Amicus Curiae Brief — Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers

\9 [supreme Court, U.S |

No. 99-1178 ERILED

JUL 27

IN THE

THE |

Supreme Court of the Gnited

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,

Petitioner,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE U.S. CONFERENCE OF MAYORS,

NATIONAL LEAGUE OF CITIES, COUNCIL OF

STATE GOVERNMENTS, NATIONAL

ASSOCIATION OF COUNTIES, NATIONAL

CONFERENCE OF STATE LEGISLATURES,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, AND INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION, JOINED BY

THE SOLID WASTE ASSOCIATION OF NORTH

AMERICA, AS AMICI CURIAE

SUPPORTING PETITIONER

RICHARD RUDA*

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

N)

,

QUESTIONS PRESENTED

1. Whether the Army Corps of Engineers’ migra-

tory bird rule exceeds the scope of the Clean Water

Act.

2. Whether the migratory bird rule is a reasonable

interpretation of the Clean Water Act entitled to

deference.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED.................ccccccseeeeeees

TABLE OF AUTHORITIES .................cccccsseeeeeees

INTEREST OF THE AMICI CURIAE................

SUMMARY OF ARGUMENT ...............:ccccceeeeeees

GETS ccccercsssecsssessnssscsunsssennsenensemmnnssassion

THE ARMY CORPS OF ENGINEERS’

MIGRATORY BIRD RULE EXCEEDS THE

SCOPE OF THE CLEAN WATER ACT

AND RAISES SERIOUS QUESTIONS

REGARDING THE LIMITS OF THE

CED OO OU ei isccsescscccccsscsensnsessnsssssenees

A. The Clean Water Act's Text And

Legislative History Demonstrate That

The Migratory Bird Rule Is Contrary To

ET CE casensscccnsninnsnennntpenrnininnne

B. The Migratory Bird Rule Is Not Entitled

Be ecuincscncnstinciuiniiiuitinintgeniemninions

GSU UIIIDS crcssecnsesssnsssnesunsssnenentnsmnmnseneseosninens

(iii)

iv

TABLE OF AUTHORITIES

Cases Page

Board of Governors v. Dimension Fin.

Corp., 474 U.S. 361 (1986).................... 4, 14, 15

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

Defense Council, Inc., 467 U.S. 837

Gury arnccsununemaninapaiatsadecsninenpaitinnmieaniiads 8, 20, 21

Economy Light and Power Co. v. United

States, 256 U.S. 113 (1921)....................... 8

Edward J. DeBartolo Corp. v. Florida Gulf

Coast Building & Constr. Trades

Council, 486 U.S. 568 (1988).................... 27

Hoffman Homes, Inc. v. EPA, 999 F.2d 256

GO ey Bee tcccenecnninnneniinsecinnisananieninniineen 25

Jones v. Rath Packing Co., 430 U.S. 519

Fane Ti ieeunsiateroncnnninncasinnenisieentenuniaadesttiiaainititien 12

Katzenbach v. McClung, 379 U.S. 294

eee crcctasnccmattntonntetinniistinatiinitinsaniisiniaiaaiens 18

Leslie Salt Co. v. United States, 55 F.3d

1388 (9th Cir.), cert. denied, 516 U.S.

Se ee nineireetensenrereneteiliintiainiaiinininitsihieitiaiaiaait ate 5, 15

Missouri v. Holland, 252 U.S. 416 (1920).... 26

Motor Vehicle Mfrs. Assn. of United States,

Inc., v. State Farm Mut. Auto. Ins. Co.,

a ca ticrcninniinnninttnniietes 21

NLRB v. Catholic Bishop of Chicago, 440

ee ee ecisesinnsictneniitsitnaeeaitaeeaiaitiniiiie 27

North Dakota v. United States, 460 U.S.

ER eo eesee. Saeco 6, 26, 27, 28

NRDC, Inc., v. Callaway, 392 F. Supp. 685

GEE SEINE cntcninnsieediceieniiinmbiniaeteniiebionsed 9,11

O'Gilvie v. United States, 519 U.S. 79

Pere aecnecntenneumasisnmenteniininaitaniitiinissiaaimadiniea asian 19

Reno v. Bossier Parish School Bd., 520

es ee cd dainnduntnibinstietitiiiatetnteinnidiiind 19

ee ee a —

V

TABLE OF AUTHORITIES—Continued

Page

Rice v. Santa Fe Elevator Corp., 331 U.S.

ee 12

Rust v. Sullivan, 500 U.S. 173 (1991).......... 21

‘The Daniel Ball, 77 U.S. 557 (1871)............ 3, 8

United States v. Appalachian Electric

Power Co., 311 U.S. 377 (1940) ................ 8-9

United States v. Lopez, 514 U.S. 549

I eneseestihind emtiateaiaedealetataelinteiianaat dl 24, 25

United States v. Morrison, 120 S.Ct. 1740

Eiri csaconecnasecntatemmentannnniimmesanegnatangaininnmaned passim

United States v. Price, 361 U.S. 304

[ETE rsccniencitiannesipentnenndadieitiiidipeetntnidetinmanitinniniaines 19

United States v. Riverside Bayview Homes,

Tne., 474 U.S.. 131 (19B5)......c.ccecccccsseeeecesees passim

United States v. Ryan, 284 U.S. 167

(EE nessesictintiheacianbiiennamencinaarinanesiatdeaineaietesiinaiaini 14

Utah v. United States, 403 U.S. 9 (1971)..... 17

Vermont Agency of Nat. Res. v. United

States ex rel. Stevens, 120 S.Ct. 1858

GEE ccessencesanstesiuneenestansisanennnnenmnienmenens 4,12

Village of Euclid, Ohio v. Ambler Realty

NM SD ee 11-12

Wickard v. Filburn, 317 U.S. 111 (1942)..... 16, 18

Conventions, Statutes & Regulations

33 C.F.R. § 209.260(c) (1974) ...........cceeeeeeeees 9

33 C.F.R. § 328.3 (1999) ..............cccccccececeeeess 9-10

fee A RS 24

Civil Rights Act of 1964,

§ 201(b), codified at 42 U.S.C. § 2000a(b) ..... 15

§ 201(c), codified at 42 U.S.C. § 2000a(c)...... 15

vi

TABLE OF AUTHORITIES—Continued

Page

Convention Concerning the Conservation

of Migratory Birds and Their En-

vironment, U.S.—U.S.S.R., 29 U.S.T.

4649, T.1.A.S. No. 9073 (1976).................. 26

Convention for the Protection of Migratory

Birds, U.S.—Great Britain, 39 Stat.

