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

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No. 99-1178 JUL 27 2000

IN THE

CLERK

Supreme Court of the Biniths-wosalee®* a

——

SOLID WASTE AGENCY OF NORTHERN CooK COUNTY,

Petitioner,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Respondents.

On Writ of Certiorari

To The United States Court of Appeals

For The Seventh Circuit

BRIEF OF

THE SERRANO WATER DISTRICT;

THE IMPERIAL IRRIGATION DISTRICT;

THE METROPOLITAN WATER DISTRICT

OF SOUTHERN CALIFORNIA;

THE CENTRAL ARIZONA WATER

CONSERVATION DISTRICT;

THE RIVERSIDE COUNTY FLOOD CONTROL AND

WATER CONSERVATION DISTRICT;

THE WESTERN COALITION OF ARID STATES;

THE WESTERN GROWERS ASSOCIATION;

TEJON RANCH CO.; AND THE FOUNDATION FOR

ENVIRONMENTAL AND ECONOMIC PROGRESS, INC.

AS AMICI CURIAE IN SUPPORT OF PETITIONER

VIRGINIA S. ALBRECHT

Counsel of Record

JAMES N. CHRISTMAN

STEPHEN J. WENDEROTH

HUNTON & WILLIAMS

1900 K. STREET, N.W.

WASHINGTON, D.C. 20006-1109

(202) 955-1500

July 27, 2000 Counsel for Amici Curiae

es

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

QUESTION PRESENTED

Whether the U.S. Army Corps of Engineers, consistent

with the Clean Water Act and the Commerce Clause of the

United States Constitution, may assert jurisdiction over

wholly intrastate waters, inc'uding ephemeral drainages in

the West, solely because such waters are used, or could be

used, as habitat by birds that cross State lines.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ........:<:ccsssvesssvessvessseessvessseessneesneeen i

CORT GF II ccceeccesesccstctasscescciccssitatarincicae v

INTEREST OF AMICI CURIAE ......c:cssessvesssvessvessvesssveeseveesees I

SUMMARY OF ARGUMENT .........:.0::svessseesseessvessseeesseeeevees 3

ERATE REE ORS av ee ee eee 5

Il. THE MIGRATORY BIRD TEST TRANSFORMS

EPHEMERAL DRAINAGES INTO WATERS OF

THE UNITED STATES AND _ THEREBY

FEDERALIZES LOCAL LAND USE

DECISIONMAKING IN THE WEST.................cccccceceeeeees 7

Il. CONGRESS DID NOT INTEND TO CLAIM

JURISDICTION OVER EPHEMERAL

DRAINAGES REACHED BY THE MIGRATORY

A. Congress Intended To Expand Federal Authority

But Not To Ephemeral Drainages And Other

IID, cocessesensessecssnssesesnenennssasensennsnmecnsnens 12

B. Absent A Clear Statement From Congress, The

Court Should Not Construe The Statute To Alter

The Federal-State Balance In Land Use

IR canesscssessesscsassssesssssssscssassssnsnnsnsssessssessoessnstn 14

(iii)

iV

fl. THE MIGRATORY BIRD TEST EXCEEDS

CONGRESS'S AUTHORITY UNDER THE

COMMERCE CLAUSE. .........--:cccesesseeenseenesnennnennnens 18

A. Even If SWANCC’s Project Were Considered

“Economic,” That Does Not Mean That Section

404 Is An Economic Regulation Under Lopez And

Morrison, Nor That The Alteration Of Any

Particular Waterbody Affects Commerce. ............... 18

B. The Idea That The Alteration Of Tiny

Waterbodies Would Affect Interstate Commerce

Is Pure Speculation. ............-.ceeeeeeeeeenennennnrnnnensnnnnes 22

C. The Claimed Connection Between Bird Habitat

And Interstate Commerce Is Not Supported By

Either Congressional Or Administrative Findings....25

1. Origin of the Test. ............ccccscscsseseessenenneesencesneens 26

2. Lack of Findings and Jurisdictional Element. .....28

D. Conclusion as to the Commerce Power................++: 30

OL 30

TABLE OF AUTHORITIES

Page

CASES

Andrus v. Allard, 444 U.S. 51 (1979) .0......ccccccccccceseeceeeeeeenees 22

Atascadero State Hosp. v. Scanlon, 473 U.S. 234

ie csnssnentannnsertemeincanansasanniiininpartntiieapeteemensiataaisiasataaaaies 14

Avoyelles Sportsmen League v. Marsh, 715 F.2d 897

ag ERAN Rie SERIE aE 18

Edwards v. Carter, 580 F.2d 1055 (D.C. Cir. 1978)............ 23

Geer v. Connecticut, 161 U.S. 519 (1896) .........cccccccccceceeeees 22

Gibbs v. Babbitt, 214 F.3d 483 (4" Cir. 2000) .........00-cc00000e- 22

Gregory v. Ashcroft, 501 U.S. 452 (1991) .......cccccccccceeeeeeeees 15

Hodel v. Virginia Surface Mining & Reclamation

a i a > Ce cerrcccttcteinncteantnninieninnmssees 23

Hoffman Homes, Inc. v. EPA, 999 F.2d 256 (7 Cir.

Se acninctrcnenacnnsipcntnsenmnpmannstecnsncineaiausatipei asians 21,29

Hughes v. Oklahoma, 441 U.S. 322 (1979) .......cccccccccseeeeeeee 22

In re The Hoffman Group, CWA Appeal No. 89-2

a: Site Uitte it ccretnnsatieitineinenemmniansietiinesiieincsinaiaiecns 21

Jones v. United States, 120 S. Ct. 1904 (2000) .............. 14, 15

Laguna Gatuna, Inc. v. Browner, 58 F.3d 564 (10"

ee Cie cttesenrnecarenternsonniaesneniententuiitaneinnmnsenasatatnsmsitsieal 9

Missouri v. Holland, 252 U.S. 416 (1920) 2........ccccccceceeeeeeees 22

National Ass'n of Home Builders v. Babbitt, 130 F.3d

te CE Gite ienteinirntentnsrnsetnniicinennenentnemiementanianes 22

National Mining Ass'n v. Corps of Engineers, 145

KE 17

North Dakota v. United States, 460 U.S. 300 (1983)........... 22

vi

Perez v. United States, 402 U.S. 146 (1971) .........ccccceeeeeeeees 21

Quivira Mining Co. v. EPA, 765 F.2d 126 (10" Cir.

ee 24

Tabb Lakes, Lid. v. United States, No. 89-2905, 1989

WL 106990 (4 Cir. Sept. 19, 1989) ..........ccccecneeneeneenes 15

United States v. Lopez, 514 U.S. 549 (1995).......ccc0000+« passim

United States v. Lopez, 2 F.3d 1342 (5™ Cir. 1993) .........000: 20

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

United States v. Phelps Dodge, Corp., 392 F. Supp.

0 US 24

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

0 a 5, 6, 12, 26

United States v. Wilson, 133 F.3d 215 (4" Cir. 1997)........+. 17

Village of Euclid v. Ambler Realty Co., 272 U.S. 365

CI enesessessevsneresctnssnenceessmqssemmapemnmannmmmmemnasestannmnens 14

CONSTITUTION AND STATUTES

OEE 22

UL 14

OSS 15

ET a ee 15

oT ol) iinctimeniaiiall 5

pL ee 18

SD UGC. © CBCCRI GRD ccceccecesessccesssnessssesnsssnsscssenssnsmassessssese 5

SD UAB. 6 GT ecccsccccssncsresssescssscsscssscesssssevensssensnnnsssnnsesssee 5

Federal Water Pollution Control Act Amendments of

1972, Pub. L. No. 92-500, §§ 304(e)(A)-(C), 502

(14), 86 Stat. 816, 852, 887 (1972)............ccccceeeceeeeeeeeeees 15

Cal. Fish & Game Code § 1601 .0..........cccccccceceeseeeeeneneeneenenees 25

vii

Cal. Fish & Game Code § 1603 .00.......cccccccccccccseseeesecseseeeeee <a

Cal. Pub. Res. Code § 30233 ............ccccccccccsssscssscessssseseseescees 25

Md. Code Ann. Envir. §§ 5-901 to 5-911 oo... cccccccccceeseeeeeees 17

FE DREN NET nee 17

FEDERAL REGULATIONS

33 CPR. § 323(aS) (1978) .....cccvvvccsscccssssvssceessessnvssserseeesees 13

SE a. a 5

I icerictrinrsinasitnitieelasnantsintaiiansnsnaastasinianrtatniatae )

