bsent a Clear indica-
tion to the contrary, we should not lightly presume that
merely by defining ‘navigable waters’ as ‘the waters of the
United States.’ * * * Congress authorized the Army Corps of
Engineers to assert its jurisdiction in such a sweeping and
constitutionally troubling manner.” /bid.
In addition to identifying constitutional difficulties with
the Corps’ claim to jurisdiction over “other waters, the
Fourth Circuit held that § 328(a)(3) “expands the statutory
phrase ‘waters of the United States’ beyond its definitional
limit.” 133 F.3d at 257. “[A]s a matter of statutory con-
struction,” the Fourth Circuit held, “one would expect that
the phrase ‘waters of the United States’ when used to define
the phrase ‘navigable waters’ refers to waters which, if not
navigable in fact, are at least interstate or closely related to
interstate or navigable waters.” [bid.
Seventh Circuit thought Wilson irrelevant for two
4 both mistaken. First, Wilson “involved a challenge
to 33 C.F.R. § 328(a)(3),” while SWANCC “limited its
objections to the propriety of the migratory bird rule as an
interpretation of” § 328(a)(3). App., infra, 10a. Obviously,
however, the Fourth Circuit would not, under its reasoning,
uphold an interpretation or clarification of the very regulation
it held invalid: Wilson effectively struck down not Just
§ 328(a)(3), but also the migratory bird rule. That is espe-
cially clear because the migratory bird rule even more
broadly interprets “waters of the United States than the
underlying regulation. Instead of requiring a connection or
potential connection with interstate commerce, like the regula-
tion, the rule only requires a connection or potential connec-
tion with migratory birds that are “protected by Migratory
Bird Treaties” or “cross state lines.” App., infra, 40a.
Second, the Seventh Circuit pretended that the Wilson
ruling was limited to the question whether “Congress may
regulate waters based on their potential to affect interstate
commerce.” App., infra, at 10a. As the quotations from
Wilson set out above show, Wilson cannot be so narrowly
cabined. The Fourth Circuit struck down the “other waters”
rule because it does not require a showing of a “substantial
effect on interstate commerce” or a “nexus” with navigable
Or interstate waters. 133 F.3d at 257. Unsurprisingly, since
it is solely an interpretation of § 328(a)(3), the migratory bird
rule does not require a showing of a substantial effect on
interstate commerce or any nexus with navigable or interstate
waters either. The Fourth Circuit's Commerce Clause
analysis thus applies equally to the migratory bird rule. The
Seventh Circuit also simply ignored the alternative Statutory
basis for the Wilson decision. Ibid. Without doubt, the Fourth
Circuit holds the migratory bird rule, as well as the regulation
it interprets, beyond the Corps’ statutory authority because it
requires no connection to navigable or interstate waters or
waters closely related thereto.
Wilson cannot be distinguished, and it is flatly at odds
with the Seventh Circuit’s decision in this case that the
migratory bird rule is constitutionally unproblematic and
Statutorily authorized, as well as with the similar decisions of
other circuits. See Leslie Salt Co. v. United States (Leslie Salt
1), 896 F.2d 354, 360 (9th Cir. 1990) (“The commerce clause
power, and thus the Clean Water Act, is broad enough to
extend the Corps’ jurisdiction to local waters which may
provide habitat to migratory birds and endangered species”):
Utah v. Marsh, 740 F.2d 799, 803-804 (10th Cir. 1984)
(upholding Corps jurisdiction over intrastate lake because its
waters were used for fisheries and to irrigate crops which
were subsequently marketed interstate, it was visited by out-
of-state tourists, and it was on migratory bird flyways).
Had SWANCC’s balefill been located in the Fourth
Circuit, the result in this case would certainly have been
different. This Court should not tolerate a circuit split on an
issue as important as the scope of federal jurisdiction under
national legislation like the Clean Water Act. Municipalities
12
and other landowners are entitled to consistent treatment
under the CWA throughout the country; the fate of their
projects should not turn on the happenstance of where their
land is located. And the need for national uniformity is
especially great because anyone planning to dredge or fill
waters within the Corps’ jurisdiction must obtain a permit or
risk facing criminal sanctions. See, e.g., Wilson, 133 F.3d
251 (criminal convictions at issue). Whether an act is a
federal crime or not should not depend on where in the
country the act takes place.
2. Justice Thomas questioned the validity of the Corps’
migratory bird rule in his dissent from the denial of certiorari
to review the Leslie Salt I] decision. He stated that the issue
presented in that case—as here—“raises serious and important
constitutional questions about the limits of federal land-use
regulation in the name of the Clean Water Act.” Cargill,
Inc. v. United States, 516 U.S. 955, 959 (Thomas, J.,
dissenting from denial of certiorari).
Justice Thomas observed that “[tJhe basis asserted to
create federal jurisdiction over petitioner's land” —“the actual
or potential presence of migratory birds on petitioner’s land”
—is “even more far-fetched than that offered, and rejected,
in Lopez.” 516 U.S. at 957-958. Justice Thomas described as
“improper” the Corps’ “assumption * * * that the self-
propelled flight of birds across state lines creates a sufficiemt
interstate mexus to justify the Corps’ assertion of
jurisdiction.” Jd. at 958. He observed that in Leslie Salt, as
here, the Corps made “no showing that humans ever went to
petitioner's property to hunt, trap, or observe migratory
birds.” or “that the cumulative effect of land use involving
* * * wholly isolated [waters] would have a substantial effect
on interstate commerce.” Jd. at 959. There was, in short,
absolutely no explanation how “the activity on the land to be
regulated * * * substantially affect{ed) interstate commerce.”
Ibid.
13
te Justice Thomas concluded that the migratory bird rule
likely stretches Congress’ Commerce Clause powers beyond
breaking point” and expressed, “[iJn light of Lopez, * * *
serious doubts about the propriety of the Corps’ assertion of
jurisdiction over petitioner's land.” 516 U.S. at 958.
Although Justice Thomas’ position did not
votes to review the Leslie Salt II decision, nt. coma a
ow bird rule has since become more urgent with the
iecuie’s 1997 reiecs: re all
se wanes — of the Corps’ jurisdiction over
3. Circuit Judges have been equally critical of the “other
waters and migratory bird rules in individual opinions. In his
concurrence in Hoffman Homes, Inc. v. United States Envtl
Protection Agency, 999 F.2d 256, 262-263 (7th Cir. 1993)
for example, Judge Manion concluded both that the CWA
gives no federal jurisdiction over “isolated wetlands” that
have no effect on the waters of the United States,” and that
even if it did, “the Commerce Clause does not empower
Congress to regulate isolated wetlands * * *. To hold other-
wise would be, in effect, to hold that Congress’ power under
the Commerce Clause is virtually limitless.” /d. at 263: see
also ibid ( The commerce power as construed by the courts
is indeed expansive, but not so expansive as to authorize
regulation of puddles merely because a bird traveling inter-
State might decide to stop for a drink”).* Judge Rymer, in her
ee ee was likewise uni
= the legal basis for the Corps’ migratory bird rule. Leslie
It 1, 896 F.2d at 361 n.1 (Rymer, J., concurring in part
and dissenting in part); see also United States v. Larkins. 852
F.2d 189, 193-194 (6th Cir. 1988) (Merritt, J., concurring).
Judge Manion’s analysis is more fully set forth in his
Homa TY “acated opinion for the Seventh Circuit in Hoffman
omes, inc. v. United States Envtl Protecti
1310 (7th Cir. 1992). Saati,
14
Leslie Salt I, 55 F.3d at 1396 (“The migratory bird rule
certainly tests the limits of Congress’ commerce powers and,
some would argue, the bounds of reason”).
It is no surprise, given these disagreements, that the
Corps’ jurisdictional grab has also drawn considerable
scholarly attention. By and large, commentators recognize
that the Corps’ exercise of jurisdiction over “isolated waters”
and migratory bird habitat pushes the edges (at the very least)
of federal Commerce Clause power. E.g., Nagle, The
Commerce Clause Meets the Delhi Sands Flower-Loving Fly,
97 MICH. L. REV. 174, 185 n.49 (1998) (“Why the fact that
a bird or animal crosses state lines of its own volition and
without being itself an object of interstate commerce is
sufficient for Commerce Clause purposes remains unex-
plained”).°
5 See also, e.g., Gilbert, The Migratory Bird Rule After Lopez:
Questioning the Value of State Sovereignty in the Context of
Wetland Regulation, 39 WM. & MARY L. REV. 1695, 1696 (1998)
(noting “concerns” regarding the validity of the migratory bird
rule “in view of the Lopez decision”); Linehan, Endangered
Regulation: Why the Commerce Clause May No Longer Be Suitable
Habitat for Endangered Species and Wetlands Regulation, 2 TEX.
REV. L. & POL. 365, 414 (1998) (isolated wetland regulations
“will be susceptible to Commerce Clause attack because they are
indefensible as proper regulations of ‘commerce’ under any
untortured definition of the word”); Bueschen, Do Isolated
Wetlands Substantially Affect Interstate Commerce?, 46 AM. ULL.
REV. 931, 950 (1997) (explaining that in light of Lopez, the
migratory bird rule “could be in jeopardy”); Warner, The Potential
Impact of United States v. Lopez on Environmental Regulation, 7
DUKE ENVT’L L. & POLICY FORUM 321, 351 (1997) (“A rule
permitting jurisdiction to be determined solely by potential use ot
a wetland by migratory birds is arguably too tenuously connected
to interstate commerce to trigger the commerce power in light of
Lopez’s substantiality requirement” ); Leman, The Birds: Regulation
of Isolated Wetlands and the Limits of the Commerce Clause, 28
15
Beyond the clear circuit split wi | separa
opinions by Justice Thomas pr ais ain ae t
critical academic commentary demonstrate the diversi ~
views on the propriety of the migratory bird rule and » Ses
that confusion in this area will continue and likel escal
absent this Court’s immediate intervention. ;
Il. THE MIGRATORY BIRD RULE
IS AN IMPERM-
ISSIBLE INTERPRETATION OF THE CWA st
The Seventh Circuit’s decision to d
| efer to the Corps’
interpretation of the Clean Water Act is incorrect. rvs
a defer to an agency’s interpretation of a statute “only
if Congress has not expressed its intent with respect to the
question, and then only if the administrative interpretation is
reasonable.” Presley v. Etowah County Comm’n, 502 U.S
pcg A court “ascertains [whether] Congress had
— ntion on the precise question at issue” by “employing
itional tools of statutory construction,” including analysis
: favs text, structure, “history and policy of the Act.”
7 “ U.S.A., Inc. v. Natural Resources Defense Council
S. 837 , 843 n.9, 862 (1984). Applying that familiar
U.C. Davis L. REV. 1237, 1267 (1995) (“It is unreasonable t
argue that the potential use of an isolated wetland by any speci ;
of migratory bird substantially affects interstate me ng
Bablo, Leslie Salt Co. v. United States: Does the Recent vena
Court Decision in United States v. Lopez Dictate the Abrogati
of the “Migratory Bird Rule”?, 14 TEMP. ENVT’L LL. & were 1
277, 278 (1995) (“the very tenuous tie between migratory birds
tener commerce does not satisfy the tests of the Commerce
ne pager in Lopez”); Lessner, Leslie Salt Co. v. United
ag tose s pod Out of Your Birdbath: It May Be Considered
ey oa a“ Army Corps of Engineers as a “Water of the
re ,” 2 VILL. ENVT LLJ. 463, 500 (1991) (expressing
u a migratory bird habitat “can be declared to be such a
nexus tO interstate commerce as
interst to warrant Arm
Engineers jurisdiction”). siete
16
standard, the migratory bird rule is invalid. It is inconsistent
with the language and history of the CWA, and it fails to pass
muster under established canons of interpretation requiring
that a statute be construed to avoid raising serious constitu-
tional questions and to avoid impinging on areas traditionally
regulated by the states.
‘A. The Plain Language of the Act Requires Jurisdictional
Waters To Be Related To Navigable Waters
The plain language of the CWA prohibits discharges into
“navigable waters,” defined as “waters of the United States.”
33 U.S.C. §§ 1344(a), 1362(7). The Corps and the court
below played favorites with these terms, ignoring the phrase
“navigable waters” and focusing exclusively on the phrase
“waters of the United States.” App., infra, 9a. But “‘[jJudges
should hesitate * * * to treat [as surplusage] statutory terms
in any setting.”” Bailey v. United States, 516 U.S. 137, 145
(1995). The statutory phrases “navigable waters” and “waters
of the United States” are both essential to divining congres-
sional intent. The former concept, properly understood,
forecloses the Corps’ migratory bird rule.
1. “Navigable waters” is a term of art that traditionally
meant “waters navigable in fact” (The Daniel Ball, 77 U.S.