EE ee eninnciinnicenantmunenniininnmminenntnibniinints 26

Convention for the Protection of Migratory

Birds and Birds In Danger of Extinction,

and Their Environment, U.S.—Japan,

25 US.T. 3331, T.LAS. No. 7990

|, Se sesesitiiteiiadaniaiiiiabinaainaiainetiaaaa 26

Convention for the Protection of Migratory

Birds and Game Mammals, U.S.—

Mexico, 50 Stat. 1311 (1936) ................... 26

Emergency Wetlands Resources Act of

1986, 16 U.S.C. §§ 3901-32....................... 27

Habitat Endowment Act, 520 Ill. Comp.

Be, SE eintertintaninnieniiiisinnintanisinntnninrininiinnion 28

Migratory Bird Hunting Stamp Act, 16

ee Ce HE icrtiininsinantsnsininincnmmnninnns 27

Migratory Bird Treaty Act, 16 U.S.C.

I eee eae 26

Natural Heritage Fund Act, 30 Ill. Comp.

SII. STI hencehetienicinnbinipdiienibineeiiemsiiiddiimmtianenneiai 28

Sas TTT exsirsinsiesitiniceisinticiesieindiniecintinncitidiainsis 10

eee 27

Be Se Oe Oe OOD crrccnnnsinsccsenccesccerscsense 27

| 8 a eee 27

ts iP TI iisincennniiieiiineiaiasiiamemniasinlibiiils 28

Ea eeneneee 28

Ses TET wiciretiirineheeitiantintadiammanniiiees 27

Se ets TEE victicrsiennnnncenitennasaniandmanenatiainaes 12-13

Fe le SPD cnnetennnesnnieninsnmnenmintiensiietnesioss 12

vii

TABLE OF AUTHORITIES—Continued

Page

Be Ot TD ncinicnnennsenniotenioneennntes 4,14

Bt OP I sec crssresedtamimmniianbiemipnts 8

4 Seen 2,8

gS 3, 8, 12

Water Bank Act, 16 U.S.C. §§ 1301-1311.... 27

Wetlands Loan Act of 1961, os

I i ani iiteeicineeninanils 27

en 27

Other Authorities

118 Cong. Rec. 33,699 (1972) ...........ccceeeeeee 17-18

118 Cong. Rec. 33,756-57 (1972)............. 16-17, 17

123 Cong. Rec. 39,209 (1977) ..............cccceeees 19

39 Fed. Reg. 12,115-19 (1974)............ eee 9,21

40 Fed. Reg. 31,320 (1975) ...............cccceeeeeees i)

42 Fed. Reg. 37,122 (1977) ..................ccceeeees 9,21

42 Fed. Reg. 37,128 (1977) ................ccceeeeeees 20, 23

42 Fed. Reg. 37,130 (1977) ...............cccceeeeeees 20

51 Fed. Reg. 41,217 (1986) ...................004 3, 10, 22

Memorandum from Francis S. Blake, EPA

General Counsel, to Richard E. Sander-

son, Acting Assist. Administrator, EPA

Office of External Affairs (Sept. 12,

RID conceincetsialiaineeieetenittariibaeiineieeeiiemiieaattieeiiees 11, 24

Oversight Hearings On Section 404 Of The

Clean Water Act, Hearings Before the

Subcomm. on Environmental Pollution

of the Senate Comm. on Environment

and Pub. Works, 99th Cong. (1985).......... passim

H.R. Rep. No. 92-911 (1972)..........:cccccceeeeees 16

S. Conf. Rep. No. 92-1236 (1972), reprinted

in 1972 U.S.C.C.A.N. 3776 000......cccceeeeeeees 16

viii

TABLE OF AUTHORITIES—Continued

Page

S. Rep. No. 92-414 (1972), reprinted in

1972 U.S.C.C.A.N. 3668

S. Rep. No. 95-370 (1977) ........ccccsssesssseseeseees 19

Margaret N. Strand, Environmental Law

Institute, Wetlands Deskbook (2d ed.

UTI etericnaricnmsainiesiaiinitaseuieaitiimattaia sient 11, 24, 28

U.S. EPA and U.S. Dept. of Army,

Guidance for Corps and EPA Field

Offices Regarding Clean Water Section

404 Jurisdiction Over Isolated Waters In

Light Of United States v. James J.

Wilson <http://www.usace.army.mil/inet/

functions/ew/cecwo/reg/wilson.htm> ........ 11

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include

municipal, county, and state governments and

officials throughout the United States.'! Amici have a

compelling interest in legal issues that affect state

and local governments.?

Solid waste disposal is one of the most important

public services provided by amici. Twenty-three

Illinois municipalities, with a population of 700,000,

formed petitioner Solid Waste Agency of Northern

Cook County to find a safe and efficient means of

addressing the region’s solid waste disposal needs.

Towards this end, petitioner undertook a_ public

project of more than $20 million, purchasing 533

acres containing a former strip-mine site to serve as a

balefill, and after extensive public hearings obtained

approvals from local zoning authorities, the county

board of commissioners and the Illinois Envir-

onmental Protection Agency.

The U.S. Army Corps of Engineers (Corps),

however, concluded that 17.6 acres of isolated bodies

of water on the site were “waters of the United

1 Pursuant to Rule 37.3 of the Rules of this Court, the parties

have consented to the filing of this brief amicus curiae. Their

letters of consent have been filed with the Clerk of the Court.

Pursuant to Rule 37.6, amici state that this brief was not

authored in whole or in part by counsel for a party, and no

person or entity, other than amici or their members, made a

monetary contribution to the preparation or submission of this

brief.

2A substantial majority of the members of amicus Solid

Waste Association of North America are municipal, county, and

regional public officials who are responsible for managing

government-owned or government-sponsored solid waste

systems.

2

States” subject to the section 404 permit requirement

of the Clean Water Act (CWA). Although the ponds

on the site are not hydrologically connected to navi-

gable waters, the Corps denied petitioner’s permit

application because migratory birds use the site as a

habitat. The legal basis for the Corp’s permit denial

was the migratory bird rule, decreed by EPA and the

Corps fourteen years after the enactment of the

Clean Water Act.

The language of the Clean Water Act utterly fails

to support the migratory bird rule and the Corps’

sweeping assertion of jurisdiction over huge areas of

the country hitherto subject to state and local

environmental and land use regulation. As this case

illustrates, the migratory bird rule has the potential

to disrupt other important public projects.

Because of the importance of the issues presented

to amici and their members, amici respectfully

submit this brief to assist the Court in its resolution

of this case.

SUMMARY OF ARGUMENT

A. The text and legislative history of the Clean

Water Act demonstrate that the migratory bird rule

is contrary to Congress’ intent. Section 404(a) of the

CWA 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) (emphasis added). The Corps’ initial

regulations did not assert authority to exercise

section 404 jurisdiction over isolated intrastate

waters based on the presence of migratory birds.