Ol 5

FEDERAL REGISTER

42 Fed. Reg. 37,122 (July 19, 1977) .cccccccccccsssscsssssssssssesssssees 13

45 Fed. Reg. 33,290 (May 19, 1980) ............ccccccccceseeseeeeeeeees 21

51 Fed. Reg. 41,206 (Nov. 13, 1986) ..........cccccccccccesseseeseeeeeees 6

65 Fed. Reg. 12,818 (Mar. 9, 2000).............cccccccccseeseeseesseeeeees 8

65 Fed. Reg. 16,486 (Mar. 28, 2000).............cc.cccccccccceeseeeeereees )

LEGISLATIVE HISTORY

Oversight Hearings on Section 404 of the Clean

Water Act, July 15, 1985, reprinted in

Environmental Policy Division, Library of

Congress, A Continuation of the Legislative

History of the Fed. Water Pollution Control Act

a esiectnnieccniesiicsetnsecnnecnariennareiiniatannaamasataataiatiel 26

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

eee: GPW Wl ctercernesneneresesitinennsneendiiecnenetonatintetinniiaiess 12

vill

Senate Debate on S. 1952, Aug. 4, 1977, reprinted in

Environmental Policy Division, Library of

Congress, A Legislative History of the Clean

Water Act of 1977 (Oct. 1978).......cccceeeeeeeeneeeeneneeennenees

ADMINISTRATIVE MATERIALS

Environmental Lab., Dep’t of the Army, Corps of

Engineers Wetlands Delineation Manual (Jan.

EPA, Decision of the Gen. Counsel on Matters of Law

Pursuant to 40 C.F.R. § 125.36(m) (Sept. 18,

EPA/Dep’t of Army, Guidance for Clean Water Act

Juris. Over Isolated Waters in Light of Tabb

Lakes v. United States (Jan. 24, 1990) ...........cccceeeeeeeeees

EPA, Gen. Counsel Opin. 77-5, Cooling Ponds as

Navigable Waters (Apr. 21, 1977).......seeseseeeereeeeerenees

EPA/U.S. Army Corps of Engineers, Guidance for

Corps and EPA Field Offices Regarding Clean

Water Act Section 404 Juris. Over Isolated Waters

in Light of United States v. James J. Wilson (May

2D, UDBB) .ncccrecccccsccscccccceccecsecssscccseccovssssosessssssscossosoososeoes

Letter from R. O. Buck, Asst. Dir. of Civ. Works,

Dep't of the Army, to Hon. Owen Pickett, U.S.

House of Rep. (Feb. 2, 1994).........:cccccsseseeeeneereeeeeseenees

Letter from Robert K. Dawson, Acting Asst. Sec’y of

the Army (Civ. Works), Dep't of the Army, to

Hon. George J. Mitchell, U.S. Sen. (Oct. 11,

ix

Letter from Lynn A. Greenwalt, V.P, Resources

Conservation Dep't, Nat'l Wildlife Fed'n, to

Robert K. Dawson, Acting Asst. Sec’y of the

Army (Civ. Works), Dep't of the Army (Oct. 25,

SFI cso scernesientnininnebiasennemnieanemtacaentdenatennanitanenmsssstanatiinasaees 27

Letter from William M. Riley, Chief, Water

Resources Assessment Section, EPA, to Burt

Paynter, Chief, Reg. Branch, Portland Dist., U.S.

Army Corps of Engineers, (Sept. 8, 1989)...........ccccc0000. 29

Letter from Richard E. Sanderson, Acting Asst.

Admin., External Affairs, EPA, to Hon. George J.

Mitchell, U.S. Sen. (Sept. 17, 1985) ........cccccccccccseseeseeeees 27

Letter from Richard E. Sanderson, Dep. Asst. Admin.

for External Affairs, EPA, to Robert K. Dawson,

Acting Asst. Sec’y of the Army (Civ. Works),

Dep't of the Army (Nov. 1985) .........cccccccsessseseeeeseseseecees 27

Memorandum from A. James Barnes, Acting Gen.

Counsel, EPA, to Frank Covington, Dir. Water

Mgmt. Div., Reg. 9, EPA (July 5, 1983) ........ccccc000. 21,27

Memorandum from Francis S. Blake, Gen. Counsel,

EPA, to Richard E. Sanderson, Acting Asst.

Admin., Office of External Affairs, EPA (Sept.

Saabs SUE nectsreniccmrnsnenanrescnctinneiiestinsssestatatimiubimennneitin 20, 28

Memorandum from Robert K. Dawson, Acting Asst.

Sec’y of the Army (Civ. Works), Dep't of the

Army, to Dir. of Civ. Works, Dep't of the Army

Pay AID, SPU es ctsictinsereennsepesneictntenitenesiticeensieiinsaseassiahinabines 27

Memorandum from Patrick J. Kelly, Dep. Dir. of Civ.

Works, U.S. Army Corps of Engineers, to

Subcomm. on Envtl. Pollution, Comm. on Env't

and Pub. Works, U.S. Sen. (Nov. 8, 1985)............... 27, 28

x

North Carolina Dep’t of Env’t and Natural Resources,

Wetlands Draining Policy (1999) .......cccccccseseeeeeeeeeeeeeees 17

Public Not. from John F. Adams, Chief, Reg. Div.,

Jacksonville Dist., U.S. Army Corps of Engineers .

Ciba. 12, BBB cecececcccresccecececcccccsnersecesescenesensnsnsnenssescenses 28

John F. Studt, Chief, Reg. Branch, U.S. Army Corps

of Engineers, Questions and Answers on 1987

Summary of U.S. Army Corps of Engineers

Delineation of Ephemeral Drainages in Ariz.

(BD ncececsecscsercesencenscensesesnsepesssnsssessanesnenscsensneneontbonsess 4, 13

U.S. Army Corps of Engineers Delineation of Site in

Orange County, Calif. ............:cccccsseceseeeeeeeneneees 4, 8, 12, 13

U.S. Army Corps of Engineers, Determination of

Juris. Under Clean Water Act (33 U.S.C. 1344)

Madrona Marsh, Torrance, Calif. (June 14, 1982)........ 20

U.S. Army Corps of Engineers/EPA, Correspondence

Related to Draft Guidance for Clean Water Act

Juris. Over Isolated Waters (Oct. 30, 1987)... 19

U.S. Army Corps of Engineers, Los Angeles Dist.,

Delineation Letter (1998)............c.sssscsssssssrrressseeeeeneesees 9

U.S. Army Corps of Engineers, Wetlands Delineation

Field Testing Data (July 18, 1995) .........:ccccceceeseeeereeeenees 8

MISCELLANEOUS

Aerial Photo. of Ephemeral Drainages at South

Mountain, Maricopa County, AMriZ...........:c-sscceeeeeeees 12, 15

Aerial Photo. of Ephemeral Drainages in Mojave

Demet, CMTE, .ccocecccsesce-ceccecsesescesescegssonesssonccsssnsoonsessee 12, 15

Virginia S. Albrecht & Bernard N. Goode, Wetland

Reg. in the Real World (Feb. 1994) . .......:cccccseceeseeeeereeees 1]

Xi

Calif. Resources Agency, Calif: Wetlands Info. Sys.,

<http://ceres.ca.gov/wetlands/tracking/table_

tracking_three.html> (last modified Nov. 5, 1998)........ 25

Ground-Level Photo. of Juris. Ephemeral Drainages

in Desert Springs and San Clemente, Calif. ................... 10

Ground-Level Photo. of Juris. Ephemeral Drainages

UATE “incescraninceticamnnienisiitaisanseanibantiinnsitiniasiatinined 4,8, 12

Ground-Level Photo. of Juris. Ephemeral Drainages

in Ventura County and Palm Springs, Calif. .................. 10

Linda A. Malone, Envtl. Reg. of Land Use (1990) ...........4-+. 15

Memorandum in Supp. of Fed. Defendants’ Mot. to

Dismiss or in the Alt. for Summ. Judgment and in

Opp. to Plaintiffs’ Mot. for Partial Summ.

