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

o

No. 99-1178 =

In the

Supreme Court of the United States

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 AMICUS CURIAE OF

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF THE PETITIONER

Of counsel:

Duane Desiderio Thomas C. Jackson*

National Association of Michael D. Olsen

Home Builders Kelley Drye & Warren LLP

1201 15" Street, N.W. 1200 19% Street, N.W.

Washington, D.C. 20005 Ste. 500

(202) 822-0234 Washington, D.C. 20036

(202) 955-9600

Counsel for Amicus Curiae

*Counsel of Record

‘)

-i-

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I.

THE

Page

CORPS’ ASSERTION OF

JURISDICTION IS CONTRARY TO

THE COURT’S HOLDINGS IN LOPEZ

AND MORRISON

A.

CWA _ Section 404 is Not a

Regulation of Economic Activity .........

l. Filling of Isolated Waters Is

Not An Inherently Economic

MI ccciictsteensicniinnnininsiinnin

2. Corps Jurisdiction Over

Isolated Waters Through the

Migratory Bird Rule Cannot

Be Sustained as Part of a

Larger Regulation of

Economic ACtivity.........0.. s.ccceeeees

The Migratory Bird Rule Does Not

Constitute a Jurisdictional Element

that Would Ensure, through Case-

by-Case Inquiry, that the Activity

Being Regulated Affects Interstate

Commerce

10

Congress Made No _ Findings

Regarding the Impact on Interstate

Commerce of Migratory Bird Use of

Isolated Waters

-ii-

TABLE OF CONTENTS

(continued)

Page

D. The Link Between Filling Isolated

Wetlands Visited by Migratory

Birds and Interstate Commerce is

Attenuated and Unsubstantiated ............. 12

1. The Purported Impact on

Interstate Commerce Relied on

by the Seventh Circuit is

Unsubstantiated ...........ccccccccccceeeeeees 14

2. The Seventh Circuit's Logic

Has No Stopping POint..........0.c000+. 16

Il. THE ASSERTION OF FEDERAL

JURISDICTION OVER ISOLATED

WATERS MUST BE SCRUTINIZED

CAREFULLY BECAUSE LAND USE IS

AN AREA OF TRADITIONAL STATE

CONCERN 20

Il. DUE TO GRAVE CONSTITUTIONAL

CONCERNS REGARDING THE

MIGRATORY BIRD RULE, THE CWA

SHOULD BE READ NARROWLY TO

EXCLUDE JURISDICTION OVER

ISOLATEL WATERS 24

A. The Court Cannot Completely

Ignore the Concept of Navigability.......... 25

B. The Fact that an Expansive Reading

May Further the Goals of the CWA

is Irrelevant 28

CONCLUSION 30

ill

TABLE OF AUTHORITIES

CASES

Biggs v. Town of Sandwich, 470 A.2d 928 (N.H. 1984).......22

Board of Governors v. Dimension Fin. Corp., 474 U.S.

Ie Gp vensszscscznncesesnecessennenenesnsmmmssnnsnstnsencsmnagmnnentin 29

California Coastal Comm'n v. Granite Rock Co., 480

Sak UES GEE D cccsernsscserssncszseeneeensnreasennenasnseensanennennn 21

Dolan v. City of Tigard, 512 U.S. 374 (1994) occ 21

Edward ]. DeBartolo Corp. v. Florida Gulf Coast Bldg.

& Constr., 485 U.S. 568 (1988) ..........ccccccceeeeeeeeennes 24

Evans v. Board of County Comm'rs, 994 F.2d 755

GUE GIRR, TSUN concossczensnsecsesscsnsnssesssnssnssensenanneennennesess 21

F.E.R.C. v. Mississippi, 456 U.S. 742 (1982).........cccceceseeeees 20

Fidelity Federal Sav. & Loan Ass'n v. De la Cuesta,

Sa RR BG Ga crc ertcnsnssenennsssnnssssnscansnesesevsssscemnees 20

Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

GD canenecersnsssrmmnsssnesncasnensmscsnnsmsussummnannanssanannaans 7

Gardner v. City of Baltimore, 969 F.2d 63 (4th Cir.

PIG ceseczsescnssnzsenscnenstnasennsosmssenssnseumsnnemmmennensnsnsentees 21

Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1 (1824) ............000000+ 7

Heart of Atlanta Motel, Inc. v. United States, 379 U.S.

BD CN cnccsssesnsesszsansnccsnsnsnnsnmssnsenseseceesnstnusnenssenasessees 7

Hodel v. Indiana, 452 U.S. 314 (1981) ..........cccccccceeeeeeeeeeeeens 7

Hoffman Homes, Inc. v. Environmental Protection

Agency, 999 F.2d 256 (7th Cir. 1993) .......... 13, 14, 18

Katzenbach v. McClung, 379 U.S. 294 (1964).........ccccccceeeeeees 7

iv

Lovequist v. Conservation Comm'n of Dennis, 393

RE 22

Maryland v. Wirtz, 392 U.S. 183 (1968) .........cccccceceeeeees 7, 20

McDermott International, Inc. v. Wilander, 498 U.S.

Ie re ctexrenstncnensnmninnnsitaiinaninnintnniinintaiaidiiaanitiiiend 26

National Labor Relations Board v. Catholic Bishop of

Chicago, 440 U.S. 490 (1979) .......cccccesceseeseneeeseeeneees 24

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)............ 21

Perez v. United States, 402 U.S. 146 (1971) ..........ccccccceceeeeseees 7

Polish National Alliance v. NLRB, 322 U.S. 643 (1944)......... 7

Rodriguez v. United States, 480 U.S. 522 (1987) .............0000. 29

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 191

OU 7, 16, 18

United States v. Bass, 404 U.S. 336 (1971).............c000000e 11, 24

United States v. Bass, 404 U.S. 346 (1971)..........c.cccccceceeeeeees 24

United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993)................ 8

United States v. Lopez, 514 U.S. 549 (1995)... passim

United States v. Morrison, 120 S. Ct. 1740 (2000)......... passim

United States v. Republic Steel Corp., 362 U.S. 482

AE coccensnsensncnenseataponseneemnepngmasainsneiiancumemtinnteenmtes 26

United States v. Riverside Bayview Homes, 474 U.S.