Rather, the regulations limited the geographic reach

of section 404 to waters deemed navigable under the

3

traditional navigability test articulated in such cases

as The Daniel Ball, 77 U.S. 557 (1871).

Not until 1986 did the Corps first take the

position—wholly without regard to the navigability of

the waters in question—that its section 404

jurisdiction extends to wats. “[wJhich are or would

be used as habitat by birds »retected by Migratory

Bird treaties” or “[wJhich are or would be used as

habitat by other migratory birds which cross state

lines.” 51 Fed. Reg. 41,217 (1986). This migratory

bird rule was adopted in response to two meinbers of

the Senate Committee on Public Works and

Environment who disagreed with the Corps’ prior

position that the limited use of a body of water by

birds crossing state lines was insufficient to establish

jurisdiction under section 404.

Even if Congress has power to regulate isolated

intrastate bodies of water with no connection to

navigable waters based solely on the presence of

migratory birds, neither the CWA’s text nor its

legislative history support the Corps’ conclusion that

Congress intended the CWA to effect such a far-

reaching and disruptive expansion of federal

authority. Land use regulation is a classic exercise of

the police powers of States and local governments;

the Court has consistently required that Congress’

purpose be clear and manifest before it will construe

federal law as displacing state authority of this

genre.

The CWA defines the term “navigable waters” to

“mean[] the waters of the United States, including

the territorial seas.” 33 U.S.C. § 1362(7). While

Congress “intended to repudiate limits that had been

placed on federal regulation by earlier water

pollution control statutes,” United States v. Riverside

4

Bayview Homes, Inc., 474 U.S. 121, 133 (1985), the

relevant text is similar to the formulations Congress

used in predecessor statutes. To be sure, Riverside

Bayview Homes stated that the CWA’s use of the

term “navigable” is “of limited import” in holding that

it was “reasonable for the Corps to interpret the term

‘waters’ to encompass wetlands adjacent to waters as

more conventionally defined.” Jd. at 133. But

Riverside Bayview Homes does not hold that the term

“navigable” is of no import, which is the essential

premise of the migratory bird rule. As Riverside

makes clear, a non-navigable body of water is subject

to the Corps’ jurisdiction only if it has a hydrologic

connection to a navigable body of water. No such

connection has been shown in this case.

The United States contends that the CWA’s

general purpose of “restor[ing] and maintain[ing] the

chemical, physical, and biological integrity of the

Nation’s waters” supports the Corps’ assertion of

jurisdiction over isolated, intrastate waters. U.S.

Opp. 14 (quoting 33 U.S.C. §125l(a)). But the

CWA’s statement of purpose says nothing about

Section 404’s geographic scope. Moreover, broad

statements of statutory purpose do not reflect the

“complexity of the problems Congress is called upon

to address” and the “hard-fought compromises” of the

legislative process. Board of Governors v. Dimension

Fin. Corp., 474 U.S. 361, 373-74 (1986). Such

generalizations are no substitute for an analysis of

the statutory text, particularly in a case such as this,

in which the Federal Government asserts authority

over areas traditionally reserved to the States. See

Vermont Agency of Nat. Res. v. United States ex rel.

Stevens, 120 S.Ct. 1858, 1870 (2000).

5

Finally, the legislative history does not support the

Corps’ assertion of jurisdiction over isolated intra-

state waters based on the presence of migratory

birds. The legislative record contains no indication

that the CWA was intended to apply to isolated

intrastate waters. See Leslie Salt Co. v. United

States, 55 F.3d 1388, 1394 (9th Cir.), cert. denied, 516

U.S. 955 (1995). On the contrary, taken as a whole

the legislative history manifests Congress’ intent to

exercise CWA _ jurisdiction only’ over _intra-

state waters that are themselves used as highways of

commerce or have an integral hydrologic connection

with navigable waters.

B. Even if Congress’ intent regarding the geo-

graphic reach of the term “navigable waters” were

unclear, deference to the Corps’ migratory bird rule is

unwarranted. The case for deference is especially

weak because the migratory bird rule reflects a 180-

degree change in position adopted by the Corps 14

years after the enactment of the CWA. Moreover, the

rule was not the subject of notice and comment

procedures but rather was adopted in response to

pressure from two Senators on the Corps’ oversight

committee.

In Riverside Bayview Homes the Court applied

Chevron deference in upholding the Corps’ “other

waters” rule insofar as it asserted section 404

authority over wetlands adjacent to navigable waters.

In that instance, however, the Corps’ rule was

supported by the legislative history and by the sound

scientific judgment that pollution of such areas would

directly affect water quality of adjacent navigable

waters. See 474 U.S. at 133-35. No similar scientific

judgment supports the migratory bird rule’s assertion

of jurisdiction over isolated intrastate waters without

6

regard to a water body’s past, present, or future

navigability.

A further reason for rejecting the migratory bird

rule is that it raises a grave constitutional question

regarding the scope of Congress’ power to regulate

interstate commerce. The migratory bird rule rests,

as the court of appeals recognized, on the view that

Congress can regulate any intrastate activity without

regard to whether it is commercial in nature,

provided some link to interstate commerce can be

hypothesized. See Pet. App. 6a-7a. The Court has

repeatedly rejected this line of reasoning, most

recently in United States v. Morrison, 120 S.Ct. 1740,

1750 (2000): “[{IJn those cases where we have

sustained federal regulation of intrastate activity

based upon the activity’s substantial effects on

interstate commerce, the activity.in question has

been some sort of economic endeavor.” The migratory

bird rule, however, contains no requirement that the

discharge of fill material into intrastate waters be

undertaken for commercial purposes.

That there is a “‘national interest of very nearly

the first magnitude’ in protecting [migratory] birds,”

Pet. App. 8a (quoting North Dakota v. United States,

460 U.S. 300, 309 (1983)), does not make the

migratory bird rule a reasonable construction of the

CWA. Congress has enacted a variety of wetlands

preservation statutes that seek to protect migratory

bird habitats through such measures as the outright

acquisition of wetlands, easements, and conservation

agreements with landowners. Congress’ current use

of these non-regulatory methods to protect wetlands

and migratory bird habitats reinforces the conclusion

that the migratory bird rule is not a reasonable

7

construction of the Clean Water Act. The Corps’ rule

is therefore not entitled to deference.