Judgment, Nat’! Wildlife Fed’n v. Laubscher, Civ. |

Action No. G-86-37 (S.D. Tex. Aug. 6, 1986) ............... 21

Jack K. Moody, Wash Flow and Rainfall Data for

Maricopa County, Ariz. (July 2000) ..........c:ccccccccceeeeee 4, 10

David Sunding & David Zilberman, Analysis of The

Army Corps of Engineers’ NWP 26 Replacement

Permit Proposal (Jan. 2000) .0......ccccccccccceeeeccceeeecceeeeceeeeee 11

USDA, Wetlands Reserve Program, Data and

Statistics, | <www.wl.fb-net.org/ca.htm> (last

STR he Be reisecensecsiinnsssiadesincrininsisitsnnisaseetstintasiniiae 25

INTEREST OF AMICI CURIAE'

The Serrano Water District, a California public agency,

manages the 30,000 acre-foot Santiago Reservoir and a water

distribution system for the City of Villa Park. The district is

often required to obtain Section 404 permits for maintenance

work on its distribution system.

The Imperial Irrigation District was formed under State

law to provide irrigation water and electric power to nine

cities and nearly 500,000 acres of agricultural land in the

Imperial Valley, California. It operates an extensive gravity

flow system comprising 1457 miles of canals and other

means of water delivery, hundreds of miles of surface drains,

10 reservoirs and approximately 430 control structures.

Although the area averages less than three inches of rain a

year, the Corps requires the district to get Section 404

permits for work on its water and power distribution systems

if they impact ephemeral drainages.

The Metropolitan Water District of Southern California,

created by the California legislature in 1928, provides water

to nearly 17,000,000 people in southern California through its

twenty-seven public agency members. The district manages

the Colorado River Aqueduct, which includes 5 pumping

plants, 92 miles of tunnels, 63 miles of concrete-lined canals,

55 miles of concrete conduits, 29 miles of inverted siphons, 3

reservoirs and 306 miles of high-voltage power lines. Much

of the area around these facilities contains ephemeral

' No counsel for any party authored this brief in whole or in part. The

parties’ counsel have consented to the filing of this brief, and letters

reflecting that consent are submitted to the clerk's office with this brief.

2

drainages over which the Corps asserts jurisdiction through

the migratory bird rule.

The Central Arizona Water Conservation District is a

water district comprising Maricopa, Pima and Pinal Counties.

The district operates and maintains the Central Arizona

Project, a $3.4 billion water conveyance system comprising

336 miles of canals, tunnels, siphons and pipelines, 14

pumping plants and 2 dams.

The Riverside County Flood Control and Water

Conservation District was created by the California

legislature in 1945 to plan, design, construct and maintain

flood control and drainage facilities over 2700 square miles

of Riverside County. The district manages 400 miles of open

channels and underground storm drains, 16 dams and 24

major detention basins serving 1,000,000 people. The county

is riddled with ephemeral drainages that the Corps claims are

jurisdictional under the migratory bird rule.

The Western Coalition of Arid States is a group of local

governmental water and wastewater agencies in Arizona,

California, Nevada, New Mexico, Texas, Oregon, Colorado

and Idaho dedicated to developing water quality regulations,

policies and laws responsive to the unique ecosystems of the

arid and semiarid regions of the Western States.

The Western Growers Association (WGA) is an

agricultural trade association established in 1926 whose 3000

members grow, pack and ship most of the fresh vegetables,

fruits and nuts grown in California and Arizona. WGA

members are often required to get Section 404 permits for

routine land management, flood control and maintenance

activities.

Tejon Ranch Co. is a diversified real estate development

and agribusiness company, the principal asset of which is

270,000 acres of land in the southern San Joaquin Valley in

3

Kern County. The ranch has numerous ephemeral streams

that disappear into the sandy soil before they can connect

with any other waters.

The Foundation for Environmental and Economic

Progress, Inc. is an association of large landowners and

developers who work together to address federal

environmental and economic policies affecting the use of

land. Foundation members own land in forty-four States and

are actively pursuing projects in the West and Southwest that

are affected by the migratory bird rule.

Amici are filing this brief because the Corps’ assertion of

jurisdiction using the migratory bird test has consequences

well beyond those in the primary case, affecting a wide range

of activities undertaken by individuals, businesses and

agencies of State and local government. The application of

this rule in the West and Southwest has led to jurisdictional

claims over intrastate dry gulches whose connection to

interstate commerce is as tenuous as the water that flows

down the washes is rare. Amici have experienced, and are

aware Of, numerous situations in which the activities of

nonfederal parties have been prejudiced by the Corps’ claim

of jurisdiction based on the ambiguous migratory bird rule.

SUMMARY OF ARGUMENT

Under the migratory bird policy at issue in this case, the

Corps of Engineers claims jurisdiction over any “water,” no

matter how small or how far removed from interstate or

navigable waters, if the water is used or could be used by

birds that cross State lines. Since the Corps’ definition of

“waters” includes intrastate ephemeral waters that are

commonplace across the Western landscape, and since few

places on earth are not susceptible to use by birds that cross

4

State lines, the effect of the bird policy is to federalize land

use regulation across the United States.

The impact of these policies in the West is far from trivial.

In Orange County, California, the Corps now claims

regulatory authority over, hillside gullies that are one foot

across and forty feet long.” At one 1800-acre site in Arizona,

the Corps claimed jurisdiction over 43 discrete drainageways,

including one that is one-half inch deep, 10 feet wide, and

100 feet long.’ Total jurisdiction was only fifteen acres, but

the drainages were interspersed throughout the site, so that

none of the surrounding uplands could be developed without

a Corps permit. Measurements taken by Maricopa County

Flood Control District show that one jurisdictional wash at

South Mountain carried water for only 7.5 hours (in total)

from June 1993 to July 2000, although during that same

period there were 182 measurable rainfall events.”

Although Congress intended to expand federal authority

when it passed the Clean Water Act, it was also careful to

preserve the traditional authorities of State and local

governments over land use decisionmaking. There is no

evidence that Congress intended to regulate the isolated

ponds, ephemeral drainages and erosion ruts that are now

> Exh. 4, U.S. Army Corps of Engineers Delineation of Site in Orange

County, Calif. [hereinafter Orange County Delineation]; Exh. 5, Ground-

Level Photo. of Juris. Ephemeral Drainages in Exh. 4 [hereinafter Orange

County Photographs]. (Documents designated as Exhibits herein are

contained in the Appendix to this Brief.)

* Exh. 10, Summary of U.S. Army Corps of Engineers Delineation of

Ephemeral Drainages in Ariz. [hereinafter Ariz. Delineation].

* Exh. 8, Jack K. Moody, Wash Flow and Rainfall Data for Maricopa

County, Ariz. (July 2000) [hereinafter Maricopa Data}.

5

jurisdictional under the migratory bird test, and absent a clear

statement that Congress intended to override traditional State

functions, the Court should not construe the statute to do so.

Moreover, even if Congress had intended such an invasion

of traditional State functions, the Commerce Clause would

not empower it to do so, as the link between the filling of a

remote drainageway and interstate commerce is too

attenuated. Accordingly, the migratory bird rule is invalid on

its face and should be struck down.

ARGUMENT

This case tests the limits of federal authority under Section

404 of the Clean Water Act, 33 U.S.C. § 1344, an issue that

was left open after the Court's decision in United States v.

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

(decision does not address Corps’ authority over waters “that

are not adjacent to bodies of open water’).

The Clean Water Act (CWA or the Act) regulates

“navigable waters,” which are defined as “the waters of the

United States.” 33 U.S.C. § 1362(7). The U.S. Army Corps

of Engineers (Corps) and the Environmental Protection

Agency (EPA), in their regulations, define their jurisdiction

to include (in addition to navigable and tidal waters, their

tributaries and adjacent waters) all other waters “the use,

degradation or destruction of which could affect interstate or

foreign commerce.” See 33 C. F.R. § 328.3(a)(3) (Corps); 40

C.F.R. § 230.3(s)(3) (EPA). In a preamble to its 1986

regulations, the Corps observed that EPA had “clarified” that

Section 404 also reaches waters which “are or would be used

* The Corps and EPA administer Section 404 jointly. 33 U.S.C.

§ 1344(a)-(c).

6

as habitat” by “(i) birds protected by Migratory Bird Treaties,

or .. . (ii) other migratory birds which cross state lines.” 51

Fed. Reg. 41,206, 41,217 (Nov. 13, 1986).