Ba I venensnnnsencenscnmnnameenmmmmmmenemnmamenaenees 3, 26

United States v. Wilson, 133 F.3d 251 (4th Cir. 1997)......... 28

United States v. Wrightwood Dairy Co., 315 U.S. 110

i oxsersinsacinnmentecsmnaneminenatimnsmnnmninanaiinteti 7

Vv

Warth v. Seldin, 422 U.S. 490 (1975) .........cccccccceeceeseeeeeeeeneees 21

Wickard v. Filburn, 317 U.S. 111 (1942) .........ccccccceceeseeseees 7,8

Williams v. Taylor, 120 S. Ct. 1495 (2000)..........0-ccesseeseesseee 28

STATUTES

| —__ E en 26

A 25

a 25

le BP erceenenernscastescnnisannteinannanmnisemmneinansnaiianuninein 25

ie Oo et nicncectscstenensinstanssnenennimmieintmnennnieaeninieina 26

BP ic Oe i cerncsnctaninninininmnantisinininnniennsstsieninssanamastesninit 25

a ee ccseeateniinccnccntstnnteristensinnastsnenincisannsmnsnsiaianitin 26

| al EEE 27

Be Ue 6 BID cecccesssccccscsemensnssnssnscsnscessesrenmenensneenssnnncens 25

SB UR... 6 Ba GIG cccnscesscnnnsseessamnrememanesmnens 10

ee 23

MD ee 24

Conn. Gen. Stat. §§ 22a-28 to -45a (2000).............ccccccceeeee 22

Conn. Gen. Stat. § 22a-42 (2000) ..........ccccccccsceeceeeeereerereeneees 22

Broward Co., Fla. Code §§ 27-331 to -350 (1993)............. 22

Fla. Stat. Ann. §§ 373.414-.421 (2000) ...........ccccccceeeereeeeeees 22

Mass. Gen. Laws Ann. ch. 131, §§ 40, 40A (2000) ............ 22

Me. Rev. Stat. Ann. tit. 38, §§ 480-A to -Z (2000)............. 22

Me. Rev. Stat. Ann. tit. 38, § 480-F (2000)... 22

Mich. Comp. Laws §§ 324.30301-.30323 (2000) ................ 22

vi

Minn. Stat. §§ 103G.222-.2373 (2000) ..........ccccccccsessesereeneees 22

Disa. Stat. § BOSG.ZDES (BIG) necccecensncecenssecvscrecsscenssccccecee 22

N.H. Rev. Stat. Ann. §§ 482-A:1-:27 (2000) 0.0.0.0... 22

N.J. Rev. Stat. §§ 13:9B-1 to -30 (2000) ...0.......ccccccceseeseeees 22

N.Y. Envtl. Conserv. Law §§ 24-0101 to -1305

I erenresvnsemnsenenersnensenenssansemeussansumnenmnsmensmsetenecseetl 22

N.Y. Envtl. Conserv. Law § 24-0501 (2000)..............0..0.000. 22

Vt. Stat. Ann. tit. 10, § 1272 (2000)...........ccccccsesseereeeeeeeneees 22

RULES & REGULATIONS

SS CER. § SEB SAS) (BGI) 2ncccccccccccerccscscccsssscsscrsses 4, 10, 17

aie Sp a I ccncensccscencncemsenemannansncecsccsmesmentel 4

LEGISLATIVE HISTORY

SE CAEN, CRUE, TESS COU cecenssensemmsensremnesmesenenemsensenssen 24

ee ae 27

118 Cong. Rec. H33,756-57 (1972)............ccsscsssscsrssseeserereees 26

H.R. Rep. No. 911, 92d Cong., 2d Sess, 131 (1972)........... 27

S. Rep. No. 414, 92d Cong., Ist Sess. 73 (1971) ..........0000. 24

S. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972)........ 26, 27

MISCELLANEOUS

BS PR, Ga, Ga Ge rensercnsnzanesnnsccnssasssvesssasenssssessnecnesveed 4

SP SR SD, Ce EU crc eennsesnernscsnenenssscsrmenssccmmmecmanattie 3

Vii

Advisory Comm’n on Regulation, Barriers to

Affordable Housing, “Not in My Back

Yard:” Removing Barriers to Affordable

PEDERI CRGGED accccececsccccsessssvensevessvsesessosensssssnessssesnesses 2

Brief for Respondents in Opposition to Petition for

a Writ of Certiorari, Solid Waste Agency of

Northern Cook County v. United States Army

Corps of Engineers, NO. 99-1178 .........c::ccssseseeeseeeeeees 28

Hearings on S. 1304 Before the Subcomm. On

Clean Water, Fisheries and Wildlife of the

Senate Comm. On Environment and Public

Works, 103d Cong., Ist Sess. (1993)

(statement of National Association of State

Departments of Agriculture)..............:::cccseseseeeee 22

Memorandum from Francis S. Blake, General

Counsel, U.S. Environmental Protection

Agency to Richard E. Sanderson, Acting

Assistant Administrator, US.

Environmental Protection Agency, “Clean

Water Act Jurisdiction Over Isolated

TER GIO cncscccccnssnscsscnsenesesmnseneanasneasecssessesrmesnaeen 12

Memorandum in Support of Federal Defendants’

Motion to Dismiss or in the Alternative for

Summary Judgment and in Opposition to

Plaintiffs’ Motion for Partial Summary

eI cacpcecsccesesesevssnensntanmnnensanenesenenccsumenmnnnenenses 20

National Survey of Fishing, Hunting and Wildlife

Associated Recreation, 45 (1988)... 16

Sacramento, Cal. General Plan Co-96 (1993) .............c00000 22

U.S. Army Corps of Eng’rs Wetland Delineation

IIIS SID Gee Pevscccccccnemecsececensssceseessensescsosnensoenveesens 1

Vili

U.S. Army Corps of Eng’rs, 1995 Wetlands

Delineation Field Evaluation Forms (June

UU comernevinesaclitneperssusnenssemnseniiaiinsieenntinnsantemesieies 17, 22

U.S. Fish and Wildlife Serv., Wetlands of the

United States Current Status and Recent

ee ererevcarenssnsicnnssnnininiennatnmianeniinanmntnes 18

U.S. Geological Survey, North American Breeding

Bird Survey (visited July 25, 2000)

http://www.mbr.nbs.govp/bbs/guild/group98.

1

The National Association of Home _ Builders

(“NAHB”) respectfully files this brief as amicus curiae in

support of Petitioner, Solid Waste Agency of Northern

Cook County (“SWANCC”),.!

INTEREST OF AMICUS CURIAE

NAHB represents 200,000 builders, land planners,

land developers, and industrial developers. With

approximately 850 affiliated state and local associations

in all fifty states, NAHB is the most influential trade

association representing the nation's housing industry.

Because NAHB members are involved in numerous

projects throughout the country, NAHB has substantial

experience with federal regulation of waters of the United

States and can provide the Court with additional insight

into the issue at bar.

The “migratory bird rule” challenged in this case

restricts the development potential of vast areas of land,

so this Court's resolution of the issue presented is of great

significance to NAHB and its members. The U.S. Army

Corps of Engineers (the “Corps”) interprets the Clean

Water Act (“CWA”) to cover a broad range of waters -

from the territorial seas and major rivers to intermittent

streams and tiny ponds, with no minimum size

requirements. The Corps construes “navigable waters” to

include water bodies in the traditional sense as well as

wetlands, which include areas that do not even appear

wet on the surface. U.S. Army Corps of Engineers

Wetland Delineation Manual 36 (1987) (area may qualify

as a wetland if saturated within 12 inches of the surface).

Consequently, the “isolated waters” which the migratory

bird rule purports to bring within federal control isolated

water bodies as well as isolated wetlands. These isolated

waters are ubiquitous. For example, a 1995 study by the

! No counsel for either party authored this brief in whole or in

part. No person or entity other than NAHB has made a monetary

contribution to the preparation or submission of this brief.

2

Corps of isolated wetlands less than one-half acre in size

indicates that approximately 8.3 million such wetlands

averaging one-fourth of an acre are scattered across

1,836,469 acres of the United States - enough land to

affect a multitude of citizens and local governments. The

migratory bird rule subjects these depressions to federal

regulation simply because they are or could be used by

birds. In the absence of the migratory bird rule, these

eight million low spots would fail under the sole

jurisdiction of state and local governments. Application

of the migratory bird rule is therefore of great

consequence to any person or organization owning

property that includes isolated wetlands or other isolated

waters.

For home builders, the consequences of federal

regulation of isolated waters are all too concrete. The

presence of a federally regulated isolated water on a

development parcel leaves a landowner in a Catch-22

situation: avoid the regulated area and leave it in its

natural state (and thereby give up the right to develop

what might otherwise be developable land), or obtain

authorization in some form from the Corps to impact all

or part of the area. Either course entails costs to the

developer, costs that impact housing affordability.?

Indeed, nearly ten years ago the Advisory Commission

on Regulatory Barriers to Affordable Housing found that

“environmental protection legislation and associated

regulations dealing with wetlands often unnecessarily

raise the cost of housing.” Advisory Comm'n on

Regulatory Barriers to Affordable Housing, “Not In My

Back Yard”: Removing Barriers to Affordable Housing

? A recent study found that the average cost of preparing a Section

404 permit application is $271,596, which does not include the

significant additional costs such as those associated with

mitigation and the carrying costs of the land during a lengthy

permitting process that takes an average of 405 days. See David

Sunding and David Zilblerman, Analysis of The Army Corps of

Engineers’ NWP Replacement Permit Proposal (2000).

3

(1991). Nearly ten years later, the regulatory hurdles

created by the Section 404 permitting program have only

gotten higher, resulting in ever increasing costs of

compliance for landowners.*

SUMMARY OF ARGUMENT

At its core, this case concerns the authority of the

federal government to control the use of land because it

happens to include an isolated wet spot. It involves the

same legal issue that went unresolved in United States v.

