Amicus Curiae Brief — Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers
Supreme Court brief2001
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SO NE ES ES EO EEL FF OT RE OOS a
CY | gc 27 290
No. 99-1178
INTHE : |
OS lle OE ee ee eee
Quaseme Comt of te Cds Wied
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 FOR THE STATE OF ALABAMA
AS AMICUS CURIAE
IN SUPPORT OF PETITIONER
BILL PRYOR JEFFREY S. SUTTON
Attorney General of (Ce:.nsel of Record)
Alabama JONES, DAY, REAVIS & POGUE
ALICE ANN BYRNE 1900 Huntington Center
Assistant Attorney General 41 South High Street
State House Columbus, Ohio 43215
11 South Union Street (614) 469-3855
Montgomery, AL 36130
(334) 242-7300
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .....ccccccsccccveseces ii
STATEMENT OF AMICUS INTEREST ............. l
SUMMARY OF ARGUMENT ..................4.. 3
GREED ccc ecawntebucunncccbsnssbacsineee 5
I. The Clean Water Act Does Not Give The Corps
Authority To Regulate Isolated, Intrastate Waters
Merely Because They Provide A Potential Or Actual
Habitat For Migratory Birds. ................... 6
Il. The Regulation Exceeds Congress’s Commerce
REID. don cesukesscnsscecne ensesacenes 9
EMME. 0.0 sds vvnessdevebectesstavbecaces 15
li
TABLE OF AUTHORITIES
i Page
Cases
Alden v. Maine,527 U.S. 706 (1999) ooocccccccccccccecccceeeeeeeeeees 2
Andrus v. Allard, 444 U.S. 51 (1979) cocccccccccccccceeeseeeeeeeeeees 5
Berman v. Parker, 348 U.S. 26 (1954) ooccccccccccccceeeeeseeeeees 13
Bragdon v. Abbott, 524 U.S. 624 (1998) .o..ccccccccceseeseceeenees 7
City of Boerne v. Flores, 521 U.S. 507 (1997) ...cccccccceeeeees 2
Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) .......... 13
FERC v. Mississippi, 456 U.S. 742 (1982) .......ccccccceceeees 13
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ........ 10, 11
Gregory v. Ashcroft, 501 U.S. 452 (1991) .occcccccccceceeeeeeees 2
Jones v. United States, 120 S. Ct. 1904 (2000) .............. 7,8
Katzenbach v. McClung, 379 U.S. 294 (1964) .......ccccccee 10
Lake Country Estates, Inc. v. Tahoe Regional
Planning Agency, 440 U.S. 391 (1979) .o...cccccccccececeeees 13
Maryland v. Wirtz, 392 U.S. 183 (1968),
over ‘d on other grounds, National League of Cities v.
Usery, 426 U.S. 833 (1976), over’d Garcia v. San
Antonio Metropolitan Transit Authority, 469 U.S.
ITT ieee inlentanminmmenmessnmnenmsnenes 11
Missouri v. Holland, 252 U.S. 416 (1920) ........ccccccceecceeeees 5
NLRB v. Jones & Laughlin Steel Corp.,
Leo 10
New York v. United States, 505 U.S. 144 (1992) ......... 2,11
North Dakota v. United States, 460 U.S. 300 (1983) ........ 5
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ....0ccccc00 11
Railroad Co. v. Maryland, 88 U.S. 456 (1874) .............0. 6
Saenz v. Roe, 526 U.S. 489 (1999) .o.ccccccccccseceeeseeeeeeeeeeees 2
The Daniel Ball, 77 U.S. S557 (1870) ....cccccccccccccceeeeeeeeeeeeees 6
United States v. Appalachian Electric Power Co.,
SATII scents ppmnseamnncepatnensnenennepemnmness 6
United States v. Bass, 404 U.S. 336 (1971) occcccccccccceeeeeeees 8
United States v. Lopez,
PPG PERI coccccecccsosoccnosersnesssssces 2,9, 10, 11, 13
TABLE OF AUTHORITIES (Cont'd)
Page
United States v. Morrison,
I A 2, 11, 12, 13
United States v. O'Brien, 391 U.S. 367 (1968) ............... 11
Utah v. United States, 403 U.S. 9 (1971) .o.ccccccccccccccececeeeees 6
Warth v. Seldin, 422 U.S. 490 (1975) cocccccccccccccccceccceeeeeees 13
Statutes
GE eee Re s
NI a 3,6
TE aS 3,7
STATEMENT OF AMICUS INTEREST
The State of Alabama, it should come as no surprise, takes
seriously its obligation to ensure that the wildlife and wetlands
its residents enjoy today remain preserved, if not indeed
improved, for future generations. The people of the State
demand no less.
The residents of other States share this view, as the actions
of their State and local governments well attest. The States
have been anything but idle in acting as responsible guardians
over these essential environmental matters. See Appendix.
Whether securing the interests of future bird watchers, future
hunters, or myriad interest groups in between, the States have
been diligent in protecting both interstate and intrastate
wildlife and the diverse habitats they need to survive.
Why, then, does Alabama support a challenge to the
migratory bird rule, whose only offense is one of jurisdiction
and not of substance? In the State’s view, it is precisely such
well-meaning measures that nsk destroying an even-greater
heritage that today’s government leaders have a duty to
preserve and pass on—the unique benefits of divided and
dispersed government. A national power to regulate in this
area is not only a power to preempt but also a power to
confuse. Once obtained, federal jurisdiction over these matters
would authorize a federal agency to preempt all manner of
local measures, thereby destroying the creative and sometimes
competitive efforts of States to develop more progressive
initiatives, while at the same time authorizing even the most
well-intentioned federal agency to sow confusion in the people
over who has plenary accountability regarding these local
land-use matters. One need not be a student of, or participant
in, government for long to recognize the risks of clouding
responsibility over a public policy issue. Irresponsible
officials like nothing more than a lack of accountability for
their actions; and responsible officials have no use for policy
2
initiatives that they cannot control and ultimately assume well-
deserved credit for developing.
It is not lost on the State that judicially enforcing these
requirements of American federalism comes with a short-term
cost. Congressional efforts to protect religious liberties, City
of Boerne v. Flores, 521 U.S. 507 (1997), to regulate guns in
the vicinity of schools, United States v. Lopez, 514 U.S. 549
(1995), to regulate the disposal of nuclear waste, New York v.
United States, 505 U.S. 144 (1992), to provide money-
damages relief for overtime work, Alden v. Maine, 527 U.S.
706 (1999), and to provide civil remedies for victims of gender
violence, United States v. Morrison, 120 S. Ct. 1740 (2000),
all have been reined in by the constitutionally-required balance
between the dual sovereigns and the enduring check of judicial
review. Yet, it is worth emphasizing, not one public-policy
vacuum has emerged in any of these areas in the aftermath of
these decisions. Nor does any such problem loom on the
horizon. All that has become clear is that the States and their
local governments retain primary initial authority over these
areas, a development that ensures local accountability and
what comes with it—the best long-term prospects for
responsible government. Neither does a single one of these
decisions permanently remove the federal backstop. Whether
under section 5 of the Fourteenth Amendment or the
Commerce Clause, the National Government remains
available for matters that are truly national in scope at the
outset or that become so if and when the States reveal an
inability to handle them.
“Just as the separation and independence of the coordinate
branches of the Federal Government serve to prevent the
accumulation of excessive power in any one branch, a healthy
balance of power between the States and the Federal
Government will reduce the risk of tyranny and abuse from
either front.” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
The libertarian objective of the Framers after all was to “split
——
3
the atom of sovereignty,” Saenz v. Roe, 526 U.S. 489, 504 n.17
(1999) (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S.
779, 838 (1995) (Kennedy, J., concurring)), not to multiply it.
While it is assuredly difficult to uphold this fe“cralist
abstraction—even when it is the Framers’ abstraction—in the
face of concrete laws to remove guns from schools, to remedy
gender violence or to protect migratory birds, it is doubtful
whether any other branch of government is equipped to do so.
For the purpose of advancing these views and of developing
them further, the State of Alabama respectfully submits this
amicus curiae brief for the Court’s consideration.
SUMMARY OF ARGUMENT
1. In promulgating the migratory bird rule, the Army Corps
of Engineers assumed a power that Congress did not delegate
to it. When it passed the Water Pollution Control Act of 1972
(the Clean Water Act), Congress gave the Corps authority to
regulate just “navigable” “waters of the United States.” 33
U.S.C. § 1344, 1362(7). Settled interpretations of “navigable
waters,” statutory context, and vital presumptions against
legislatively altering the Federal-State balance all confirm that
the Corps’ regulatory authority under the Clean Water Act
extends to waters that are in actuality navigable, that would be
navigable with modest effort, or that are close to or support
such waters.