(10 Wail.) 557, 563 (1870)), but that was refined over time
to include those waters capable of navigation through reason-
able improvements. United States v. Appalachian Elec. Power
Co.. 311 U.S. 377, 298-299 (1940); see BLACK’s LAW
DICTIONARY 1179 (4th ed. 1968); Gilbert v. United States,
370 U.S. 650, 655 (1962) (statutory terms are generally to be
given their established common law meaning). No one asserts
that the gravel-mining depressions on SWANCC’s property
are navigable in either sense.
2. The Seventh Circuit ignored this settled common-law
meaning of “navigable waters” and treated that statutory
phrase as surplusage. It justified that approach by pointing to
the CWA’s definition of “navigable waters” as the “waters of
17
we hare States,” then treating that phrase as the sole source
of limits on the Corps’ jurisdiction. App., infra, 9a.
It was error for the court of appeal hrase
__ it S to write the
navigable waters” out of the CWA. In fact, the pre. of
the phrase “waters of the United States.” while somewhat
broader than “navigable waters,” is informed by and incorpo-
rates the idea of navigability. As this Court has held >
phrase means those waters which “form in their ordi
condition by themselves, or by uniting with other om 2
continued highway over which commerce is or may be carried
on with other States or foreign countries in the customa
modes in which such commerce is conducted by water.” The
Daniel Ball, 77 U.S. at 563 (em
‘ % phasis added); see al
Montello, 87 U.S. (20 Wall.) 430, 443 (1874). =
Thus, as the Fourth Circuit explained i | .
phrase ‘waters of the United States’ poe Ae ae =
phrase ‘navigable waters’” naturally “refers to waters which
if mot navigable in fact, are at least interstate or Closel
related to navigable or interstate waters.” 133 F.3d at 257.
The migratory bird rule, like the regulation it purports to
interpret, “defines ‘waters of the United States’ to include
waters that need have nothing to do with navigable or
interstate waters,” and deserves no deference because it
expands the statutory phrase ‘waters of the United States’
beyond its definitional limit.” Jbid. :
*
3. The Seventh Circuit’s reliance on this Court’s decision
in Riverside Bayview Homes as support for its interpretation
of the CWA is misplaced. This Court explained in Riverside
Bayview that Congress’ use of the phrase “waters of the
United States” in the CWA evidences an intent to “regulate
at least some waters that would not be deemed ‘navigable’
under the classical understanding,” and in that sense (only)
the concept of navigability “is of limited import” in the
CWA. Riverside Bayview Homes, 474 U.S. at 133 (emphasis
added). Nowhere, however, has this Court Suggested that the
18
Corps can ignore altogether the concept of navigability, as it
does in its “other waters” and migratory bird rules.
To the contrary, in stark contrast to Corps’ sweeping
definition of “waters of the United States,” the definition this
Court found reasonable in Riverside Bayview—navigable
waters and their “adjacent wetlands” —does accord with the
traditional interpretation of “waters of the United States” as
a “continued highway for commerce.” “Adjacent wetlands”
abut navigable waters, thus forming a “continued highway”
and becoming “waters of the United States.” The Daniel Ball,
77 US. at 563: The Montello, 87 U.S. at 443; see also
DeLovio v. Boit, 7 F.Cas. 418, 423 (Cir. Ct., D.Mass. 1815)
(Storey, J.) (“marsh land, bordering on the sea” may be
within the admiralty jurisdiction). Isolated, man-made
depressions that fill with rainwater are not remotely similar.
Thus, Riverside Bayview provides no support for the extraor-
dinary extension of federal jurisdiction over local land use
approved by the Seventh Circuit.
4. The only statutory analysis engaged in by the court
below was its iteration of the purpose of the Act, which
includes the phrase “biological integrity” and the goal of
ensuring “water quality which provides for the protection and
propagation of * * * wildlife.” App., infra, 10a. But
“[a]pplication of ‘broad purposes’ of legislation at the expense
of specific provisions ignores the complexity of the problems
Congress is called upon to address and the dynamics of
legislative action * * * and, in the end, prevents the effectua-
tion of congressional intent.” Board of Governors v. Dimen-
sion Fin. Corp., 474 U.S. 361, 373-374 (1986).
In contrast to the highly generalized purposes of the Act
relied on by the Seventh Circuit, the CWA’s text is specific
and transparently clear. When it enacted the CWA, Congress
was no stranger to the terms “navigable waters” and “waters
of the United States,” including their common law meanings
and alternatives It had previously used both concepts “to
19
determine the extent of the authority of the {Corps} under the
Rivers and Harbors Appropriation Act of 1899,” 33 U.S.C
§ 403. Kaiser Aetna v. United States, 444 US. 164. 171
(1979). Congress’ choice to use those well-understood worms
to define the scope of the CWA should not be treated lightly
and it supports the Fourth Circuit’s view of the Corps’
Jurisdiction, not the Seventh Circuit’s interpretation.
Equally telling, in the Federal Power Act Congress gave
an agency authority over activities not only on “navigable
waters,” but also on streams “other than those defined in this
chapter as navigable waters, and over which Congress has
Jurisdiction under its authority to regulate commerce with
foreign nations and among the several States.” 16 U.S.C
§ 817 (emphasis added). It follows that “Congress knew how
to draft a Statute to reach” all nonnavigable waters over
which Congress has Commerce Clause jurisdiction. Bailey
516 U.S. at 150. That Congress used no similar language in
the CWA indicates that, contrary to the ruling bel it di
: Ow, it did
not intend the CWA to apply so broadly. :
B. Legislative History Confirms That C i
ongress Did Not
Intend The Corps To Base Jurisdiction Merely On The
Presence Of Migratory Birds
; This Court will not defer to an agency construction where
the legislative history of the enactment shows with sufficient
clarity that [it] is contrary to the will of Congress.” Japan
Whaling Ass'n v. American Cetacean Soc 'y, 478 U.S. 221
233 (1986). Such is the case here. —_
6
It is noteworthy that even under the broad!
y worded Federal
Power Act, . this Court has refused to extend congressional
authority to “intrastate nonnavigable waters which do not flow into
any navigable streams.” Federal Power Comm'n v. Union Elec
Co., 381 U.S. 90, 97 & n.9 (1965). |
20
1. Section 404(a) and the definition of “navigable waters”
as “waters of the United States” originated in the Federal
Water Pollution Control Act Amendments of 1972. In the
thousands of pages of legislative history of those amendments,
isolated waters are mentioned not once. Neither the govern-
ment nor the court below has produced a single such refer-
ence. Yet the extension of federal jurisdiction to isolated
waters implicates many millions of acres. Given the important
policy and political interests at stake in drawing the boundary
line between federal and local control of development, such
a vast expansion of federal authority over heretofore local
concerns would hardly have passed in silence.
Congressional statements about the language that was used
in the statute—“navigable waters” and “waters of the United
States” —reflect established common law definitions. See 118
CONG. REC. H33,756 (1972) (statement of Rep. Dingell,
House floor manager); id. at H33,699 (statement of Sen.
Muskie, Senate floor manager). By defining “navigable
waters” as “waters of the United States,” the legislative
history shows, Congress merely sought to avoid giving
“navigable waters” its most “limited” or “technical”
meaning—navigable in fact—“derived from the Daniel Ball
case.” Id. at H33,756 (Rep. Dingell). Congress wanted a
definition “in line with more recent judicial opinions” that
“expanded that limited view of navigability * * * to include
waterways which would be ‘susceptible of being used * * *
with reasonable improvement,’ as well as those waterways
which include sections presently obstructed by falls, rapids,
sand bars, currents, floating debris, et cetera.” /bid., quoting
United States v. Utah, 283 U.S. 64, 72 (1931). See also ibid.
(Rep. Dingell quotes cases, which all involve waters previ-
ously or currently obstructed to navigation). In other words,
the text was designed to reference the broader definitions of
“navigable waters” and “waters of the United States”
established by this Court. See also 118 CONG. REC. H33,699
(statement of Sen. Muskie).
a a Nr A
21
In light of these explanations, the statement in the House
and Senate conference reports that “(t]he conferees fully
intend that the term ‘navigable waters’ be given the broadest
possible constitutional interpretation” is clear. S. REP. No.
92-1236, 92d Cong., 2d Sess. 144 (1972) (emphasis added):
see also H.R. REP. No. 92-911, 92d Cong., 2d Sess. 131
(1972). Congress simply meant that the CWA should reach
waters capable of navigation by reasonable improvement,
consistent with this Court’s decisions in cases such as
Appalachian Electric and United States vy. Utah. \t does not
mean, as the Seventh and Ninth Circuits have held, that the
CWA “reaches as many waters as the Commerce Clause
allows.” App., infra, 9a (emphasis added); Leslie Salt I, 896
F.2d at 360. Had that been Congress’ intent, it would have
said so expressly, as it did in the Federal Power Act.
2. No different message was sent by Congress when, in
1977, it rejected amendments that would have limited the
Corps’ authority to waters navigable in fact and their adjacent
wetlands. This Court concluded in Riverside Bayview Homes
that Congress’ inaction showed that “the scope of the Corps’
asserted jurisdiction over wetlands was specifically brought to
Congress’ attention,” and that “even those who thought that
the Corps’ existing authority under § 404 was too broad”
recognized that existing legislation should be read to cover
adjacent wetlands. 474 U.S. at 137-138 (emphasis added).
Neither conclusion supports the migratory bird rule.
First, the migratory bird rule was not officially promul-
gated by the Corps until 1986. 51 Fed. Reg. 41206, 41217
(1986); App., infra, 39a. Absent clairvoyance, Congress
could not have “acquiesced in the Corps’ definition of
waters” (474 U.S. at 138) in the migratory bird rule by its
failure to act in 1977. See Leslie Salt 1, 896 F.2d at 361 n.1
(Rymer, J., dissenting) (rejecting argument that Congress
acquiesced in the migratory bird rule because “[t]his 1986
addition to, or clarification of, the Corps’ regulations was not
considered during congressional debates on the [CWA] of
22
1977”). Second, even the government has not ventured to
suggest that “even those who thought that the Corps’ existing
authority under § 404 was too broad” would comfortably read
the existing legislation to cover isolated intrastate depressions
visited by migratory birds. Nor could it: the migratory bird
rule marks the very furthest extent of asserted federal
jurisdiction and is a giant leap beyond the normal bases upon
which the federal government inserts itself into local affairs.
In sum, the legislative history of Section 404 provides no
support for, but contradicts, the migratory bird rule.
C. No Deference Is Owed To The Migratory Bird Rule
Because It Raises Serious Constitutional Concerns
1. The migratory bird rule is also entitled to no deference
because it raises “serious constitutional concerns” and there
is another interpretation that may fairly be ascribed” to the
Act. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg.
& Constr. Trades Council, 485 U.S. 568, 577 (1988); see
also NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, at
(1979) (when an agency's “exercise of its jurisdiction a
would give rise to serious constitutional questions” no
deference is owed unless the regulation denotes “the affirma-
tive intention of the Congress clearly expressed”). The
Commerce Clause “is subject to outer limits.” Lopez, 514
U.S. at 557. The migratory bird rule hovers around or
exceeds those limits, at minimum raising “serious constitu-
tional questions.” Even defenders of the migratory bird rule
acknowledge that it “tests the limits of Congress commerce
powers, and, some would argue, the bounds of reason.
Leslie Salt I], 55 F.3d at 1396.
2. The Seventh Circuit recognized that the migratory bird
rule can be justified, if at all, only as regulation of an activity
that “substantially affect[s]” interstate commerce. App.. infra,
6a-7a; Lopez, 514 U.S. at 558-559. But the court did not rest
its decision that the rule is constitutionally unproblematic on
a showing by the Corps that filling gravel-mining depressions
23
on SWANCC’s property would “substantially” affect inter-
state commerce. The terms of the migratory bird rule require
nothing more than the particular waters in question “are or
would be used” as a habitat by migratory birds that are
protected by international treaty or that “cross state lines”
(App., infra, 40a), and the Corps made no showing beyond
that requirement when it determined that SWANCC’s balefill
property is within its jurisdiction. See App., infra, at 6a
(acknowledging that any impact on birds on SWANCC’s
property “has no discernible effect on interstate commerce” ).
The migratory bird rule’s lack of any connection to com-
merce, reflected in the Corps jurisdictional determination in
this case, renders the basis for federal jurisdiction “even more
farfetched than that offered, and rejected in Lopez” and raises
“serious doubts” about the “propriety of the Corps’ assertion
of jurisdiction.” Cargill, 516 U.S. at 958 (Thomas. J,
dissenting from denial of certiorari).
3. The Seventh Circuit avoided the difficulty that migra-
tory bird use of SWANCC’s property has “no discernable
effect on interstate commerce” by theorizing that the “cumu-
lative impact” of “the destruction of migratory bird habitat”
“substantially affects” interstate commerce in hunting and
birdwatching. App, infra, 6a-7a.’ The commerce power may
not be extended by that kind of bootstrapping.