Riverside Bayview Homes, 474 U.S. 121, 131 n.8 (1985):

Whether Congress gave the Corps the authority to

regulate as “navigable waters” isolated waters that are

clearly not navigable and that have no hydrological

connection to waters that are navigable. The case further

presents the issue of whether assertion of jurisdiction

over such isolated waters, if sanctioned by the CWA, is

constitutionally permissible under the Commerce Clause

where the only purported link between the isolated

waters and interstate commerce is the area’s use by

migratory birds.

CWA Section 404 grants the Corps and the US.

Environmental Protection Agency (“EPA”) authority to

regulate the discharge of dredged or fill material into

navigable waters. The Corps and EPA by regulation have

3 In fact, the Corps has substantially revised its nationwide permit

program to make it more difficult for builders to obtain federal

authorization to impact isolated waters. See 65 Fed. Reg. 12,818

(2000). Nationwide permits are general permits that are intended

to provide a streamlined approval process for projects that would

have minimal impacts on waters of the United States. Such

permits have historically been widely used by home builders.

Among other things, the Corps has eliminated Nationwide Permit

26, which authorized impacts of up to three acres of isolated

wetlands and certain other waters of the United States for a single

project, and replaced it with a new nationwide permit (No. 39)

which limits impacts to only one-half acre of waters of the United

States, a reduction of 84 percent in the acreage limit.

4

asserted jurisdiction over isolated waters “the use,

degradation or destruction of which could affect

interstate or foreign commerce.” 33 C.F.R. § 328.3(a)(3)

(1999); 40 C.F.R. § 230.3(s). In the present case, the Corps

determined that it had jurisdiction over isolated waters

on the property in question because of the so-called

“migratory bird rule.” Under the migratory bird rule, an

isolated water (e.g., a wetland or small pond lacking a

hydrological connection to interstate waters) that is

completely unrelated to commerce is deemed to have a

sufficient effect on interstate commerce to trigger federal

jurisdiction if the water is or would be used as habitat by

migratory birds that cross state lines. 51 Fed. Reg. 41,206,

41,217 (1986). The Corps denied SWANCC’s permit to fill

the 17.6 acres in question after asserting jurisdiction over

the property based on its finding that migratory birds

used the isolated waters at the proposed site.

The Seventh Circuit's rationale in upholding the

Corps’ assertion of jurisdiction cannot be reconciled with

the limits of Congress’ Commerce Clause authority

recognized by the Court in United States v. Lopez

(“Lopez”), 514 U.S. 549 (1995), and United States v.

Morrison (“ Morrison”), 120 S. Ct. 1740 (2000). The Seventh

Circuit found that the filling of isolated waters in the

aggregate has resulted in a loss of habitat for migratory

birds and, thus, in a decline in some bird populations.

The court concluded, based on little more than surmise,

that this has in turn led to diminished opportunities for

activities such as bird watching and hunting, resulting in

a substantial impact on interstate commerce. However,

given that filling of isolated waters is not itself an

economic activity, the court's reliance on the impacts of

filling of isolated waters in the aggregate flies in the face

of this Court's recent decision in Morrison. Moreover, the

rationale employed by the Seventh Circuit, if allowed to

stand, would effectively allow the federal government to

regulate all use of land and would thoroughly federalize

a quintessential state function.

Indeed, the Corps’ assertion of jurisdiction must

be scrutinized with particular care because land use is an

fe)

area of traditional state concern. The Corps’ position is

that simply because migratory birds use the property

SWANCC intended to develop, the Corps could - and

did - prohibit SWANCC from using it. This intrusion on

the prerogatives of local governments to regulate land

use in the best interests of the community is antithetical

to fundamental principles of federalism and violates the

mandate of the Tenth Amendment.

In addition, the Seventh Circuit was incorrect in

holding that, in authorizing the regulation of “navigable

waters’ under the CWA, Congress intended to regulate

isolated waters that are not remotely navigable. While

Congress indicated an intent that the term “navigable

waters” be read broadly, Congress never indicated that

the qualifier “navigable” should be ignored entirely, as

the Seventh Circuit has done. In light of the serious

constitutional issues raised by a broader reading of

“navigable waters,” the Court should read the intended

scope of CWA jurisdiction to exclude isolated waters

having no connection with waters that are in fact

navigable.

ARGUMENT

I. THE CORPS’ ASSERTION OF JURISDICTION

IS CONTRARY TO THE COURT’S HOLDINGS

IN LOPEZ AND MORRISON

The Corps’ claimed authority to regulate isolated

waters through the migratory bird rule extends far

beyond the bounds of the Commerce Clause and is

contrary to the principles articulated by this Court in

Lopez and affirmed in Morrison. Like the Gun-Free School

Zones Act in Lopez, and the Violence Against Women Act

in Morrison, the migratory bird rule is not a regulation of

the use of the channels of interstate commerce, nor is it an

attempt to regulate an instrumentality of or thing in

interstate commerce. Therefore, it can only be sustained

if it regulates activities that substantially affect interstate

commerce. See Lopez, 514 U.S. at 555-58; Morrison, 120 S.

6

Ct. at 1749. The activities being regulated here do not

meet that test.

In its recent decision in Morrison, the Court

reaffirmed that Lopez was not an aberration but in fact

“provides the proper framework for conducting the

required analysis” in a case such as this. 120 S. Ct. at

1749. The Morrison Court then went on to review a

number of considerations that were important to the

decision in Lopez and that guided the Court in reviewing

the assertion of federal authority in Morrison. A review of

these factors demonstrates that the assertion of federal

jurisdiction in this case is well beyond the constitutional

bounds established by this Court.

A. CWA Section 404 is Not a Regulation of

Economic Activity

The first consideration identified by the Morrison

Court is whether the activity being regulated is economic

in nature. See 120 S. Ct. at 1750. The Morrison Court

affirmed that this factor is critical, stating 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.” Id.

The Seventh Circuit failed to consider whether the

activity at issue was economic in nature. Moreover,

ignoring the principle articulated in Lopez that courts may

look to the aggregate impact of a class of activities on

interstate commerce only in limited circumstances, the

Seventh Circuit assumed without analysis that it was

appropriate to consider the aggregate impacts of filling

isolated waters in general. Indeed, the Seventh Circuit

made no attempt to determine whether the is>lated

waters that SWANCC proposed to fill substantially affect

interstate commerce. Rather, the court found that

although the effect of the destruction of migratory bird

habitat is unobservable with respect to each isolated

pond, the aggregate effect, 1.e., the resulting decrease in

bird populations, “substantially affects” interstate

7

commerce. This, the Seventh Circuit reasoned, is all the

Commerce Clause requires. See Solid Waste Agency of

Northern Cook County v. United States Army Corps of

Engineers, 191 F.3d. 845, 850 (7" Cir. 1999) (“SVWWANCC’”).

The Seventh Circuit's conclusion runs counter to

Lopez and Morrison. These decisions make clear that

regulation of intrastate economic activity is analyzed

differently from the regulation of intrastate non-economic

activity. In particular, the Court has indicated that the

effects of individual activities may be aggregated to

achieve the required substantial effect on interstate

commerce only where the activities in question are

economic or commercial in nature, or where the

regulation in question is part of a larger regulation of

economic activity. See Lopez, 514 U.S. at 561; Morrison, 120

S. Ct. at 1750. The migratory bird rule does not meet this

test.

I. Filling of Isolated Waters is Not an

Inherently Economic Activity

The activities in question cannot be characterized

as “economic” under the Court's Commerce Clause

jurisprudence. When the Court has upheld federal

regulation of intrastate activity “substantially affecting”

interstate commerce, the cases have always involved

activities or markets that were in and of themselves

economic in nature, such as agriculture, the shipment of

goods, or employment. See e.g., Garcia v. San Antonio

Metro. Transit Auth., 469 U.S. 528 (1985) (employment);

Hodel v. Indiana, 452 U.S. 314 (1981) (coal mining); Perez v.