The migratory bird rule, as applied to remote, man-made
ponds ranging from a few inches to a few feet deep, vastly
exceeds this delegation of authority. In deciding that it could
enforce its permitting requirement for discharges into any body
of water that is or could become a habitat for migratory birds,
the Corps took on a range of authority that it is doubtful any
prior agency has tried to shoulder before. As most
homeowners know, migratory birds may land just about
anywhere and for any reason. Under the Corps’ rule, it
follows, all one needs is a backyard depression or the smallest
of ponds to attract such birds in spring or fall, through no
4
particular effort by the homeowner, and potentially to violate
a criminal law the next time grass clippings or leaves are
inadvertently dumped there. An attempt to delegate such
sweeping authority must be clearly stated. It was not, and the
rule accordingly exceeds the Corps’ authority.
2. In the event Congress did in fact to delegate this
astonishing authority to the Corps, the National Legislature
overstepped its commerce power in doing so. An effort to
regulate every isolated, temporary collection of water in the
country has far too distant a connection to national commerce
to be treated as a permissible regulation of intrastate activities
that substantially affect interstate commerce. Every measure
of constitutional excess appears in full force here.
No congressional findings, as an initial matter, support the
claim that the activity substantially affects interstate
commerce. From all that appears in the legislative record,
Congress never discussed or seemed to have any sense that it
was asserting this unique authority. Nor may after-the-fact
justifications for this assumption of power (i.e., bird watchers
and hunters travel in and support interstate commerce) correct
this deficiency. They are precisely the kinds of attenuated
connections to national commerce that the Court has rejected
in the past because they have no limiting principle and would
convert the Federal Government from one of limited to one of
uncontained powers. The interstate justifications for asserting
power (bird watching and hunting) also are non-economic in
nature—a type of justification that the Court has never
accepted in this area before. The law, moreover, does not
contain a limiting interstate-jurisdictional element. And, as
with Lopez and Morrison, the law attempts to regulate an area
traditionally covered by the States general police powers. In
the last analysis, while Congress may well possess power to
regulate many of the activities it attempted to regulate here, it
failed to employ constitutionally acceptable means in this
instance.
5
ARGUMENT
At the outset, it may be useful to clarify the parameters of
dispute. Neither Alabama as amicus curiae nor petitioner
argues that the Constitution’s limited and enumerated powers
disable Congress from regulating wetlands in general or
migratory birds in particular. On the contrary, the National
Legislature has broad powers at its disposal to do so; they
simply were not permissibly invoked in this instance.
Congress may, for example, use its carrot-and-stick Spending
Clause powers to regulate migratory birds and wetlands. See
North Dakota v. United States, 460 U.S. 300, 309 (1983)
(“The protection of migratory birds has long been recognized
as ‘a national interest of very nearly the first magnitude.’”’)
(quoting Missouri v. Holland, 252 U.S. 416, 435 (1920)). It
may use its uniquely wide-ranging Treaty Clause powers,
which have in fact been properly invoked to regulate migratory
birds. See Missouri v. Holland, 252 U.S. at 430-31, 435. And,
most customarily, it may use its broad Commerce Clause
powers to regulate waters that in fact flow interstate or are
reasonably connected to such waters, or likewise may do so
with regard to commercial transactions involving animals. See
Andrus v. Allard, 444 US. 51, 63 n.19 (1979) (the
“assumption that the national commerce power does not reach
migratory wildlife is clearly flawed”).
Not one of these legitimate powers, however, was
legitimately invoked here. And, for that reason, the migratory-
bird rule must be invalidated—either because it exceeds the
regulatory authority properly delegated to the Army Corps of
Engineers or because as applied it exceeds Congress’s
authority. In either event, neither the most ardent bird-watcher
nor the most aggressive hunter need be alarmed. Not only
have the States understandably shown the utmost solicitude in
protecting these interests, see Appendix, but Congress
continues to have broad means at its disposal to reach these
important ends.
6
I. The Clean Water Act Does Not Give The Corps
Authority To Regulate Isolated, Intrastate Waters
Merely Because They Provide A Potential Or Actual
Habitat For Migratory Birds.
A careful review of the terms of the Clean Water Act
together with its legislative record confirm what a brief glance
at the two suggest: Congress did not engage in the debate that
the Court is officiating now. At no point did the National
Legislature offer any meaningful indication that the Act would
delegate such free-ranging authority to the Corps, and at no
point did Congress consider the constitutional implications of
permitting an agency to regulate every remote intrastate body
of water where birds do or may alight.
Consider initially the text of the Clean Water Act. It just
gives the Corps jurisdiction over “navigable waters,” 33
U.S.C. § 1344, a grant of authority that hardly suggests a
desire to regulate the shallowest and most temporary of
intrastate ponds. Lewis would never have directed Clark to
meet him at the first “navigable water,” then looked for him at
every passing pond. The phrase of course suggests just the
opposite, as case after case construing “navigable waters” has
indicated in a series of decisions announced by this Court
before Congress enacted the Clean Water Act. See, e.g., Utah
v. United States, 403 U.S. 9, 11 (1971); Railroad Co. v.
Maryland, 88 U.S. 456, 470 (1874); The Daniel Ball, 77 U.S.
557, 563 (1870) (“navigable waters” refers to waters that “are
navigable in fact” and that are “susceptible of being used, in
their ordinary condition, as highways for commerce’’); see also
United States v. Appalachian Elec. Power Co., 311 U.S. 377,
407 (1940) (indicating that phrase covers not only waters that
are navigable in fact but also that could reasonably be made
navigable through improvements). When “judicial
interpretations have settled the meaning of an existing
statutory provision,” it has long been clear, “repetition of the
same language in a new statute indicates, as a general matter,
7
the intent to incorporate its administrative and judicial
interpretations as well.” Bragdon v. Abbott, 524 U.S. 624, 645
(1998). This time-tested principle of interpretation cannot co-
exist with the Corps’ utterly-novel and exceedingly-expansive
construction.
Neither does the Act’s definition of the phrase “navigable
waters” fairly advance the Federal Government’s position. It
says that the phrase covers the “waters of the United States,
including the territorial seas.” 33 U.S.C. § 1362(7). The
definitional phrase ultimately suggests three readings of
“navigable waters,” only one of which makes interpretive
sense. One, the phrase could cover any “water” in the country
at all, from Lake Erie to a backyard bird bath. Two, the phrase
could mean whatever the Constitution permits, which is to say
it reaches the full extent of Congress’s Commerce Clause
powers—a line that does not pick up dead-on-arrival
hypotheticals, just whatever else the Court (as opposed to
Congress) decides. Three, the phrase could cover waters of
the United States that are navigable in fact, that could be
navigable with reasonable modification or that are reasonably
connected to such waters.
The first possibility is undoubtedly an untenable one. It
would read the most conspicuous jurisdictional term in the
statute—"’navigable”—out of the provision entirely, and would
certainly raise grave and doubtful questions concerning the
constitutionality of this essential piece of national legislation.
See Jones v. United States, 120 S. Ct. 1904, 1911 (2000).
The second possibility—jurisdiction extends to whatever
the Court permits—suffers from some of these problems, and
more. It, too, removes “navigable” from the interpretive
question. That not only violates the above interpretive
principles but conventions of everyday speech as well. A
definition clarifies or limits a phrase; it does not dramatically
expand the phrase. This interpretation also destroys any
presumption of constitutionality. No branch of government
8
deserves respect over an inquiry—here the reach of Commerce
Clause authority—that it consciously refused to make in the
first instance. This interpretation also violates the cardinal rule
that “unless Congress conveys its purpose clearly, it will not
be deemed to have significantly changed the federal-state
balance.” United States v. Bass, 404 U.S. 336, 349 (1971).
The Federal Government seeks here exactly the opposite
presumption: When Congress is silent about the jurisdictional
reach of a statute over local matters, or at most speaks
inscrutably about it, the legislature wishes the Court to assume
that everything Congress may do, it in fact did. And this
interpretation fails to respect Congress’s very own
proclamation in the statute. “It is the policy,” the statute says,
“of Congress to recognize, preserve, and protect the primary
responsibilities and nghts of States to prevent, reduce, and
eliminate pollution [and] to plan the development and
use . . . of land and water resources.” 33 U.S.C. § 1251(b).
That leaves the third and most straightforward
interpretation. Consistent with prior constructions of the
relevant terms and consistent with the above interpretive rules,
the Corps’ jurisdiction remains linked to waters that are
“navigable” and are “of the United States,” which includes
waters that are navigable in fact, that may be navigable with
reasonable effort or that are reasonably connected to either of
the two. This respects all of the words in the statute, comports
with each of the above rules of interpretation, and avoids a
serious constitutional question. See Jones, 120 S. Ct. at 1911.