ARGUMENT

THE ARMY CORPS OF ENGINEERS’

MIGRATORY BIRD RULE EXCEEDS THE

SCOPE OF THE CLEAN WATER ACT AND

RAISES SERIOUS QUESTIONS REGARD-

ING THE LIMITS OF THE COMMERCE

POWER

The court of appeals erroneously held that the

Clean Water Act grants the Corps of Engineers

authority to assert section 404 jurisdiction over the

ponds located on SWANCC’s site on the basis of the

migratory bird rule. This rule, decreed by EPA and

the Corps fourteen years after the CWA’s enactment,

asserts jurisdiction over isolated intrastate waters

based solely on the fact that migratory birds use the

waters as a habitat. It was applied notwithstanding

that the ponds on SWANCC’s site are intrastate

waters with no hydrologic connection to the navigable

waters of the United States.

The Corps’ application of the migratory bird rule

to the SWANCC site renders the CWA’s text

meaningless. It likewise finds no support in the

CWA’s legislative history. Whatever the precise

boundary Congress contemplated when it defined the

term “navigable waters” in the CWA, it most

assuredly does not mean waters that have no

3The SWANCC site contains “over 200 permanent and

seasonal ponds” that “were once gravel pits.” Pet. App. 2a.

“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.” Id.

8

connection to navigable waters. The migratory bird

rule, however, is based on the premise that the

concept of navigability is totally irrelevant in defining

the waters subject to the CWA. And the rule further

rests on a view of Congress’ Commerce Clause powers

which stretches them beyond constitutional limits.

See, e.g., United States v. Morrison, 120 S.Ct. 1740,

1750 (2000). For these reasons, the migratory bird

rule is invalid and the court of appeals’ invocation of

Chevron deference is misplaced. See Pet. App. 9a-10a

(citing Chevron U.S.A., Inc., v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)).

A. The Clean Water Act’s Text And Legis-

lative History Demonstrate That The Mig-

ratory Bird Rule Is Contrary to Congress’

Intent

1. Section 404(a) of the CWA 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 CWA thus

prohibits “the discharge of any pollutant” into the

navigable waters “[e]xcept as in compliance with” the

Act. Id. § 1311(a). The Act states that “[t]he term

‘navigable waters’ means the waters of the United

States, including the territorial seas.” Jd. § 1362(7).

The Corps’ initial regulations did not assert

authority to exercise section 404 authority over

isolated intrastate waters based on the presence of

migratory birds. Rather, the regulations limited the

geographic reach of section 404 to waters deemed

navigable under the traditional navigability test

articulated in such decisions as The Daniel Ball, 77

U.S. 557 (1871); Economy Light and Power Co. v.

United States, 256 U.S. 113 (1921); and United States

9

v. Appalachian Electric Power Co., 311 U.S. 377

(1940). See 33 C.F.R. § 209.260(c) (1974); 39 Fed.

Reg. 12,115-19 (1974).

In NRDC, Inc., v. Callaway, 392 F. Supp. 685, 686

(D.D.C. 1975), the district court held, however, that

the Corps’ officials had “acted unlawfully and in

derogation of their responsibilities under Section

404” because the regulations did not assert “federal

jurisdiction over the nation’s waters to the maximum

extent permissible under the Commerce Clause.”

The court gave no explanation as to how it came to

the conclusion that Congress intended to exercise its

commerce clause powers to their fullest extent.

Based on this conclusion, the court ordered the Corps

to promulgate “regulations clearly recognizing the

full regulatory mandate of the” CWA. Id.

The Corps thereafter adopted the “other waters

rule.” See 42 Fed. Reg. 37,122 (1977); 40 Fed. Reg.

31,320 (1975). The current version of this rule — in

effect since 1982—expands the term “waters of the

United States” to encompass, inter alia:

{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

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; or

10

(iii) Which are used or could be used for

industrial purpose by industries in

interstate commerce|. |

33 C.F.R. § 228.3 (1999). The rule thus made, and

continues {9 .nake, no reference to migratory birds.

Rather, the rule limited the Corps’ authority to those

intrastate waters which were themselves used, or

capable of being used, in commercial activity. Thus,

even after Callaway, the Corps did not assert section

404 authority over intrastate waters based merely on

the presence of migratory birds.

It was not until 1986 that the Corps stated, in a

preamble to its regulatory programs’ final rule, that

“EPA has clarified” that the “other waters rule” also

included waters “[wJhich are or would be used as

habitat by birds protected by Migratory Bird

Treaties” or “[wJhich are or would be used as habitat

by other migratory birds which cross state lines.” 51

Fed. Reg. 41,217 (1986). The “migratory bird rule”

was thus never subjected to the scrutiny of notice and

comment procedures, see 5 U.S.C. § 553, notwith-

standing that it broadly expanded section 404

jurisdiction and marked a substantial departure from

prior regulatory policy.

Rather, the rule was adopted in response to the

criticism of two members of the Senate Committee on

Public Works and Environment who took issue with

the Corps’ view that “(t]he limited use of a water by a

migratory species in interstate traveling [is]

insufficient to establish jurisdiction.” Oversight

Hearings on Section 404 of the Clean Water Act:

Hearings before the Subcommittee on Environmental

Pollution of the Committee on Environment and

Public Works, 99th Cong., at 114 (1985) (Hearings)

(statement of Sen. Mitchell). See also id. at 121

(Sen. Chafee). See U.S. EPA and U.S. Dept. of

Army, Guidance for Corps and EPA Field Offices

Regarding Clean Water Section 404 Jurisdiction

Over Isolated Waters In Light of United States uv.

James J. Wilson 4 <http://www.usace.army.mil/

inet/functions/cw/cecwo/reg/wilson.htm>; Memor-

andum, from Francis S. Blake, EPA General Counsel,

to Richard E. Sanderson, Acting Assist. Ad-

ministrator, EPA Office of External Affairs 1 (Sept.

12, 1985), reprinted in Margaret N. Strar.a, Envir-

onmental Law Institute, Wetlands Deskbook 692 (2d

ed. 1997). In the views of these two Senators,

Congress, in enacting the CWA, asserted jurisdiction

“‘to the maximum extent permissible under the

commerce clause of the Constitution.’” Hearings, at

113 (statement of Sen. Mitchell) (quoting Callaway,

392 F.Supp. at 686); id. at 121-23. See also id. at 170

(statement of Sen. Mitchell) (asserting actual

evidence of use by migratory birds not required to

establish CWA jurisdiction); id. at 193-94 (statement

of Sen. Chafee).

2. Even if Congress has power under the commerce

clause to regulate isolated intrastate bodies of water

with no connection to navigable waters based solely

on the presence of migratory birds, neither the

CWA’s text nor its legislative history support the

conclusion that Congress intended such a far-

reaching and disruptive expansion of federal

authority. The district court’s view in Callaway that

Congress, in enacting the CWA, “asserted federal

jurisdiction over the nation’s waters to the maximum

extent permissible under the Commerce Clause,” 392

F. Supp. at 686, ignores that such a sweeping

assertion of federal power seriously intrudes on the

traditional authority of state and local governments

in regulating land use. See, e.g., Village of Euclid,

12

Ohio v. Ambler Realty Co., 272 U.S. 365 (1926). The

Court, however, has generally required’ that

Congress’ purpose be “clear and manifest” before

construing federal law as displacing traditional state

authority. See, e.g., Vermont Agency of Nat. Res. v.