United States, 402 US. 146 (1971) (loan sharking);

Maryland v. Wirtz, 392 U.S. 183 (1968) (employment),

overruled on other grounds by Nat'l League of Cities v. Usery,

426 U.S. 833 (1976); Katzenbach v. McClung, 379 U.S. 294

(1964) (barbecue restaurant); Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 241 (1964) (accommodations at inns

and hotels); Polish Nat'l Alliance v. NLRB, 322 U.S. 643

(1944) (employment); Wickard v. Filburn, 317 U.S. 111

(1942) (regulation of interstate market in wheat); United

States v. Wrightwood Dairy Co., 315 U.S. 110 (1942)

(commercial milk sales); Gibbons v. Ogden, 22 U.S. 1, 9

8

Wheat. 1 (1824) (commercial navigation). All of these

activities are inherently economic in nature.

The discharge of dredged or fill material is not an

economic activity in this sense. Many discharges of

dredged or fill material are undertaken for decidedly

non-commercial reasons. For example, discharges into

isolated waters may be undertaken by homeowners

seeking to put in a driveway or a tennis court, or by non-

profit organizations building churches or hospitals.

Discharges may also be undertaken by state or local

governments seeking to build libraries or even by the

federal government itself undertaking a wide variety of

activities from building military facilities to expanding

national parks or wildlife refuges. Other discharges may

be incidental to economic activities. For example, many

who fill wetlands seek commercial gain or must conduct

commercial activity in order to fill and develop wetlands.

However, the fact that the filling of isolated waters may

in some cases be economically motivated does not render

the act of filling such waters economic in nature for

purposes of the Commerce Clause. In Lopez, the

respondent's possession of the handgun at issue was

economically motivated in that Lopez was ultimately

supposed to receive payment for delivering the gun. See

United States v. Lopez, 2 F.3d 1342, 1345 (5 Cir. 1999). The

Court nevertheless found that the act of possessing the

handgun was not itself an economic activity.

The conclusion that filling of isolated waters is not

an inherently economic activity is further supported by

the lack of any direct correlation between the activities

being regulated and the impacts that assertedly serve as

the link to interstate commerce. For example, in Wickard

v. Filburn, 317 U.S. 111 (1942), the Court upheld the

enforcement of penalties against a farmer for violatin

agricultural production quotas by growing wheat for his

own consumption.

In Wickard, both the regulated activity and the

economic impact involved the same subject matter,

namely wheat, which is an economic commodity. In the

current case, however, the activity being regulated is not,

9

for example, trade in migratory birds but rather is the

filling of isolated waters. Thus, in this case there is no

commonality of subject matter between the nature of the

activity being regulated (i.e., filling of isolated waters)

and the purported impact of the regulated activity on

interstate commerce (i.e., fewer dollars being spent by

individuals watching or hunting migratory birds). If one

considers the purpose for which the fill is undertaken, 1.e.,

construction of a landfill, the disconnect with the

purported economic impact is even greater. This lack of

commonality further demonstrates that the filling of

isolated waters is not an economic activity. Therefore,

because the Court has “upheld Commerce Clause

regulation of intrastate activity only where that activity is

economic in nature,” Morrison, 120 S. Ct. at 1751, the

Court should find that the filling of isolated waters in this

case may not be regulated by the federal government.

2. Corps Jurisdiction Over Isolated Waters

Through the Migratory Bird Rule

Cannot Be Sustained as Part of a Larger

Regulation of Economic Activity

The Court has indicated that even intrastate, non-

economic activity may be regulated under the Commerce

Clause in some circumstances. When an intrastate

activity which is not in and of itself “economic” is “an

essential part of a larger regulation of economic activity,”

it may “be sustained under [Supreme Court] cases

upholding regulations of activities that arise out of or are

connected with a commercial transaction, which viewed

in the aggregate, substantially affects interstate

commerce.” Lopez, 514 U.S. at 561.

However, the prohibition on the development of a

landfill site due to the presence of 17.6 acres of semi-

aquatic property used by migratory birds cannot be

sustained as “an essential part of a larger regulation of

economic activity.” Though wetlands are often filled to

produce more economically viable areas, the Section 404

program cannot be characterized as a regulation of

economic activity. The program regulates a wide variety

of activities, including many undertaken by homeowners

10

or by government agencies in connection with the

provision of recreational facilities, parks, and even

wildlife refuges. Thus, the Section 404 program is not a

regulation of a commercial market or a class of economic

activities. Nor is the Clean Water Act generally a larger

regulation of economic activity. Indeed, the pu of the

CWA is “to restore and maintain the chemical, physical,

and biological integrity of the nation’s waters,” 33

US.C.A. § 1251(a) (1999), not te regulate markets or

commercial activities.

Thus, because the regulation of isolated waters is

not a regulation of economic activity and is not part of a

larger regulation of economic activity, Lopez and Morrison

do not permit the Corps to establish the requisite

substantial effect on interstate commerce by aggregating

the effects of impacts to all isolated waters. The Seventh

Circuit’s decision to the contrary therefore conflicts with

Lopez and Morrison.

B. The Migratory Bird Rule Does Not

Constitute a Jurisdictional Element that

Would Ensure, through Case-by-Case

Inquiry, that the Activity Being Regulated

Affects Interstate Commerce

The second consideration identified in Morrison is

whether the statute in question has a jurisdictional

element that might limit the reach of the statute to

activities that have the necessary connection with

interstate commerce. Thus, even though it regulates non-

economic, intrastate activity, the migratory bird rule

could still fall within the bounds of Congress’ Commerce

Clause authority if it constituted or included an

appropriate jurisdictional element requiring that the

requisite interstate commerce connection be determined

on a case-by-case basis. See Lopez, 514 U.S. at 561-62.

Although the Corps regulation that the migratory bird

rule purports to interpret contains a jurisdictional

element, see 33 C.F.R. § 328.3(a)(3) (federal jurisdiction

extends to waters if their use, degradation or destruction

could affect interstate commerce), this jurisdictional

11

element cannot rescue the migratory bird rule from

constitutional infirmity.

First, the test set forth in the migratory bird rule

does not appropriately limit the universe of waters that

are made subject to regulation because the rule fails to

require that the Corps demonstrate that the use,

degradation or destruction of an isolated water would

substantially affect interstate commerce. Indeed, the

jurisdictional element goes so far as to cover those areas

with only a potential link to migratory bird use and

therefore a potential link at best with interstate

commerce. Thus, the Corps is not required by its

regulations to demonstrate that the isolated water has

been used in a way that would even begin to establish

any connection with interstate commerce, much less a

substantial connection.

Second, the migratory bird rule defeats the

purpose of a jurisdictional element because it effectively

eliminates the requirement that an impact on interstate

commerce be demonstrated on a case-by-case basis.

Because migratory birds are everywhere, the Corps easily

meets the jurisdictional test in every case. Finally, unlike

other jurisdictional elements that have been held

sufficient by courts to sustain statutes against

constitutional challenges, see, e.g., United States v. Bass, 404

U.S. 336 (1971), the jurisdictional element in this case is

not found in the statute but in the regulations and

therefore may be changed at the whim of the Corps.

Thus, the jurisdictional element in the Corps’ regulations

cannot save the migratory bird rule.

C. Congress Made No Findings Regarding

the Impact on Interstate Commerce of

Migratory Bird Use of Isolated Waters

The third consideration identified by the Court in

Morrison is the existence of legislative findings regarding

the impacts of regulated activities on _ interstate

commerce. The Supreme Court stated in Lopez that

“Congress normally is not required to make formal

findings as to the substantial burdens that an activity has

12

on interstate commerce.” 514 US. at 563. See also

Morrison, 120 S. Ct. at 1751 (quoting Lopez). However, the

existence of such findings may assist a court in evaluating

Congress’ judgment that the activity at issue substantially

affects interstate commerce, even though no substantial

effect is readily apparent. See id.

Like the Gun Free School Zones Act in Lopez,

neither the CWA nor its legislative history contain any

congressional findings regarding the impacts of filling of

any waters, to say nothing of isolated waters as a class, on

interstate commerce. Section 404 of the CWA and the

definition of “navigable waters” originated in the Federal

Water Pollution Control Act Amendments of 1972.

Throughout hundreds of pages of legislative history

associated with the passage of the Act, Congress never

mentioned isolated waters, and it certainly gave no

indication that it intended to regulate isolated waters as a

class, despite the fact that the extension of federal

jurisdiction to isolated waters implicates many millions of

acres. There is no discussion of the economic impacts of

isolated waters in the legislative history and certainly no

hint that Congress thought that activities in isolated

waters would affect populations of migratory birds.‘

Thus, the CWA and its legislative history are of no help to

Respondent in attempting to establish the required

substantial impact on interstate commerce.