Nor does Chevron deference apply here. See Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). The statutory ambiguity that triggers
administrative deference comes at the end, not the beginning,
of the statutory inquiry—which is to say, after the application
of the above rules of statutory construction. See Chevron, 467
U.S. at 843 n.9. Applied here, those rules eliminate the
discretion-giving ambiguity that lends Chevron force. More
9
than that, Chevron cannot tenably be applied in this sensitive
area of Federal-State authority. It is one thing to assume that
the States protect their interests in the Halls of Congress when
this Natfonal body legislates explicitly, see Garcia v. San
Antonio Metro. Transit Auth., 469 U.S. 528 (1985); it is quite
another to maintain this assumption when Congress legislates
beneath the radar of reasonable scrutiny, leaving it to the whim
of an executive branch agency to seize authority when and
where it wishes. Administrative deference in this area would
give Chevron deference a bad name. This rule should not be
upheld.
II. The Regulation Exceeds Congress’s Commerce Clause
Powers.
The initial statutory inquiry not only avoids a serious
constitutional question but also fatal one. While the Court has
taken many interpretive turns in ascertaining the amount of
intrastate commercial activity that will suffice to permit
congressional lawmaking in this area, it has never construed
the Commerce Clause to include a general police power over
local crimes, local torts, local family law or local zoning and
land-use matters. The Court should not do so here.
The Court has construed the Commerce Clause to permit
regulation of three types of commercial activity: (1) the use
of the channels of interstate commerce; (2) the
instrumentalities of, or persons or things in, interstate
commerce; and (3) other activities that “substantially affect”
interstate commerce. United States v. Lopez, 514 U.S. 549,
557-59 (1995). It appears to be common ground that the bird
rule is not covered by the first two safe harbors. As to the last
inquiry, the Court has considered at least five factors in
assessing whether regulated conduct substantially affects
interstate commerce. Not one of them, however, is satisfied in
this instance.
10
First, whether in upholding federal legislation or in
invalidating it, the Court has long stood by the rudimentary
principle that Congress’s commerce powers are not unlimited.
As a matter of first principles, the Constitution creates a
Federal Government of enumerated powers, all of which—the
commerce clause included—are “subject to outer limits.”
Lopez, 514 U.S. at 557. An unwavering line of precedents
confirms the Court’s steadfast adherence to this modest but
foundational principle:
* “Tt is not intended to say that these words comprehend
that commerce, which is completely internal, which ts
carried on between man and man in a State, or between
different parts of the same State, and which does not extend
to or affect other States... . Comprehensive as the word
“among” is, it may very properly be restricted to that
commerce which concerns more States than one. ... The
enumeration presupposes something not enumerated; and
that something, if we regard the language or the subject of
the sentence, must be the exclusively internal commerce of
a State.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194-95
(1824).
* The clause does not “obliterate the distinction between
what is national and what is local and create a completely
centralized government.” NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 37 (1937).
* “The question is necessarily one of degree,” and the
clause applies to those intrastate activities that “have such
a close and substantial relation to interstate commerce that
their control is essential or appropriate to protect that
commerce from burdens and obstructions.” /d. at 37-38.
* “The activities that are beyond the reach of Congress are
‘those which are completely within a particular State, which
do not affect other States, and with which it is not necessary
to interfere, for the purpose of executing some of the
ee eS -
1]
general powers of the government.’”” Katzenbach v.
McClung, 379 U.S. 294, 302 (1964) (quoting Gibbons, 22
U.S. (9 Wheat.) at 195).
* “(T]he power to regulate commerce, though broad
indeed, has limits” which “the Court has ample power” to
enforce. Maryland v. Wirtz, 392 U.S. 183, 196 (1968),
over'd on other grounds, National League of Cities v.
Usery, 426 U.S. 833 (1976), over’d Garcia v. San Antonio
Metro. Transit Auth., 469 U.S. 528 (1985).
* “No one disputes the proposition that the Constitution
created a Federal Government of limited powers.” New
York v. United States, 505 U.S. 144, 155 (1992) (quotation
omitted).
* “To uphold the Government’s contentions here, we
would have to pile inference upon inference in a manner
that would bid fair to convert congressional authority under
the Commerce Clause to a general police power of the sort
retaincd by the States.” Lopez, 514 U.S. at 567.
* “(T]he powers delegated by the proposed Constitution to
the federal government are few and defined. Those which
are to remain in the State government are numerous and
indefinite.” Lopez, 514 U.S. at 552 (quoting The Federalist
Papers No. 45 (J. Madison)).
* The Constitution preserves the basic “distinction between
what is truly national and what is truly local.” United States
v. Morrison, 120 S. Ct. at 1754.
Accordingly, the Federal Government may not justify an
exercise of its commerce powers on a “rationale[ ]” that
“would ... authorize a general federal police power.” Lopez,
514 U.S. at 564. As with other constitutional claims, a law
cannot be justified by a governmental “interest” “[t}hat is
precisely what” the constitutional provision at issue “forbids.”
R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992). See
12
United States v. O’Brien, 391 U.S. 367, 377 (1968) (asserted
“governmental interest [must be] unrelated to the suppression
of free expression”).
The migratory bird rule plainly does not comport with this
first prerequisite for sustaining an exercise of Congress’s
commerce powers. The rule has no limiting principle, and as
the facts of this case suggest it permits the Corps to regulate
classically local matters, even residential property, virtually
whenever it pleases. Any distinction between matters that are
truly national and those that are truly local evaporates under
this novel assertion of authority. See Morrison, supra.
Second, consistent with the economic-sounding terms of the
Commerce Clause, the Court has only sustained federal
regulation of intrastate activities in the setting of commercial
activities. As Morrison confirmed just last Term: “{T]hus far
in our Nation’s history our cases have upheld Commerce
Clause regulation of intrastate activity only where that activity
is economic in nature.” Morrison, 120 S. Ct. at 1751.
This, too, is an unyielding shortcoming of the migratory
bird rule. Regulating any collection of water that is or may
become a habitat for migratory birds—for the purpose of
allowing bird watchers and hunters to pursue their hobbies no
less—simply does not amount to commerce in any traditional
sense of the word. The Court has never crossed this line
before. No reasoned explanation has been offered for doing so
here.
Third, the Court has asked whether the regulated activity
concerns an area in which the States have traditionally
exercised plenary authority under their general police powers.
Land use and zoning laws, it is clear, properly have long been
a local, not a national, lawmaking prerogative.
Much as the laws at issue in Morrison and Lopez covered
areas traditionally regulated at the local level—schools, crime
and family law—so too the Corps seeks to assert jurisdiction
13
over an area that is uniquely a matter of local oversight. The
“regulation of land use,” the Court has repeated, “is perhaps
the quintessential state activity,” FERC v. Mississippi, 456
U.S. 742, 767 (1982), is “traditionally a function performed by
local governments,” Lake Country Estates, Inc. v. Tahoe
Regional Planning Agency, 440 U.S. 391, 402 (1979), and is
“peculiarly within the province of state and local legislative
authorities,” Warth v. Seldin, 422 U.S. 490, 508 n.18 (1975).
See also Berman v. Parker, 348 U.S. 26 (1954); Euclid v.
Ambler Realty Co., 272 U.S. 365 (1926). This factor also
favors striking the rule.
Fourth, the Court has inquired whether the law contains a
jurisdictional element, which cabins its reach to conduct that
has “an explicit connection with or effect on interstate
commerce.” Morrison, 120 S. Ct. at 1750-51; Lopez, 514 U.S.
at 562. Neither the Clean Water Act nor the migratory bird
rule has any such limitation.
Fifth, while the Court has not ceded to Congress the
ultimate authority to determine the reach of its commerce
powers, the Court always asks whether congressional findings
support the government’s claim that the regulated conduct has
a substantial effect on interstate commerce. Lopez, 514 U.S.
at 562. No such findings, however, appear here. As in Lopez,
the legislative record clangs with silence regarding the
constitutional justification for passing this all-encompassing
law. Nowhere in the text of the Clean Water Act or the
legislative record is there the slightest indication that Congress
contemplated the possibility of regulating any and all bodies
of water, no matter how remote or attenuated the connection
to navigable waters, that are or may become migratory-bird
habitats.
Every factor the Court has considered before in gauging the
validity of an exercise of commerce power counsels against
upholding the migratory bird rule. It has no limiting principle.