This so-called “migratory bird rule” injects the federal

government into countless land use decisions that would

otherwise be made by local government and displaces or

duplicates environmental regulatory schemes enacted by

State legislatures. The result is protracted delay and

substantial additional costs for important public and private

projects, but, at least in many parts of the West, with little or

no environmental benefit. This pervasive federal presence

smothers the States and local governments, transforming

these governments into agents of federal power rather than

independent engines of government policymaking. State

programs are made surplusage, legislative choices are

foreclosed and decisions of enormous local consequence are

made through a one-size-fits-all federal regulatory scheme

adopted by people in Washington who have little

understanding of local conditions.

Amici believe that the migratory bird rule, relying as it

does on potential effects on commerce, is invalid on its face,

and should be struck down in its entirety. Moreover, because

the agencies’ jurisdictional claims under Section 404 have

moved up the hill and out the Commerce Clause limb since

the Court's decision in Riverside Bayview, it is important that

the Court clarify the principles that define the scope of

federal authority under Section 404.

* As the “rule” only appears in a regulatory preamble and was not

promulgated in accordance with Administrative Procedure Act (APA)

requirements, it is not a rule at all. Nonetheless, this policy has been

called a “rule” throughout this litigation.

7

I. THE MIGRATORY BIRD TEST TRANSFORMS

EPHEMERAL DRAINAGES INTO WATERS OF

THE UNITED STATES AND THEREBY

FEDERALIZES LOCAL LAND USE

DECISIONMAKING IN THE WEST.

Federal jurisdiction under Section 404 of the Clean Water

Act is premised on two findings: (1) that a particular area

qualifies technically as a wetland or an “other water,” and

(2) that the alteration of the water will affect interstate

commerce. The migratory bird test challenged in this case —

which asserts federal authority over waters that “would be

used” or “could be used” by birds that cross State lines — is

the vehicle used by the Corps and EPA to establish a

Commerce Clause nexus for areas that would otherwise not

be deemed to affect commerce — ¢.g., tiny isolated wetlands

and ponds throughout the Nation, ephemeral waters in the

arid West, drainage ditches and irrigation ditches-constructed

to manage water flow, and ridgetop gullies carved into

hillsides by intense but infrequent rain events.

Although Section 404 is generally regarded as a

“wetlands” statute, amici’ s operations are affected primarily

” Under some interpretations, an area that is never wet at the surface can

nonetheless be a wetland. Environmental Lab., Dep't of the Army, Corps

of Engineers Wetlands Delineation Manual 36, 38 (Jan. 1987) (lodged)

(hydrology criterion satisfied if groundwater rises to within 12 inches of

the surface for five percent of the growing season every other year); John

F. Studt, Chief, Reg. Branch, U.S. Army Corps of Engineers, Questions

and Answers on 1987 Corps of Engineers Manual 3-4 (Oct. 7, 1991)

(lodged); Exh. 27, Letter from R. O. Buck, Asst. Dir. of Civ. Works,

Dep't of the Army, to Hon. Owen Pickett, U.S. House of Rep. (Feb. 2,

1994) (“an area may be considered ‘saturated to the surface’ even though

the top plane of the soil is dry.”). A 1995 Corps study found that the

(continued )

by “other waters” that are not wetlands, e.g., the non-wetland

ponds at issue in the case at bar and linear drainages that are

common to the West. The Corps regulates three kinds of

linear waterbodies: perennial streams, intermittent streams

and ephemeral streams. Under the Corps’ definitions,

perennial streams carry water year-round, and groundwater is

their primary water source. 65 Fed. Reg. 12,818, 12,898

(Mar. 9, 2000). “Intermittent streams” carry water during

certain times of the year when groundwater rises to the

surface, but do not have flowing water during dry periods.

Id. “Ephemeral streams,” the driest and most remote of the

three, have “flowing water only during, and for a short

duration after, precipitation events . . . [and] are located

above the water table year-round.” /d. at 12,897.

These “waters” concern amici because they are

commonplace throughout the Western landscape — /.e., even

the most skillful land planner cannot design a project to avoid

all the drainages that inevitably criss-cross undeveloped land

— and because the Corps uses the migratory bird rule to claim

jurisdiction over drainages as narrow as one foot across. See,

e.g., Exh. 4, Orange County Delineation; Exh. 5, Orange

County Photographs.

The Corps uses the “ordinary high water mark” (OHWM),

to determine both the existence and the boundaries of West-

ern “waters.” 51 Fed. Reg. at 41,217 (lateral and upstream

limits of Corps jurisdiction in nontidal waters defined by

Corps regulates over 8.3 million isolated wetlands, each smaller than half

an acre, in forty-one States within the continental United States. U.S.

Army Corps of Engineers, Wetlands Delineation Field Testing Data July

18, 1995) (lodged). These areas are jurisdictional only by virtue of the

migratory bird policy.

9

OHWM). The Corps identifies an OHWM by “physical

characteristics such as . . . shelving, . . . destruction of

terrestrial vegetation, [or] the presence of litter and debris.”

33 C.F.R. § 328.3(e). In the arid West, with its long dry

spells punctuated by monumental downpours, just one

rainfall can carve a new channel in the sandy desert floor and

establish “shelving” or “debris” to create an apparent

OHWM.” These physical characteristics may persist for

decades after a channel last carried water.

Not only are these waterbodies pervasive and generally

small, they rarely carry water. Even when it rains. In

Phoenix, for example, where average annual rainfall is 7.65

inches (compared to 40 inches per year in Washington, D.C.),

records kept by the Flood Control District of Maricopa

County (FCDMC) from 1993 to 2000 show that one forty-

foot-wide wash at South Mountain, Maricopa County,

Arizona, carried measurable water flow only five times out of

182 rainfall events in seven years. Total elapsed time of flow

for the entire seven-year period was only 7.5 hours, and,

despite the theoretical possibility of a surface connection,

"Indeed, the Corps’ boilerplate jurisdictional determination letter

“reserves the authority . . . to establish new jurisdictional limits if an

unusual flood event ahers stream conditions.” Exh. 9, U.S. Army Corps

of Engineers, Los Angeles Dist., Delineation Letter (1998). The very

concept of an ordinary mark in a region that is characterized by

extraordinary events is nonsensical. But the situation goes unchallenged

because Corps jurisdictional determinations have not been directly

appealable to the courts, Laguna Gatuna, Inc. v. Browner, 58 F.3d 564,

565 (10" Cir. 1995), cert. denied, 516 U.S. 1071 (1996), or

administratively. A new administrative appeals process, adopted in

March 2000, may provide a limited forum to test questionable

jurisdictional determinations. 65 Fed. Reg. 16,486 (Mar. 28, 2000).

10

FCDMC observations show that the water in the wash never

reached the Gila River. Moreover, on those rare occasions

when these washes actually experienced flowing water, the

flow lasted, on average, only ninety minutes.”

Significantly, the channels monitored by FCDMC are

larger, with a larger contributing drainage area, than most of

the ephemeral waters over which the Corps claims

jurisdiction. The South Mountain channel drains a two-

squafé-mile watershed, but, more typically, the Corps takes

jurisdiction over drainages with “watersheds” of one-quarter

to one-tenth square mile. See, e.g., Exh. 6, Aerial Photo. of

Ephemeral Drainages at South Mountain, Maricopa County,

Ariz. Such washes are narrow, carry water only rarely and

generally lack a surface connection to true waters of the

United States. Moreover, the channels themselves do not

provide nesting or breeding habitat for birds (much less for

waterfowl sought after by bird-watchers or hunters). Indeed,

in many cases, the plant species that occur in the claimed

jurisdictional areas are also found in the surrounding uplands.

See, e.g., Exh. 2; Exh. 3.

Nevertheless, these ephemeral waters exhibit debris lines

or shelving that the Corps uses, incorrectly in amici’s view,

to establish an OHWM. Of course, amici are not before this

Court to challenge the Corps’ erroneous use of OHWM. Our

point is that with the Corps using such criteria, the drainages

that are potentially waters of the United States are ubiquitous

in the Western landscape. The migratory bird policy then

provides the Commerce Clause nexus to transform these

common drainages into waters of the United States,

” Exh. 8, Maricopa Data. Flow becomes “measurable” if it is at least 1.2

inches deep at the lowest point of the wash.

simultaneously transforming Section 404 into a federal land

use regulation.