D. The Link Between Filling Isolated

Wetlands Visited by Migratory Birds and

Interstate Commerce is Attenuated and

Unsubstantiated

* This omission is not at all surprising since it was not until 1985

that the Corps and EPA, under prompting from a single Senator,

conceived the notion of assertion of jurisdiction over isolated

waters based on their use by migratory birds. See Memorandum

from Francis S. Blake, General Counsel, U.S. Environmental

Protection Agency to Richard E. Sanderson, Acting Assistant

Administrator, U.S. Environmental Protection Agency, “Clean

Water Act Jurisdiction Over Isolated Waters” (1985).

13

The fourth consideration identified as important

by the Morrison Court arises from the fact that the Court's

decision in Lopez was based in part on the attenuated

nature of the link between the regulated activities and

their effect on interstate commerce. See Lopez, 514 U.S. at

563-67; Morrison, 120 S. Ct. at 1751. In Lopez, the

government argued that the possession of guns might

lead to violent crime, which would affect the national

economy through increased insurance costs and

unwillingness of individuals to travel to areas perceived

as unsafe. See Lopez, 514 U.S. at 563-64. The government

also argued that the presence of guns in schools threatens

the educational process, resulting in a less productive

citizenry, which in turn would adversely affect the

Nation’s economic well-being. See id. at 564. Although

the economic effects of crime on society may be great, this

does not mean that possession of guns affects interstate

commerce. Accordingly, the Court rejected the “costs of

crime” argument because it would allow Congress to

regulate all violent crime, as well as any activity that may

lead to violent crime, regardless of how tenuously they

relate to interstate commerce. Similarly, it rejected the

“national productivity” argument because it would grant

Congress authority to regulate any activity it found was

related to the economic productivity of individual

citizens. See id. Under these two theories, the Court

would be “hard pressed” to imagine any activity that

Congress would not be able to regulate. See id.

The Seventh Circuit's rationale in this case is, if

anything, more problematic than the reasoning rejected in

Lopez and Morrison. Relying on Hoffman Homes, Inc. v.

Environmental Protection Agency, 999 F.2d 256 (7 Cir.

1993) (“ Hoffman Homes”) and on statistics contained in a

survey conducted by the U.S. Fish and Wildlife Service

and the Bureau of the Census, the Seventh Circuit found

that millions of people annually spend billion of dollars

engaging in activities such as watching and hunting

migratory birds. Relying solely on Hoffman Homes, the

Court went on to find that the destruction of migratory

bird habitat and an attendant decrease in some bird

14

populations substantially affects interstate commerce.

This purported connection between isolated waters and

interstate commerce is at least as tenuous as that in Lopez

and Morrison and is also largely unsubstantiated.

l. The Purported Impact on Interstate

Commerce Relied on by the Seventh

Circuit is Unsubstantiated

As noted, the Seventh Circuit's sole authority for

the proposition that filling isolated waters substantially

affects interstate commerce is its prior decision in Hoffman

Homes. However, Hoffman Homes is a very slender reed

that cannot bear the weight of such a significant

constitutional determination. First, the statement of the

Hoffman Homes court regarding the impacts of the

cumulative loss of wetlands related to all wetlands, not

the loss of isolated waters. Even as to the larger class of

all wetlands, the court in Hoffman Homes did not find that

the loss of habitat substantially affected interstate

commerce, as suggested by the court in SVWANCC.

Rather, the Hoffman Homes court was considering the very

different issue of whether EPA had _ reasonably

interpreted its own regulations when it asserted

jurisdiction over an isolated wetland based on its

potential use by migratory birds. See id. at 260.

Second, the Hoffman Homes decision does not in

fact provide any foundation for the proposition that loss

of isolated waters substantially affects interstate

commerce in the form of bird-watching and hunting. As

support for this proposition, the Hoffman Homes court

merely cites a 1985 North American Waterfowl

Management Plan.° See id. at 261. That document states

without citation of authority that waterfowl “generate” a

“direct expenditure” of several billion dollars a year. The

document goes on to state that changes in the landscape

induced by man have “affected the distribution and

abundance of several species,” resulting in increases in

5 The court also cites two cases which in fact provide little or no

support. See Hoffman Homes, 999 F.2d at 261.

ee a a ~

15

some populations and decreases in others. Thus, Hoffman

Homes provides scant support for the argument that loss

of isolated waters substantially affects interstate

commerce.

The flaws in the Seventh Circuit's argument do

not end there. In fact, the Court's rationale strongly

suggests that the purported impacts on_ interstate

commerce are non-existent. The Hoffman Homes court and

the Seventh Circuit below indicated that the filling of

isolated waters and the decline of some bird populations

will cause people to have a diminished opportunity to

hunt and observe those birds. They did not assert that

filling isolated waters will actually cause fewer people to

travel to birdwatch or hunt. For example, assume that

bird-watchers travel to a certain area to observe twenty

different species of birds. It does not follow that if the

area changes so that it only supports ten different species,

bird-watchers will stop visiting that particular site all

together. On the contrary, they presumably will continue

to frequent that area to study the birds that remain and

go elsewhere to observe other species. Moreover, while

some bird species have seen population declines in the

past thirty years, as many or more species have seen

population increases. According to the U.S. Geological

Survey's North American Breeding Bird Survey, over

one-half of more than 421 bird species have shown an

increase in population during approximately the last 30

years. One group of those 421 species represents

wetland/open water birds species, nearly two-thirds of

which have increased in numbers since 1966.°

Perhaps more importantly, the statistics cited by

the Seventh Circuit show that more people, not fewer, are

traveling interstate to engage in bird-related activities.

For example, the Seventh Circuit noted that in 1996, 14.3

million people traveled across state lines specifically to

6 See US. Geological Survey, North American Breeding Bird

Survey (visited July 25, 2000)

<http:/ / www.mbr.nbs.govp/bbs/guild/group98.htmI>.

16

observe birds, citing the 1996 National Survey of Fishing,

Hunting and Wildlife Associated Recreation. See

SWANCC, 191 F.3d at 850. According to the 1985 version

of the same study, bird-watchers accounted for 11 million

interstate trips per year. See National Survey of Fishing,

Hunting and Wildlife Associated Recreation, 45 (1988).

Thus, the surveys reveal a 30 percent increase in the

number of trips being taken by interstate travelers to

observe birds over the period from 1985 to 1996, hardly a

sign of diminished opportunities for bird-watching.

Therefore, assuming that the Seventh Circuit is not

incorrect in its assertion that the cumulative loss of

wetlands has reduced some bird populations, it is clear

that the Seventh Circuit has incorrectly assumed that a

reduction in some migratory bird populations has

resulted in diminished birdwatching opportunities.

Statistics show that this simply is not the case. Thus, the

Seventh Circuit's conclusion that the destruction of

migratory bird habitat and the resulting decrease in the

populations of birds “substantially affects” interstate

commerce does not withstand scrutiny.

2. The Seventh Circuit's Logic Has No

Stopping Point .

Even if they were substantiated, the purported

impacts on interstate commerce in this case are too

attenuated to provide a basis for the assertion of federal

power. The chain of inference is a lengthy one: filling

isolated waters results in a loss of habitat for migratory

birds; loss of habitat results in an overall decline in some

populations of migratory bird species; a decline in some

bird populations results in diminished opportunities for

hunting or observing that particular species; significant

numbers of individuals who wish to hunt or observe the

particular species whose numbers have diminished will

forgo bird-watching or hunting trips or otherwise modify

their travel. This is exactly the sort of piling of inference

upon inference that was rejected by the Court in Lopez

and Morrison.

