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

Supreme Court, U.S.

FILED

© JUL 2 5 2900

No. 99-1178

CLERK

In The

Supreme Court of the United States

SOLID WASTE AGENCY OF

NORTHERN COOK COUNTY,

Petitioner,

V.

UNITED STATES ARMY CORPS OF ENGINEERS,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF AMICUS CURIAE OF

DEFENDERS OF PROPERTY RIGHTS

IN SUPPORT OF PETITIONER

Nancie G. Marzulla

DEFENDERS OF

PROPERTY RIGHTS

1350 Connecticut Ave., NW

Suite 410

Washington, DC 20036

July 25, 2000 (202) 822-6770

thie

QUESTION PRESENTED

Whether the court below was required under the

Chevron doctrine to defer to the Corps’ interpretation of its

authority to regulate wildlife habitat under the Federal Water

Pollution Control Act of 1972 (“Clean Water Act”), when

Congress has evidenced no intent to grant the Corps such

authority under other wildlife protection statutes and has

instead granted such authority to other agencies?

TABLE OF CONTENTS

QUESTION PRESENTED o.0...sssscsssssssssssssssssssssssessssssesssnee

TABLE OF AUTHORITIES. .u.......cssssssssssssssssssssssesssscnsnn wii

IDENTITYAND INTEREST OF AMICUS CURIAE......... 1

STATEMENT OF THE CASE ....:eccsssssssssssssessssssssssssssveeees 2

SUMMARY OF ARGUMENT ..cccccccccsssssssssssssssssessecssesesee 4

(NG SE 1

I. JUDICIAL DEFERENCE TO THE CORPS’

MIGRATORY BIRD RULE CONFLICTS

WITH THE SEPARATION OF POWERS

II. JUDICIAL DEFERENCE TO THE CORPS’

MIGRATORY BIRD RULE CONFLICTS WITH

CONGRESS’ ADMINSTRATIVE STRUCTURE

FOR WILDLIFE PROTECTION, WHICH DOES

NOT GIVE ANY ENFORCEMENT

AUTHORITY TO THE CORPS.................... 18

TT deittiilinninitnienintaticnsbinniedniatiibsiiiiincninnesediniadzmnen 24

TABLE OF AUTHORITIES

CASES

American Trucking Ass'n, Inc. v. EPA,

Eo 15

Babbitt v. Sweet Home Chapter of Communities for

a Great Oregon, 515 U.S. 687 (1995)........cccccccccceeeeeeeeeeees 2

Bennett v. Spear, 520 U.S. 154 (1997) .......cccccccceeeees 2, 10, 20

City of Monterey v. Del Monte Dunes at Monterey, Ltd.,

CE ee 2

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

Council, Inc., 467 U.S. 837 (1984) .0.........cccccceeeeeees 4-6, 14

Chrysler Corp. v. Brown, 441 U.S. 281 (1979).............. 16-17

Dolan v. City of Tigard, 2

Food & Drug Administration v. Brown & Williamson

Tobacco Corp., 120 S. Ct. 1291 (2000) ..........ccccee 7-8, 13

ETSI Pipeline Project v. Missouri,

a aE Ee GE cncncusenenncnemensnssennsnsenensennmnansesensens 7

Keene Corp. v. United States, 508 U.S. 200 (1993)............... 2

Lucas v. South Carolina Coastal Council,

es Se ED cerennesmnensenntneemememennemeemamamntns 2

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)............ 15

ill

TABLE OF AUTHORITIES—cont.

Mistretta v. United States, 488 U.S. 361 (1989) ............0000++ 15

Phillips v. Washington Legal Found.,

OU 2

Skinner v. Mid-America Pipeline Co.,

oF bo), 15

Suitum v. Tahoe Regional Planning Agency,

LG fe 2

Transohio Savings Bank v. Director, Office of Thrift

Supervision, 967 F.2d 598 (D.C. Cir. 1992)..........ccceecee0e 17

yy 6

United States ex rel. O'Keefe v. McDonnel Douglas

Corp., 132 F.3d 1252 (8th Cir. 1998)...........cccccccceerseeesees 16

United States v. Riverside Bayview Homes, Inc.,

oo!) Gt 13, 23-24

United States v. Stoeco Homes, Inc.,

oe Po Ee 20

CONSTITUTIONS

I EE 15

STATUTES

SF CLERE.. © Pee OR cernncnsnenerienstennenscnenennnnne 16

iV

_—--3 —_————— LT —

TABLE OF AUTHORITIES—cont.