United States ex rel. Stevens, 120 S.Ct. 1858, 1870

(2000); Jones v. Rath Packing Co., 430 U.S. 519, 525

(1977) (quoting Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947)). Neither the statutory text,

committee reports, nor floor statements by the Act’s

leading proponents provide evidence demonstrating

that Congress intended to regulate isolated intrastate

waters with no hydrologic connection to navigable

waters.

That Congress defined the term “navigable waters”

to “mean|] the waters of the United States, including

the territorial sea,” 33 U.S.C. § 1362(7), does not

establish that Congress intended to assert federal

jurisdiction to the limit of the commerce power.

While Congress “intended to repudiate limits that

had been placed on federal regulation by earlier

water pollution control statutes,” United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 133

(1985), the relevant text is similar to the

formulations Congress used in the predecessor

statute, the Refuse Act of 1899. See 33 U.S.C. § 407

(“ijt shall not be lawful to ... discharge .. . any

refuse matter of any kind .. . into any navigable

water of the United States, or into any tributary of

any navigable water”). Contemporaneous with the

Refuse Act, the Rivers and Harbors Appropriation

Act of 1899 made it illegal to excavate or fill various

navigable waters without Corps approval. See 33

U.S.C. § 403 (Rivers and Harbors Appropriation Act

of 1899) (listing various waters) (“it shall not be

lawful to excavate or fill, or in any manner to alter or

13

modify the course, location, condition, or capacity of

any port, roadstead, haven, harbor, canal, lake,

harbor of refuge, or inclosure within the limits of any

breakwater, or of the channel of any navigable water

of the United States”). All of these are, of course,

indisputably “waters of the United States.” Defining

“navigable waters” as “waters of the United States” is

thus plausibly viewed as a form of legislative

shorthand for prior statutory formulations.

The Court has, of course, viewed the CWA’s

definition more broadly, stating that “the Act’s

definition . . . makes it clear that the term ‘navigable’

as used in the Act is of limited import.” Riverside

Bayview Homes, Inc., 474 U.S. at 133. But Riverside

Bayview Homes does not hold that the term

“navigable” is of no import, which is the essential

premise of the migratory bird rule. The Court’s

recognition that “Congress evidently intended to

repudiate limits that had been placed on federal

regulation by earlier water pollution control statutes

and to exercise its powers under the Commerce

Clause to regulate at least some waters that would

not be deemed ‘navigable’ under the classical

understanding of that term,” id. at 133 (emphasis

added), is not an endorsement of the Corps’ assertion

of jurisdiction over intrastate waters merely because

migratory birds could use them for a habitat. Rather,

Congress used a broader definition to include

adjacent waters, which are not navigable, because

“(wlater moves in hydrologic cycles and it is essential

that discharge of pollutants be controlled at the

source.” Id. at 133 (quoting S. Rep. No. 92-414, at 77

(1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3742).

As that passage makes clear, a non-navigable body

of water is subject to the Corps’ jurisdiction if it has a

14

hydrologic connection to a navigable body of water.

That is fairly within the CWA because pollution of

such waters will ultimately affect the water quality of

navigable waters. But where a body of water has

never been used in navigation and never will be, it

must have a hydrologic connection to navigable

waters for the Corps to assert jurisdiction. That

connection is plainly lacking here. See Pet. App. 2a.

In short, the migratory bird rule requires defining

the term “navigable waters” to delete all reference to

the concept of navigability, or even to a hydrologic

connection to navigable waters. Such a definition,

however, robs the statutory text of sensible meaning

and should be rejected. See United States v. Ryan,

284 U.S. 167, 175 (1931).

The United States nonetheless contends that the

CWA’s general purpose of “restorling) and main-

tainling] the chemical, physical, and biological

integrity of the Nation’s waters” supports the Corps’

assertion of jurisdiction over isolated waters. U.S.

Opp. 14 (quoting 33 U.S.C. §125l(a)). But the

CWA’s purpose says nothing about the geographic

scope of the statute. Taken to its logical conclusion,

Section 1251 would justify defining “waters of the

United States” to include every body of water in the

country including skating and fishponds, to prevent

the alteration of their “chemical, physical and

biological integrity.”

As the Court has often recognized, broad state-

ments of statutory purpose do not reflect the

“complexity of the problems Congress is called upon

to address” and the “hard-fought compromises” of the

legislative process. Board of Governors v. Dimension

Fin. Corp., 474 U.S. 361, 373-74 (1986). Such

statements provide little aid in construing specific

15

textual provisions, which remain the best indicia of

Congressional intent. See id. at 373. This rule of

construction applies with particular force, where, as

here, the Federal Government asserts authority over

areas traditionally reserved to the States.

Indeed, if Congress had intended to apply the CWA

to isolated intrastate waters based on the “affecting

commerce” rationale, it would have clearly expressed

this intent, as it did in other statutes. See Civil

Rights Act of 1964, §201(b) & (c), codified at 42

U.S.C. §2000a(b) (defining various intrastate

businesses as “place of public accommodation . . . if

its operations affect commerce”); id. § 2000a(c)

(defining “operations of an establishment affect[ing]

commerce”). The absence of similar language in the

CWA demonstrates that Congress did not intend the

far-reaching assertion of federal authority embodied

in the Corps’ migratory bird rule.

3. The legislative history likewise does not support

the assertion of federal jurisdiction over isolated

intrastate waters based on the presence of migratory

birds. The voluminous materials comprising the

legislative record do not contain a single mention

that the Act was intended to apply to isolated

intrastate waters. See Leslie Salt Co. v. United

States, 55 F.3d 1388, 1394 (9th Cir.), cert. denied, 516

U.S. 955 (1995). And the various discussions of the

term “navigable waters” do not remotely sanction the

expansive assertion of jurisdiction adopted by the

Corps. The Senate Report, which Riverside Bayview

Homes quoted with approval, explains:

‘Congress might also have included the _ requisite

jurisdictional element in the CWA, see Morrison, 120 S.Ct. at

1751, which it likewise declined to do.

16

The control strategy of the Act extends to

navigable waters. The definition of this term

means the navigable waters of the United States,

portions thereof, tributaries thereof, and includes

the territorial seas and the Great Lakes.