Moreover, like the arguments made in support of

federal regulation in those cases, the rationale of the

17

Seventh Circuit must be rejected because it has no logical

stopping point and would obliterate the distinction

between what is national and what is truly local. Indeed,

the Seventh Circuit's decision below would allow the

Federal government to regulate the use of nearly every

inch of land in the United States. First, given the Corps’

expansive definition of wetlands and water bodies, the

Corps would have authority to exercise jurisdiction over

millions of acres containing isolated waters, without

regard for their size or location.’ The Corps’ regulations

state that it may assert jurisdiction over such isolated

wetlands if the use, degradation, or destruction of those

wetlands could affect interstate commerce. The Corps’

regulations go on to specifically enumerate several

categories of isolated waters that meet this test.

Generally, the isolated waters identified in the Corps

study are too small to attract interstate travelers for

recreational purposes, to provide fish or shellfish for sale

in interstate commerce, or to be used for industrial

purposes in interstate commerce. See 33 C.F.R. §§

328.3(a)(3)(i)-(iii). Thus, the migratory bird rule is the

only route by which the federal government can assert

jurisdiction over these areas.

This, however, matters little because the migratory

bird rule is the only jurisdictional tool the Corps needs.

As the Seventh Circuit itself noted, somewhere between

?7 A 1995 Corps study of isolated wetlands measuring less than

one-half acre documents the migratory bird rule’s importance in

establishing federal jurisdiction over tiny, remote areas. The

Corps’ study did not include data from Louisiana, Michigan, New

Jersey, Ohio, Texas, Washington, or West Virginia. It did not

include isolated wetlands measuring one-half acre or larger, and it

excluded “other waters” (such as ponds) that are not wetlands.

Even with these omissions, the Corps’ study found that there are

8,309,502 discrete isolated depressional areas meeting the federal

wetlands definition scattered across 1,836,469 acres of the

American landscape. See U.S. Army Corps of Eng’rs, 1995

Wetlands Delineation Field Evaluation Forms (June 1995) (“1995

Corps Data Forms”).

18

2.5 and 6 billion birds inhabit the United States, two-

thirds of which migrate. See SWANCC, 191 F.3d at 850.

Nothing can prevent these birds from traveling

throughout the Western Hemisphere and eventually

alighting on any land or water in the United States. See

e.g., Hoffman Homes, Inc. v. Administrator, 999 F.2d 256, 262

(7th Cir. 1993) (noting that “migratory birds can alight

most anywhere” and citing testimony to that effect by a

biologist with the U.S. Fish and Wildlife Service). In one

study, for example, researchers marked birds in North

Dakota and later recovered them in 46 states, ten

Canadian provinces and territories, and 23 other

countries.’ In addition, the migratory bird rule does not

even require actual “use” by birds; potential use is

sufficient, and there is no minimum standard for kind or

frequency of use, or a requirement that a water be used

by a particular type of migratory bird such as waterfowl.

Thus, the migratory bird rule in practice provides the

basis for the Corps to assert jurisdiction over virtually all

of the 8 million depressional areas identified in its study.

Clearly, the impacts of Corps jurisdiction based on the

ee ap 7 ay are widespread.

= ile the Seventh Circuit purported to im

limits on the Corps’ jurisdiction by ellen a definition of

habitat (“the place where a plant or animal species

naturally lives or grows[,]” Webster's Third New Int'l

Dictionary 1017 (1993)), such a limitation is an empty

gesture. As previously noted, two-thirds of the 2.5 to 6

billion birds in the United States migrate. Moreover

birds can and do live anywhere, including a wide variety

of urban and suburban environments. Therefore,

allowing the Corps to regulate the habitat of migratory

birds gives the Corps carte blanche to regulate any

isolated water it chooses, effectively giving the Corps

land use control over millions of acres of property under

the guise of regulating “navigable waters.”

® See US. Fish & Wildlife Serv., Wetlands of the United States:

Current Status and Recent Trends 1 (1984).

19

Of course, under the Seventh Circuit's rationale,

there is no need for Congress to require the Corps to end

its regulation at the water's edge or at the boundary of

some wetland. If the presence of avian habitat

automatically confers federal jurisdiction, there is no

corner of the Nation that would remain off-limits to the

federal government, truly obliterating the distinction

between what is national and what is local. Lopez, 514

U.S. at 567.

The Seventh Circuit's faulty logic is similar to that

of the Morrison petitioners, which as the Court noted

would lead to endless congressional regulation of crime,

as long as the nationwide, aggregated impact of a crime

has substantial effects on employment, production,

transit, or consumption. See 120 S. Ct. at 1752-1753.

Moreover, by permitting Congress to regulate gender-

motivated violence, it surely would be able to regulate all

violent crime, since violent crime in general would

certainly have a broader economic impact than its subset,

gender-motivated violence. See id. Similarly, petitioners’

reasoning in that case would have allowed Congress to

regulate, for example, family law since the aggregate

economic effect of marriage, divorce, and childrearing is

significant. See id.

Likewise, following the Seventh Circuit's logic in

the present case would lead to federal regulation of the

filling or dredging of every pit, pond, depression, ditch,

pool, trough, puddle, pothole, rut, dip, trench, and

channel. Moreover, it would open the door to general

federal regulation of land use. The Commerce Clause

cannot be read to allow Congress to pre-empt an area of

regulation that, as discussed below, has traditionally been

the province of state and local governments.

Thus, the rationale of the Seventh Circuit cannot

be squared with Lopez and Morrison. The Seventh Circuit

would allow a relatively trivial impact on commerce to

serve as an excuse for broad general regulation of private

activities, a result which this Court has cautioned against.

20

Maryland v. Wirtz, 392 U.S. 183, 196 n.27 (1968).2 The

Corps’ assertion of jurisdiction must be rejected.

II. THE ASSERTION OF FEDERAL

JURISDICTION OVER ISOLATED WATERS

MUST BE SCRUTINIZED CAREFULLY

BECAUSE LAND USE IS AN AREA OF

TRADITIONAL STATE CONCERN

The migratory bird rule warrants careful scrutiny

by this Court because, in determining whether

development may occur in particular areas, the federal

government treads upon ground traditionally reserved to

the States by the Tenth Amendment. See Lopez, 514 U.S.

at 583 (Kennedy, J., concurring) (intrusion on state

sovereignty requires a “stronger connection” with

commercial concerns central to the Commerce Clause, or

the intrusion “contradicts the federal balance the Framers

designed”). See also Morrison, 120 S. Ct. at 1754

(expressing concern that petitioner's logic would

authorize federal regulation of areas of traditional state

regulation such as family law). The use of real proper

is a traditional State concern. See Fidelity Federal Sav. &

Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153 (1982).!9 In

particular, States are regarded as the proper governing

* Regulation of isolated waters is not the regulation of a class of

activities such as might authorize the assertion of federal authority

despite the trivial nature of any impacts on commerce associated

with particular isolated waters. See Wirtz, 392 U.S. at 192. As

Respondent conceded more than a decade ago, there is no

indication in the statute or the legislative history that Congress

intended to regulate isolated waters as a class. See Memorandum

in Support of Federal Defendants’ Motion to Dismiss or in the

Alternative for Summary Judgment and in Opposition to

Plaintiffs’ Motion for Partial Summary Judgment at 50, National

Wildlife Fed’n v. Laubscher (S.D. Tex. 1987) (No. G-86-37).

'? In fact, the Court has previously noted that “regulation of land

use is perhaps the quintessential state activity.” F.E.R.C. v.

Mississippi, 456 U.S. 742, 767 n.30 (1982).

21

body to enact and enforce property laws concerning land

use planning. See Dolan v. City of Tigard, 512 U.S. 374, 384

(1994) (authority of state and local governments to engage

in land-use planning has been sustained against

constitutional challenge as long ago as the decision in

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)). See also

California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572

(1987) (state land-use law applicable to federal land).

Moreover, decisions regarding local land use “properly

rest with the community that is ultimately - and

intimately - affected.” Gardner v. City of Baltimore, 969

F.2d 63, 68 (4th Cir. 1992). Thus, zoning and other aspects

of land use regulation “are particularly within the

province of local legislative authorities.” Warth v. Seldin,

422 US. 490, 508 n.18 (1975). See also Evans v. Board of

County Commissioners, 994 F.2d 755, 761 (10th Cir. 1993)

(land use policy is a feature of local government and an

area in which the tenets of federalism are particularly

strong).