It is based on an ostensible interstate connection that is non-
14
commercial and non-economic. It concerns an eminently local
activity—land use and zoning. It does not contain a confining
jurisdictional element. And it contains not a single
congressional factfinding that would reasonably support this
assertion of authority. In these respects, the rule is more far-
reaching than the laws invalidated in Lopez and Morrison. It
deserves a similar fate.
Nor, we respectfully submit, would a decision to invalidate
the migratory bird rule dishonor the inter-branch imperative
that the Court accord a respectful presumption of
constitutionality to the actions of the political branches—here
to the views of Congress and the Army Corps of Engineers.
That presumption of constitutionality, it bears emphasis, runs
in two directions on occasions like this one. In controversies
over the constitutional lines of authority between one
politically-accountable branch and another, the Court
customarily engages in zero-sum decisionmaking. One side’s
loss invariably becomes the other’s gain. Take, for example,
a horizontal separation-of-powers dispute between Congress
and the President. Both deserve deference in obeying their
oaths to follow the Constitution, and neither has a greater
claim to the benefit of constitutional doubt than the other. The
same is true of vertical separation-of-powers disputes. When
the national government and local governments square off
over the reach of their respective powers, Congress’s
aggrandizement of power customarily leads to a diminution of
local power. And the opposite, of course, is true. One simply
cannot give Congress the presumption of interpreting the
Constitution correctly without slighting the States’ capacity to
do the same. It is, in short, no more aggressive to deny
Congress’s assertion of authority than it is an act of judicial
restraint to respect a State’s traditional constitutional
prerogative in that same area.
15
CONCLUSION
For the foregoing reasons, the decision of the court of
appeals should be reversed.
Respectfully submitted,
BILL PRYOR JEFFREY S. SUTTON
Attorney General of (Counsel of Record)
Alabama JONES, DAY, REAVIS & POGUE
ALICE ANN BYRNE 1900 Huntington Center
Assistant Attorney General 41 South High Street
State House Columbus, Ohio 43215
11 South Union Street (614) 469-3855
Montgomery, AL 36130
(334) 242-7300
July 27, 2000
APPENDIX
la
ALABAMA ALASKA
WETLANDS Code of Alabama: ALASKA STAT.:
STATUTES
§ 9-7-10 (1977) § 41.21.522 (Michie
(Definitions) 1998) (Acquisitions)
§ 9-9-5 (1977) § 16.20.034 (Michie
(Establishment of 1998) (Wetlands game
district) refuge)
§ 41-10-235 (1991) § 41.17.950 (Michie
(Commemorative Supp. 1999)
markers and plaques) (Definitions)
Constitutional § 41.21.518 (Michie
Amendments: 1998) (Establishment
Ala. Const. Amend. No.
543 (1993)
of wetlands
management area)
§ 41.21.520 ( Michie
1998) (Incompatible
uses)
2a
ALABAMA ALASKA
MIGRATORY Code of Alabama: ALASKA STAT.:
BIRD
STATUTES § 9-11-244 (1997) § 16.20.039 (Michie
(Taking of protected 1998) (Migratory
birds) waterfowl refuge)
§ 9-11-430 (1997)
(Preservation of
wetlands and migratory
waterfowl — definitions)
§ 9-11-431 (1997)
(Construction of article)
§ 9-11-432 (Supp. 1999)
(Stamp requirement for
hunting migratory fowl)
§ 9-11-433 ( Supp. 1999)
(Issuance of stamp)
§ 9-11-434 (1997)
(Revenue used in
preservation of wetlands
for migratory fowl)
§ 9-11-435 (1997)
(Requirements for
approving projects
outside U.S.)
3a
ARKANSAS CALIFORNIA
WETLAND ARK. CODE ANN.: CAL FISH & G.
STATUTES CODE:
§ 15-20-207 (Michie
1987) (Soil & Water § 1386 (West 1998)
Conservation (Riparian Habitat
Commission powers and | Conservation
duties) program)
§ 15-20-310 (Michie §§ 1410-1431 (West
1987) (Environmental 1998) (Inland
Quality Act — acquisition | Wetlands
of natural areas) Conservation Program
Art. 1-3)
§ 15-20-705 (Michie
1987) (Scenic Resources | §§ 1776-1796 (West
Act — duties of agencies) | 1998) (Sacramento-
San Joaquin Valley
§ 15-20-802 (Michie Wetlands Mitigation
1987) (Soil & Water Bank Act of 1993)
Conservation
Commission Pooled § 2620 (West
Loan Securitization Act) | 1998)(Habitat
Enhancement
§ 15-21-501 (Michie Program)
1987) (State Land
Information Board — §§ 2785-2786 (West
purpose) 1998) (California
Wildlife Protection
Act of 1990)
4a
Sa
ARKANSAS CALIFORNIA
§ 15-22-1001 (Michie CAL GOV. CODE:
1987) — § 15-22- 1012
(Michie 1987) (Wetlands | §65081.3 (West 1997)
Mitigation Bank Act ) (Transportation
planning and
§ 15-57-409 (Michie programming)
1987) (Reclamation of
land) §§ 66602.1 — 66682
(West 1997) (San
§§ 26-51-1502 (Michie Franciso Bay
1987) - 26-51-1506 Wetlands)
(Michie 1987) (Private
Wetland & Riparian § 66907.12 (West
Zone Creation & 1997)(California
Incentive) Tahoe Conservancy)
Acts 1993, No. 150,§ § | § 67675 (West 1997)
1-9 (Historical Notes) (Fort Ord Reuse
Authority)
Acts 1995, No. 1224
(Historical Notes)
CAL. HARB & NAV.
CODE:
§ 523 (West 2000
Supp.) (Removal of
vessel from public
waterway)
§ 1720 (West 2000
Supp.) (Port facility
construction)
ARKANSAS
CALIFORNIA
CAL. HEALTH &
SAFETY CODE:
§ 25270.5 (West 1999)
(Storage of Petroleum
— Inspection schedule)
§ 25270.11(West
1999) (Environmental
Trust Fund)
§ 33492.93 (West
1999) (Mare Island
Redevelopment
Project Area)
§ 44470 (West 1996)
(Halogenated
Refrigerants)
CAL.
PUB.RES.CODE:
§ 5096.139 (West
1984) (Nejedly-Heart
State, Urban, and
Coastal Park Bond Act
of 1976)
6a
ARKANSAS
CALIFORNIA
7a
§ 5096.197 (West
1984) (California
Parklands Act of
1980)
§ 5096.310 (West
Supp. 2000) (Safe
Neighborhood Parks,
Clean Water, Clean
Air and Coastal
Protection Bond Act
of 2000 — Creation
and use)
§ 5096.347 (West
Supp. 2000) (Safe
Neighborhood Parks,
Clean Water, Clean
Air and Coastal
Protection Bond Act
of 2000 — Sierra
Nevada-Cascade
Mountain Region)
§ 5096.350 (West
Supp. 2000.) (Safe
Neighborhood Parks,
Clean Water, Clean
Air and Coastal
Protection Bond Act
of 2000 —Wildlife
Program)
ARKANSAS
CALIFORNIA
§ 5096.352 (West
Supp. 2000) (Safe
Neighborhood Parks,
Clean Water, Clean
Air and Coastal
Protection Bond Act
of 2000-Coastal
Protection Program)
§ 5096.357 (West
Supp. 2000) (Safe
Neighborhood Parks,
Clean Water, Clean
Air and Coastal
Protection Bond Act
of 2000-Fish and
Game Program)
§§ 5810-5818 (West
1984) (Wetlands
Protection Act)
§ 5850 (West Supp.
2000) (San Francisco
Bikeway System)
ARKANSAS
CALIFORNIA
§§ 5902, 5907, 5929
(West Supp. 2000)
(California Wildlife,
Coastal, and Park
Land Conservation
Act — Definitions,
Expenditure of funds,
Wetlands acquisition)
§ 6008 (West Supp.
2000) (Restriction on
sale of right to use
state-owned lands in
Humbolt Bay)
§ 6890 (West Supp.
2000) (Permits and
leases on state lands
other than tide and
submerged lands)
§ 8601 (West Supp.
2000) (Kapiloff Land
Bank Act -
Definitions)
§ 8602 (West Supp.
2000) (Kapiloff Land
Bank Act — Legislative
findings and
declarations)
CALIFORNIA
§ 8613 (West Supp.
2000) (Kapiloff Land
Bank Act — Wetlands
acquisition)
§ 21080.23 (West
Supp. 2000)
(Environmental
Quality — Pipeline
project)
§ 26403 (West 1996)
(Energy and
Resources Fund —
Programs eligible for
funding)
§§ 29002 — 29501
(West 1996) (Suisun
Marsh Preservation
Chapters 1,2, and 5)*
§ 30116 -
30607.1(West 1996)
(California Coastal
Act)
* This statute contains information on both “Wetlands and Migratory
Waterfowl”
10a
CALIFORNIA
lla
§ 31006 (West Supp.