On one 1800-acre site in northern Arizona, the Corps

claimed - jurisdiction over forty-three discrete drainages,

ranging in depth from one-half inch to 45.8 inches, in width

from 3 feet to 50 feet, and in length from 100 feet to 9160

feet. Sixteen of these drainages were less than five inches

deep, and seventeen were less than five feet wide. See Exh.

10, Ariz. Delineation. Total claimed jurisdiction was fifteen

acres, most of which carried water only twice a year and

terminated on, or shortly downstream of, the property, with

stormwater runoff simply pooling up and then evaporating or

percolating into the sandy soil. The applicant managed to

design the project to avoid all but four acres of drainages, but

they were so interspersed throughout the property that none

of the surrounding uplands could be developed without first

obtaining a Section 404 permit. Thus, the presence of four

acres of jurisdiction “federalized” an 1800-acre project.'”

See id.

Similar results obtain in Orange County, California, where

the Corps has exerted control over hillside gullies that are

’ And with federalization comes delay. In one extreme case, it took the

Corps almost eight years to award the Riverside County Flood Control

and Water Conservation District (Riverside) a permit for its San Jacinto

River, Project, and, in San Diego, the Corps still has not issued a public

notice 15 months after a developer submitted an application to fill 2.89

acres on a 1665-acre site. A January 2000 study by economists from the

University of California, Berkeley, confirms that this experience is not

unusual, David Sunding & David Zilberman, Analysis of The Army

Corps of Engineers’ NWP 26 Replacement Permit Proposal, 23 n.2, 24

(Jan. 2000) (lodged); see also, Virginia S. Albrecht & Bernard N. Goode,

Wetland Reg. in the Real World 21 (Feb. 1994) (lodged).

12

one foot wide and only forty feet long. Exh. 4, Orange

County Delineation; Exh. 5, Orange County Photographs. In

the Sonoran Desert in Arizona and in the Mojave Desert in

rural California (where the average rainfall is 5.89 inches),

the ephemeral waters run in roughly parallel lines as little as

ten to twenty-five feet apart, like pinstripes across the desert.

See Exh. 1, Aerial Photo. of Ephemeral Drainages in Mojave

Desert, Calif [hereinafter Mojave Photograph]. An average

ten acre site has dozens of these drainages.

Il. CONGRESS DID NOT INTEND TO CLAIM

JURISDICTION OVER EPHEMERAL

DRAINAGES REACHED BY THE MIGRATORY

BIRD POLICY.

A. Congress Intended To Expand Federal Authority

But Not To Ephemeral Drainages And Other

Remote “Waters.”

There is no question that Congress intended the Act to

reach further than had earlier federal water pollution control

statutes. As the Corps is fond of noting, the Conference

Report accompanying the 1972 legislation stated that “[t}he

conferees fully intend that the term ‘navigable waters’ be

given the broadest possible constitutional interpretation

unencumbered by agency determinations which have been

made or may be made for administrative purposes.” S. Rep.

No. 92-1236, at 144 (1972), reprinted in 1972 U.S.C.C.A.N.

3776, 3822. However, while this Court has observed that

Congress intended “to regulate at least some waters that

would not be deemed ‘navigable’ under the classical

understanding of that term,” Riverside Bayview, 474 U.S. at

133 (emphasis added), neither this Court, the statutory

language nor the legislative history suggested that Congress

13

wanted to regulate all, or even some, of the remote waters

that are now included through the migratory bird rule.

While the 1972 debate was carried on in terms of lakes,

rivers and oceans, and in 1977, concern was expressed about

adjacent wetlands because they help filter adjacent

waterways, | Congress never mentione: *phemeral waters

such as those that cross the Western lat ts:ape. Indeed, in

1977, the Corps indicated that it believed ephemeral waters

were not jurisdictional at all. When the Corps amended its

regulatory definition of the statutory term “waters of the

United States,” a footnote to the rule explained that the new

definition “incorporates a// other waters of the United States

that could be regulated under the Federal government’s

Constitutional powers to regulate and protect interstate

commerce ....” 42 Fed. Reg. 37,122, 37,144 n.2 (July 19,

1977) (emphasis added). That all-encompassing definition

included “isolated wetlands and lakes, intermittent streams,

prairie potholes, and other waters that are not part of a

tributary system to interstate waters or to navigable waters of

the United States, the degradation or destruction of which

could affect interstate commerce.” 33 C.F.R. § 323(a)(5)

(1978). Significantly, this definition did not include

ephemeral waters. Today, the Corps is regulating ephemeral

drainages in the West that are as narrow as one foot, as

shallow as one-half inch, and as short as forty feet. See Exh.

4, Orange Delineation; Exh. 10, Arizona Delineation.

'' See, e.g., Senate Debate on S. 1952, Aug. 4, 1977 (statement of Sen.

Chafee), reprinted in Environmental Policy Division, Library of

Congress, A Legislative History of the Clean Water Act of 1977, at 919

(Oct. 1978) (lodged).

14

To interpret the statute as conferring such broad authority

raises serious constitutional questions, discussed below, and

reads the statutory term “navigable waters” out of the Act,

contrary to well-established principles of statutory

construction. Jones v. United States, 120 S. Ct. 1904, 1911

(2000) (“Judges should hesitate . . . to treat statutory terms in

any setting [as surplusage], and resistance should be

heightened when the words describe an element of a criminal

offense” (internal quotation omitted)). . .

Yet the bird test does just that, because it claims

jurisdiction in areas that are not remotely navigable or

otherwise connected to an interstate network of waters.

B. Absent A Clear Statement From Congress, The

Court Should Not Construe The Statute To Alter

The Federal-State Balance In Land Use

Regulation.

The migratory bird test effects a massive intrusion of

federal power into land use decisions that by tradition are the

province of the States.’ Of course, if Congress, acting

pursuant to one of its enumerated powers, wants to enact a

program to override State law, the Supremacy Clause gives It

the power to do so. U.S. Const., art. VI. To preserve the

integrity of our federal system, however, the Court will not

construe a statute to effect such an intrusion into historic

police powers (e.g., zoning and planning) unless it is

absolutely clear that this is what Congress intended. United

States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J.,

concurring); Atascadero State Hosp. v. Scanlon, 473 US.

234, 242-43 (1985). In this case, it is not.

2 See Village of Euclid vy. Ambler Realty Co., 272 U.S. 365 (1926).

15

During the same period that Congress was considering and

enacting the bills that ultimately became the Clean Water

Act, the Endangered Species Act and other important federal

environ.aental programs, Congress considered and rejected

some forty national land use bills. See Linda A. Malone,

Envil. Reg. of Land Use § 1.01 at 1-2 (1990). The CWA

specifically recognized that States have primary

responsibility over land and water resources within their

borders, 33 U.S.C. § 1251(b), and declined to regulate

nonpoint source pollution such as runoff associated with

agricultural, silvicultural, construction and mining

operations. Federal Water Pollution Control Act

Amendments of 1972, Pub. L. No. 92-500, §§ 304(e)(A)-(C),

502(14), 86 Stat. 816, 852, 887 (1972). Congress’s respect

for traditional State authorities was particularly fitting in the

West, where the allocation, use and quality of scarce water

supplies are crucial factors influencing development

patterns.'*

The migratory bird test destroys Congress’s careful

balance, extending federal authority to ephemeral and

isolated waters that fan out across the Western landscape.

Although the acreage of these drainages is relatively small,

they run in roughly parallel lines through otherwise upland

areas, making it impossible to use the uplands without

obtaining a Section 404 permit. Exh. 1, Mojave Photograph.

Under our federal system, the Court will not allow this

result unless it is clear that Congress considered and

intended, when it passed the Act, to alter the. traditional

balance between the federal and State governments. This

'* See 33 U.S.C. § 1251(g) (stating that CWA does not affect States’

authority to allocate water within its borders).

16

“clear statement rule” applies “in cases implicating

Congress’s historical reluctance to trench on state legislative

prerogatives or to enter into spheres already occupied by the

States,” Lopez, 514 U.S. at 611 (Souter, J., dissenting), and is

particularly important in construing criminal statutes such as

the Clean Water Act. Jones, 120 S. Ct. at 1912 (Stevens, J.,

concurring) (noting the “kinship between our well-

established presumption against federal pre-emption of state

law, .. . and our reluctance to believe Congress intended to

authorize federal intervention in local law enforcement in a

marginal case such as this.” (Internal quotation omitted)).