Bald and Golden Eagle Protection Act,

i 9,19

Coastal Zone Management Act, 16 U.S.C.A. § 1456.......... 18

Endangered Species Act,

Be clas Ge BOOMER erccccnsencrsesesenssesssensemmnetie 9, 18-19

Federal Water Pollution Control Act,

Pub. L. No. 92-500, 86 Stat. 816 (1972),

33 U.S.C. §§ 1251, 1311, 1343-44, 1362 ........ 2, 16, 21-23

Fish and Wildlife Conservation Act of 1980,

| ERLE TONE 10, 20

Fish and Wildlife Coordination Act, 16 U.S.C.A. § 662 .... 18

Migratory Bird Treaty Act of 1918,

es CD SPOT cierrnsccniidnenineninnniiicseneionadenninnisenel 9,19

National Marine Sanctuaries Act,

ee 10, 20

National Park Service Organic Act of 1916,

a ens Ee GIP vcnicnenicsrensanisntennnesenummnnnnnmenens 9, 20

National Wildlife Refuge System Administration Act

of 1966, 16 U.S.C.A. §§ 668dd-668ee ................... 9-10, 20

Refuge Recreation Act of 1962,

16 U.S.C.A. §§ 460k-460k-4 00 ceccceeeceeeeeeeeeeeees 9, 20

Wilderness Act of 1964, 16 U.S.C.A. §§ 1131-1136.......9, 20

Vv

TABLE OF AUTHORITIES—cont.

RULES AND REGULATIONS

Final Rule for Regulatory Programs of the Corps of

Engineers, 51 Fed. Reg. 41,206, 42,217 (1986) .-.c-..-- 12

33 CFR. § 320.4 (2000) seccccssccsscsscessnsssnsssnssseesesesvee 19

33 CAFR. § 328.3(a)(3) (2000) .csccocsscsssnsesnsesnseesneeeneeee 12

40 CFR. pt. 230 (2000).cscccsccccecoeevnsenessneoressnesensseee 23

50 C.FAR. pt. 402 (2000).ccscceccscssneevnssesseesnesineeneeeeesens 19

ADMINISTRATIVE MATERIALS

43 Op. Att’y Gem. 15 (1979). .occccccscccccssssssssssseseeecesssssnnnecees 22

Pursuant to Rule 37.3 of the Rules of this Court,

amicus curiae submits this brief in support of Petitioner. '

Both parties and the intervenor have consented to the filing

of this brief. Those letters of consent have been lodged with

the Clerk of this Court.

IDENTITY AND INTEREST OF AMICUS CURIAE

Defenders of Property Rights is a non-profit, public

interest legal foundation dedicated to the preservation of

constitutionally protected property rights. Defenders’

mission is to protect those rights considered essential by the

Framers of the Constitutidn and to promote the exercise of

governmental power consistent with the constitutional

limitations upon the exercise of that power. Defenders’ goal

of the vigorous protection of property rights recognizes the

' No counsel for either party authored this brief amicus curiae, either in

whole or in part. Furthermore, no persons other than amicus curiae (its

members or counsel) contributed financially to the preparation of this

brief.

special role of federal courts in protecting those rights. Since

its founding in 1991, Defenders has participated in every

significant property rights case in this Court including City of

Monterey v. Del Monte Dunes at Monterey, Ltd.,

526 U.S. 687 (1999); Phillips v. Washington Legal Found.,

524 U.S. 156 (1998); Suitum v. Tahoe Regional Planning

Agency, 520 U.S. 725 (1997); Bennett v. Spear, 520 U.S. 154

(1997); Babbitt v. Sweet Home Chapter of Communities for a

Great Oregon, 515 U.S. 687 (1995); Dolan v. City of Tigard,

512 U.S. 374 (1994); Keene Corp. v. United States, 508 U.S.

200 (1993); and, Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992).