2000) (State Coastal
Conservancy — Coastal
zone)
§ 31162 (West 1996)
(San Francisco Bay
§31354 (West 1996)
(State Coastal
Conservancy-
Establishment)
§ 32023 (West 1996)
(California Urban
§ 35031 (West Supp.
2000) (Coasial County
and City Offshore
Energy Assistance)
CALIFORNIA
CAL. WATER
CODE:
§ 1707 (West Supp.
2000) (Urban Water
§ 12565 (West Supp.
2000) (Colorado River
Management Program)
§12929.26 (West
1992) (Environmental
Water Act of 1989 —
Purposes eligible for
funding)
§ 13142.5 (West Supp.
2000) (State Policy
for Water Quality
—_
a ~ ~ Coastal ,
12a
ARKANSAS
CALIFORNIA
13a
§ 13576 (West Supp.
2000) (Water
Recycling Act of
1991)
§§ 14906-14907 (West
Drainage Relief Act)
§§ 78500.4, 78684
(West Supp. 2000)
(Safe, Clean, Reliable
Water Supply Act —
Objectives and
Definitions)
§§ 79080 — 79104.104
(West Supp. 2000)
(Watershed Protection
Program)
CAL. WATER CODE
APP:
§ 43-26-1 (West
Supp. 2000) (San
Bernardino County
Flood Centrol Act)
ARKANSAS
CALIFORNIA
§ 48-12 (West Supp.
2000) (Riverside
County Flood Control
and Water
Conservation District
Act)
§ 49-3.5 — § 49-36.5
(West Supp. 2000)
(San Luis Obispo
County Flood Control
and Water
Conservation District
Act)
§ 136-61 (West Supp.
2000) (Antelope
Valley Storm Water
Conservation and
Flood Control District)
MIGRATORY
BIRD
STATUTES
ARK. CODE ANN.:
§ 5-73-130 (Michie
1987) (Unlawful for
guide of persons hunting
migratory birds to carry
a gun)
§ 15-41-105 (Michie
1987) (Programs for
migratory waterfowl)
CAL FISH & GAME
CODE:
§ 307 (West
1998) Bag and
possession limits)
§§ 355-357 (West
1998) (Regulations
pertaining to
migratory birds)
14a 15a
ARKANSAS CALIFORNIA ARKANSAS CALIFORNIA
§ 15-42-104 (Michie § 375 (West § 29760 (West Supp.
1987) (Hunting and 1998)(Compact 2000) (Delta
fishing license fees) between AZ and CA Protection Act of 1992
for hunting rights) ~ Long term resource
§ 22-7-206 (Michie management plan)
1987) (Waterfowl and §2050 (West
wildlife refuges) 1998) Endangered
Species General
Acts 1943, No. 146 § 20 | Provisions)
(Game and fish refuges)
§§ 3700-3706 (West
1998) (Migratory Bird
Statute)
§§ 29002 — 29501
(West 1996) (Suisun
Marsh Preservation
Chapters 1,2, and 5)*
§ 29705 (West 1996)
(Delta Protection Act
of 1992 — Wildlife
habitats)
* This statute contains information on both “Wetlands and Migratory
Waterfowl”
l6a
17a
COLORADO
CONNECTICUT
COLORADO
CONNECTICUT
WETLANDS
STATUTES
CONN. GEN. STAT.
ANN.:
§ 7-131a (1999)
(Conservation
commissions)
§ 8-3c (Supp. 2000)
(Zoning, housing,
economic
development — special
permits )
§ 8-26 (Supp. 2000)
(Zoning, housing,
economic
development —
approval of
subdivision involving
wetlands)
§ 22a-27k (1995)
(Long Island Sound
accornt)
§§ 22a-28, “9S) -
22a-45c (Sup. 2000)
(Wetlands and
watercourses)
§§ 22a-91 (1995) -
22a-1 13a (1995)
(Environmental
protection — coastal
management)
§ 22a-1130 (1995)
(Environmental
management)
§§ 22a-349a (1995)
- 22a-361 (1995)
(Environmental
§ 22a-363b (Supp.
2000) (Activities
eligible for certificate
of permission)
§ 22a-378a (1995)
(Environmental
19a
18a
COLORADO CONNECTICUT
§§ 22a-403 (Supp.
2000) - 22a-—411(
1995)(Environmental
protection —- Dams and
reservoirs — permits)
§ 22a — 477 (Supp.
2000) (Clean Water
Fund)
§ 23-65k (1990)
(Municipal regulation
of forest practices)
§ 25-68d (1990)
(Certification of
activity affecting the
floodplain)
§ 25-102ww (1990)
(Applications affecting
Shepaug and Bantam
River)
§ 25-102xx (1990)
(Model river
protection ordinance)
§§ 25-204 (1990) -
25-206 (1990) (River
corridor protection
plan)
COLORADO
CONNECTICUT
§§ 25-234 (1990) -
25-236 (1990)
(Multiple use rivers —
management plan)
§ 26-17a (1990)
(Acquisition and
preservation of tidal
wetlands)
MIGRATORY
BIRD
STATUTES
COLO. REV. STAT.:
§ 33-1-115 (West 1998)
(Migratory birds)
CONN. GEN. STAT.
ANN.:
§ 26-27c (1990)
(Reproduction of
migratory bird stamp)
§ 26-48a (1990)
(Management of
migratory game birds)
§ 26-91 (1990)
(Taking of migratory
game birds)
20a
2la
DELAWARE
DISTRICT OF
COLUMBIA
DELAWARE
DISTRIc f OF
COLUMBIA
WETLANDS
STATUTES
DEL. CODE ANN. tit.:
7 § 4001 (1991)
(Erosion and
Sedimentation Control —
legislative findings)
7 § 6036 (1991)
(Environmental control —
projects of state
significance)
7 § 6601 (1991) - tit. 7
§ 6620 (1991)
(Wetlands Act)
7 § 7004 (Supp. 1998)
(Coastal Zone Act — uses
allowed by permit)
9 § 2656 (Supp. 1998)
(Quality of Life Act —
elemeais of plan)
9 § 4956 (Supp. 1998)
(Quality of Life Act —
elements of plan)
9 § 6956 (Supp. 1998)
(Quality of Life Act —
elements of plan)
MIGRATORY
BIRD
STATUTES
DEL. CODE ANN. tit.:
7 § 707 (Supp. 1998)
(Hunting or shooting
from a motor vehicle)
7 § 717 (Supp. 1998)
(Frightening or harassing
migratory birds)
D.C. CODE ANN.:
§ 22 — 1628 (1996)
(Game and fish Laws)
22a
23a
FLORIDA
GEORGIA
FLORIDA GEORGIA
WETLANDS FLA. STAT. ANN.: GA. CODE ANN.:
STATUTES
§163.3177 (West 2000) | §12-2-8 (1996)
(Land development) (Protection of natural
resources)
§ 163.3178 ( West 2000)
( Land development — §12-5-30 (1996)
coastal management) (Control of water
pollution & surface-
§187.201 (West 2000) water use)
(Planning &
development — state
comprehensive plan
including preservation of
wetlands)
§253.36 (West 1999)
(Title to reclaimed
wetlands)
§258.501 (West 1999)
(Myakka river Wild &
Scenic Designation
Preservation Act)
§338.250 (West Supp.
2000) (Central Florida
Beltway mitigation)
§12-5-472 (1996)
(Water supply)
§369.255 (West 2000)
(Aquatic plant control)
§369.305 (West 2000)
(Wekiva River
Protection)
§369.307 (West 2000)
(Wekiva River
Protection)
§373.4145 (West 2000)
§373.421 (West 2000)
(Management and
storage of surface
waters)
§373.4211 (West 2000)
(Management and
storaye of surface
waters)
§375.031 (West 2000)
24a
FLORIDA
GEORGIA
§376.121 (West 2000)
(Pollutant Discharge
Prevention & Removal)
§380.0552 (West 2000)
(Environmental land and
water management)
§380.061 (West 2000)
(Florida Quality
Developments Program)
§403.061 (West 1998)
(Pollution Control)
§403.927 (West 1998)
(Use of water in farming
and forestry activities)
§403.9328 (West 1998)
(Alteranon & timming
of mangroves)
§403.9332 (West 1998)
(Mitigation and
enforcement)
25a
FLORIDA GEORGIA
MIGRATORY FLA. STAT. ANN.: GA. CODE ANN.:
BIRD .
