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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 159

## Text

\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 ........ 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 ; 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0351%3A13. Public record. Not legal advice.