STATEMENT OF THE CASE

This case involves an assertion of regulatory

jurisdiction by the U.S. Army Corps of Engineers (“Corps’’)

under Section 404 of the Federal Water Pollution Control Act

(“Clean Water Act”) over 17.6 acres of privately owned land.

In 1987, the Corps originally concluded that it had no

regulatory jurisdiction over the 17.6 acres of isolated wetland

at issue in this case because the wetland did not meet the

regulatory “definition of a wetland or lakes” or the broader

definition of “waters of the United States.’” Petitioner’s

Appendix (“Pet. App.”’) at 3a-14a, 16a. Later that same year,

however, the Corps reversed its position and asserted that it

did in fact have jurisdiction over the 17.6 acres because the

land was or could be “habitat” for migratory birds. Pet. App.

at 4a, 16a. Accordingly, pursuant to Section 404 of the Clean

Water Act, the Corps denied petitioner’s wetland permit

application. /d.

The Corps’ assertion of jurisdiction over the 17.6

acres of land in this case is not based on an express statutory

grant of authority for the Corps to regulate wildlife habitat in

non-navigable waters, nor upon an independent analysis of

the Clean Water Act by the court below, but solely upon the

agency’s interpretation of its own jurisdiction, to which the

court below deferred. Pet. App. at 4a-13a.

Specifically, the court below held that it was

required by the Chevron doctrine, set forth in Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 842-45 (1984), to defer to the Corps’ interpretation of

its jurisdiction under the Section 404 permitting program of

the Clean Water Act. Pet. App. at 9a.

SUMMARY OF ARGUMENT

In determining whether or not Congress had in fact

delegated regulatory authority over non-navigable migratory

bird habitat to the Corps, the court below held that it was

required to “review [the Corps’] interpretation of a statute it

is charged with administering under the standard outlined in

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

Inc., 467 U.S. 837 (1984).” Pet. App. at 9a. The Chevron

doctrine states that a court must defer to a reasonable

interpretation of an ambiguous statute offered by the agency

charged with administering the statute. Chevron, 467 U.S. at

844-45. This doctrine rests in part on the practical premise

that agencies have superior technical expertise upon which

Congress is entitled to call upon in the enactment of statutes

that delegate to these expert agencies the role of fleshing out

the details of the regulatory scheme through regulations.

However, as this Court has noted, the constitutional heart of

Chevron consists of appropriate judicial deference to

legislative enactments (including delegation of some policy-

making to the executive branch) which underlies the

separation of powers doctrine:

Judges are not experts in the field, and are

not part of either political branch of the

Government. Courts must, in some cases,

reconcile competing political interests, but

not on the basis of the judges’ personal

policy preferences. In contrast, an agency to

which Congress has delegated policy-

making responsibilities may, within the

limits of that delegation, properly rely upon

the incumbent administration’s view of wise

policy to inform its judgments. While

5

agencies are not divectly —— nevertheless assure that the agency’s interpretation is not

people, the Chief Executive is, and it is

entirely appropriate for this political branch

of the Government to make such policy

choices — resolving competing interests

pons > taeameaiie ah te te Williamson Tobacco Corp., 120 S. Ct. 1291, 1297 (2000)

resolved by the agency charged with the

administration of the statute in the light of

“inconsistent with the administrative structure that Congress

enacted into law.’” Food & Drug Administration v. Brown &

(quoting ETS/ Pipeline Project v. Missouri, 484 U.S. 495,

everyday realities. . . . The responsibilities ;

for assessing the wisdom of such policy 517 (1988)). This Court further held:

choices are not judicial ones: “Our oe _ C bs

Constitution vests such responsibilities in ype y , oer (nage 868s

the political branches.” specifically addressed the question at issue, a

reviewing court should not confine itself to

examining a particular statutory provision in

isolation. The meaning--or--ambiguity of

certain words or phrases may only become

evident when placed in context. It is a

“fundamental canon of statutory construction

that the words of a statute must be read in

their context and with a view to their place in

the overall statutory scheme.” A court must

therefore interpret the statute “as a

symmetrical and _ coherent regulatory

scheme,” and “fit, if possible, all parts into an

harmonious whole.” Similarly, the meaning

of one statute may be affected by other Acts,

particularly where Congress has spoken

subsequently and more specifically to the

topic at hand. In addition, we must be guided

to a degree by common sense as to the

manner in which Congress is likely to

delegate a policy decision of such economic

Chevron, 467 U.S. at 865-66 (quoting TVA v. Hill, 437 U.S.