Through a narrow interpretation of the definition

of interstate waters the implementation [of the]

1965 Act was severely limited. \\ater moves in

hydrologic cycles and it is essential that

discharge of pollutants .be controlled at the

source. Therefore, reference to the control re-

quirement must be made to the navigable

waters, portions thereof, and their tributaries.

Sen. No. 92-414, at 77, reprinted in 1972

U.S.C.C.A.N. at 3742-43.

To be sure, the Conference report states that “(t]he

conferees fully intend that the term ‘navigable

waters’ be given the broadest possible constitutional

interpretation unencumbered by agency determi-

nations which have been made or may be made for

administrative purposes.” Sen. Conf. Rep. No. 92-

1236, at 144 (1972), reprinted in 1972 U.S.C.C.A.N.

3776, 3822; see also H.R. Rep. No. 92-911, at 131

(1972). That is not the same, however, as asserting

the exercise of commerce clause powers over intra-

state activities in the manner of Wickard v. Filburn,

317 U.S. 111 (1942). Rather, it is merely a rejection

of “the old, narrow definitions of navigability, as

determined by the Corps of Engineers,” and the

assertion of jurisdiction over waters based on the

then “more recent judicial opinions which have

substantially expanded [the] limited view of

navigability—derived from the Daniel Ball case—to

include waterways which would be ‘susceptible of

being used .. . with reasonable improvement,’ as well

as those waterways which inciude sections presently

17

obstructed by falls, rapids, sand bars, currents,

floating debris, et cetera.” 118 Cong. Rec. 33,756-57

(1972) (statement of Rep. Dingell) (citations omitted).

Nor is the Corps’ broad interpretation of the term

“navigable waters” supported by the Court’s hold-

ing, one year prior to the enactment of the CWA, that

the Great Salt Lake, a wholly intrastate lake, was

navigable water for purposes of the equal footing

doctrine. See Utah v. United States, 403 U.S. 9, 11

(1971). This decision explained that “the gist of the

federal test” was that the lake had earlier “served as

a highway” of commerce “and it is that feature that

distinguishes between navigability and _non-

navigability.”. Jd. Indeed, on the floor, Represen-

tative Dingell made express reference to the Utah

test in explaining that “[t]he ‘gist of the Federal test’

is the waterway’s use ‘as a highway,’ not whether it is

‘part of a navigable interstate or international

commercial highway.’” 118 Cong. Rec. at 33,757

(quoting 403 U.S. at 11). Thus, while intrastate

waters can be “navigable,” the CWA clearly

contemplates that the waters be used as a highway of

commerce.

Consistent with this understanding, Senator

Muskie, who led the effort to enact the CWA in the

Senate, remarked:

It is intended that the term ‘navigable waters’

include all water bodies, such as lakes, streams,

and rivers, regarded as public navigable waters

in law which are navigable in fact. It is further

intended that such waters shall be considered to

be navigable in fact when they form, in their

ordinary condition by themselves or by uniting

with other waters or other systems of

transportation, such as highways or railroads, a

18

continuing highway over which commerce is or

may be carried on with other States or with

foreign countries in the customary means of

trade and travel in which commerce is conducted

today. In such cases the commerce on such

waters would have a substantial economic effect

on interstate commerce.

118 Cong. Rec. at 33,699.

These statements refute the suggestion that

Congress intended for the CWA to apply to isolated

intrastate waters based on the presence of migratory

birds. Taken as a whole, the legislative history

manifests Congress’ intent to exercise CWA juris-

diction over those intrastate waters which were

themselves used as “highways” of commerce. Indeed,

notwithstanding that prior to the CWA’s enactment

the Court had upheld Congressional regulation of

intrastate activity which had a substantial effect on

interstate commerce, see, e.g., Katzenbach v.

McClung, 379 U.S. 294, 302 (1964); Wickard v.

Filburn, 317 U.S. 111, 125 (1942), the legislative

history contains no assertion of the need to regulate

isolated intrastate waters to protect the interstate

market in fish or tourism. The absence of any such

comments in the committee reports or floor state-

ments manifests that Congress intended that the

CWA’s geographic limit would be largely determined

in accordance with the judicial definition of nav-

igability and not on a water body’s use or potential

use in commercial activities.

The United States, however, points to the

legislative history of the 1977 amendments to argue

that Congress acquiesced in the Corps’ expansion of

its jurisdiction. See U.S. Opp. 16-17. According to

the United States, “Congress was well aware that the

19

Corps’ regulations, promulgated July 19, 1977, as-

serted jurisdiction over all waters, including isolated

waters, to the maximum extent constitutionally

permissible.” Jd. at 16. Because in 1977 “Congress

considered, but ultimately rejected, several proposals

to modify the Corps’ geographic jurisdiction,” the

Corps’ “other waters rule” should be deemed

consistent with the intent of the 1972 Congress. Id.

The United States thus contends that “the 1977

amendments ‘retainled| the comprehensive juris-

diction over the Nation’s waters exercised in the

[CWA] to control pollution to the fullest consti-

tutional extent.’” Jd. at 16 quoting 123 Cong. Rec.

at 39,209 (1977) (Statement of Sen. Baker)); see also

S. Rep. No. 370, at 75 (same).

This argument fails for several reasons. First, the

view expressed in Senate Report No. 370 and by

Senator Baker provides no basis for inferring the

intent of the earlier enacting Congress. See, e.g., Reno

v. Bossier Parish School Bd., 520 U.S. 471, 484-85

(1997) (quoting United States v. Price, 361 U.S. 304,

313 (1960) (“‘the views of a subsequent Congress

form a hazardous basis for inferring the intent of an

earlier one’”)); O’Gilvie v. United States, 519 U.S. 79,

90 (1996) (“the view of a later Congress cannot

control the interpretation of an earlier enacted

statute”).

Second, the contention that the 1977 Congress’

failure to overturn the Corps’ new and broader

assertion of jurisdiction amounts to acquiescence is

misplaced. Initially, the Corps did not interpret the

“other waters rule” to assert jurisdiction over isolated

intrastate waters on the basis that migratory birds

used them as a habitat. While the rule did go beyond

the clear intent of the 1972 Congress, it plainly

20

required that a body of water must itself be used for

commercial activity to be subject to section 404.

Moreover, the Corps simultaneously issued a nation-

wide permit allowing “discharges of dredged or fill

material into natural lakes, including their adjacent

wetlands, that are less than 10 acres in surface area

and that are either fed or drained by a river or

stream above the headwaters, or isolated and not

part of a tributary system to navigable waters of the

United States or interstate waters.” 42 Fed. Reg.

37,130 (1977). It is no surprise that Congress did not

overturn the new rule, for while the Corps, in the

“other waters rule,” asserted broader geographic

jurisdiction, the same _ rulemaking essentially

disclaimed it over “most of these waters.” Id. at

37,128.