7
The Seventh Circuit disregarded the fact that there has never
been a “showing that the cumulative effect of land use involving
* * * water that is wholly isolated from any water used, or usable,
in interstate commerce” would have a substantial effect on
migratory birds, much less “a substantial effect on interstate
commerce.” Cargill, 516 U.S. at 959 (Thomas, J.) (emphasis
added). There is no evidence that the numbers of any commercially
relevant bird species would diminish as a result of the Corps not
regulating isolated waters. The speculative assumption that filling
a particular intrastate pond or trench will have a noticeable effect
on migratory birds, which in turn will have a substantial effect on
commerce, depends on “pil{ing] inference upon inference,” an
approach rejected in Lopez. 514 U.S. at 567.
Lt
To be sure, “{wJhere the class of activities is regulated
and that class is within the reach of federal power” because
of its aggregated effect on commerce, “the courts have no
power ‘to excise, as trivial, individual instances’ of the
class.” Perez v. United States, 402 U.S. 146, 154 (1971),
quoting Maryland v. Wirtz, 392 U.S. 183, 193 (1968). But
“the de minimis character of individual instances * * * is of
no consequence” only when those instances are “essential
part[s]” of “a general regulatory statute” that “bears a
substantial relation to commerce.” Lopez, 514 U.S. at 558.
Here, isolated, purely intrastate wet areas are not within the
class obviously regulated by Congress in the CWA, nor did
Congress show any concern in the CWA with migratory birds
as a class. And the Corps has never explained how preventing
the filling of isolated, intrastate, man-made depressions is
“essential” to any goal identified by Congress in the CWA.
The “regulated class” approach to Commerce Clause
analysis, which recognizes federal jurisdiction despite the lack
of any significant effect on commerce of particular regulated
circumstances, should have no application in cases such as
this where there is a glaring disconnect between the class
covered by the statute (“navigable” “waters of the United
States”) and the asserted basis of an agency’s jurisdiction
(migratory birds), and where the agency has failed to show
that extending its jurisdiction is essential to the achievement
of any statutory goal. See, e.g., United States v. Bird, 124
F.3d 667, 676 (Sth Cir. 1997) (rejecting the government's
claim that “Congress need only identify a broad ‘class of
activities’ and determine that, viewed in the aggregate, the
class ‘substantially affects’ interstate commerce,” requiring
instead the separate incidents be connected to interstate
commerce).*
* Professor Nagle points out that this Court “has said little about
how far Congress can reach in aggregating activities or how one
decides what aggregations are permissible.” But he notes that the
ee ee ee eee
25
4. The migratory bird rule contains no “jurisdictional
element which would ensure, through case-by-case enquiry”
that particular isolated waters “affec(t] interstate commerce.”
a 514 U.S. at 561. Under the rule, it is enough that the
wa “are or would be used as habitat” by any migrato
bird. App.. infra, 40a. Accordingly, the Bed moe rl
analysis of the impact on commerce of filling the gravel-
mining depressions on SWANCC’s balefill site.
5. The basis of the Corps rule and assertion of jurisdiction
here appears to be that the self-propelled flight of birds across
state or national boundaries alone is enough to implicate the
Commerce Clause, allowing regulation of every place where
the birds might naturally stop. The ramifications of this
assertion are astonishing. Approximately five billion land
birds mugrate across North America every year, with flyways
covering the entire continental United States. THE ATLAS OF
BIRD MIGRATION 54-83 (ed. J. Elphick 1995); R. PETERSON
A FIELD GuIDE To BiRDS 305-370 (4th ed. 1980). By the
Corps’ rationale, the Commerce Clause would stretch to
cover virtually every piece of property in the country ,
“available clues counsel against overly broad aggregations” like
that relied on below: “Lopez rejects any Commerce Clause test that
every conceivable federal statute could satisfy. The Court’s
frequently Stated concern about federalism pushes toward less
Sweeping aggregations. And lower courts have rejected the
contention that Congress can satisfy the Commerce Clause simply
by choosing a broad category of activities whose aggregate effect
On interstate commerce is substantial.” 97 MICH. L. REV. at 197-
198 (footnotes omitted). See also 1 L. TRIBE, CONSTITUTIONAL
Law 825 n.68 (3d ed. 2000) (“Lopez leaves unanswered many
questions regarding focus and levels of generality [in aggregation]
that were raised by Wickard and its progeny”). Review in this
case would give this Court an opportunity to guide the lower
courts in their application of the aggregation principle, which has
taken on greater practical significance after Lopez.
26
regardless of its commercial or noncommercial use.” As in
Lopez, “if we were to accept the Government's arguments,
we are hard pressed to posit any activity by an individual that
Congress is without power to regulate.” 514 U.S. at 564.
At the very least, the migratory bird rule raises “serious
constitutional concerns.” Edward J. DeBartolo Corp., 485
U.S. at 577; see Cargill, 516 U.S. at 959 (“This case raises
serious and important constitutional questions about the limits
of federal land-use regulation in the name of the [CWA] that
provide a compelling reason to grant certiorari”) (Thomas,
J.). Because the Corps’ dubious approach lacks support in the
text or legislative history, much less the requisite “clearest
indication” of congressional support, the Seventh Circuit's
deference to the rule cannot be sustained.
D. No Deference Is Owed To The Migratory Bird Rule
Because It Impinges On Traditional State Powers
The migratory bird rule also runs afoul the interpretative
principle that a court will not assume that Congress intended
to substantially “alter sensitive federal-state relationships” by
regulating conduct “traditionally subject to state regulation”
unless Congress said so clearly. Rewis v. United States, 401
U.S. 808, 811-812 (1971); see BFP v. Resolution Trust
Corp., 511 U.S. 531, 544 (1994) (if a federal law is to be
read to “radically readjus(t] the balance of state and national
* The government conceded as much at oral argument in Hoffman
Homes. See 961 F.2d at 1321 n.9 (government conceded that its
interpretation would allow it to regulate a puddle visited by
migratory birds). See also Holman, After United States v. Lopez:
Can the Clean Water Act and the Endangered Species Act Survive
Commerce Clause Attack?, 15 VA. ENVT'L L.J. 139, 197 (1995)
(“migratory flyways cover the entire United States and, as
birdwatchers will attest, migratory birds will alight almost
anywhere. Thus the migraiory bird rule * * * operates as a limiter-
manque—a limiting rule with no limits”).
me ee ats ae Rel AR Ge ee
27
authority,” “those charged with the duty of islating
must
be] reasonably explicit”). ” ,
| By vastly expanding federal jurisdiction to include tens of
millions of acres of isolated intrastate waters and wetlands
—traditionally the exclusive province of the States and their
subdivisions—the migratory bird rule drastically alters
“sensitive federal-state relationships,” making the Corps a
sort of super zoning board for all permanently or seasonally
wet areas of the United States. Under the migratory bird rule
it is the Corps that ultimately decides whether a project is in
the “public interest” (33 CFR § 320.4(a)), supplanting the
considered judgments of state and local authorities, as it did
in this case. Such a rule was not anticipated by Congress
much less clearly intended, and therefore cannot be sustained.
| In light not only of Lopez, but also this Court’s federalism
Jurisprudence in recent cases suci: as last Term’s sovereign
immunity decisions, Printz v. United States, 521 U.S. 898
(1997), Seminole Tribe v. Florida, 5:7 U.S. 44 (1996), and
New York v. United States, 505 U.S. 144 (1992), this Court
should demand much clearer authority from Congress before
permitting an agency to deprive states and municipalities of
their traditional police powers over the use of land so
ephemerally connected to interstate commerce. “Although
the Constitution grants broad powers to Congress, our
federalism requires that Congress treat the States in a manner
consistent with their status as residuary sovereigns and joint
participants in the governance of the Nation.” Alden v.
Maine, 119 S. Ct. 2240, 2263 (1999). The Founders likewise
understood that the States “form distinct and independent
portions of the supremacy, no more subject, within their
respective spheres, to the general authority, than the general
authority is subject to them, within its own sphere.” THE
FEDERALIST NO. 39, at 245 (C. Rossiter ed. 1961) (J
Madison). |
28
BFP is instructive. There, this Court rejected an interpre-
tation of the Bankruptcy Code that would have preempted
state foreclosure law. The Court explained that the power to
ensure the security of titles to real estate “inheres in the very
nature of [state] government” and that the construction urged
by the government would intrude on “the essential [state]
sovereign interest in the security and stability of title to the
land.” 511 U.S. at 544 & n.8. This Court would not permit
an interpretation of the Code that “displace[d) traditional state
regulation in such a manner” absent a “‘clear and manifest’”
statement of congressional intent. Jd. at 544; see also Lopez,
514 U.S. at 567-568 (emphasizing the need to maintain “a
distinction between what is truly national and what is truly
local”).
The same principle governs here. The migratory bird rule
allows for intrusive federal land-use regulation that impinges
on “the authority of state and local governments to engage in
land use planning,” which this Court has recognized “as long
ago as our decision in Village of Euclid v. Ambler Realty Co.,
272 U.S. 365 (1926).” Dolan v. City of Tigard, 512 U.S.
374, 384 (1994). Because land-use decisions are the preroga-
tive of States and their subdivisions, this Court has repeatedly
deferred to these interests. See Village of Belle Terre v.
Boraas, 416 U.S. 1, 4 (1974); Village of Euclid, 272 U.S. at
388: see also Village of Belle Terre, 416 U.S. at 13 (Mar-
shall, J., dissenting on other grounds) (“zoning is a complex
and important function of the State” which “may indeed be
the most essential function performed by local government”).
Just as federal courts “do not sit to determine whether a
particular housing project is or is not desirable” (Berman v.
Parker, 348 U.S. 26, 32 (1954)), so too should federal
agencies forbear from becoming local land-use authorities.
Thus, the text and history of the CWA, together with
important principles of statutory interpretation that serve to
protect state and local powers from unintended federal
interference, all indicate that the Corps’ migratory bird rule
29
is an impermissible construction of the Act that is owed no
deference. The Seventh Circuit’s contrary decision is errone-
ous and should be reversed.
Il. THE PETITION SHOULD BE GRANTED, NOT
HELD FOR JONES v. UNITED STATES
This Court has granted certiorari in Jones v. United
States, No. 99-5739 (cert. granted Nov. 15, 1999), to decide
whether interpreting the federal arson statute to reach intra-
State arson of residential property is permissible in light of
Commerce Clause constraints on federal power. See Order
List, Nov. 15, 1999 (reformulating the question for review as
“[w]hether, in light of United States v. Lopez, * * * and the
interpretative rule that constitutionally doubtful constructions
should be avoided, * * * [18 U.S.C.] Section 844(i) applies
to the arson of a private residence; and if so, whether its
application to the private residence in the present case is
unconstitutional”).
It appears likely that in Jones this Court will provide
guidance as to the effect Commerce Clause concerns should
have on the proper interpretation of jurisdictional grants in
federal statutes. Stated in the abstract, that issue is of obvious
relevance to this case: we contend that Commerce Clause
problems raised by the migratory bird rule mean that it is an
impermissible construction of the CWA under the established
“interpretative rule that constitutionally doubtful constructions
Should be avoided.” Nevertheless, holding this petition for
Jones would not be useful or appropriate.
To begin with, this case and Jones involve very different
Statutes and entirely different factual bases that are alleged by
the United States to provide a sufficient nexus to interstate
commerce. There is no reason to believe that this Court’s
ruling whether a federal arson conviction may be based on the
burned residence’s receipt of out-of-state gas (and the like)
will illuminate whether the presence of migratory birds is a
proper basis for CWA jurisdiction. The different language of
30
the statutes involved, their different regulatory histories, and
the vastly different questions whether the supply of natural
gas to a residence or use of wet areas by migratory birds are
“interstate commerce,” suggest that however this Court
decides Jones, the issue in this petition will remain alive and
in urgent need of this Court’s review.
The two cases also involve completely different Com-
merce Clause issues. Jones concerns a “case-by-case inquiry”
into evidentiary sufficiency under a statutory jurisdictional
element. This case raises the wholly different question of
when deference is owed to agencies that seek to stretch their
Own jurisdiction to (or beyond) constitutional limits.
Moreover, the Seventh Circuit made abundantly clear that
it regards protecting migratory bird habitat as implicating
interstate Commerce and sees no constitutionally doubtful
interpretation at all in this case. A ruling in Jones that
Commerce Clause problems are to be avoided by narrowing
interpretations of jurisdictional grants would have no impact
whatsoever on the Seventh Circuit on remand following a
GVR, for the Seventh Circuit sees no conceivable Commerce
Clause problem to begin with.