The wisdom of federalism is that with two governments

vying for authority, the risk of tyranny or abuse from either is

reduced. But “[t]hese twin powers will act as mutual

restraints only if both are credible,” Gregory v. Ashcroft, 501

U.S. 452, 459 (1991), and only if the citizen knows which

government should be held accountable if a given function is

not performed properly. Lopez, 514 U.S. at 576-77

(Kennedy, J., concurring). Thus, although some have argued

in the past that State officials need the federal “gorilla in the

closet” to give them political cover, such an approach would

disserve fundamental federalism principles.

In the absence of federal regulation, myriad approaches

could be taken to these ephemeral waters, and what works

best in Orange County, California, may not work at all in

Maricopa County, Arizona, or South Bend, Indiana.

Acknowledging a more limited federal role allows the “states

[to] perform their role as laboratories for experimentation to

devise various solutions where the best solution is far from

clear.” /d. at 581 (Kennedy, J., concurring).

Empirical evidence suggests that this federalism principle

is not just an empty abstraction. When two court of appeals

decisions in 1997 and 1998 effectively limited federal

17

authority under Section 404, uniquely affecting mid-Atlantic

States with high water tables,'* the States of Maryland,

Virginia and North Carolina stepped into the breach.

Maryland enforced its own pre-existing wetlands laws;'°

North Carolina adopted a new drainage policy to prevent

large-scale drainage projects;'° and Virginia passed a new

law to protect its valuable wetlands.'’ So experience in the

environmental arena confirms the founders’ confidence in the

States. Meanwhile, EPA and the Corps have yet to propose

promised new rules to respond to the 1997 and 1998 cases,

not to mention the | 1-year-old decision in Tabb Lakes, Ltd. v.

United States, No. 89-2905, 1989 WL 106990 (4" Cir. Sept.

19, 1989) (Exh. 11).'" They have simply revised judicial

history to avoid the implications of a decision they find

unpalatable.'”

'* National Mining Ass'n v. Corps of Engineers, 145 F.3d 1399 (D.C. Cir.

1998); United States v. Wilson, 133 F.3d 215 (4"™ Cir. 1997).

'S Md. Code Ann. Envir. §§ 5-901 to 5-911.

‘© North Carolina Dep’t of Env’t and Natural Resources, Wetlands

Draining Policy (1999) (lodged).

'” 2000 Va. Acts. ch. 1054 (lodged).

'* Exh. 26, EPA/Dep’t of the Army, Guidance for Clean Water Act

Section 404 Juris. Over Isolated Waters in Light of Tabb Lakes v. United

States (Jan. 24, 1990) (“EPA and the Corps intend to undertake as soon as

possible an APA rulemaking process”).

" See, EPA/U.S. Army Corps of Engineets, Guidance for Corps and EPA

Field Offices Regarding Clean Water Act Section 404 Juris. Over

Isolated Waters in Light of United States v. James J. Wilson 4 n.3 (May

29, 1998) (“notwithstanding the Fourth Circuit’s decision in Tabb Lakes,

Corps and EPA field offices should continue to assert CWA jurisdiction

over all isolated intrastate water bodies that serve as habitat for migratory

birds”).

18

Ill. THE MIGRATORY BIRD TEST EXCEEDS

CONGRESS’S AUTHORITY UNDER’ THE

COMMERCE CLAUSE.

With its migratory bird test the Corps has tried to do what

even Congress lacks the power to do: It has invoked the

federal Commerce Power to regulate purely local matters in

an area of traditional State concern, using as its rationale a

series of noncommercial links between the regulated activity

and the commerce.

The Corps’ problem is that the regulated activity is not

interstate, and the bird nexus is not commerce.

A. Even If SWANCC’s Project Were Considered

“Economic,” That Does Not Mean That Section

404 Is An Economic Regulation Under Lopez

And Morrison, Nor That The Alteration Of Any

Particular Waterbody Affects Commerce.

The “regulated activity” in this case is the “discharge of

dredged or fill material into the navigable waters,” 33 U.S.C.

§ 1344(a), which has come to mean most earth-disturbing

activities... When this activity involves only “isolated”

waters, unconnected to interstate streams, it is purely local.

The movement of dirt, like possession of guns or gender-

based violence,”' is not in itself “economic” activity.

The government appears to claim that the activity in this

case is “economic” (and therefore the aggregate effects of all

similar activities may be considered in determining whether

” See, e.g., Avoyelles Sportsmen League v. Marsh, 715 F.2d 897 (S™ Cir.

1983).

*" Lopez, 514 U.S. at 549 (possession of guns); Morrison, 120 S. Ct. at

1740 (gender-based violence).

19

there is a substantial effect on commerce) because the Solid

Waste Agency of Northern Cook County intends to build a

landfill on top of the site. The Corps itself has recognized

that such an argument would be mere bootstrapping. In a

1987 guidance document that was signed by the Corps but

apparently not by EPA, the Corps observed that

[a]n interstate commerce connection must be

based on the use or potential use of the

waterbody prior to the commencement of the

activity subject to Corps regulatory

authority. Neither the process of excavating

material from dry land nor the placement of

fill into the waterbody shall in and of itself be

considered the requisite interstate commerce

nexus, regardless of the origin of the fill, the

disposition of the excavated material, the

source of fuel used during the operation or the

business connections of the _ individual

owning, managing, or conducting the

operation. Where an isolated waterbody does

not otherwise have an interstate commerce

connection, the fact that the fill is associated

with interstate commerce does not establish

the requisite interstate commerce connection

for the waterbody. .. .**

This reasoning is consistent with Lopez, which struck

down a federal statute purporting to prohibit the possession

of firearms in a school zone, even though guns travel in

~~ Exh. 24, U.S. Army Corps of Engineers/EPA, Correspondence Related

to Draft Guidance for Clean Water Act Juris. Over Isolated Waters (Oct.

30, 1987).

20

interstate commerce, and even though Lopez himself was

paid $40 to deliver the gun. See Lopez, 514 U.S. at 602;

United States v. Lopez, 2 F.3d 1342, 1345 (Sth Cir. 1993).

The fact that there is a whiff of commerce in the vicinity does

not federalize all mearb / activity.

Even if aggregaiion were appropriate for purposes of

determining whether the CWA regulates an activity that has a

substantial effect on commerce, that would not mean that the

Corps could dispense with the requirement that an effect on

commerce be found in each individual case in which the

Corps claims jurisdiction. The memorandum by EPA's

General Counsel that established the migratory bird test

recognized that the Commerce Clause nexus must be

established case-by-case” and to that extent is consistent

with Corps and EPA practice throughout the history of the

CWA.

>* Exh. 16, Memorandum from Francis S. Blake, Gen. Counsel, EPA, to

Richard E. Sanderson, Acting Asst. Admin., Office of External Affairs,

EPA (Sept. 12, 1985) [hereinafter Blake Memorandum}.

™ See, e.g., Exh. 12, EPA, Decision of the General Counsel on Matters of

Law Pursuant to 40 C.F.R. §125.36(m) (Sept. 18, 1975) (creek in Ely,

Nevada not jurisdictional; “cattle from Utah are [not] the sort of

‘interstate travelers” contemplated by the regulation); Exh. 13, EPA,

Gen. Counsel Opin. 77-5, Cooling Ponds as Navigable Waters (Apr. 21,

1977) (cooling pond in Indiana not jurisdictional so long as it is used only

by Indiana residents); Exh. 14, U.S. Army Corps of Engineers,

Determination of Juris. Under Clean Water Act (33 US.C. 1344),

Madrona Marsh, Torrance, Calif. (June 14, 1982) (declining jurisdiction

over California marsh that provides resting and wintering habitat for

migratory waterfowl where no hunting occurs at marsh and where there is

no evidence that interstate visitors to marsh would modify their interstate

travel plans if the marsh were altered); Exh. 15, Memorandum from A.

James Barnes, Acting Gen. Counsel, EPA, to Frank Covington, Dir.

(continued )

21

Even where Congress has elected to use its full Commerce

Clause authority to regulate a class of activities, which it has

not with the wetlands and ephemeral drainages reached by

the bird rule, that only extends federal authority to activities

and places that are documented members of the regulated

class. See, e.g., Perez v. United States, 402 U.S. 146, 151-55

(1971) (noting the “[p]etitioner is clearly a member of the

class” regulated). The bird test effectively excuses the

government from the obligation to document a Commerce

Clause effect for a “particular waterbody” because it is

satisfied by any migrating bird and any kind of bird use.”