153, 195 (1978)).

This Court has never held, however, that the legal

—— > ee ee

determination of what power Congress has delegated to an

agency (and what regulatory power Congress has withheld)

turns on the agency’s policy determinations, rather than the

traditional rules of statutory construction employed by the

courts. To the contrary, last term, this Court held that

although judicial deference is appropriate to an agency’s

statutory interpretation, the reviewing court must

and political magnitude to an administrative In consequence, the court below completely ignored

agency.

—E

the fact that Congress has developed an entirely separate

Id. at 1300-01 (citations omitted).

scheme for migratory bird protection: the Migratory Bird

In the present case, the court below ignored these

Treaty and the Migratory Bird Treaty Act of 1918, the

established canons of statutory construction, effectively

| treaty’s implementing statute. 16 U.S.C.A. §§ 703-712 (West

converting the task of determining the outer limits of Corps

1985 & Supp. 2000). Moreover, Congress has established

jurisdiction from one of statutory construction into a policy

special protections for particular species, e.g., the Bald and

matter to be decided by the Corps itself. By deferring to the

Golden Eagle Protection Act, 16 U.S.C.A. §§ 668-668d, and

agency’s policy determination as to its jurisdiction under the

generally for threatened and endangered species, the

Clean Water Act, or the migratory bird rule which provides

Endangered Species Act, 16 U.S.C.A. §§ 1531-1544.

that the Corps can require a dredge and fill permit tor

Congress has also created refuges, national seashores,

isolated wetlands if the Corps believes that such wetlands are 7

wilderness areas, national parks, national marine sanctuaries

or could be habitat for migratory birds, the court below

and other specific designations that are designed to provide

allowed the agency to define for itself the regulatory

habitat for migratory birds and wildlife. See, e.g., National

authority that Congress should have granted it as a policy

Park Service Organic Act of 1916, 16 U.S.C.A. §§ 1-18f-3;

matter, and not the legal question of whether Congress had,

Refuge Recreation Act of 1962, 16 U.S.C.A. §§ 460k-460k-

in fact, delegated such authority to the Corps.

4; Wilderness Act of 1964, 16 U.S.C.A. §§ 1131-1136;

National Wildlife Refuge System Administration Act of

8 9

1966, 16 U.S.C.A. §§ 668dd-668ee; Fish and Wildlife

Conservation Act of 1980, 16 U.S.C.A. §§ 2901-2912;

National Marine Sanctuaries Act, 16 U.S.C.A. §§ 1431-

1445b.

In this entire scheme, the Army Corps of Engineers

has no role, except to follow the dictates of those lead

agencies to which Congress has, in fact, delegated such

authority. See Bennett v. Spear, 520 U.S. 154, 154 (1997)

(noting Corps must seek biological opinion from Fish and

Wildlife Service under Section 7 of the Endangered Species

Act when proposed potentially affects certain wildlife).

Indeed, had Congress wanted to give the Corps authority

over wildlife habitat protection under any of these statutes, or

to implicate the Corps’ permitting authority under Section

404 of the Clean Water Act, there is no reason why it could

not have done so.

In short, under the regulatory scheme adopted by

Congress, there is nothing to even suggest that Congress ever

10

intended that the Corps exercise the Clean Water Act’s

Section 404 permitting authority over isolated wetlands

solely because of the presence of migratory birds. The court

below’s decision to defer to the agency’s policy

determination regarding its own jurisdiction not only fails to

take into account Congress’ overall administrative scheme |

with respect to the Clean Water Act and numerous wildlife

protection statutes, but also runs afoul of the inherent

limitation of the Chevron doctrine — separation of powers.

Since Congress evidently did not intend to delegate wildlife

habitat protection authority to the Corps, the Corps’

usurpation of that authority for itself turns on its head the

very notion of separation of powers.

ARGUMENT

I. JUDICIAL DEFERENCE TO THE CORPS’

MIGRATORY BIRD RULE CONFLICTS

WITH THE SEPARATION OF POWERS

DOCTRINE.