In light of these differences, and because the courts of
appeals are in disarray as to an important issue concerning the
scope of the Clean Water Act that will not be settled in
Jones, we urge this Court to grant independent review in this
case.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
ELIZABETH A. CLARK
Mayer, Brown & Platt
1909 K Street, N.W.
Washington, D.C. 20006
(202) 263-3000
GEORGE J. MANNINA, JR.
O’Connor & Hannan, L.L.P.
1666 K Street, N.W.
Suite 500
Washington, D.C. 20006
(202) 887-1400
JANUARY 2000
TIMOTHY S. BISHOP
Counsel of Record
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, IL 60603
(312) 782-0600
Counsel for Petitioner
APPENDIX
la
SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,
Plaintiff-Appellant,
Vv.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL..
Defendants-Appellees.
No. 98-2277.
United States Court of Appeals.
Seventh Circuit.
Argued Jan. 8, 1999.
Decided Oct. 7, 1999.
Before KANNE, DIANE P. WOOD, and EVANS.
Circuit Judges.
DIANE P. WOOD, Circuit Judge.
This case involves the efforts of a consortium of Illinois
municipalities to find a place to dump their trash. The Solid
Waste Agency of Northern Cook County (*“SWANCC”)
thought that it had found such a spot in a 533-acre parcel of
land straddling Cook and-Kane Counties, Illinois. Before its
“balefill” could open, however, approximately 17.6 acres of
ponds and small lakes located on the parcel had to be filled
in. This case presents the question whether the U.S. Army
Corps of Engineers (“the Corps”), acting under § 404 of the
Clean Water Act (“the Act”), 33 U.S.C. § 1344, had
jurisdiction to require SWANCC to obtain a permit for its fill
operations. SWANCC initially applied for such a permit, but
the Corps denied it. SWANCC then sued, claiming both that
the Corps had no business meddling in the matter at all and
that it was wrong on the merits. For its part, the Corps
Claimed jurisdiction under the so-called “migratory bird rule,”
which interprets the Act as extending to certain intrastate
2a
waters based on their actual or potential use as habitat for
migratory birds. (The parties dispute whether this is a mere
interpretation of statutory language, or something that should
be regarded as a freestanding rule--a point that we discuss
later in this opinion. Our use of the common phrase
“migratory bird rule” is not intended to suggest a position on
that issue.)
The district court granted summary judgment in the
Corps’ favor on the jurisdictional point. At that point,
SWANCC decided voluntarily to dismiss the remainder of its
claims, so that the district court could enter a final judgment
from which it could appeal. See 28 U.S.C. § 1291. We
conclude that the Corps properly asserted jurisdiction in this
matter, and we therefore affirm.
SWANCC is a group of 23 municipalities that banded
together to form a municipal corporation for the purpose of
locating and developing a disposal site for nonhazardous
waste. It found and purchased the 533-acre site to which we
have already referred, from which it hoped to carve out
approximately 410 acres for a “balefill”—that is, a landfill
where the waste is baled before it is dumped. Approximately
298 acres of the proposed balefill site is what is known as an
early successional stage forest. At one ume, it was a strip
mine, but when the mining operation shut down
approximately 50 years ago, a labyrinth of trenches and other
depressions remained behind. Over time, the land evolved
into an attractive woodland vegetated by apne pe A 170
different ies of plants. What were once gravel pits are
now over 200 permanent and seasonal ponds. These ponds
range from less than one-tenth of an acre to several acres in
size, and from several inches to several feet in depth. The
forest is also home to a variety of small animals. Most
important for our purposes are the 100-plus species of birds
that have been observed there. These include many
3a
endangered, water- dependent, and migratory birds. Among
the species that have been seen nesting, feeding, or breeding
at the site are mallard ducks, wood ducks, Canada geese,
Sandpipers, kingfishers, water thrushes, swamp swallows,
redwinged blackbirds, tree swallows, and several varieties of
herons. Most notably, the site is a seasonal home to the
second-largest breeding colony of great blue herons in
northeastern Illinois, with approximately 192 nests in 1993.
This litigation arose because the proposed balefill project
would require the filling of approximately 17.6 acres of
semi-aquatic property within the forested area. Section 404
of the Act prohibits the discharge of fill material into “the
navigable waters” without a permit issued by the Secretary of
the Army, acting through the Chief of Engineers. 33 U.S.C.
§ 1344(a). The term “navigable waters” is defined in the
Statute as “the waters of the United States, including the
territorial seas.” Jd. § 1362(7). Although the Act itself
provides no further explanation of which waters are subject
to § 404’s requirements, regulations issued by the
Environmental Protection Agency (“EPA”) and the Corps
define the phrase “waters of the United States” to include
“intrastate lakes, rivers, streams (including intermittent
streams), mudflats, sandflats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or natural ponds, the
use, degradation or destruction of which could affect
interstate or foreign commerce.” 33 C.F.R. § 328.3(a)(3).
In March 1986, SWANCC contacted the Corps to find
out if a particular 267-acre parcel within the proposed balefill
site included “wetlands” within the meaning of the Act, such
that SWANCC would have to obtain a § 404 permit in order
to fill it in. After an on-site inspection, the Corps initially
decided that the site did not include protected wetlands and
therefore did not fall within its regulatory jurisdiction. One
year later, in February 1987, SWANCC contacted the Corps
to request a determination as to whether a 414-acre parcel of
4a
the site included “wetlands.” The Corps again responded in
the negative.
The Corps changed its position with regard to its
jurisdiction over the balefill site, however, after the Illinois
Nature Preserves Commission (a state agency) informed it
that a number of migratory bird species had been observed
there. This new information made all the difference to the
Corps, because of the so-called migratory bird rule. This
rule, or interpretive convention, reflects the fact that the
definition of “waters of the United States” found in 33
C.F.R. § 328.3(a)(3) has long been understood by the EPA
and the Corps to include all waters, including those otherwise
unrelated to interstate commerce, “which are or would be
used as habitat by birds protected by Migratory Bird
Treaties” or “which are or would be used as habitat by other
migratory birds which cross state lines.” 51 Fed. Reg.
41,206. 41,217 (1986) (“1986 preamble”). In a letter to
SWANCC dated November 16, 1987, the Corps explained
that its two previous determinations that the site did not fall
within its jurisdiction were based on its finding that the site
did not meet the definition of “wetland.” In contrast, the
latest determination—that the Corps did have jurisdiction over
the site—was based on a different theory entirely. Regardless
of wetland status, it now appeared that the aquatic areas of
the site “are or could be used as habitat by migratory birds
which cross state lines.” In response to the Corps’
notification that it intended to exercise jurisdiction over the
site, SWANCC submitted an application for a § 404 permit.
The Corps denied that application, finding that all of the
affected waters in the site were in fact used as habitat by
migratory birds (and thus were not merely potential habitat).
SWANCC then submitted a revised application that was also
denied.
At this stage in the litigation, SWANCC has abandoned
its challenge to the merits of the Corps’ decisions and has
instead focused exclusively on its challenge to the migratory
Sa
bird rule as a basis for the Corps’ jurisdiction. Accordingly,
we accept as true the Corps’ factual findings with regard to
SWANCC’s permit application, including the crucial finding
that the waters of this site were a habitat for migratory birds.
SWANCC offers three arguments to support its position
that the Corps had no authority to require it to obtain a
permit: (1) Congress lacked the power to grant the Corps
regulatory jurisdiction over isolated, intrastate waters based
on the presence of migratory birds alone; (2) the Corps
exceeded its statutory authority in interpreting the Act to
confer jurisdiction as provided by the migratory bird rule:
and (3) the migratory bird rule is invalid because it was not
promulgated in accordance with the notice and comment
requirements of the Administrative Procedure Act (“APA”),
5 U.S.C. § 553.
We begin with the most ambitious of SWANCC’s
arguments, which is that the migratory bird rule is
unconstitutional in light of the Supreme Court’s decision in
United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131
L.Ed.2d 626 (1995). Prior to Lopez, it had been established
that Congress’ powers under the Commerce Clause were
broad enough to permit regulation of waters based on the
presence of migratory birds. See, e.g., Rueth v. EPA, 13
F.3d 227, 231 (7th Cir. 1993); Leslie Salt Co. v. United
States (Leslie I), 896 F.2d 354, 360 (9th Cir.1990). We must
decide whether Lopez now compels the opposite conclusion.
In Lopez, the Court reaffirmed the well-established
principle that a federal statute based on the Commerce Clause
must serve one of three purposes: (1) regulation of the
channels of interstate commerce; (2) regulation or protection
of the instrumentalities of interstate commerce, or persons or
things in interstate commerce; or (3) regulation of activities
that “substantially affect” interstate commerce. Lopez, 514
U.S. at 558-59, 115 S.Ct. 1624; see also Hodel v. Virginia
6a
Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264,
276, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Perez v. United
States, 402 U.S. 146, 150, 91 S.Ct 1357, 28 L.Ed.2d 686
(1971); United States v. Wilson, 159 F.3d 280, 285 (7th Cir.
1998). The gun control law at issue in Lopez, like the
migratory bird rule challenged here, could only have been
sustained as an exercise of the third variety of regulatory
power. The Lopez Court concluded that the statute before it,
which made it a crime “knowingly ... [to] possess a firearm
at a place that the individual knows, or has reasonable cause
to believe, is a school zone” did not meet the “substantially
affects” test because (1) it was a criminal statute which, by its
terms, had nothing to do with interstate commerce or
commercial transactions; (2) it contained no jurisdictional
element to ensure that in each case the firearm in question
had in fact affected interstate commerce; and (3) Congress
had offered no legislative findings to support the conclusion
that possessing a gun in a school zone affected interstate
commerce. Lopez, 514 U.S. at 559-62, 115 S.Ct. 1624; see
also Wilson, 159 F.3d at 286.
SWANCC urges us to conclude that the migratory bird
rule suffers from the same defects. But such a conclusion
would overlook important differences between the statute
before the Court in Lopez and the one we are considering.
This court has noted previously that Lopez expressly
recognized, and in no way disapproved, the cumulative
impact doctrine, under which a single activity that itself has
no discernible effect on interstate commerce may still be
regulated if the aggregate effect of that class of activity has
a substantial impact on interstate commerce. United States v.
Hicks, 106 F.3d 187, 189-90 (7th Cir. 1997), citing Lopez,
514 U.S. at 561, 115 S.Ct. 1624; see also United States v.
Jones, 178 F.3d 479 (7th Cir. 1999); United States v.
Thomas, 159 F.3d 296, 298 (7th Cir. 1998).
This approach, which is most closely associated with the
Supreme Court's decision in Wickard v. Filburn, 317 U.S.
7a
111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), indicates the relevant
legal question for our case is whether the destruction of the
natural habitat of migratory birds in the aggregate
“substantially affects” interstate commerce. We observed in
Hoffman Homes, Inc. v. EPA, 999 F.2d 256 (7th Cir. 1993),
that “[t}roughout North America, millions of people annually
spend more than a billion dollars on hunting, trapping, and
observing migratory birds. Yet the cumulative loss of
wetlands has reduced the populations of many species and
consequently the ability of people to hunt, trap, and observe
those birds.” /d. at 261. Statistics produced by the U.S.
Census Bureau reveal that approximately 3.1 million
Americans spent $1.3 billion to hunt migratory birds in 1996,
and that about 11 percent of them traveled across state lines
to do so. Fish & Wildlife Service, U.S. Dep't of the Interior
& Bureau of the Census, U.S. Dep't of Commerce, 1996
National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation 25 (November 1997). Another 17.7 million
people spent time observing birds in states other than their
States of residence; 14.3 million of these took trips
specifically for this purpose; and approximately 9.5 million
traveled for the purpose of observing shorebirds, such as
herons. /d. at 45. There is no need to dally on this point:
we find (once again) that the destruction of migratory bird
habitat and the attendant decrease in the populations of these
birds “substantially affects” interstate commerce. The effect
may not be observable as each isolated pond used by the birds
for feeding, nesting, and breeding is filled, but the aggregate
effect is clear, and that is all the Commerce Clause requires.
SWANCC objects that the migratory bird rule cannot
serve to define the Corps’ jurisdiction, because the rule
excludes nothing. The United States is home to somewhere
between 2.5 and 6 billion birds, two-thirds of which migrate.
Virtually any body of water could serve as a temporary
habitat for at least some of these birds. However, any
Suggestion that next the Corps will be trying to regulate the
8a
filling of every puddle that forms after a rainstorm, at least
if a bird is seen splashing in it, misses the point. A “habitat”
is not simply a place where a bird might alight for a few
minutes, as SWANCC suggests, but rather “the place where
a plant or animal species naturally lives or grows.”
Webster’s Third New International Dictionary 1017 (1993).