STATUTES §372.5712 (West 2000) | §27-1-6(1997) (Game
(Waterfowl permit and Fish — powers and
revenues) duties of department)
§372.5714 (West 2000) | §27-2-20 (Supp. 1999)
(Creation of waterfowl (Federal Migratory
advisory Council) Bird conservation
stamp)
26a
27a _
HAWAII IDAHO
WETLANDS HAW. REV. STAT. IDAHO CODE:
STATUTES ANN.:
§39-7407 (1998)
§ 174C-3 (Michie 1993) | (Idaho Solid Waste
(Water and land Facilities Act — site
development — certification)
definitions)
§342E-1 (Michie 1993)
(Nonpoint source
pollution management &
control — definitions)
MIGRATORY IDAHO CODE:
BIRD
STATUTES §36-105 (Supp. 1999)
(Fish & Game
Commission orders)
§36-201 (1994)
(Classification of
wildlife)
ILLINOIS INDIANA
WETLANDS 20 ILL.COMP. STAT. | IND. CODE ANN.:
STATUTES ANN. 830/1-2 (West
1993) - 830/3-6 §14-12-2-1 (West
(West 1993) 1998) (Indiana
(Interagency Wetland Heritage Trust
Policy Act) Program — purpose)
30 ILL. COMP. STAT. | §14-12-2-4 (West
ANN. 150/3 (West 1998) (Indiana
1993) (Natural Heritage | Heritage Trust
Fund Act — purpose) Program — “project”
. defined)
70 ILL. COMP. STAT.
ANN. 1832/20 (West §14-26-2-16 (West
Supp. 2000) (Mid- 1998) (Lake
America Intermodal preservation —
Authority Port District applicability to water
Act) supply reservoirs)
210 ILL. COMP. STAT. | §14-30-2-22 (West
ANN. 95/2 (West 1993) | 1998) (Maumee River
(Campground Licensing | Basin Commission —
& Recreational Act) powers pertaining to
property)
505 ILL. COMP. STAT.
ANN. 35/1-3 (West
1993) (Illinois
Conservation
Enhancement Act)
28a
ILLINOIS
520 ILL. COMP. STAT.
ANN. 25/10 (West Supp.
2000) (Habitat
Endowment Act)
525 ILL. COMP. STAT.
ANN. 33/5 (West Supp.
2000) (Illinois Open
Land Trust Act)
525 ILL. COMP. STAT.
ANN. 33/10 (West Supp.
2000) (Illinois Open
Land Act — definitions)
525 ILL. COMP. STAT.
ANN. 35/14 (Natural
Areas Acquisition Fund)
MIGRATORY
BIRD
STATUTES
5 ILL. COMP. STAT.
ANN. 580/ 1 (West
1993) (Consent for
acquisition of land)
30 ILL. COMP. STAT.
ANN. 105/5.151. (West
1993) (State Migratory
Waterfowl Stamp Fund)
IND. CODE ANN. :
§14-8-2-162 (West
1998) (Natural &
cultural resources —
definitions)
§14-22-6-2 (West
1998) (Regulation of
migratory birds)
29a
ILLINOIS INDIANA
315 ILL. COMP. STAT. | §14-22-6-3 (West
ANN. 5/1-230(West | 1998) (Migratory birds
1993) (Wildlife & Fish | — permit or license
Fund) required)
520 ILL. COMP. STAT. | §14-22-7-1 (West
ANN. 5/1.3 (West 1993) | 1998) (Migratory
(Authority to regulate waterfowl defined)
the taking of wildlife)
520 ILL. COMP. STAT.
ANN. 5/1.28 (West
1993) (Migratory
Waterfowl Stamp Fund)
$20 ILL. COMP. STAT.
ANN. 5/1.29 (West
1993) (Migratory
Waterfowl Stamp Fund)
520 ILL. COMP. STAT.
ANN. 5/2.4 (West 1993)
(Birds of prey)
520 ILL. COMP. STAT.
ANN. 5/2.18-1 (West
1993) (Migratory Game
Birds)
§§ 14-22-7-2 (West
1998) - 14-22-7-5
(West 1998)
(Migratory waterfowl
stamp)
§14-22-33-1 (West
1998) (Migratory birds
— efiect of federal
laws)
30a
ILLINOIS
INDIANA
520 ILL. COMP. STAT.
ANN. 5/2.19 (West
1993) (Migratory
waterfowl — protective
regulations)
520 ILL. COMP. STAT.
ANN. 5/2.33 (West
1993) (Game protective
regulations)
520 ILL. COMP. STAT.
ANN. 5/3.. - 5/3.2
(West Supp. 2000)
(Licenses and Permits
required for the taking of
migratory waterfowl)
520 ILL. COMP. STAT.
ANN. 5/3.6 (West 1993)
- 5/3.8 (West Supp.
2000) (Migratory
waterfowl] hunting area
permuts)
3la
IOWA KANSAS
WETLANDS IOWA CODE ANN.: KAN. STAT. ANN.:
STATUTES
§§ 314.23 - 314.24 §32-807 (1993) (Dept.
(West 1997) of Wildlife & Parks —
(Environmental organization &
protection of wetlands powers)
during highway
construction or §32-839 (1998) (Steve
maintenance) Lloyd Wetlands
designation)
§352.1 (West 1994)
(County Land §32-846 (1998)
Preservation & Use (Approval of
Commissions — purpose) | agreement & lease for
Milford lake wetlands)
§352.4 (West 1994)
(County Land
Preservation & Use
Commissions — county
inventories)
§352.5 (West 1994)
(County Land
preservation and use
plan)
32a
IOWA
KANSAS
§455A.15 (West 1997)
(Dept. of Natural
Resources Resource
Enhancement &
Protection — legislative
findings)
§455B.448 (West 1997)
(Solid waste disposal! )
§456B.1 (West 1997)
(Definitions — wetlands)
§456B.11 (West 1997)
(Agriculture drainage
wells —wetlands—
conservation easements)
§456B.12 (West 1997)
(Inventory of protected
wetlands)
§456B.13 (West Supp.
2000) (Protection of
wetlands)
§456B.14 (West 1997)
(Civil penalty for
violating wetland
protection statutes)
33a
IOWA KANSAS
MIGRATORY IOWA CODE ANN.: KAN. STAT. ANN.:
BIRD
STATUTES §481A.48 (West 1999) §32-939 (1993)
(Restrictions on hunting | (Migratory waterfowl
or killing game birds and | habitat stamp)
animals)
§32-989 (1993)
§481B.1 (West 1999) (Service charge for
(Endangered plants & migratory waterfowl
wildlife — definitions) habitat stamp)
§484A.1 (West 1999) §32-993 (1993)
(Migratory game bird— | (Migratory waterfowl
definition) propagation &
protection fund)
§484A.2 (West 1999)
(Migratory game bird §32-1008 (1993)
fee) (Migratory birds —
defined)
§484A.4 (West 1999)
(Use of revenue from
migratory game bird
fees)
§484A.5 (West 1999)
(Migratory waterfow] _
project approval
requirement)
34a
IOWA
KANSAS
§484A.6 (West 1999)
(Penalty for violating
migratory waterfowl
provisions)
§484B.4 (West Supp.
2000) (Hunting
preserves)
35a
KENTUCKY LOUISIANA
WETLANDS KY. REV. STAT. ANN.: | LA. CONST. Art. 7, §
STATUTES 10.2 (Supp. 2000)
§ 146.550 (Banks- (Wetlands
Baldwin 1996) Conservation &
(Wetlands — definition) Restoration Fund)
§ 146.555 (Banks- LA. REV. STAT.
Baldwin 1996) (Natural | ANN.:
Resources &
Environmental § 30.25 (West Supp.
Protection Cabinet 2000) (Closure of
Heritage Land production pits in the
Conservation — wetlands)
legislative finding)
§ 30:907 (West Supp.
§ 146.565 (Banks- 2000) (Surface Mining
Baldwin 1996) & Reclamation Act)
(Acquisition of natural
areas & wetlands) § 30:2073 (West 2000)
(Louisiana Water
§ 224.60-137 (Banks- Control Law —
Baldwin Supp. 1998 ) Definitions)
(Underground storage
facilities) § 30:2074 (West 2000)
(Secretary of
environmental quality
— powers & duties)
36a
KENTUCKY
LOUISIANA
37a
§ 34:3103 (West Supp.
2000) (Offshore
Terminal Authority —
jurisdiction)
§ 34:3473 (West Supp.
2000) (Millennium
Port Authority —
juriedicticn)
§ 38:18 (West 1989)
(Dept. of Public
Works — conference
with wildlife &
fisheries commission)
§§ 49:213.1 (West
Supp. 2000) -
49:213.22 (West Supp.
KENTUCKY
LOUISIANA
§§ 49:214.1 (West
Supp. 2000) -
49:214.6 (West Supp.