The migratory bird rule began life as an example

11

contained in the preamble to a regulation interpreting the

Corps’ jurisdictional authority under the Clean Water Act.

See 33 C.F.R. § 328.3(a)(3) (2000); Final Rule for

Regulatory Programs of the Corps of Engineers, 51 Fed. Reg.

41,206, 42,217 (1986). The proposed regulation, but not the

preamble, was published for notice and comment. 51 Fed.

Reg. 41,206. When the final rule was published, the Corps

included in the preamble several examples of how the

regulation might be applied by the Corps. 51 Fed. Reg. at

41,217. One of those examples, now known as the migratory

bird rule, states that the Corps may assert jurisdiction over an

isolated wetland if the wetland is or could be habitat for

migratory birds. /d.

The court below held that it was required to defer to

the migratory bird rule because even though it was not

published for notice and comment, the Chevron doctrine

requires “the court [to] defer to the agency interpretation so

long as it is based on a reasonable reading of the statute.”

12

Pet. App. at 9a, 1la-12a. In point of fact, however, Chevron

does not hold that a reviewing court must turn a “blind eye”

to any interpretation of its jurisdictional authority so long as

the court can conclude it is “reasonable.”

Indeed, subsequent decisions make it clear that even

when deferring, the reviewing court must take steps to ensure

that the agency’s construction of a statute it is charged with

enforcing is “reasonable, in light of the language, policies,

and legislative history of the Act... .” United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 131 (1985)

(examining statutory language, policies, and legislative

history of the Clean Water Act to determine whether

Congress intended for the Corps to exercise jurisdiction over

adjacent wetlands); see also Food & Drug Administration v.

Brown & Williamson Tobacco Corp., 120 S. Ct. 1291 (2000)

(examining Congress’ overall regulatory scheme in

determining whether FDA had authority under the Food,

Drug, and Cosmetic Act to regulate tobacco products).

13

Moreover, the rule of judicial deference to agency

interpretation of a statute has no application where the issue

before the court is: What authority did Congress delegate to

the agency in the first instance? Neither of the two rationales

set forth in Chevron (agency expertise and Congressional

intent to delegate the power to implement a statute and make

policy choices through regulation) applies when the court, as

here, is required to define the extent of the agency’s authority

under a statute such as the Clean Water Act. Chevron, 467

U.S. at 842-45, 865-66.

First, the Corps of Engineers has no particular

expertise in determining the nature and extent of the

authority of Congress granted to it under Section 404 or, for

that matter, under any other statute authorizing Corps’

activities. To the contrary, it is the court that possesses both

the expertise and the constitutional duty of interpreting the

nature and extent of the power granted by Congress to an

agency such as the Corps, and what power has not been so

14

granted is therefore reserved to the States or the people

themselves, respectively, under the Tenth Amendment.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It

is emphatically the province and duty of the judicial

department to say what the law is.”); U.S. CONST. amend. X.

Second, Congress cannot have intended to delegate to

the Corps the power to define its own authority under Section

404 of the Clean Water Act, for this would amount to

delegate of legislative authority without any of the necessary

emtuts or limitations. See, e.g., Skinner v. Mid-America

Pipeline Co., 490 U.S. 212, 218 (1989); Mistretta v. United

States, 488 U.S. 361, 371-74 (1989); American Trucking

Ass'n, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), cert.

granted Browner v. American Trucking Ass'n, Inc., 120 S.

Ct. 2003 (2000) and American Trucking Ass'n, Inc. v.

Browner, 120 S. Ct. 2193 (2000). The extent of the

—_— delegated to the Corps by the Clean

Water Act — i.e., over the permitting of dredge or fill material

15

into navigable waters at specified disposal sites — does not

and could not, a with separation of powers, include

the authority to append “and migratory bird habitat” to that

statutory authorization. See 33 U.S.C. § 1344 (West 1986 &

Supp. 2000). Congress, in Section 404, gave the Corps

regulatory power over certain activities — no more and no less

— and no interpretation or regulation can augment that

statutory authority.