Before the Corps may assert jurisdiction under the migratory
bird rule, it must first make a factual determination that a
particular body of water provides a habitat for migratory
birds, which it has done here.
Last. SWANCC offers a broad policy-based argument for
rejecting jurisdiction under the migratory bird rule. The rule
is. it claims, inconsistent with the principles of federalism that
motivated the Court in Lopez, because it erodes the
“distinction between what is truly national and what is truly
local.” Lopez, 514 U.S. at 567-68, 115 S.Ct. 1624. But this
argument works only if, as SWANCC asserts, the protection
of migratory bird habitat is a matter of local concern only.
Once again, that argument is refuted by the numerous
international treaties and conventions designed to protect
migratory birds, see, e.g., Convention for the Protection of
Migratory Birds and Birds in Danger of Extinction, and Their
Environment, U.S.-Japan, 25 U.S.T. 3331, T.1.A.S. No.
7990 (1972); Convention for the Protection of Migratory
Birds and Game Mammals, U.S.-Mex., 50 Stat. 1311, T-.S.
No. 912 (1936); Convention for the Protection of Migratory
Birds. U.S.-Gr. Brit., 39 Stat. 1702, T.S. No. 628 (1916), as
well as the case law recognizing the “national interest of very
nearly the first magnitude” in protecting such birds, North
Dakota v. United States, 460 U.S. 300, 309, 103 S.Ct. 1095,
75 L.Ed.2d 77 (1983); see also Missouri v. Holland, 252
U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920). Even less
persuasive is SWANCC’s suggestion that giving a federal
agency (here, the Corps) the power to override decisions by
local land use and zoning boards to permit the filling of local
waters conflicts with notions of state sovereignty. To the
9a
contrary, because the regulation of migratory bird habitat is
a permissible exercise of Congress’ authority, the Supremac
Clause, U.S. Const. art. VI, cl. 2., Squarely supports ru
legitimacy of giving precedence to federal law in this area
III
SWANCC next contends that, even if Con ress law
— have granted the Corps jurisdiction over isolated ae
Of water based on the presence of migratory birds, it did not
do So. As noted above, the Act expressly limits the Corps’
Jurisdiction to “the waters of the United States.” The EPA
and the Corps have defined this term to include “[a]ll other
waters the use, degradation or destruction of which could
affect interstate or foreign commerce.” They further have
interpreted the phrase “could affect interstate or foreign
commerce as permitting jurisdiction based on the presence
of migratory birds. It is this second level of agenc
interpretation that SWANCC deems excessive. ia
We review an agency’s interpretati it i
charged with administering cake Ge oud poor
Chevron U.S.A. Inc. v. Natural Resources Defense Council
Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
The first question is whether the plain meaning of the text of
the statute either supports or opposes the regulation. If so
the analysis ends with the court’s application of the plain
meaning. Td. at 842, 104 S.Ct. 2778. But if the statute is
either ambiguous or silent on the issue, the court must defer
to the agency interpretation so long as it is based on a
reasonable reading of the statute. Jd. at 843, 104 S.Ct. 2778
It is well established that the geographical
= reaches as many waters as the Sa tn ag
ns 2 &., Rueth, 13 F.3d at 231; United States v. Huebner.
.2d 1235, 1239 (7th Cir. 1985); United States y Byrd
609 F.2d 1204, 1209 (7th Cir. 1979). Thus, if Congress
possesses the power to regulate a body of water under the
Act, generally this court will conclude that it has in fact done
10a
so. Accordingly, because Congress’ power under the
Commerce Clause is broad enough to permit regulation of
waters based on the presence of migratory birds, it is
certainly reasonable for the EPA and the Corps to interpret
the Act in such a manner. Accord Leslie Salt 1, 896 F.2d at
360.
SWANCC believes that this conclusion is at odds with
the Fourth Circuit's decision in United States v. Wilson, 133
F.3d 251 (4th Cir. 1997). Wilson involved a challenge to 33
C.F.R. § 328(a)(3), the regulation that defines “waters of the
United States” to include all waters “the use, degradation or
destruction of which could affect interstate or foreign
commerce.” The court found the regulation to be an
unreasonable interpretation of the Act based on its suspicion
that Congress lacks the power to regulate waters that “could”
affect interstate or foreign commerce. In our case, however,
the question whether Congress may regulate waters based on
their potential to affect interstate commerce is not presented,
because the unchallenged facts show that the filling of the
17.6 acres would have an immediate effect on migratory birds
that actually use the area as a habitat. Thus, we need not,
and do not, reach the question of the Corps’ jurisdiction over
areas that are only potential habitats. Moreover, we note that
SWANCC has not attacked 33 C.F.R. § 328(a)(3) here.
Instead, it has limited its objections to the propriety of the
migratory bird rule as an interpretation of 33 C .F.R.
§ 328(a)(3).
SWANCC'’s remaining statutory interpretation argument
asks us to find the migratory bird rule unreasonable because
it is designed to preserve wildlife rather than water quality.
This point overlooks the fact that the Act’s stated purpose is
“to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C. §
1251(a). SWANCC’s suggestion that the Corps’ jurisdiction
must be defined solely by reference to water quality is itself
inconsistent with the Act and must be rejected.
lla
IV
Last, SWANCC challenges the migratory bird rule on the
ground that it was promulgated in violation of the notice and
comment requirements of the APA. See 5 U.S.C. § 553.
Our Starting point here is with the fact that the APA does not
require administrative agencies to follow notice and comment
procedures in all situations. Section 553(b)(3)(a) specifically
exempts “interpretive rules, general statements of policy, or
rules of agency organization, procedure, or practice” from the
requirement. In order to succeed on its APA claim, then
SWANCC must convince us that the migratory bird rule is a
legislative (also termed “substantive”) rule, rather than an
interpretive rule or policy statement. See Metropolitan Sch.
Dist. of Wayne Township v. Davila, 969 F.2d 485, 489-90
(7th Cir. 1992); General Motors Corp. v. Ruckelshaus, 742
F.2d 1561, 1566-67 (D.C. Cir. 1984). |
| That, in our view, it cannot do. We explained the
difference between legislative and interpretive rules at some
length in Hoctor v. U.S. Dept. of Agriculture, 82 F.3d 165
(7th Cir. 1996), where we found that a rule requiring certain
wild animal containment fences to be eight feet tall was
legislative. The reason for this was straightforward: nothing
in the idea of a “secure” containment could tell someone
whether 7 1/2 feet, 8 feet, or 8 1/2 feet, would be “secure”
enough. The statute in question (the Animal Welfare Act, 7
U.S.C. § 2131 et seg.) did not impose a duty to build a fence
of a certain height. Instead, it authorized the agency to
impose a specific obligation that would implement the general
statutory goals. Here, the statute itself defines the
jurisdictional reach of the Act, and regulations issued under
the notice- and-comment procedures have elaborated further
upon that definition. There is, following Hoctor’s
common-sense approach, something to interpret here: the use
of the term “waters” and “navigable waters” in 33 U.S.C. §§
1344(a) and 1362(7), and the specific examples of such
waters given in 33 C.F.R. § 328.3(a)(3).
l2a
It is also noteworthy that the migratory bird “rule” first
made its appearance in the Federal Register publication of the
Corps’ 1986 recodification of the regulatory definition of
“waters of the United States” in 33 C.F.R. § 328(a)(3), when
it moved these rules from Part 323 to Part 328 of Title 33 of
the Code. See 51 Fed. Reg. 41206, 41217 (1986). The
preamble offered several examples of waters that came within
the regulatory definition, including those used as habitat for
migratory birds, as well as examples of waters that normally
would not fall within the definition. This, in our view, was
interpretation. Moreover, it is hard to see what would have
been different if formal notice-and-comment rulemaking had
been used, except perhaps the page of the Federal Register on
which this statement appeared. We do not wish to discourage
agencies from offering concrete examples of the ways in
which their rules will apply, see Hoctor, 82 F.3d at 170, and
we believe that is all that the Corps and the EPA did here.
The Corps has also argued that SWANCC’s challenge to
the migratory bird rule comes too late, because SWANCC did
not file suit in the district court until December 1994, more
than six years after the migratory bird rule was first
published. There is a general six-year statute of limitations
for civil actions against the United States found in 28 U.S.C.
§ 2401(a), which applies to lawsuits brought pursuant to the
APA. See Polanco v. United States Drug Enforcement
Admin. , 158 F.3d 647, 652 (2d Cir. 1998); Sierra Club v.
Slater, 120 F.3d 623, 631 (6th Cir. 1997); see also Village
of Elk Grove Village v. Evans, 997 F.2d 328, 331 (7th Cir.
1993) (recognizing cases holding same, but not expressly
reaching the issue). Even if the fact that the Corps did not
raise this argument in the district court does not bar it now
from making the argument, we doubt that a party must (or
even may) bring an action under the APA before it knows
that a regulation may injure it or even be applied to it.
Compare United States v. Kubrick, 444 U.S. 111, 100 S.Ct.
352, 62 L.Ed.2d 259 (1979) (claim under the Federal Tort
l3a
Claims Act accrues at the ume plaintiff knows of both the
existence and Cause of his injury). We therefore do not reach
the Corps’ limitations argument, since it would have no effect
on the outcome in light of our resolution of SWANCC’s
substantive APA challenge.
We conclude that the decision to regulate isolated waters
based on their actual use as habitat by migratory birds is
within Congress’ power under the Commerce Clause. and that
it was reasonable for the Corps to interpret the Act as
authorizing this regulation. Accordingly, we AFFIRM the
judgment of the district court.
l4a
SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,
Plaintiff,
Vv.
UNITED STATES ARMY CORPS OF ENGINEERS, et al.,
Defendants.
No. 94 C 7489.
United States District Court,
N.D. Illinois,
Eastern Division.
March 25, 1998.
MEMORANDUM OPINION AND ORDER
LINDBERG, District Judge.
This action concerns the future of a 533-acre parcel of
real estate owned by plaintiff Solid Waste Agency of
Northern Cook County. Defendant United States Army Corps
of Engineers asserted regulatory jurisdiction over the property
after determining that it contained approximately fifty-five
acres of navigable waters as defined by the Clean Water Act.
33 U.S.C. § 1362(7). It then denied plaintiff a permit to
develop the property under section 404 of that statute. 33
U.S.C. § 1344(a). Plaintiff sought judicial review of these
actions under the Administrative Procedure Act, 5 U.S.C. §§
701 et seq. (*APA”), and the parties filed cross-motions for
summary judgmert on the issue of jurisdiction. For the
reasons below, plairuiff's motion for summary judgment will
be denied and defendant’s motion for summary judgment will
be granted.
I. Factual and Procedural Background
Plaintiff Solid Waste Agency of Northern Cook County
(“SWANCC”) is a municipal corporation created by
lSa
intergovernmental agreement under the laws of Illinois.
Plaintiff owns a 533-acre parcel of real estate located in Cook
and Kane Counties, which, due to its prior incarnation as a
gravel mining pit, contains large surface depressions that now
hold rainwater and other precipitation. Plaintiff sought to
convert approximately 180 acres of the property into a
balefill, a repository for non-hazardous solid waste that
cannot be recycled or otherwise removed from the waste
stream. The Army Corps of Engineers determined that 17.6
acres of the balefill area contained “navigable waters” as
defined by the Clean Water Act, 33 U.S.C. § 1362(7), and it
therefore required plaintiff to obtain a permit for the project
under section 404(a) of that statute, 33 U.S.C. § 1344(a).
Section 404(a) of the Clean Water Act authorizes the
Corps to issue permits for the “discharge of dredged or fill
material into the navigable waters at specified disposal sites.”
33 U.S.C. § 1344(a). The Clean Water Act defines navigable
waters as “the waters of the United States.” 33 U.S.C. §
1362(7). By regulation, the Army Corps of Engineers has
further defined the phrase “waters of the United States” to
include “[aJll other waters such as intrastate lakes. rivers,
streams (including intermittent streams), mudflats, sandflats.
wetlands, sloughs, prairie potholes, wet meadows. playa
lakes, or natural ponds, the use, degradation or destruction of
which could affect interstate or foreign commerce.” 33
C.F.R. § 328.3(a)(3). In a preamble to this regulation, the
Corps has explained that the term “other waters” includes
those which “are or would be used as habitat by other
migratory birds which cross state lines.” 51 Fed. Reg.
41,217 (Nov. 13, 1986). For lack of a better term. perhaps,
this language in the preamble has been described as the
“migratory bird rule.”
On March 12, 1986, plaintiff invited the Corps to
determine whether its property contained any “apparent
wetlands.” (R. 34,594.) On April 17, 1986, the Corps
indicated that the SWANCC property did not contain any
16a
wetlands or lakes as defined by 33 C.F.R. § 323.2(c) and (e).