Finally, for nine years following the promulgation

of the “other waters rule,” the Corps took the view

that “(t]he limited use of a water by a migratory

species in interstate traveling [is] insufficient to

establish jurisdiction.” Hearings, at 114 (statement

of Sen. Mitchell). Thus, whatever the actions of the

1977 Congress indicate about the intent to expand

the jurisdictional reach of the CWA to protect

adjacent wetlands, see Riverside Bayview Homes, 474

U.S. at 136-139, they say nothing about the propriety

of applying the other waters rule to isolated intra-

state waters.

As the foregoing demonstrates, the text and leg-

islative history establish that the migratory bird rule

is “manifestly contrary to the statute.” Chevron, 467

U.S. at 844. As Chevron dictates, “that is the end of

the matter; for the court, as well as the agency, must

give effect to the unambiguously expressed intent of

Congress.” /d. at 842-43. The court of appeals thus

21

erred when it proceeded to the second step of the

Chevron inquiry and deferred to the Corps’ migratory

bird rule as a reasonable interpretation of the CWA.

See Pet. App. 10a.

B. The Migratory Bird Rule Is Not Entitled

To Deference

Even if the Court were to find Congress’ intent

unclear with respect to the geographic reach of the

term “navigable waters,” deference to the Corps’

migratory bird rule is unwarranted. While deference

to an agency’s interpretation of a statute it is charged

with administering is appropriate when _ that

interpretation is “reasonable,” see Chevron, 467 U.S.

at 843-45, several factors demonstrate that the Corps’

rule is not a “reasonable” reading of the CWA.

1. The case for deference is especially weak

because the migratory bird rule is not a contem-

poraneous construction of the statute. While “‘[a]n

initial agency interpretation is not instantly carved

in stone’ and ‘the agency, to engage in informed

rulemaking, must consider varying interpretations

and the wisdom of its policy on a continuing basis,”

Rust v. Sullivan, 500 U.S. 173, 186 (1991) (quoting

Chevron, 467 U.S. at 863-64), the Corps’ change in

position is neither the result of any “reasoned

analysis” nor informed rulemaking. Id. at 187

(quoting Motor Vehicle Mfrs. Assn. of United States,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42

(1983)). The Corps did not adopt the migratory bird

rule in either its initial rulemaking, see 39 Fed. Reg.

12,115-19 (1974), or the subsequent rulemaking

which promulgated the “other waters rule.” See 42

Fed. Reg. 37,122 (1977). Indeed, the Corps initially

took the view—in the words of Senator Mitchell—

that “[t]he limited use of a water by a migratory

22

species in interstate traveling” is “insufficient to

establish jurisdiction.” Hearings, at 114. The rule’s

adoption was thus a 180-degree change in position,

which occurred fourteen years after the CWA’s

enactment.

The Corps’ “about face” might be unobjectionable if

it had engaged in “informed rulemaking.” But the

migratory bird rule was not subject to notice and

comment procedures. See 51 Fed. Reg. at 41,217

(1986). Rather, in response to the unrelenting

pressure of two Senators on its oversight committee,

the rule was simply decreed as a fait accompli. See

id. (“EPA has clarified that waters of the United

States ... also include... waters. . .|wlhich are or

would be used as habitat by birds protected by

Migratory Bird Treaties; or . . . [wJhich are or would

be used as habitat by other migratory birds which

cross state lines|.]”). Neither EPA nor the Corps had

any interest in the views of the public or of state and

local governments. While the court below reasoned

that the migratory bird rule is only an interpretive

rule and thus was not subject to the APA’s notice and

comment procedures, see Pet. App. lla, these cir-

cumstances provide further reason why Chevron

deference is inappropriate.

It is true that the Court in Riverside Bayview

Homes applied Chevron deference in upholding the

Corps’ “other waters rule” insofar as it asserted

section 404 authority over wetlands adjacent to

navigable waters. See 474 U.S. at 131-35. In this

respect, however, the Corps rule found substantial

support in the legislative history and ultimately

rested on the sound scientific judgment that pollution

of such areas would directly affect water quality of

adjacent navigable waters. See id. at 133-35. As the

23

Corps, in a passage of the “other waters” rulemaking

explained,

Water moves in hydrologic cycles, and the

pollution of this part of the aquatic system,

regardless of whether it is above or below an

ordinary high water mark, or mean high tide

line, will affect the water quality of the other

waters within that aquatic system.

For this reason, the landward limit of Federal

jurisdiction under Section 404 must include any

adjacent wetlands that form the border of or are

in reasonable proximity to other waters of the

United States, as these wetlands are part of this

aquatic system.

42 Fed. Reg. 37,128 (1977) (quoted in Riverside

Bayview Homes, 474 U.S. at 134). As the Court put

it, “the Corps has conciuded that wetlands adjacent

to lakes, rivers, streams, and other bodies of water

may function as integral parts of the aquatic

environment ....[{WlJe cannot say that the Corps’

judgment on these matters is unreasonable.” 474

U.S. at 135.

No similar scientific judgment supports the Corps’

assertion of jurisdiction over isolated intrastate

waters. On the contrary, the sole justification for

that assertion of federal power is the erroneous

assumption that Congress exercised its commerce

clause powers to their fullest extent.

The Corps’ assertion of jurisdiction over isolated

intrastate waters on the basis of the migratory bird

rule is even more problematic. Most significantly,

migratory birds’ use of a body of water as a habitat

has no connection with that body’s past, present, or

future navigability. Moreover, the presence of mig-

ratory birds does not in any way identify those water

24

bodies, the pollution of which would affect the water

quality of navigable waters. Indeed, with several

hundred species comprising the Fish and Wildlife

Service’s migratory bird list, see 50 C.F.R. § 10.13,

and their population estimated to be as high as

several billion, see Pet. App. 7a, rare is the body of

water which is not a potential habitat. The Corps’

rule thus reads the CWA’s geographic limitation to

navigable waters out of the statute. It is not a

reasonable or permissible reading of the statute and

is therefore not entitled to deference.

2. The Court should also reject the Corps’ mig-

ratory bird rule because it raises a _ grave

constitutional question regarding the scope of Con-

gress’ commerce clause powers. The migratory bird

rule rests on the view that Congress can regulate any

intrastate activity without regard to whether it is

commercial in nature as long as some hypothesis can

be asserted to link the activity to interstate

commerce. See Pet. App. 6a-7a. The Court, however,

has now repeatedly rejected this line of reasoning,

which transmutes the commerce clause into a general

police power. See United States v. Morrison, 120

S.Ct. 1740, 1751-54 (2000); United States v. Lopez,

514 U.S. 549, 564-67 (1995).

The court of appeals recognized that the migratory

bird rule is not a “regulation of the channels of

5 The Corps’ assertion of jurisdiction is not limited to those

water bodies that are in “actual use” by migratory birds. See

Blake Memorandum at 3, reprinted in Wetlands Deskbook at

694. “{I)f a particular waterbody shares the characteristics of

other waters whose use by and value to migratory birds is well

established and those characteristics make it likely that the

waterbody in question will also be used by migratory birds,” it is

subject to the Corps’ jurisdiction. Id.