Indeed, it may fairly be said that the sole measure of

the lawfulness of a regulation is whether it falls within or

without the power given that agency by Congress. See

United States ex rel. O'Keefe v. McDonnel Douglas Corp.,

132 F.3d 1252, 1257 (8th Cir. 1998) (“An agency’s

promulgation of rules without valid statutory authority

implicates core notions of the separation of powers, and we

are required by Congpens to set these regulations aside.”’)

(citing 5 U.S.C. § 706(2)(C) (1994)); see also Chrysler Corp.

v. Brown, 441 U.S. 281, 308 (1979) (regulations must be

16

struck down unless reviewing court is “reasonably [ } able to

conclude that the grant of authority contemplates the

regulations issued.”); Transohio Savings Bank v. Director,

Office of Thrift Supervision, 967 F.2d 598, 621 (D.C. Cir.

1992) (“Agency actions beyond delegated authority are ‘ultra

vires,’ and courts must invalidate them.”).

Thus, it is the role of the court in the first instance to

determine the nature and extent of reguletory authority

granted to an agency by Congress. When, as here, the court

withholds it own legal analysis of the statute and defers to the

agency’s determination as to its own statutory authority, it

becomes the agency and not the court that exercises the

quintessentially judicial power of declaring what the law is.

The court below thus erred by allowing the Corps of

Engineers to determine the extent of its own authority by

“deferring” to the Corps’ policy determination that the term

“navigable waters” includes protection of “migratory bird

habitat” on non-navigable wetland.

17

Il. JUDICIAL DEFERENCE TO THE CORPS’

MIGRATORY BIRD RULE CONFLICTS WITH

CONGRESS’ ADMINSTRATIVE STRUCTURE FOR

WILDLIFE PROTECTION, WHICH DOES NOT

GRANT ANY ENFORCEMENT AUTHORITY TO THE

CORPS. '

Under the regulatory scheme Congress has developed

for migratory bird protection, the Corps is at best a bit player.

Of the several comprehensive wildlife protection statutes

Congress has enacted, the Corps has not oniy been denied a

primary administrative role, but, in fact, has been required by

Congress to first consult with other federal agencies before

taking any action that may affect certain wildlife. See, e.g.,

16 U.S.C.A. § 1536 (West 1985 & Supp. 2000) (under the

Endangered Species Act, requiring Corps to consult with the

Fish and Wildlife Service (“FWS”)); 16 U.S.C.A. § 662

(under the Fish and Wildlife Coordination Act, requiring

Corps to consult with FWS); 16 U.S.C.A. § 1456 (under the

Coastal Zone Management Act, requiring Corps to consult

with the National Oceanic and Atmospheric Administration

18

(under the Department of Commerce)); see also 33 C.F.R. §

320.4 (2000); 50 C.F.R. pt. 402 (2000).

The U.S. Fish and Wildlife Service (as part of the

Department of Interior) is the lead enforcement agency over

the Migratory Bird Treaty and the Migratory Bird Treaty Act

passed to implement it. 16 U.S.C.A. § 704. Likewise, the

Fish and Wildlife Service (again, as part of the Department

of Interior) is the lead agency Congress has designated to

enforce special protections for particular species, e.g., the

Bald and Golden Eagle Protection Act, 16 U.S.C.A. § 668b,

and generally for threatened and endangered species, the

Endangered Species Act, 16 U.S.C.A. § 1533.

The Department of Interior (U.S. Fish and Wildlife

Service and Bureau of Land Management) and the National

Oceanic and Atmospheric Administration (“NOAA”) (under

the Department of Commerce) administer national refuges,

national seashores, wilderness areas, national marine

sanctuaries, and national parks that Congress has designated

19

to provide habitat for migratory birds and wildlife. See, e.g.,

National Park Service Organic Act of 1916, 16 U.S.C.A. §

la-2; Refuge Recreation Act of 1962, 16 U.S.C.A. § 460k;

Wilderness Act of 1964, 16 U.S.C.A. § 1132; National

Wildlife Refuge System Administration Act of 1966, 16

U.S.C.A. §§ 668dd-668ee; Fish and Wildlife Conservation

Act of 1980, 16 U.S.C.A. §§ 2902, 2904; National Marine

Sanctuaries Act, 16 U.S.C.A. §§ 1432-33, 1437.