Water Mgmt. Div., Reg. 9, EPA (July 5, 1983) ( ing jurisdiction over

Ash Meadows, Nevada, based on evidence Scanaheiaadaieean

the site for research purposes); see also 45 Fed. Reg. 33,290, 33,398

(May 19, 1980) (acknowledgment by EPA that there are wet areas that are

have any effect on interstate commerce”); Memorandum in Supp. of Fed.

Defendants’ Mot. to Dismiss or in the Alt. for Summ. Judgment and in

Opp. to Plaintiffs’ Mot. for Partial Summ. Judgment, Nar’! Wildlife Fed'n

v. Laubscher, Civ. Action No. G-86-37, 46-55, 58 (S.D. Tex. Aug. 6,

1986) (selected portion lodged) (arguing that Congress did not regulate

wetlands “as a class,” that therefore the government may not “assume a

{Commerce Clause] connection” but must establish it “through the actual

or potential use of [the] wetlands,” and that a regulatory program that

reached every tiny drainage would be “unreasonable over-regulation”).

* Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 261 (7 Cir. 1993)

(“regulation covers waters whose connection to interstate commerce may

be potential rather than actual, minimal rather than substantial”); /n re The

Hoffman Group, CWA Appeal No. 89-2, at 9 (EPA Nov. 19, 1990) (final

decision) (lodged) (to “demonstrate that the destruction of that waterbody

will have an effect on interstate commerce . . . EPA need only show some

minimal, potential effect on interstate commerce”).

22

B. The Idea That The Alteration Of Tiny

Waterbodies Would Affect Interstate Commerce

Is Pure Speculation.

With no Congressional or administrative record

documenting the government's thinking on the migratory bird

rule, it is hard to discern the legal theory behind the rule. The

reliance on “birds which cross states lines” suggests that the

government hopes that the birds will provide the interstate

element. 5] Fed. Reg. at 41,217. But migratory birds are not

themselves “commerce.””° Nor does the recitation of a

“national interest” in the protection of migratory birds excuse

the government from finding an effect on commerce.”

25 Thee Gusery thet binds themesives ase “tn!” interstate commerce, the

feathered Federal Express packages, is wrong for the reasons given for

red wolves in Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000); see also

National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir.

1997) (Delhi Sands Flower-Loving Fly not in interstate commerce). In

Geer v. Connecticut, 161 U.S. 519, 538-39, 541, 543-44 (1896), two

dissenting justices suggested that an animal that is personal property can

be considered-an “article of commerce.” But this Court has never held

that wild birds are “articles in commerce.”

*’ The cases cited in the Blake Memorandum, by the court of appeals

below, and in the Respondents’ brief in opposition to petition for writ of

certiorari say things like “the protection of migratory birds” is a “national

interest,” quoting North Dakota v. United States, 460 U.S. 300, 309

(1983). None of these cases, however, suggests that birds are themselves

“commerce.” See Andrus v. Allard, 444 U.S. 51, 63 n.19 (1979), Hughes

v. Oklahoma, 441 U.S. 332 (1979), Missouri v. Holland, 252 U.S. 416

(1920). Indeed, most of them refer to the Treaty Power (U.S. Const. art.

Il, § 2, cl. 2). The Corps, however, may not invoke the Treaty Power to

justify its jurisdictional claims where Congress was not exercising the

Treaty Power when it passed the underlying statute. See Edwards v.

Carter, 580 F.2d 1055, 1058 (D.C. Cir. 1978) (“treaty power can only be

exercised in a manner which conforms to the Constitution”).

23

The government appears to rely primarily on asserted

effects on interstate travel, but the chain of causation is too

long and slender to bear the weight the government would

have it support. The government's reasoning goes something

like this: Filling affects habitat; habitat affects birds; birds

affect hunters and bird-watchers; and hunters and bird-

watchers affect “commerce” by traveling across State lines

and spending money on transportation, motel rooms,

binoculars, shotguns, cartridges and equipment from

L.L.Bean. This is the store that sold the khakis, that clothed

the hunter, that shot the bird, that ate the seeds, that grew in

the pond that Jack filled:

Regulated ¢ Nexus > Interstate

Activity Commerce

discharge of . interstate travel,

dredged or bird Lp} birds | ,) bird watching | | motels, shotguns,

fill material “habitat and hunting binoculars

This piling of “inference upon inference” is what the Court

disapproved of in Lopez, 514 U.S. at 567 — a “but-for causal

chain” that would place any problem under federal

jurisdiction if it affected many people, places or properties.”

Of the four considerations that made the gun possession

law in Lopez unconstitutional, one was the attenuated link

between the regulated activity and the effect on interstate

commerce. See Id. at 561. The links here (between a

landowner’s grading an ephemeral water and hunters buying

** Morrison, 120 S. Ct. at 1752-53. For observations on the misuse of

causation, see Hodel v. Virginia Surface Mining & Reclamation Ass'n,

452 U.S. 264, 309-10 (1981) (Rehnquist, J., concurring); Morrison, 120

S. Ct. at 1753 n.6.

24

cartridges or driving to a duck blind) are more attenuated

than in any case upholding Congress's exercise of the

Commerce Power.”

Reasoning similar to the Corps’ was rejected by this Court

in Morrison. There, the government argued that violence

against women deterred potential victims from traveling

interstate, from finding jobs in interstate business, and from

“transacting with business, and in places involved, in

interstate commerce.” Morrison, 120 S. Ct. at 1763 (Souter,

J., dissenting) (quoting, H.R. Conf. Rep. No. 103-711, at 385

(1994)). This in tum allegedly diminished naiional

productivity, increased medical and other costs and decreased

both the supply of, and demand for, interstate products. /d.

The chain in Morrison was shorter than here, but the

reasoning was still too tenuous to support the exercise of

Commerce Clause authority.”

* The lower court cases cited frequently to support an expansive view of

federal jurisdiction over ephemeral waters cannot stand after Lopez and

Morrison. See Quivira Mining Co. v. EPA, 765 F.2d 126, 129 (10 Cir.

1985) (normally dry arroyos that only flow for short distances and then

soak into the ground can be jurisdictional waters of the United States if

those waters then “become part of [an] underground aquifer[], and after a

lengthy period, perhaps centuries,” eventually discharge into a navigable

water); United States v. Phelps Dodge Corp., 391 F. Supp. 1181, 1187

(D. Ariz. 1975).

* Moreover, there is no evidence that the absence of federal regulation

over waters reached by the migratory bird rule will deplete the Nation's

supply of waters. California, for example, has a wide range of laws

protecting wetlands and other waters. See, e.g., Cal. Fish & Game Code

§§ 1601, 1603; Cal Pub. Res. Code § 30233. These laws require

permittees to replace any waters they destroy, often at a ratios of 2:1 or

3:1. Since 1993, California's wetland laws have restored, enhanced and

created 165,436 acres of wetlands. Calif. Resources Agency, Calif.

(continued )

25

C. The Claimed Connection Between Bird Habitat

And Interstate Commerce Is Not Supported By

Either Congressional Or Administrative

Findings.

The adoption and imposition of the migratory bird test has

been a litany of irregularity, which is not entitled to any

judicial respect. The issue posed by the rule is whether

Congress's power under the Commerce Clause allows the

Corps to claim jurisdiction over an intrastate waterbody

based solely on its use (actual or potential) by birds that cross

State lines. Within our Constitutional system of separation of

powers and from the standpoint of institutional competence,

the issue of Congressional power can only be resolved by this

Court, assisted by relevant and authoritative findings of

Congress. The determination of Congress's Constitutional

powers is not a matter to be left to the Executive Branch or

one in which the Executive Branch has _ institutional

competence or is entitled to institutional respect.

Yet the migratory bird rule is exclusively a creature of

Executive invention. In the voluminous legislative history of

the Clean Water Act, there are no Congressional findings

invoking the migration of birds as a source of Congress's

Commerce Clause authority or explaining, as a factual

Wetlands Info. Sys., <http://ceres.ca.gov/wetlands/tracking/table_

tracking_three.html> (last modified Nov. 5, 1998). In addition, other

federal programs add to the Nation's stock of wetlands - for example, the

Department of Agriculture's Wetland Reserve Program has enrolled

785,024 acres in its preservation and restoration program. USDA,

Wetlands Reserve Program, Data and Statistics, <www.wl.fb-

net.org/ca.htm> (last modified Jan. 1, 2000).