On February 25, 1987, after acquiring additional land,
plaintiff again requested the Corps to indicate whether its
property contained any “protected wetlands.” (R. 34,598.)
On March 4, 1987, the Corps issued a virtually identical
letter stating that the property did not contain any wetlands or
lakes under 33 C.F.R. §§ 323.2(b) or 328.3(b). In each
letter, the agency stated that it did not have jurisdiction over
the property and that plaintiff would not need a permit to
develop it.
On July 8, 1987, the Illinois Nature Preserves
Commission asked the Corps to consider whether the
SWANCC property might be subject to federal jurisdiction
under 33 C.F.R. § 328.3(a)(3) on the grounds that four
different species of migratory birds had been observed there.
The agency agreed, and on November 16, 1987 it asserted
jurisdiction over the waters on the SWANCC property for the
reason that they were used or could be used as a habitat by
migratory birds. It explained that its previous denial of
jurisdiction “was based on the fact that the water areas did
not meet the definition of a wetland or lakes, and not on the
broader definition of ‘waters of the United States.’” (R.
34,619.) Plaintiff then submitted two successive applications
for a section 404(a) permit to begin the balefill project.
When those applications were denied, plaintiff filed the
instant lawsuit.
The parties have filed cross-motions for partial summary
judgment on the issue of whether the Army Corps of
Engineers has regulatory jurisdiction over the 17.6 acres of
water on the proposed balefill site. A supplemental brief in
support of the government’s motion was submitted by
intervenor-defendants Village of Bartlett and Citizens Against
the Balefill. Plaintiff has argued that the Corps lacks
jurisdiction because (1) the migratory bird rule exceeds the
legislative authority created by the commerce clause, (2) the
agency's assertion of jurisdiction over the waters of the
17a
Proposed balefill was arbitrary and capricious (3) the
migratory bird rule goes beyond the mandate of the Clean
Water Act, and (4) the rule was adopted in violation of the
notice and comment requirements of the APA. On May 22,
1997, the court heard Oral argument on these j
will now address them in turn. wen ay
II. Discussion
A. Commerce Clause
| Plaintiff contends that the waters of the proposed balefi
site are not subject to federal regulatory Poor wom under :
commerce Clause. It argues that the migratory birds on the
balefill site do not have any relationship with interstate
commerce because they do not support any human
commercial activity on the site itself. Noting that the balefil]
area is Closed to the public and is not visible from adjacent
Properties, Plaintiff reasons that it cannot be subject to federal
Jurisdiction because “[bJirds do not conduct commerce
people do.” (Pl.’s S.J. Mem. at 3.) The court must
therefore decide whether the commerce Clause authorizes the
federal government to exercise regulatory jurisdiction over
a intrastate waters that serve as a habitat for migratory
The Seventh Circuit addressed this very issue in Hoffman
Homes, Inc. v. Administrator, U.S. EPA, 96} F.2d 1310 (7th
Cir. 1992) “Hoffman Homes I”. In that case, a residential
developer was fined after it filled a one-acre pond on its
Property without a permit. /d. at 131]. The EPA had
asserted jurisdiction over the pond pursuant to 40 C.F.R §
230.3(s)(3)' after finding that it could be used as a habitat by
. The EPA’s definition of “waters of
the United States”
40 C.F.R. § 230.3(s)(3) is identical to that adopted by the yen
Corps of Engineers at 33 C_F.R. 328 offman Homes
II, 999 F.2d at 260. — oe .
18a
migratory birds. /d. at 1311-1312. The Seventh Circuit held
that the EPA had exceeded its authority under the commerce
clause by extending jurisdiction over the pond based solely on
its potential use as a habitat for migratory birds. /d. at
1321-1322. Reasoning that birds do not affect commerce until
they are “watched, phutographed, shot at or otherwise
impacted by the people who do,” id. at 1320, the court
explained that:
The EPA has provided evidence of only one interstate
connection: [The pond] is a potential landing site for
migratory birds. Although we recognize that the
Commerce Clause power is broad, it has never been
extended to reach all areas in (much less those only
potentially in) migratory bird flyways. Such an extension,
we believe, ae. « effectually obliterate the distinction
between what is national and what is local and create a
completely centralized government. After all, what area
of the United States is not a potential landing spot for
migratory birds? The Commerce Clause, at the very
least, requires some connection to human commercial
activity.
Id. at 1321-1322 (citations omitted). In addition to holding
that 40 C.F.R. § 230.3(s)(3) was unconstitutional, the court
concluded that the regulation went beyond its statutory
mandate because the Clean Water Act did not authorize the
regulation of isolated intrastate wetlands. /d. at 1316.
On rehearing, the court vacated its first opinion and held
that 40 C.F.R. § 230.3(s)(3) did not violate the commerce
clause. Hoffman Homes, Inc. v. EPA, 999 F 2d 256, 260-261
(7th Cir.1993) (“Hoffman Homes II”). The court explained
that it was reasonable for the EPA to interpret the regulation
as extending its jurisdiction to waters whose connection with
interstate commerce was “potential rather than actual,
minimal rather than substantial.” Jd. at 261. It further
explained that the potential use of wetlands by migratory
19a
birds was sufficient to invoke commerce clause jurisdiction
because “millions of people annually spend more than a
billion dollars on hunting, trapping, and observing migratory
birds” and “the cumulative loss of wetlands has reduced
populations of many bird species.” Jd. at 261. The court
nevertheless ruled in favor of the developer because the EPA
had not presented substantial evidence that the water site was
a suitable or potential habitat for migratory birds. /d. at
261-262.
The Seventh Circuit has not been alone in suggesting that
the migratory bird rule is a valid application of federal
commerce clause power. In Leslie Salt Co. v. United States,
896 F.2d 354 (9th Cir.1990), a company sought to develop
4 property that contained surface depressions as a result of
previous industrial usage. Jd. at 355-356. The Army Corps
of Engineers asserted jurisdiction over the site under 33
C.F.R. § 328.3(a) because the excavations collected water on
a seasonal basis and could be used as a habitat for migratory
birds. Jd. at 357, 360. The district court held that the ponds
were not “other waters” under 33 C.F.R. § 328.3(a) because
they were not of a natural origin and were only seasonally
filled. Leslie Salt Co. v. United States, 700 F.Supp. 476
(N.D. Cal.1988) (“Leslie Salt I”). The Ninth Circuit
reversed, explaining that the “commerce clause power, and
thus the Clean Water Act, is broad enough to extend the
Corps’ jurisdiction to local waters which may provide habitat
to migratory birds and endangered species.” Leslie Salt Co.
v. United States, 896 F.2d 354, 360 (9th Cir.1990) (“Leslie
Salt IT”). When the Court of Appeals remanded the case to
the district court to determine whether the ponds could be
used as a habitat by migratory birds, the district court found
that the property was a seasonal home to more than fifty
species of migratory birds and was thus subject to federal
commerce clause jurisdiction. Leslie Salt Co. y. United
States, 820 F.Supp. 478, 480 (N.D. Cal.1992) (“Leslie Salt
III“). On a second appeal, the Ninth Circuit affirmed this
20a
finding and reiterated that the migratory bird rule was a valid
exercise of the federal commerce clause power. Leslie Salt
Co. v. United States, 55 F.3d 1388, 1392 (9th Cir. 1995)
(“Leslie Salt IV”).
The Tenth Circuit reached a similar result in Utah vy.
Marsh, 740 F.2d 799 (10th Cir.1984). In that case, the
Army Corps of Engineers asserted regulatory jurisdiction over
an intrastate lake pursuant to a regulation which, like 33
C.F.R. § 328.3(a), conferred administrative authority over
isolated wetlands whose degradation or destruction could
affect interstate commerce. /d. at 802 & n. 4, 803. Plaintiff
argued that the lake had no effect on interstate commerce
because it was located entirely within the borders of the state.
Id. at 803. The court explained that the lake was subject to
federal commerce clause jurisdiction because, among other
things, it was “on the flyway of several species of migratory
waterfowl which are protected under international treaties.”
Id. at 804.
These cases establish that the commerce clause authorizes
the federal government to regulate isolated intrastate waters
that serve as a habitat for migratory birds. The reason for
this rule, it seems, is that the curnulative degradation of
intrastate waters could have a substantial effect on interstate
commercial interests relating to those birds. See Hoffman
Homes II, 999 F.2d at 261 (“cumulative loss of wetlands has
reduced populations of many bird species and consequently
the ability of people to hunt, trap, and observe those birds”).
Under this rule, a federal agency may assert jurisdiction over
intrastate waters even if the destruction of those particular
waters will not have a substantial effect on interstate
commerce and there is no evidence that migratory birds
support human commercial activity there.
There is reason to consider whether this rule remains
valid after the recent decision in United States v. Lopez, 514
U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In that
2la
case, the Supreme Court held that Congress exceeded its
commerce Clause powers by imposing criminal sanctions on
the possession of handguns in local school zones. Id. 514
U.S. at 551, discussing 18 U.S.C. § 922(q). The government
argued that the prevention of violent crime in local school
zones was related to interstate commerce because education
promotes a sound national economy, the threat of violence
deters interstate travel, and the cost of violent crime is spread
to the population as a whole through insurance. /d. at
563-564. After surveying the history of commerce Clause
Jurisprudence, the Court explained that the commerce clause
authorizes Congress to regulate (1) the use of the channels of
interstate Commerce, (2) the instrumentalities of interstate
commerce, or the persons or things in interstate commerce,
and (3) activities that substantially affect interstate commerce.
Id. at 558-559. Deciding that only the last category applied
to the statute in question, the Court held that the possession
of a gun in a local school zone is not “an economic activity
that might, through repetition elsewhere, substantially affect
any sort of interstate commerce.” Jd. at 567. It further
explained that the statute could not be sustained under case
law upholding the regulation of activities “that arise out of or
are connected with a commercial transaction, which viewed
in the aggregate, substantially affects interstate commerce.”
Id. at 561. The statute was therefore declared
unconstitutional.
| The Fourth Circuit has recently suggested that the
migratory bird rule is unconstitutional under Lopez. In
United States v. Wilson, 133 F.3d 251 (4th Cir.1997), the
appellant was convicted of filling intrastate wetlands without
a@ permit in violation of the Clean Water Act, 33 U.S.C. §§
13192) A) and 1311(a). /d. at 254. The Army Corps of
Engineers had asserted jurisdiction over the fill areas pursuant
to 33 C.F.R. § 328.3(a)(3), and the appellant challenged the
validity of this regulation under both the Clean Water Act and
the commerce clause. Writing for the majority, Judge
22a
Niemeyer stated in dicta and without explanation that the
regulation presented “serious constitutional difficulties,
because, at least at first blush, it would appear to exceed
congressional authority under the Commerce Clause.” Id. at
257. Writing separately, Judge Luttig declined to adopt this
portion of the majority opinion on the grounds that it was
based on an overly expansive reading of the commerce
clause. See Wilson, 133 F.3d at 266 (Luttig, J., dis.).
Respectfully, this court does not agree that Lopez places
the regulation of intrastate migratory bird habitats beyond the
reach of federal commerce clause jurisdiction. It is well
established that the commerce clause authorizes the federal
government to regulate activities whose effect on interstate
commerce is substantial only in the aggregate. See, e.g.,
Wickard v. Filburn, 317 U.S. 111, 127-128, 63 S.Ct. 82, 87
L.Ed. 122 (1942) (commerce clause allows regulation of
private commercial transactions that have a substantial effect
on interstate commerce when “taken together with that of
many others” but are otherwise trivial); Maryland v. Wir'z,
392 U.S. 183, 197 n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020
(1968) (“where a general regulatory statute bears a substantial
relation to commerce, the de minimis ye of me
instances arising under that statute is of no conseque :
Pry v. United ~ 421 U.S. 542, 547, 95 S.Ct. 1792, 44
L.Ed.2d 363 (1975) (purely intrastate activity may be
regulated “where the activity, combined with like conduct by
others similarly situated, affects commerce among the States
or with foreign nations”). The Supreme Court expressly
affirmed this line of cases in Lopez, 514 U.S. at 557, quoting
Wirtz, 392 U.S. at 197 n. 27. Distinguishing Wickard on the
facts, the Lopez Court held that the criminal statute at issue
did not concern activities which might substantially affect
interstate commerce through “repetition” or when “viewed in
the aggregate.” 514 U.S. at 560-561, 567. Thus, while the
Lopez decision may help to define the outer limits of federal
commerce clause jurisdiction, it does not signal a retreat from
23a
the constitutional principles set forth in Wickard and its
progeny.
The migratory bird rule finds ample support in this line
of cases. Migratory birds have long been regarded as a proper
subject for federal commerce clause regulation. See Andrus
v. Allard, 444 U.S. 51, 63 n. 19, 100 S.Ct. 318, 62 L.Ed.2d
210 (1979) (“assumption that the national commerce power
does not reach migratory wildlife is Clearly flawed”);
Hoffman Homes II, 999 F.2d at 261 (“millions of people
annually spend more than a billion dollars on hunting,
trapping, and observing migratory birds”); Cochrane v.