In this entire scheme, the Army Corps of Engineers

has no role, except to follow the dictates of those lead

agencies to which Congress has, in fact delegated such

authority. See Bennett v. Spear, 520 U.S. 154, 154 (1997)

(noting Corps must seek biological opinion from Fish and

Wildlife Service under Section 7 of the Endangered Species

Act when proposed potentially affects certain wildlife);

United States v. Stoeco Homes, Inc., 498 F.2d 597, 607 (3d

Cir. 1974) (“It is clear that Congress intended that the Army

Corps of Engineers and the Secretary of the Army would

20

consult with the Fish and Wildlife Service before issuing a

permit for a private dredge and fill operation. The federal

environmental protection statutes did not, however, by their

terms enlarge the jurisdiction of the Army Corps of

Engineers . . .”).

Likewise, there is nothing in the Clean Water Act that

suggests that Congress wanted to give the Corps authority

over wildlife habitat protection under any of these statutes, or

to implicate the Corps’ permitting authority under Section

404 of the Clean Water Act. In 1972, Congress substantially

amended the Federal Water Pollution Control Act, commonly

known as the “Clean Water Act,” by establishing for the first

time a comprehensive program of regulations and permits to

control water pollution. Pub. L. No. 92-500, 86 Stat. 816

(1972). The statute forbids “the discharge of any pollutant

by any person” except in accordance with a statutory scheme

which requires a permit for most “point source” pollutant

discharges into “navigable waters.” 33 U.S.C.A. §§ 1311(a),

21

1362(12). Congress has charged EPA with lead

responsibility of eliminating all water pollution discharges by

1985. 33 U.S.C.A. § 1251(a), (d).

The role of the Corps under the Clean Water Act is a

narrow one: to issue permits for the discharge of a very

specific pollutant (dredge and fill material) at specific places

(at specified disposal sites in navigable waters). Even this

limited permitting authority is subject to EPA’s review and

veto of Corps-issued permits. 33 U.S.C.A. § 1344(c). It is

thus EPA, and not the Corps, to which Congress delegated

primary responsibility for administering the Clean Water Act.

33 U.S.C.A. § 1251(d); see also 43 Op. Att’y Gen. 15

(1979).

In practice, Section 404 dredge and fill permits may

be issued by the Corps, after notice and comment. 33 U.S.C.

§ 1344(a). However, the substantive water protection criteria

that permit applicants must meet are established in guidelines

developed by EPA in conjunction with the Corps. 33 U.S.C.

22

§ 1344(b). EPA has also promulgated substantive

regulations, binding on the Corps, regarding dredge and fill

permits. 40 C.F.R. pt. 230 (2000).

Ironically, in determining that the Corps’ migratory

bird rule was consistent with the Clean Water Act, the trial

court in this case cited to the fact that EPA is the agency

granted authority under the statute to promulgate regulations

in order to protect fish and wildlife. Pet. App. at 29a

(quoting 33 U.S.C. § 1343(c)(1)). There is nothing in the

Clean Water Act cited by either court below that authorizes

the Corps to issue Section 404 permits in order to protect

migratory birds or any other kind of wildlife.

Finally, in 1985, this Court held in United States v.

Riverside Bayview Homes, 474 U.S. 121 (1985), that

Congress had granted the Corps authority under the Clean

Water Act to exercise its Section 404 permitting authority

over wetlands adjacent to navigable waters as was necessary

to protect water quality. /d. at 133. The Riverside Bayview

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Court concluded that adjacent wetland protection was

consistent with Congress’ concern over protecting entire

aquatic ecosystems because adjacent “wetlands may affect

the water quality of the adjacent lakes, rivers, and streams.”

Id. at 133-34. Applying that reasoning to the case at bar,

there is nothing that implies that the Corps’ jurisdiction under

the Clean Water Act can be extended to non-adjacent

wetlands for purposes of migratory bird habitat protection.

CONCLUSION

For all of these reasons, amicus curiae urges this

Court to reverse the decision below.

Respectfully submitted,

Nancie G. Marzulla

Defenders of Property Rights

1350 Connecticut Ave., N.W.

Suite 410

Washington, D.C. 20036

July 25, 2000 202-822-6770

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