2000) (Louisiana
Coastal Wetlands
Conservation &
Restoration Program)
§§ 49:214.21 (West
Supp. 2000) -
49:214.42 (West
Supp. 2000)
( Louisiana Coastal
Management Program)
§ 56:266 (West Supp.
2000) (Louisiana Fur
& Alligator Public
Education &
Marketing Fund)
§§ 56:281 (West Supp.
2000 - 56:284
(West Supp. 2000)
(Nutra control cost-
sharing)
§ 56:579.1 (West
Supp. 2000)
(Permitting of
mariculture in the
coastal zone)
38a
KENTUCKY LOUISIANA
MIGRATORY KY. REV. STAT. ANN.: | LA. REV. STAT.
BIRD ANN.:
STATUTES § 146.560 (Banks-
Baldwin 1996) § 47:305.43 (West
(Kentucky Heritage Supp. 2000)
Land Conservation Fund | (Exemptions on taxes
Board) for nonprofit
organizations
§ 150.330 (Banks- dedicated to the
Baldwin 1996) conservation of
(Migratory birds; migratory waterfowl)
waterfowl)
§ 56:8 (West Supp.
§ 150.340 (Banks- 2000) (Wildlife &
Baldwin 1996) (Limit on | Fisheries Commission
possession — migratory — Definitions)
birds)
§ 56:10 (West Supp.
§ 150.600 (Banks- 2000) (Wildlife &
Baldwin 1996) (Taking | Fisheries Commission
of waterfowl — permits & | — annual report to
fees) governor)
§ 150.603 (Banks- § 6:118 (West Supp.
Baldwin 1996) 2000) (Migratory
(Waterfowl or migratory | game bird violations)
game bird permit
required) §§ 56:150 (West
Supp. 2000) - 56:156
(West Supp. 2000)
(Louisiana Duck
Stamp Program)
39a
MAINE MARYLAND
WETLANDS ME. REV. STAT. ANN. | MD. CODE ANN.,
STATUTES tit.: | (Environment):
12 § 685-B (West Supp. | §§ 5-901 (1996) - 5-
1999) (Maine Land Use | 908 (1996) (Nontidal
Regulation Commission) | Wetlands)
12§ 4751 - 12§4758 | §§ 5-909 (Supp. 1999)
(West 1994) (Wetlands — | - 5-910 (Supp. 1999)
zoning) (Nontidal Wetlands)
12 § 6022 (Marine § 5-911 (1996)
Resources — Dept. (Nontidal wetlands)
Administration —
commissioner’ s §§ 16-101 - 16-503
appointment, duties & (1996) (Wetlands &
powers) Riparian Rights)
12 § 8876-A (West §§ 16-104, 16-202, 16-
Supp. 1999) (Forest 205, 16-307 (Supp.
Resource Assessment 1999) (Wetlands &
Program) Riparian Rights)
30-A § 4312 (West MD. CODE ANN.,
1996) (Growth {Natural Resources}:
Management Program)
§ 3-306 (Supp. 1999)
38 § 419-B (West Supp. | (Power Plant Research
1999) (Pollution control) | Program)
40a
4la
MAINE MARYLAND
38 § 435 (West Supp. § 5-1217 ( 1997)
1999) (Mandatory (Acceptance of gifts of
Shoreland Zoning) land or wetlands)
38 § 436-A (West Supp. | §§ 5-1502(1997)_ -
1999) (Mandatory 5-1504 (1997)
Shoreland Zoning) (Heritage
Conservation Fund)
38 § 439-A (West Supp.
1999) (Mandatory § 8-404 (1990) (Scenic
Shoreland Zoning) & Wild Rivers Review
Board & Related
38 § 480-A (West 1989) | Program)
- 38 § 480-Z (West
Supp. 1999) §§ 8-1201 (1990) -
(Environmenta! 8-1210 (1990)
Protection Boar — (Nontidal Wetlands —
Protection of Natural legislative findings,
Resources) goal of statewide
program established,
38 § 636 (West Supp. etc.)
1999) (Permits for
hydropower projects) | §§ 8-1807 (Supp.
1999) - 8-1808.7
38 § 840 (West Supp. (Supp. 1999)
1999) (Dam registration | (Chesapeake bay
& abandonment) Critical Area
Protection Program)
38 § 951 (West Supp.
1999) - 38 § 963 (West
1989) (Saco River
Corndor)
MAINE
MARYLAND
38 § 1901 (West 1989)
(Coastal Barrier
Resources System —
findings & declaration of
policy)
38 § 2001 (West Supp.
1999) (Coastal & lake
watershed districts —
histri horized)
38 § 2007 (West Supp.
1999) (Coastal & lake
watershed districts —
powers)
MIGRATORY
BIRD
STATUTES
ME. REV. STAT. ANN.
tit.:
12 § 753 (West 1994)
(State consent to the U.S.
tsi ta
forests) .
12 § 7001 (West Supp.
1999) (Inland Fisheries
& Wildlife — definitions)
12 § 7109 (West Supp.
1999) (Migratory
waterfowl permit)
MD. CODE ANN.,
{Natural Resources]:
§ 10-308.1 (Supp.
1999) (Migratory
waterfowl stamp)
§ 10-402 (Supp. 1999)
(Hunting & taking
nests & eggs of wild
and migratory birds)
42a
MAINE
MARYLAND
12 § 7407 (West 1994)
(Migratory waterfowl
hunting)
§ 10-407 (Supp. 1999)
(Open season for
wetland game birds,
wild waterfowl, and
other migratory birds
regulated by federal
rule)
43a
MASSACHUSETTS
WETLANDS
STATUTES
MASS. GEN. LAWS
ANN.:
ch. 12,§ 11D (West
1996) (Creation of
division of
environmental protection
in the dept. of the
attorney general)
ch. 21A, § 2 (West 1994)
(Executive Office of
Environmental Affairs —
duties & functions)
ch. 21C, § 7 (West Supp.
2000) (Massachusetts
Hazardous Waste
Management Act)
ch. 30, § 61 (West Supp.
2000) (Environmental
impact of projects
conducted by agencies)
ch. 40, § 8C (West 1999)
(Powers of cities to
create conservation
commissions)
44a
MASSACHUSETTS
45a
ch. 78A, § 3 (West 1996)
(Youth Conservation &
Service Corps —
activities include
wetlands protection)
ch. 92, § 107A (West
Supp. 2000)
(Degradation of
watershed)
ch. 111, § ISOA “4% (West
Supp. 2000) (Standards
& criteria for siting of
facilities)
ch. 130, § 105 (West
Supp. 2000) (Protection
of coastal wetlands)
ch. 131, § 40 (West
Supp. 2000) (Removal,
fill, dredging or altering
of land bordering waters)
ch. 131, § 40A (West
1991) (Protection of
inland wetlands)
MASSACHUSETTS
ch. 164, § 69J % (West
Supp. 2000) (Petitions to
construct generating
facilities — wetlands
impact)
ch. 214 § 7A (Damage to
environment — remedy &
procedure)
MIGRATORY
BIRD
STATUTES
46a
MICHIGAN MINNESOTA
WETLAND MICH. COMP. LAWS. | 2000 Minn. Sess. Law
STATUTES ANN: Serv. Ch. 382 (West)
(Natural Resources —
§§ 324.30104 - Wetland Regulation)
324.30323 (West 1999)
(Habitat Protection, 1995 Minn Laws §
Inland Waters — Wetland | 84.0895 (Supp.
Protection) 2000\(Department of
Natural Resources —
§ 324.60904 (West Protection of
1999) (Land resource threatened and
inventory; format; endangered species)
contents; wetland
protection) 1997 Minn Laws §
97A.145 (Wetlands for
wildlife)
1997 Minn Laws §
103F.601 (Waterbank
Program)
1997 Minn Laws §
103A.202 (Wetland
Policy)
1997 Minn. Laws §
103B.3355 (Wetland
functions for
determining public
values)
cece ee
47a
MICHIGAN
MINNESOTA
1997 Minn Laws §§
103F.511, 103F. 516,
103F.535 (Reinvest in
Minnesota Resources
Act — Wetland
Provisions)
1997 Minn. Laws
§§103F.612 -
103F.616 (Wetland
Preservation Areas.)
1997 Minn Laws §§
103F.901-103F. 905
(Wetland
Establishment and
Restoration Program)
1997 Minn Laws §§
103G.221 — 103G.237
(Waters of the State —
Wetlands)
1999 Minn Laws §
275.295 (Taxes —
Wetlands exemption)
1999 Minn Laws §
282.018 (Forfeited
Land Sales Prohibited
or Limited Sales —
Wetlands)
48a
MICHIGAN
MINNESOTA
MIGRATORY
BIRD
STATUTES
MICH. COMP. LAWS.