26

matter, how the alichting of migratory birds in occasionally

wet areas substantially affects interstate commerce.

Instead, the bird test was dropped into a preamble of a

lengthy recodification of Corps regulations and is untethered

to the regulation defining “waters of the United States.” The

Corps and EPA did not give the public any notice or

opportunity to comment on this vast expansion of federal

power. There is no explanation in the preambie of the basis

and purpose of the migratory bird rule, leaving the public and

the courts to guess as to the nexus between the migration of

birds and Congress's power under the Commerce Clause.

1. Origin of the Test. Unlike the situation in Riverside

Bayview, this “rule” does not involve the agency's

application of its technical expertise, nor is it supported by an

administrative record evidencing a thorough examination of

the possible relationships between the filling of tiny

waterbodies and interstate commerce.

Instead, it was sprung from the brow of one Senator who

was unhappy with a jurisdictional disclaimer in Texas and

wanted to make sure it would not happen again. Oversight

ivearings were held, and the agencies were pressed to adopt a

“more proper phraseology,” which claimed jurisdiction over

“waters which are or could be used” by birds.*’ Eight weeks

later, EPA complied, producing a legal memorandum which

cited case law for the propositions that (1) “migratory birds...

may be regulated under the Commerce Clause,” and (2)

“(t]he impact on commerce of the destruction of any one

! See Hearings on Section 404 of the Clean Water Act, July 15, 1985,

Oversight reprinted in Environmental Policy Division, Library of

Congress, A Continuation of the Legislative History of the Fed. Water

Pollution Control Act 170 (1985).

27

isolated wetland need not itself be significant,” and then

skipped blithely to the legal conclusion that waters that “‘are

used or would be used’ by migratory birds . . . [are] covered

by EPA's regulation.”*” Missing was any discussion of the

key factual predicate for such a legal conclusion — i.e.,

whether and how the destruction of isolated wetlands affects

interstate commerce. And there certainly was no discussion

of the ephemeral waters amici deal with every day.

Letters and memoranda flew back and forth, all addressing

whether the new Commerce Clause nexus required a showing

of “actual use” by birds or whether it would suffice to show

that an area “would be used” or “could be used” by birds,””

but none described a factual link to commerce Ultimately,

* Exh. 16, Blake Memorandum, at 2, 3.

* See Exh. 17, Letter from Richard E. Sanderson, Acting Asst. Admin..

External Affairs, EPA, to Hon. George J. Mitchell, U.S. Sen. (Sept. 17,

1985) (enclosing Exh. 16, Blake Memorandum); Exh. 18, Memorandum

from Robert K. Dawson, Acting Asst. Sec’y of the Army (Civ. Works),

Dep't of the Army, to Dir. of Civ. Works, Dep't of the Army (Sept. 20,

1985) (enclosing Exh. 16, Blake Memorandum); Exh. 19, Letter from

Robert K. Dawson, Acting Asst. Sec’y of the Army (Civ. Works), Dep't

of the Army, to Hon. George J. Mitchell, U.S. Sen. (Oct. 11, 1985); Exh.

20, Letter from Lynn A. Greenwalt, V.P., Resources Conservation Dep't,

Nat'l Wildlife Fed'n, to Robert K. Dawson, Acting Asst. Sec’y of the

Army (Civ. Works), Dep't of the Army (Oct. 25, 1985) (60-day Notice of

Violation letter); Exh. 22, Letter from Richard E. Sanderson, Dep. Asst.

Admin. for External Affairs, EPA, to Robert K. Dawson, Acting Asst.

Sec’y of the Army (Civ. Works), Dep't of the Army (Nov. 1985) (EPA

scolding Assistant Secretary of the Army regarding interpretation of

Blake Memorandum), Exh. 21, Memorandum from Patrick J. Kelly, Dep.

Dir. of Civ. Works, U.S. Army Corps of Engineers, Dep't of the Army, to

Subcomm. on Envtl. Pollution, Comm. on Env't and Pub. Works, U.S.

Sen. (Nov. 8, 1985) [hereinafter Kelly Memorandum].

28

the “could be used” standard prevailed,’ which meant,

according to the Corps, that “virtually all isolated waters and

wetlands have been provided with an interstate commerce

connection and therefore those waters and wetlands are

subject to Section 404 jurisdiction.””

2. Lack of Findings and Jurisdictional Element. There

are no Congressional findings which might assist the Court in

evaluating whether the regulated activity substantially affects

interstate commerce. Morrison, 120 S. Ct. at 1751. Of

course, Congress is not obligated to make findings, nor

would its findings be dispositive if it had made them. /d. at

1752. Whether particular activities affect interstate

commerce sufficiently is a matter for this Court to decide. /d.

Nor is there a “jurisdictional element which would ensure,

through case-by-case inquiry, that the [discharge of dredged

or fill material] in question affects interstate commerce.”

Lopez, 514 U.S. at 561. The prevailing view within the

agencies seems to be that the presence of a migratory bird, or

its potential presence, establishes, ipso facto, the requisite

effect on commerce.*© The bird test does not require the

Corps to demonstrate in each case that the land-disturbing

activity affects birds that have crossed State lines, or affects

birds that are watched or hunted by interstate travelers, or

affects the economic activity of hunters and bird-watchers.

™ See Exh. 21, Kelly Memorandum.

*® Exh. 23, Public Not. from John F. Adams, Chief, Reg. Div.

Jacksonville Dist., U.S. Army Corps of Engineers, Dep't of the Army

(Mar. 12, 1986).

© See, e.g., Exh. 16, Blake Memorandum, at 3 (“if the evidence shows

that the waters ‘are used or would be used” by migratory birds . . ., it is

covered”).

29

The government feels, at most, the need to show that

migratory birds could use the property, not the existence in an

individual case of all the links necessary to reach interstate

commerce.*’ This can lead to egregious results in the West

and Southwest, where the Corps asserts jurisdiction over an

ephemeral wash in the desert based on the migratory bird rule

without any showing that interstate travelers would come to

the desert site to watch or hunt migratory birds.

The Corps may claim that the presence of interstate birds

is the jurisdictional element, but it would still fail as a

jurisdictional element because it does not distinguish filling

activities that affect commerce from those that do not. Under

the rule, any migrating bird will do. Indeed, EPA has scolded

Corps officials for declining jurisdiction “based on a finding

that the wetland is not used by and is not susceptible to use

by migratory waterfowl,” reminding them that “the

commerce nexus at issue is not whether a site is used by

migratory waterfowl but by migratory birds.”** This is not

the kind of jurisdictional element contemplated by Lopez,

514 US. at 561.

” Hoffman Homes, 999 F.2d at 261 (“regulation covers waters whose

connection to interstate commerce may be potential rather than actual,

minimal rather than substantial”); Jn re The Hoffman Group, CWA

Appeal No. 89-2, at 9 (to “demonstrate that the destruction of that

waterbody will have an effect on interstate commerce . . . EPA need only

show some minimal, potential effect on interstate commerce”).

*® Exh. 25, Letter from William M. Riley, Chief Water Resources

Assessment Section, EPA, to Burt Paynter, Chief, Reg. Branch, Portland

Dist., U.S. Army Corps of Engineers (Sept. 8, 1989) (emphasis in

original).

30

D. Conclusion As To The Commerce Power

Congress, and certainly the Corps, lack the power under

the Commerce Clause to enact the migratory bird rule. It

would be unprofitable to speculate on what findings

Congress might have made, because the fact is that Congress

made no findings at all that would support the migratory bird

rule. The rule attempts to regulate local land use not because

it affects interstate commerce, but because it affects birds

(which may travel interstate) and birds may affect people

who engage in commerce. Under the principles recently

stated in Lopez and Morrison, this is far too weak a link to

constitute substantially “affecting interstate commerce.”

CONCLUSION

For the reasons stated above, the decision of the court

below should be reversed, and the migratory bird rule

invalidated.

Respectfully submitted,

VIRGINIA S. ALBRECHT

Counsel of Record

JAMES N. CHRISTMAN

STEPHEN J. WENDEROTH

HUNTON & WILLIAMS

1900 K Street, N.W.

Washington, DC 20006-1109

(202) 955-1500

Counsel for Amici Curiae