25

interstate commerce” or a “regulation or protection of

the instrumentalities of interstate commerce, or

persons or things in interstate commerce.” Pet. App.

5a-6a. Invoking Wickard, the court of appeals

reasoned, however, that the migratory bird rule was

a constitutionally valid “regulation of activities that

‘substantially affect’ interstate commerce.” Jd. at 5a

(quoting Lopez, 514 U.S. at 559). The gist of the

court’s rationale was that “‘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.” Jd. at 7a

(quoting Hoffman Homes, Inc. v. EPA, 999 F.2d 256,

261 (7th Cir. 1993)). Because people travel across

state lines to view and hunt migratory birds and

spend money in pursuit of these activities, the court

concluded that “the destruction of migratory bird

habitat and the attendant decrease in the

populations of these birds ‘substantially affects’

interstate commerce.” /d.

The Court’s recent decision in Morrison, however,

squarely rejects the notion that the Wickard

rationale supports regulation of non-commercial

intrastate activities. As the Court explained: “Lopez’s

review of Commerce Clause case law demonstrates

that in those cases where we have sustained federal

regulation of intrastate activity based upon the

activity’s substantial effects on interstate commerce,

the activity in question has been some sort of

economic endeavor.” Morrison, 120 S.Ct. at 1750

(citing Lopez, 514 U.S. at 559-60). Section 404 and

the migratory bird rule assert regulatory authority

over those who seek to fill in “waters,” without regard

to whether they are doing so for commercial

purposes. While the Court has not “adoptied] a

categorical rule against aggregating the effects of any

26

noneconomic activity in order to decide [Commerce

Clause] cases,” it has “upheld Commerce Clause

regulation of intrastate activity only where that

activity is economic in nature.” Jd. at 1751. Because

the migratory bird rule contains no requirement that

a discharge of fill material into intrastate waters be

undertaken for commercial purposes, the rule cannot

be upheld without the Court sanctioning a dramatic

expansion of Congress’ constitutional authority. See

id. at 1750-51 (commerce-based jurisdictional ele-

ment “may establish that the enactment is in

pursuance of Congress’ regulation of interstate

commerce”).

The seriousness of this question is not diminished

by the “national interest of very nearly the first

magnitude’ in protecting such birds.” Pet. App. 8a

(quoting North Dakota v. United States, 460 U.S. 300,

309 (1983)). None of the migratory bird conventions

which the United States has entered into requires

that the contracting parties prohibit the filling of

wetlands used as a habitat by migratory birds. See

Convention Concerning the Conservation of Migra-

tory Birds and Their Environment, U.S.-U.S.S.R., 29

U.S.T. 4649, T.1L.A.S. No. 9073 (1976); 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.1LA.S. No. 7990

(1972); Convention for the Protection of Migratory

Birds and Game Mammals, U.S.- Mexico, 50 Stat.

1311 (1936); Convention for the Protection of Migra-

tory Birds, U.S.—Great Britain, 39 Stat. 1702 (1916).

Moreover, the Migratory Bird Treaty Act, which

implements these conventions, contains no such

prohibition. See 16 U.S.C. §§ 703-712. Thus, in

contrast to Missouri v. Holland, 252 U.S. 416 (1920),

which involved execution of a treaty obligation, the

27

issue here is fundamentally one regarding the scope

of the commerce power. And contrary to the

suggestion of the court of appeals, this Court has

never held that “the regulation of migratory bird

habitat is a permissible exercise of Congress’

authority” under the Commerce Clause. Pet. App.

9a. Because the Corps’ construction “raise|s] serious

constitutional problems,” it is not entitled to

deference. Edward J. DeBartolo Corp. v. Florida

Gulf Coast Building & Constr. Trades Council, 486

U.S. 568, 575 (1988); see also NLRB v. Catholic

Bishop of Chicago, 440 U.S. 490, 507 (1979).

3. That “Congress has repeatedly recognized the

importance of preserving migratory bird habitat to

the viability of migratory bird populations,” U.S. Opp.

19 n.11, does not render the migratory bird rule a

reasonable construction of the CWA. The approach

Congress has thus far taken in various wetlands

preservation statutes demonstrates that the migra-

tory bird rule is plainly inconsistent with current

Congressional policy. Statutes such as the Migratory

Bird Hunting Stamp Act, 16 U.S.C. §§ 718-718); the

Wetlands Loan Act of 1961, 16 U.S.C. §§ 715k-3, -5;

the Water Bank Act, 16 U.S.C. §§ 1301-1311; and the

Emergency Wetlands Resources Act of 1986, 16

U.S.C. §§ 3901-3932, have rejected the regulatory

approach of the migratory bird rule. Instead, these

statutes have sought to protect migratory bird

habitats through such measures as the outright

acquisition of wetlands, see 16 U.S.C. § 3922; 16

U.S.C. §§ 715d; 718(b) & (c); 718d, purchasing

“easements prohibiting fee owners from draining

their wetlands or otherwise destroying the wetlands’

suitability as breeding grounds,” including by

“filling,” North Dakota v. United States, 460 U.S.

300, 303, 305 n.6 (1983), and entering into

28

“conservation agreements” with landowners in

exchange for monetary payments. 16 U.S.C. § 1302.

As North Dakota v. United States indicates, these

statutes have frequently been used to acquire, either

in fee or through easement, large areas of habitat

such as prairie potholes that are isolated from

navigable waters. See 460 U.S. at 304 n.4; see

generally Wetlands Desk Book, at 77-81. Congress’

repeated election to protect isolated intrastate

wetlands through “acquisition” and “cooperative

efforts among private interests and local, State and

Federal governments,” 16 U.S.C. § 3901(b), high-

lights the unreasonableness of the migratory bird

rule as an interpretation of the Clean Water Act.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

RICHARD RUDA*

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

July 27, 2000 Amici Curiae

6 Illinois has enacted both the Habitat Endowment Act, 520

Ill. Comp. Stat. 25/1—49, and the Natural Heritage Fund Act,

30 Ill. Comp. Stat. 150/1—8, to acquire habitat including

wetlands. Illinois and the other States, of course, retain their

general police power to protect wetlands and migratory bird

habitats by means other than acquisition.