According to the Corps, because the 17.6 acres at

issue serve as a habitat for migratory birds, the Corps has

authority to prohibit SWANCC from developing the

property as a landfill, and in fact did so. As a result, the

Corps has effectively overridden the plan promulgated

by 23 municipalities to address a local issue as basic as

where to dump their garbage, in the process disrupting

local land-use plans and zoning decisions and

diminishing local governments’ ability to address an

issue of vital concern to its citizens. This intrusion is

antithetical to fundamental principles of federalism and

violates the mandate of the Tenth Amendment. See Lopez,

514 U.S. at 576 (Kennedy, J., concurring) (quoting New

York v. United States, 505 U.S. 144, 181 (1992)) (“’[T]he

Constitution divides authority between federal and state

governments for the protection of individuals. State

sovereignty is not just an end in itself: “Rather,

federalism secures to citizens the liberties that derive

from the diffusion of sovereign power.”’” (quoting

Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun,

J., dissenting))); New State Ice Co. v. Liebmann, 285 U.S. 262,

22

311 (1432) (Brandeis, J., dissenting) (as a “social

laboratory,” States have the ability to react to local

problems in a manner best adapted to local needs). States

must not be prohibited from “exercising their own

judgment in an area to which States lay claim by right of

history and expertise [through regulation of] an activity

beyond the realm of commerce in the ordinary and usual

sense of that term.” See Lopez, 514 U.S. at 583 (Kennedy,

]., concurring).

By utilizing the migratory bird rule to exercise

jurisdiction over intrastate, isolated waters, the federal

government has effectively preempted traditional State

authority over the use of millions of acres of land." In

the absence of the migratory bird rule, these areas would

be subject to the wetlands laws enacted by many States

and over 5,000 local governments.'? Unfortunately,

'' As an example of the broad reach of the federal program,

consider the State of Georgia’s approximately 240,000 isolated

wetlands that are each less than one-half acre. See 1995 Corps

Data Forms. The migratory bird rule provides the federal

government with 240,000 opportunities to trump State and local

authorities in their traditional role as regulators of land use.

'2 See, e.g., Conn. Gen. Stat. §§ 22a-28 to -45a (2000); Fla. Stat Ann.

§§ 373.414 - .421 (2000); Me. Rev. Stat. Ann. tit. 38, §§ 480-A to -Z

(2000); Mass. Gen. Laws Ann. ch. 131, §§ 40, 40A (2000); Mich.

Comp. Laws §§ 324.30301 - .30323 (2000); Minn. Stat. § 103G.222 -

.2373 (2000); N.H. Rev. Stat. Ann. §§ 482-A:1 - :27 (2000); N.J. Rev.

Stat. §§ 13:9B-1 to -30 (2000); N.Y. Envtl. Conserv. Law §§ 24-0101

to -1305 (2000); Vt. Stat. Ann. tit. 10, § 1272 (2000). Many of these

statutes provide for local regulation or management of isolated

waters and wetlands. See, e.g., Conn. Gen. Stat. § 22a-42 (2000);

Me. Rev. Stat. Ann. tit. 38, § 480-F (2000); Minn. Stat. § 103G.2243

(2000); N.Y. Envtl. Conserv. Law § 24-0501 (2000). For examples of

local ordinances or by-laws regulating isolated waters and

wetlands, see Sacramento, Cal. General Plan CO-96 (1993);

Broward County, Fla., Code §§ 27-331 to -350 (1993); Lovequist v.

Conservation Comm'n of Dennis, 393 N.E.2d 858 (Mass. 1979); Biggs

v. Town of Sandwich, 470 A.2d 928 (N.H. 1984); and Hearings on S.

1304 Before the Subcomm. On Clean Water, Fisheries and Wildlife

23

where property contains isolated waters as defined by the

federal government, State and local governments cannot

implement their land use regulations until the federal

government approves the local development projects - a

textbook violation of the basic principles of federalism."

Moreover, the very structure of the CWA

evidences a congressional respect for these federalism

principles that the migratory bird rule undermines.

When Congress enacted the CWA, it attempted to

preserve the authority of the States, stating that “[i]t is the

policy of the Congress to recognize, preserve, and protect

the primary responsibilities and rights of States to

prevent, .educe and eliminate pollution, to plan the

development and use _ (including restoration,

preservation, and enhancement) of land and water

resources.” 33 US.C.A. § 1251(b) (1999). Therefore,

Congress elected not to late all sources of water

llution, leaving the control of runoff from agricultural

and silvicultural operations to the states. Congress also

of the Senate Comm. On Environment and Public Works, 103d

Cong,, Ist Sess. (1993) (statement of National Association of State

Departments of Agriculture) available in LEXIS, Legis Library,

Cngtst File (noting that over 5,000 local governments have

adopted wetland protection regulations).

'3 As Petitioners note in their brief, this federal veto authority over

state and local land use decisions is of more than academic

interest. Local development projects are not infrequently opposed

by local citizens for a variety of reasons having little to do with the

environment but everything to do with perceived impacts on

property values and related concerns. This is the now familiar

“NIMBY” syndrome. The concerns of such project opponents are

properly dealt with by local land use authorities. Nevertheless,

such opponents are often able to use the Section 404 permitting

requirements to fight a project simply because of the Corps’ de

facto veto authority over local land use decisions. Thus, all too

often the Corps becomes an active participant in local land use

debates that are driven by NIMBYism rather than regard for the

aquatic ecosystem.

24

excluded groundwater from the CWA’s coverage to

prevent federal interference with — state

jurisdictional rules. See S. Rep. No. 414, Cong., Ist

Sess. 73 (1971); 118 Cong. Rec. 10,699 (1972). In addition,

Congress enacted Section 208 to encourage the States to

develop waste treatment management plans that would

cover pollution sources not regulated by federal law. See

33 U.S.C.A. § 1288 (1999). Congress clearly tried to strike

a careful balance, asserting federal authority where

necessary to protect strictly federal interests, while

promoting a voluntary federal-state partnership in

matters beyond the reach of the federal government, and

preserving State authority elsewhere.

The migratory bird rule nullifies this balance,

extending federal authority to more than eight million

isolated depressions, most of which would be covered

under State or local regulations. In the absence of a clear

Statement by Congress of its intent to change the

federal/state balance, the Court should not countenance

such a dramatic displacement of traditional state

authority. United States v. Bass, 404 U.S. 346, 349 (1971).

As shown below, no such evidence of congressional

intent exists.

iil, DUE TO GRAVE CONSTITUTIONAL

CONCERNS REGARDING THE MIGRATORY

BIRD RULE, THE CWA SHOULD BE READ

NARROWLY TO EXCLUDE JURISDICTION

OVER ISOLATED WATERS

According to the Supreme Court, when an Act's

interpretation raises “serious constitutional concerns,” the

Court must independently inquire whether there is

another, less objectionable interpretation that may be

ascribed to the Act. See Edward |. DeBartolo Corp. v. Florida

Gulf Coast Bldg. & Const., 485 U.S. 568, 577 (1988). See also

National Labor Relations Bd. v. Catholic Bishop of Chicago,

440 US. 490, 501 (1979) (where expansive reading of

statute would raise serious constitutional questions, the

Court requires a clear expression of congressional intent

25

before concluding that the statute ts jurisdiction).

Because the migratory bird rule raises serious

constitutional concerns regarding the extent to which the

Commerce Clause’s limits may be stretched, the Court

should read the CWA narrowly to exclude jurisdiction

over isolated waters.

A. The Court Cannot Completely Ignore the

Concept of Navigability :

In ing the CWA in 1972, Con chose to

assert jurisdiction iction over “navigable waters” 33 USC. §

1311(a). omy the plain language of the statute or

its legislative history suggests that, in using this

jurisdictional phrase, Congress used the word

“navigable” as mere surplusage and intended it to have

no particular import. In fact, while Congress defined

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

Congress had a long history of using these or similar

terms that demonstrates that in 1972 Congress

understood all such terms to incorporate some notion of

navigability.