United States, 92 F.2d 623. 627 (7th Cir.1937) (commerce
Clause allows federal government “to protect the game,
nongame, and insectivorous birds which migrate with the
changing seasons”). By implication, the power to protect
migratory birds extends to the habitats in which they live.
While the destruction of a single habitat is unlikely to affect
the viability of migratory bird populations, the destruction of
humerous such habitats may, in the aggregate, have a
substantial affect on their livelihood. See Hoffman Homes II,
999 F.2d at 261 (cumulative loss of habitat has reduced the
population of many bird species and has impaired the ability
of people to hunt. trap, and observe them). On this point, the
following analysis is persuasive:
Isolated wetlands provide habitat to migratory birds
whose continued existence supports billions of dollars in
interstate commerce. The incremental destruction of
migratory bird habitat directly and negatively impacts
migratory bird populations and, thereby interstate
commerce. Isolated wetlands are a crucial link in the
direct chain of causation between healthy migratory bird
populations and interstate commerce. It should,
therefore, be irrelevant whether a migratory bird is ever
observed, photographed, or hunted at the particular
isolated wetland in question. Unlike in Lopez, the
connection of isolated wetlands to interstate commerce is
24a
well-documented and does not require the court to “pile
inference upon inference” in a manner that gives rise to
a general federal police power.
Lori J. Warner, “The Potential Impact of United States v.
Lopez on Environmental Regulations,” 7 Duke Environmental
Law & Policy Forum 321, 354-355 (1997) (citations omitted).
For these reasons, the commerce clause authorizes the federal
government to regulate isolated intrastate waters that provide
a habitat for migratory birds even if the particular birds on
the site do not substantially affect interstate commerce.’
The court notes that the issues presented in this section
have drawn considerable attention from academics. See, e.g.,
Elaine Bueschen, “Do Isolated Wetlands Substantially Affect
Interstate Commerce?” 46 Am.U.L.Rev. 931 (1997); Robert D.
Icsman, “Hoffman Homes, Inc. v. Administrator, U.S. EPA: The
Seventh Circuit Gets Bogged Down in Wetlands,” 54 Ohio St. L.J.
809 (1993): Edward Alburo Morrissey, “The Jurisdiction of the
Clean Water Act Over Isolated Wetlands: The Migratory Bird
Rule,” 22 J. Legis. 137 (1996); Dennis J. Priolo, “Section 404 of
the Clean Water Act: The Case for Expansion of Federal
Jurisdiction Over Isolated Wetlands,” 30 Land & Water L.Rev. 91
(1995); Stephen Jay Stokes, “The Limit of Government's
Regulatory Authority Over Non-Adjacent Wetlands: Hoffman
Homes, Inc. v. EPA,” 15 Energy L.J. 137 (1994); Lori J.
Warner, “The Potential Impact of United States v. Lopez on
Environmental Regulations,” 7 Duke Envtl. L. & Pol'y F. 321,
354-355 (1997). While some complain that the migratory bird rule
could bring every puddle and pond in the nation under the umbrella
of federal control, this argument overlooks the fact that the question
of federal jurisdiction has a substantial factual component that must
be examined on a case-by-case basis. To establish that an intrastate
waterway is subject to jurisdiction under the migratory bird rule,
an agency must first determine as a factual matter that it bears the
distinctive features of a “habitat.”
25a
B. Evidentiary Basis for Jurisdiction
| _~Plainuft argues that the agency’s decision to extend
Jurisdiction ever the proposed balefill site was “arbitrary,
Capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). It is well
established that a final agency decision is entitled to a
“presumption of regularity” and that the court must refrain
from substituting its own judgment for that of the agency.
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The
court must uphold the decision so long as it was based on a
consideration of the relevant factors and was free from clear
errors of judgment. /d. 401 U.S. at 416. The burden of
persuasion rests on the party seeking to overturn the
administrative decision. Schweiker v. McClure, 456 U.S.
188, 196, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982). The court
must therefore decide whether, based on the entire
administrative record, it was reasonable for the Corps to
determine that the proposed balefill site was “a suitable or
potential habitat for migratory birds.” Hoffman Homes I]
999 F.2d at 261. .
_ The Army Corps of Engineers initially asserted
jurisdiction over the waters of the SWANCC property after
learning that four species of migratory birds were observed
there by the Illinois Nature Preserves Commission. During
the ensuing permit review process, the agency gathered an
extensive volume of supplemental information about the
avifauna and topography of the site. These included a
catalogue of the avian und waterfowl species observed on or
near the SWANCC site (R. 2,462-2,469; 40,328-40,358), two
lengthy environmental impact reports describing the flora and
avifauna of the property and the potential impact of the
balefill project (R. 38,636-38,779; 40,409-40,512), and
detailed information about specific migratory bird populations
on the site (R. 2,428-2,461; 2,329-2,384; 45,885-45,887).
The Corps argues that this evidence was more than sufficient
26a
to support its finding that the waters of the SWANCC
property were used as a habitat by migratory birds.
Plaintiff offers at least three reasons why the court should
hold otherwise. First, plaintiff argues that the agency should
have limited its analysis to the 17.6 acres of water in the
permit area rather than considering the waters on the property
as a whole. Plaintiff suggests that the record contains no
evidence that the waters of the permit area itself serve as a
habitat for migratory birds. Plaintiff relies on Hoffman
Homes II, 999 F.2d at 261, where the Seventh Circuit
determined that the EPA could not assert jurisdiction over a
small pond based on evidence that a nearby but hydrologically
dissimilar water area was a suitable habitat for migratory
birds. Here, however, plaintiff has not explained how the
waters on the balefill site are hydrologically distinct from
those of the property as a whole. To the contrary, there is
evidence that the SWANCC property is a “large, forested
wetland complex” (R. 15,579) which contains an “extensive
labyrinth of open water” (R. 40,334). By extending
jurisdiction over the entire “labyrinth” of water on the site,
the Corps implicitly determined that each component part of
that system could serve as a habitat for migratory birds.
Because plaintiff presents no evidence that the 17.6 acres of
water in the permit area are distinct from those on the rest of
the property, it has failed to show that the agency’s
jurisdictional decision was improper as to the permit site.
Second, plaintiff argues that the permit area should not
be subject to federal jurisdiction because it cannot support a
viable population of migratory birds.’ Citing several studies,
> The agency argues that the presence of migratory birds by
itself is sufficient to create federal jurisdiction over the waters on
the SWANCC property, and the quality of the habitat is only
relevant to the permit determination. This overlooks the fact that
federal jurisdiction extends only to habitats that are “suitable” for
27a
plaintiff predicts that veeries will be unable to breed
successfully on its property. It argues that the great blue
heron colonies are not subject to federal jurisdiction under the
migratory bird rule because the herons nest in trees rather
than in the water. Plaintiff also points out that several of the
migratory bird species identified on the site between 1988 and
1992 were found only in small numbers or not at all in 1993.
Although the Corps raises a number of compelling objections
to these arguments, one is dispositive: Plaintiff has not
addressed any of the record evidence concerning at least a
half dozen migratory bird species that were identified on its
property. The fact that the balefill site serves as a habitat to
these birds is sufficient to establish agency jurisdiction.
Finally, plaintiff argues that it was unreasonable for the
Corps to assert jurisdiction over the property in November of
1987 after it declined to do so in April of 1986 and March of
1987. As an preliminary matter, it is unclear that the agency
actually reversed its position. The Corps initially declined to
extend jurisdiction over the balefill site for the limited reason
that the property did not contain any protected lakes or
wetlands. This did not, strictly speaking, rule out the
possibility that the property was a habitat for migratory birds.
migratory birds. Hoffman Homes II, 999 F.2d at 261. The
concept of viability is central to the jurisdictional analysis because
it distinguishes genuine habitats from the “parking lot puddles” of
concern in Hoffman Homes II, 999 F.2d at 262. The Supreme
Court did not suggest otherwise in Riverside, 474 U.S. at 135 n. 9,
where it explained that the Army Corps of Engineers has
presumptive jurisdiction over all “adjacent wetlands” because most
such wetlands have a substantial effect on interstate commerce, and
thus the agency need not consider whether any particular wetland
has a substantial effect on interstate commerce until the permit
process. This analysis is inapposite here because the concept of
viability is implicit in the term “habitat,” while there is nothing in
the term “adjacent wetland” which suggests that it must have a
significant effect on interstate waters.
28a
Even if the Corps changed its position, however, it had sound
reasons for doing so. See NLRB v. Indianapolis Mack Sales
& Service, Inc., 802 F.2d 280, 284 (7th Cir. 1986) (when an
agency changes course, it must give sound reasons for doing
so). The agency first learned in July of 1987 that the balefill
site was a potential habitat for migratory birds, and it was
certainly not obliged to discover that information at an earlier
time. It then gathered a substantial volume of information
about the topography and avifauna of the SWANCC property.
Because all of this information was sufficient to establish
agency jurisdiction, any change in the agency's position was
not arbitrary. For all of these reasons, the court finds that it
was reasonable for the Corps to determine that all of the
waters of the SWANCC property were used as a habitat by
migratory birds.
C. Clean Water Act
Plaintiff contends that the migratory bird rule goes
beyond its statutory mandate because the Clean Water Act
only authorizes federal regulations that deal strictly with
water quality. The court must defer to an agency's
interpretation of its own authorizing statute so long as that
interpretation is reasonable and not in conflict with the
expressed intent of Congress. United States v Riverside
Bayview Homes, Inc., 474 U.S. 121, 131, 106 S.Ct. 455, 88
L.Ed.2d 419 (1985); Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-845, 104
S.Ct. 2778, 81 L.Ed.2d 694 (1984). Accordingly, the court
must decide whether it was reasonable for the Army Corps of
Engineers to interpret the statutory term “waters of the
United States” to include intrastate waters that provide a
habitat for migratory birds.
The Seventh Circuit arguably resolved this question in
Hoffman Homes II, 999 F.2d 256. The issue in that case, as
defined by the court, was whether it was reasonable for the
EPA to construe the term “other waters” in 40 C.F.R. §
29a
230.3(s)(3) to include waters that serve as a habitat for
migratory birds. /d. at 260. Although the court did not
expressly consider whether the regulation was within the
scope of the Clean Water Act, it arguably reached the issue
by implication. Vacating an earlier decision in which it held
that the regulation was beyond its statutory mandate, the court
explained that the EPA's interpretation of the regulation was
both reasonable and authorized by the commerce clause. Jd.
at 260-261. In light of the fact that the Clean Water Act
extends federal jurisdiction to the limits of the commerce
Clause, this holding virtually implied that the migratory bird
rule was consistent with its authorizing statute. /d. at 261.
It Is also apparent that the court could not have reached its
decision in the case if the regulation at issue were illegal.
Because the Seventh Circuit did not address the issue directly,
however, the court will discuss it here.
Both the language and the legislative history of the Clean
Water Act suggest that it authorizes the regulation of
intrastate migratory bird habitats. The purpose of the statute
is “to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C. §
1251(a). In part, this is necessary to achieve “the protection
and propagation of fish, shellfish, and wildlife.” 33 U.S.C.
§ 1251(a)(2). Moreover, the statute authorizes the EPA to
promulgate regulations in order to protect fish and wildlife.
33 U.S.C. § 1343(c)(1). To the extent that the actual
language of the Clean Water Act reveals that Congress
intended to protect wildlife, the migratory bird rule would
appear to be a permissible construction of that statute.
The legislative history of the Clean Water Act leads to
the same conclusion. That history reveals that Congress
intended “to extend Clean Water Act jurisdiction over waters
of the United States to the maximum extent possible under the
Commerce Clause.” S.Rep. No. 1236, 92nd Cong., 2d Sess.
144 (1972), U.S.C.C.A.N. 1972, at pp. 3668, 3776. The
Seventh Circuit has long recognized that Congress intended
30a
to make the Clean Water Act as far-reaching as the commerce
clause permits. See Rueth v. U.S. EPA, 13 F.3d 227, 231
(7th Cir.1993); United States v. Huebner, 152 F.2d 1235,
1239 (7th Cir.1985); United States v. Byrd, 609 F.2d 1204,
1209 (7th Cir.1979). To the extent that the commerce clause
authorizes the federal government to regulate intrastate
migratory bird habitats, then, the Clean Water Act must as
well. For these reasons, the court finds that 33 C.F.R. §
328.3(a)(3), as applied to intrastate migratory bird habitats,
is a reasonable construction of the Clean Water Act.
Notably, the Fourth Circuit reached the opposite
conclusion in United States v. Wilson, 133 F.3d 251 (4th
Cir.1997). In that case, the court explained that 33 C.F.R.
