# 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

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0351%3A16. Public record. Not legal advice.