For example, in 1899 Congress passed a Rivers and

Harbors Appropriations Act (including what is

sometimes known as the Refuse Act) which made it

unlawful to construct any bridge, causeway, dam or dike

over or in, inter alia, any navigable river or other

“navigable water of the United States” without specific

approvals. 33 U.S.C. § 401. At the same time, Congress

prohibited the creation of any obstruction to the

navigable capacity of any “waters of the United States”

unless authorized by Congress, and prohibited the

excavation or filling of, inter alia, the channel of any

“navigable water of the United States” unless authorized

by the Secretary of the Army. 33 U.S.C. § 403. As part of

the same Act, Congress made it unlawful to discharge

any refuse matter into any “navigable water of the United

States” or to deposit any material on the bank of any

“navigable water” where it might be washed into the

navigable water. 33 U.S.C. § 407. See also Rivers and

Harbors Act of 1894, § 5, 33 U.S.C. § 499 (authorizing

26

regulations for operation of drawbridges built across

“navigable rivers or other waters of the United States”).

There is no indication that Congress intended these

various terms to be anything other than interchangeable.

See, e.g., United States v. Republic Steel Corp., 362 U.S. 482,

484-87 (1960) (reading terms as being essentially

coextensive). Moreover, there can be no dispute that

Congress intended all of these terms to be tied to the

concept of navigability.

Congress continued its interchangeable use of

these terms over the ensuing decades. For example, in

passing the Federal Power Act in 1920, Congress used the

terms “navigable waters of the United States” and

“navigable waters” interchangeably. See 16 U.S.C. § 817.

See also Act of Sept. 15, 1922, c. 313, 42 Stat. 844, 33 U.S.C.

§ 472 (concerning marking of anchorage grounds for

vessels in “waters of the United States”). As late as 1972,

only three weeks before passing the CWA, Congress

again made use of the term “navigable waters” in a

context that makes clear that the term was based on

notions of navigability. See 33 U.S.C. § 535i.

It was in the context of this long history that

Congress invoked the phrase “navigable waters” in

defining the scope of the CWA. In light of this history, it

is evident that the term “waters of the United States” was

not intended to convey a wholly different meaning, one

without any connection to navigability. McDermott Int'l,

Inc. v. Wilander, 498 U.S. 337, 342 (1991) (Congress is

assumed to have intended legal term of art to have its

established meeting).

The legislative history of the CWA does not

suggest a different result. Rather, the legislative history

indicates that, as the Court indicated in United States v.

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

Congress defined “navigable waters” as “waters of the

United States” it merely renounced regulatory limits

under other water pollution control statutes and began to

regulate waters that would not be deemed “navigable”

under that term’s classic definition. See id. at 133 (quoting

Sen. Conf. Rep. No. 92-1236, 144 (1972); 118 Cong. Rec.

27

H33,756-57 (1972) (statement of Rep. Dingell). Congress

simply intended to define the term pursuant to then

recent judicial opinions that “expanded that limited view

of navigability . . . to include waterways which would be

‘susceptible of being used .. . with reasonable

improvement.” 118 Cong. Rec. H33,756 (1972)

(statement of Rep. Dingell) (quoting United States v. Utah,

283 U.S. 64, 72 (1931)). In other words, the text was

designed to reference the broader definitions of

“navigable waters” and “waters of the United States”

established by this Court. However, such broader

definitions do not encompass isolated waters without any

connection to navigation.

Moreover, there is no suggestion in the legislative

history of the 1972 Act that Congress had any intent to

regulate waters that are not connected in any way to

waters that are navigable in fact. There is simply no

mention in the legislative history of isolated wetlands or

other isolated waters such as ponds, dry washes, or

ephemeral waters. Thus, the meaning of the statement in

the House and Senate conference reports that the

conferees intended to give “navigable waters” the

broadest possible constitutional interpretation is clear.

See S. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972); H.R.

Rep. No. 911, 92d Cong., 2d Sess, 131 (1972). Congress

clearly intended that the CWA regulate waters capable of

navigation by reasonable improvement. Had Congress’

intent been otherwise, it would have said so expressly."

Despite the evident intent of Congress, the Corps’

definition renders “navigable” completely meaningless.

Although the Court may determine, as it did in Riverside

Bayview, that the CWA’s definition of “navigable waters”

indicates that the term “navigable” is of limited import, it

'4 Congress certainly knew how to craft statutory language that

would assert federal jurisdiction to the maximum extent allowed

by the Commerce Clause. See, e.g., 33 U.S.C. § 817 (waters “over

which Congress has jurisdiction under its authority to regulate

commerce” ).

28

should not completely ignore the concept of navigability.

To drain the word “navigable” of any meaning at all

would run counter both to history and to the cardinal

principle of statutory construction that the Court must

give effect, if possible, to every word of a statute.

Williams v. Taylor, 120 S. Ct. 1495, 1519 (2000). Indeed,

“navigable” must assume some significance because had

Congress intended that the word have no meaning at all,

it would have employed another term in its place.

In short, when Congress defined “navigable

waters” as “the waters of the United States,” it did not

grant the Corps the authority to regulate water bodies in

the broad and constitutionally suspect manner approved

by the Seventh Circuit. See generally United States v.

Wilson, 133 F.3d 251, 257 (4% Cir. 1997) (Because the

Corps’ regulation defining “navigable waters” includes

intrastate waters that need have no_ connection

whatsoever to navigable or interstate waters, it expands

the term “waters of the United States” beyond

permissible limits). Therefore, this Court should interpret

the CWA in light of the constitutional hurdles that would

arise by reading the Act so broadly that it allows the

Corps, through the migratory bird rule, to assert

jurisdiction over waters without a connection to interstate

or navigable waters, or waters that do not otherwise

substantially affect interstate commerce. See id. at 258.

B. The Fact that an Expansive Reading May

Further the Goals of the CWA is

Irrelevant

Respondents have argued that SWANCC’s

contention that the term “navigable waters” should be

limited to waters that are navigable in fact, interstate, or

closely related to navigable or interstate waters is adverse

to the purpose of the CWA. See Brief for the Respondents

in Opposition to Petition for A Writ of Certiorari, Solid

Waste Agency of Northern Cook County v. United States

Army Corps of Engineers, No. 99-1178. Implicit in this

contention is that allowing the Corps broad authority to

regulate isolated waters based on their possible use by

29

migratory birds furthers the CWA’s objectives. However,

the fact that a broad reading of a statute may further the

statute’s purpose is immaterial:

[NJo legislation pursues its purposes at all

costs. Deciding what competing values will

or will not be sacrificed to the achievement of

a particular objective is the very essence of

legislative choice — and it frustrates rather

than effectuates legislative intent

simplistically to assume that whatever

furthers the statute’s primary objective must

be the law. '

Rodriguez v. United States, 480 U.S. 522, 525-26 (1987).

Moreover, the Court has noted that application of broad

legislative purposes at the expense of specific provisions

ignores the problems Congress must resolve and the

dynamics of the process in which Congress must engage to

resolve them. For example, although Congress may

unanimously enact a piece of legislation, its members may

differ drastically on the means by which that legislation will

be implemented. Thus, the final statutory language may

reflect hard-fought compromises. See Board of Governors v.

Dimension Financial Corp., 474 U.S. 361, 373-74 (1986).

“{I]nvocation of the ‘plain purpose’ of legislation at the

expense of the terms of the statute itself takes no account of

the processes of compromise and, in the end, prevents the

effectuation of congressional intent.” /d. at 374.

Clearly, allowing the Seventh Circuit's expansive

reading of the CWA simply because it might somehow

further the purpose of the Act is inappropriate. Based on

this Court's jurisprudence, the Court should interpret the

CWA based on the Act's final statutory language and

refuse to allow the Corps to engage in an unreasonable

expansion of the CWA’s terms.

30

CONCLUSION

| For the foregoing reasons, the Court should

reverse the Seventh Circuit's decision granting the Corps

the authority to regulate isolated waters based on their

use by migratory birds.

Respectfully submitted,

Of counsel:

Duane Desiderio Thomas C. Jackson*

National Association of Michael D. Olsen

Hon.e Builders Kelley Drye & Warren LLP

1201 15 Street, N.W. 1200 19 Street, N.W. Ste. 500

Washington, D.C. 20005 Washington, D.C. 20036

(202) 822-0234 (202) 955-9600

Counsel for Amicus Curiae

*Counsel of Record