§ 328.3(a)(3) went beyond its statutory mandate because the
term “waters of the United States” cannot include intrastate
or nonnavigable waters whose degradation or destruction
could affect interstate commerce. Jd. at 256-257. Relying
generally on the Supreme Court’s decision in Lopez, 514 U.S.
549, 115 S.Ct. 1624, 131 L.Ed.2d 626, the majority
explained that the phrase “waters of the United States” must
refer “to waters which, if not navigable in fact, are at least
interstate or closely related to navigable or interstate waters.”
Id. at 257. Ina separate opinion, Judge Luttig declined to
adopt this portion of the majority opinion on the grounds that
it was based on an overly expansive reading of Lopez. Id. at
266.
This court respectfully declines to follow the majority in
Wilson. Because the scope of federal regulatory jurisdiction
under the Clean Water Act is coextensive with that of the
commerce clause, and because the commerce clause
authorizes the federal regulation of intrastate migratory bird
habitats, the migratory bird rule must be a valid application
of the Clean Water Act. For the reasons discussed in Part
IIA. of this opinion, the court does not believe that Lopez
requires a contrary result. On this point, then, the court
agrees with the Ninth Circuit that “[t}he commerce clause
3la
power, and thus the Clean Water Act, is broad enough to
extend the Corps’ jurisdiction to local waters which may
provide habitat to migratory birds and endangered species.”
Leslie Salt 11, 896 F.2d at 360.
D. Administrative Procedure Act
Plaintiff argues that the migratory bird rule was
promulgated without public notice and comment in violation
of the APA. That statute requires federal agencies to provide
notice and an opportunity for public comment before they
promulgate or amend administrative regulations, but it creates
an exception for interpretive rules and general statements of
policy. 5 U.S.C. § 553. An interpretive rule is one in which
an agency explains what a statute means or reminds parties of
exisung duties, while a substantive rule creates altogether new
rights or duties. Metropolitan School Dist. of Wayne
Township v. Davila, 969 F.2d 485, 489-90 (7th Cir.1992):
see also American Hospital Ass'n v. Bowen, 834 F.2d 1037.
1045 (D.C.Cir.1987). Because the parties agree that the
migratory bird rule was adopted without not' . and comment.
the court need only decide whether the rule is substantive or
interpretive.
This issue was addressed in Tabb Lakes, Lid. v. United
States, 715 F.Supp. 726, 728-729 (E.D. Va.1988). In that
case, a landowner sought a declaratory judgment that his
property was not subject to federal jurisdiction because it did
not contain “other waters” as defined by 33 C.F.R. §
328.3(a(3). Id. at 727. The Army Corps of Engineers
argued that it had jurisdiction over the site pursuant to an
internal memorandum which explained that the term “other
waters” included those which “are used or could be used as
habitat by other migratory birds which cross state lines.” Jd
at 728. The district court held that the memorandum was a
substantive rule-making because it had a “significant effect on
public interests” and was “intended to have the full force and
effect of a substantive rule.” Jd. at 728-729. Accordingly,
jla
the court held that the memorandum was adopted in violation
of the notice and comment requirements of the APA and did
not confer federal jurisdiction over the property in question.
Id at 729.
In an unpublished opinion, a divided panel of the Fourth
Circus affirmed this holding without explanation. See Tabb
Lakes, Lid v. United States, 885 F.2d 866 (4th Cir. 1989)
(per curiam) (text at 1989 WL 106990). In dissent, Judge
Hall suggested that the district court had erred by considering
the impact of the rule instead of limiting its analysis to the
question of whether the memorandum created new rights or
duties. Jd at *2 (Hall, J., dis.). He reasoned that the
memorandum did not give rise to mew law because the
statutory term “waters of the United States” was intended to
have “the broadest possible constitutional interpretation”
under the commerce clause, and the memorandum simply
identified “what contacts with interstate commerce are
sufficient to bring a given wetland within the jurisdictional
reach” of that statute. /d. at *3.
More recently, the Ninth Circuit discussed this question
in Leslie Salt IV. 55 F.3d 1388. When the plaintiff first
raised this issue on appeal in Leslie Salt 11, 896 F.2d 354, the
court declined to address it and thus held by umplication that
the rule was procedurally sound. 55 F.3d at 1393. When the
court revisited the issue in Leslie Salt [V, its review was
limited to the question of whether its prior holding was
clearly erroneous. /d. at 1394. Relying on Hoffman Homes
I], 999 F.2d at 261, where the Seventh Circuit held that the
term “other waters” in both 40 C.F.R. § 230.3(s)(3) and 33
C.F.R. § 328.3(aX3) could be read to include waters used by
migratory birds, the Ninth Circuit reasoned by analogy that
the migratory bird rule could be viewed as an interpretation
of the Clean Water Act rather than a substantive rule-making.
Leslie Salt 1V, 55 F.3d at 1394. In a somewhat narrow
holding. then, the court concluded that it was “plausible” to
33a
construe the migratory bird rule as an interpretation of the
Clean Water Act. /d.
It is the opinion of this court that the migratory bird rule
is interpretive rather than substantive.‘ The Clean Water Act
authorizes the EPA and the Army Corps of Engineers to
exercise regulatory jurisdiction over the “waters of United
States.” 33 U.S.C. § 1362(7). Pursuant to this authority, the
Army Corps of Engineers adopted a regulation in 1977 which
defined the term “navigable waters” to include isolated
intrastate waters whose “degradation or destruction could
affect interstate commerce.” 33 C.F.R. § 323.2(a)(5) (1977),
42 Fed Reg. 37,144 (July 19, 1977). In 1986, the Corps
renumbere? this provision as 33 C_F.R. § 328.3(a)(3) but left
the substaice of the regulation largely unchanged. The
“migratory bird rule” appears in the preamble to the 1986
version of the regulations. 51 Fed Reg. 41,216 (November
13, 1986).
In the preamble. the Corps explained that the purpose of
the reorganization was “to clarify the scope of the Section
404 permit program.” 51 Fed Reg. 41,216. Rather than
change the existing definitions, it sought to clarify them by
putting them in a separate and distinct part of the regulation.
51 Fed.Reg. 41,216-41,217. The agency then explained that
the term “waters of the United States” includes those:
4
Detendant suggests that the Seventh Circuit addressed this
question in Hoffman Homes Il, 999 F.2d at 261. Although the
issue was raised in one of the briefs in that case, the court opted
mn to address it. (Hearing 5/22/97 Tr. at 29.) Arguably, however,
the court ruled on the matter by implication when it heid that it was
reasonable for the EPA to interpret the term “other waters” in 40
CFR § 230. 3s3) to include those used as a habitat for
migratory birds Hoffman Homes II, 999 F 2d at 261: see also
Leslie Salt [V, 55 F.3d at 1393. Because the Seventh Circuit did
not offer a complete discussion of the question, however, the court
will treat the issue as one of first impression in this circuit.
34a
a. Which are or would be used as habitat by birds
protected by Migratory Bird Treaties; or
b. Which are or would be used as habitat by other
migratory birds which cross state lines; or
c. Which are or would be used as habitat for
endang ! species; or
d. Used to irrigate crops sold in interstate commerce.
51 Fed.Reg. 41,217. For additional clarification, the agency
then listed five examples of waters that are not generally
considered to be “waters of the United States.” 51 Fed.Reg.
41,217. The agency emphasized that the reorganization was
not intended to expand or retract the scope of agency
jurisdiction, but rather “to clarify the scope of the 404
program by defining the terms in accordance with the way the
program is presently being conducted.” 51 Fed.Reg. 41,217.
There are at least two reasons why the preamble was not
a substantive rulemaking. First, the agency itself intended for
the preamble to be interpretive. See Davila, 969 F.2d at 489
(characterization of a rule by an agency is relevant to whether
it is substantive or interpretive). The agency expressly stated
that it in.ended to clarify the scope of the existing section 404
permit program rather than to change existing definitions or
to expand its jurisdiction. This is corroborated by the
structure of the preamble, which sets forth the migratory bird
rule in juxtaposition to a list of waters that are not generally
considered to be subject to federal regulation.
More importantly, however, the migratory bird rule does
not create new legal rights or duties, for it does not expand
the jurisdictional reach of the Clean Water Act or the
regulations promulgated thereunder. By authorizing the
Army Corps of Engineers to regulate the “waters of the
United States,” the Clean Water Act extended the jurisdiction
of these agencies to the outer limits of the commerce clause.
Rueth, 13 F.3d at 231. Pursuant to this statutory authority,
35a
the Army Corps of Engineers defined the term “navigable
waters” to include all intrastate waters whose degradation or
destruction could affect interstate commerce. 33 C.F.R. §
328.3(a(3). In effect, this “catch-all” provision simply
reiterates that the jurisdiction of the agency is coextensive
with that of the commerce clause. Because the commerce
clause permits the Corps to regulate intrastate migratory bird
habitats, the bird rule cannot be said to increase the
jurisdiction of that agency. Rather than creating new rights
or duties, then, the preamble simply clarifies that the
regulation of intrastate migratory bird habitats falls within the
scope of the agency's commerce clause jurisdiction.
Accordingly. the court finds that the migratory bird rule was
not subject to the notice and comment requirements of the
APA.
On this point, then, the court expressly declines to follow
the reasoning of the district court in Tabb Lakes, 715 F.Supp.
726. The fact that the bird rule carries the “force and effect
of a substantive rule” or has a “significant effect on public
interests” does not, as the court in that case reasoned, imply
that the rule creates new substantive rights or duties. /d. at
728-729. For the reasons described above, the court believes
that the better position cn this issue is represented by Judge
Hall's dissenting opinion in Tabb Lakes v. U.S., 885 F.2d
866 (4th Cir.1989) (per curiam) 1989 WL 106990, at *2
(Hall, J., dis.), and the Ninth Circuit's opinion in Leslie Salt
IV, 55 F.3d 1388.
Il. Conclusion
For the reasons stated above, the court finds that
defendant Army Corps of Engineers did not exceed its
authority under the commerce clause by extending regulatory
jurisdiction over the waters of plaintiff's proposed balefill site
pursuant to 33 C.F.R. § 328.3(a)(3); as applied in this case,
33 C.F.R. § 328.3(a)(3) does not exceed its mandate under
the Clean Water Act, the extension of regulatory jurisdiction
36a
over the proposed balefill Site was not arbitrary and
capricious under the APA, 5 U.S.C. § 706(2)(A); and the
migratory bird rule set forth at 51 Fed. Reg. 41,217 was
exempt from the notice and comment requirements of the
APA, 5 U.S.C. § 553.
ORDERED: Defendant’s motion for summary judgment
is granted; plaintiff's motion for summary judgment is
denied.
37a
33 U.S.C. § 1344 Permits for dredged or fill material
(a) Discharge into navigable waters at specified
disposal sites
The Secretary may issue permits, -after notice and
opportunity for public hearings for the discharge of dredged
or fill material into the navigable waters at specified disposal
sites. ‘Not later than the fifteenth day after the date an
applicant submits all the information required to complete an
application for a permit under this subsection, the Secretary
shall publish the notice required by this subsection.
* * *
38a
33 U.S.C. § 1362 Definitions
Except as otherwise specifically provided, when used in this
chapter:
* * *
(7) The term “navigable waters” means the waters of the
United States, including the territorial seas.
*x* * *
39a
33 C.F.R. § 328.3 Definitions
For the purpose of this regulation these terms are defined as
follows:
(a) The term “waters of the United States” means
x * *
(3) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or
natural ponds, the use, degradation or destruction of which
could affect interstate or foreign commerce including any
such waters:
(i) Which are or could be used by interstate or foreign
travelers for recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken and
sold in interstate or foreign commerce; and
(iii) Which are used or could be used for industrial purpose
by industries in interstate commerce.
* * *
40a
51 Fed. Reg. 41206
RULES AND REGULATIONS
DEPARTMENT OF DEFENSE
Corps of Engineers, Department of the Army
33 CFR Parts 320, 321, 322, 323, 324, 325, 326, 327,
328, 329 and 330
Final Rule for Regulatory Programs of the Corps of
Engineers
Thursday, November 13, 1986
* * *
Section 328.3: Definitions. This section incorporates the
definitions previously found in § 323.3 (a), (c), (d), (f) and
(g). Paragraphs (c), (d), (f) and (g) were incorporated
without change. EPA has clarified that waters of the United
States at 40 CFR 328.3(a)(3) also include the following
waters:
a. Which are or would be used as habitat by birds protected
by Migratory Bird Treaties; or
b. Which are or would be used as habitat by other migratory
birds which cross state lines; or
c. Which are or would be used as habitat for endangered
species; or
d. Used to irrigate crops sold in interstate commerce.
* * *
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.