ANN:
§ 324.36501 (West
1999) (Endangered
Species Protection —
Definitions)
§ 324.43525 (West
1999) (Waterfowl
hunting license)
49a
MISSISSIPPI MISSOURI
WETLANDS 2000 MISS. LAWS. Ch. | MO. ANN. STAT.
STATUTES 516 (Coastal Wetland
Protection Act) § 21.475 (1969)
(Wetland committee
MISS CODE ANN: created)
§§ 49-27-13 — 49-27-67 | § 644.037 (2000)
(1999) (Coastal Wetland | (Nationwide permit —
Protection Act) certification without
conditions of
§ 17-17-151 (1999) application to impacts
(Hazardous Waste on wetlands)
Management Facility —
Application for permit)
§ 17-17-229 (1999)
(Nonhazardous Solid
Waste Planning Act of
1991)
§ 29-15-1 (1999) (Public
Trust Tidelands)
§ 29-15-5 (1999)
(Littoral and riparian
rights)
§ 49-15-9 (1999)
(Seafood — Riparian
Rights)
50a
Sla
MONTANA
NEBRASKA
WETLANDS
STATUTES
MONT. CODE ANN. :
§ 2-15-3405 (1999)
(Appointment of
wetlands advisory
council)
NEB. REV. STAT.:
§ 39-1320 (1998)
(State highways)
2000 Neb. Laws 957
MISSISSIPPI MISSOURI
§ 49-15-301 (1999)
(Mississippi
Commission on Marine
Resources)
§ 57-15-5 (1999)
(Marine Resources —
General Policies and
Functions)
MIGRATORY MISS CODE ANN.: MO. ANN. STAT.:
BIRDS
STATUTES § 49-7-1 (1999) § 252.244 (Supp.
(Hunting and Fishing — 2000) (Wild game —
Definitions) preparation and
service)
MIGRATORY
BIRD
STATUTES
MONT. CODE ANN.:
§ 87-1-305 (1999) (Fish
& game refuges)
NEB. REV. STAT.:
§ 37-229 (Supp. 1999)
(Game birds —
defined)
§ 37-233.01 (Supp.
1999) (Migratory
waterfowl defined)
§ 37-902 (1998)
(Migratory bird
reservations )
52a
NEVADA
WETLANDS NEV. REV. STAT-.:
STATUTES
§ 244.382 (Supp. 1999)
(Estabiushment, use &
operation of wetlands
mitigation bank)
MIGRATORY NEV. REV. STAT.:
BIRD
STATUTES
§ 503.584 (1995)
(Conservation,
§ 328.195 (Supp. 1999)
(Conditions for state
consent to federal
acquisition of land for
wildlife refuge)
§ 503.620 (1995)
(Protection of birds
included in Migratory
Bird Treaty Act)
53a
NEW HAMPSHIRE NEW JERSEY
WETLANDS N.H. REV. STAT. 1987 NJ. LAWS
STATUTES ANN.: 2A:35A-3
(Environmental
§ 21-0:S-a (Supp. Rights)
1999) Wetlands
Council) 1998 NJ. LAWS
4:27-12 (Aquaculture
§ 21-0:14 (Supp. 1999) development —
(Environmental services | freshwater wetlands)
— Administrative
Appeals) 1998 N.J. LAWS
4:27-13 (Aquaculture
§ 79-A:2 (1991) development — coastal
(Taxation — definitions) | wetlands)
§ 310-A:76 (1995) 1991 NJ. LAWS
(Certified wetland 13:1D-29
scientist) (Construction permits
- definitions)
§§ 482-A:1 (Supp. 1999)
— 482-A: 27 (Supp. 2000 supp. N_J.
1999)(Fill and Dredge in | LAWS 13:1D-101
Wetlands Act) (Permit application
checklist; permit
§ 483:10(1992)(Rivers | defined)
Corndor Management
Plans)
S4a
55a
NEW HAMPSHIRE NEW JERSEY
§ 483-A:7 (1992)(Lakes | 2000 supp. NJ.
Management and LAWS 13:1D-120
Protection Plans) (Permit application
review — Legislative
§ 483-B:2 findings and
(1992)(Comprehensive declarations)
Shoreland Protection
Act) 2000 supp. N_J.
LAWS 13:1D-121
§ 485-A:29 (Supp. (Permit application
1999) Water Pollution review — definitions)
and Waste Disposal —
sewage disposal system) | 2000 supp. N_J.
LAWS 13:1D-126
(Department of
Environmental
protection —
Enforcement of certain
violations —
definitions)
2000 supp. N.J.
LAWS 13:1D-129
(Department of
Environmental
protection —
Enforcement of certain
violations — Rules and
Regulations)
NEW HAMPSHIRE
NEW JERSEY
1991 NJ.LAWS
13:1E-57 (Solid waste
management)
2000 supp. N.JI.LAWS
13:8C-24 (Garden
State Preservation
Trust)
1991 N.J.LAWS
13:19-19 (Coastal
Protection —
ication of
Wetlands Act)
2000 supp. N.J.
LAWS 13:9C-1 -
13-9C:4 (Wetlands
Mitigation C il)
1991 NJ. LAWS
13:9A-1 — 13:9A-10
(Coastal Wetlands
Protection Act)
1991 NJ.LAWS
13:9B-1 — 13:9B-30
(Freshwater Wetlands
Protection Act)
56a
NEW HAMPSHIRE
NEW JERSEY
2000 supp. N.JI.LAWS
40:55D-132
(Extension of permits
— Definitions)
2000 supp. N.J.LAWS
40:55D-134
(Extension of permits
— extension of project
exemptions —
freshwater wetlands)
1992 N.J.LAWS
58:16A-60 (Flood
hazard areas, .
inapplicability to lands
regulated by Wetlands
Act of 1970)
57a
NEW HAMPSHIRE NEW JERSEY
§ 209:8-a(1989)(Game 1997 N.J.LAWS 23:3-
Birds —Exceptions) 75 — 23:3-81 (New
Jersey Waterfowl
§ 214:1-d (Supp. Stamp Act)
1999) Licenses)
1997 N.J.LAWS 23:4-
§ 214:9 (Supp. 1 (Open and close
1999)(Licenses — fees) seasons)
1997 N.J.LAWS 23:4-
3 (Bag limit for
migratory birds)
1997 N.J.LAWS 23:4-
18 (Hunting migratory
waterfowl)
MIGRATORY
BIRD
STATUTES
N.H. REV. STAT.
ANN.:
§ 207:1 (1989) (Fish and
Game Commission —
Definitions)
§ 209:6 (1989) Federal
Duck Stamp Required)
§ 209:6-b (1989)(Rules
Relative to Migratory
Birds)
1998 N.J.LAWS 4:27-
11(Prevention of
predation at
aquaculture sites by
endangered and
nongame species)
2000 supp. N.JI.LAWS
23:3-lg (Fee for
hunting migratory
birds)
58a
59a
NEW MEXICO
NEW YORK
NEW MEXICO NEW YORK
WETLANDS 1978 N.M. LAWS § 75- | NY ENVIR.
STATUTES 8-2 (Wetlands Area CONSERV.:
Restoration)
§ 3-0301 (McKinney
1997) (Department of
Environmental
Conservation)
§§ 24-0101 — 24-1305
(McKinney
1997)(Freshwater
Wetlands Act)
§§ 25-0101 — 25-0601
(McKinney 1997)
(Tidal Wetlands Act)
§ 47-0107 (McKinney
1997) (County and
regional
environmental
management councils)
§ 49-0205 (McKinney
1997) (State Land
Acquisition)
§ 51-0701 (McKinney
1997) (Land
Preservation and
improvement project —
allocation of moneys)
§ 51-0705 (McKinney
1997) (Land
Preservation and
improvement project —
approval and
execution of state
projects)
§ 51-0709 (McKinney
1997) (Land
Preservation and
improvement project —
Approval of municipal
wetlands restoration
projects)
§ 51-0711 (McKinney
1997) (Land
Preservation and
improvement project —
Contracts for
municipal wetlands
restoration projects)
60a
NEW MEXICO
NEW YORK
6la
§ 51-0713 (McKinney
1997) (Land
Preservation and
improvement project —
Restriction of
alienation of wetlands)
§ 52-0101 (McKinney
1997) (Environmental
Quality Bond Act —
Definitions)
§ 56-0101 (McKinney
Supp. 2000) (Clean
water/Clean air Bond
Act of 1996)
§ 70-0107 (McKinney
1997) (Environmental
Conservation Law —
Uniform Procedures)
§ 70-0117 (McKinney
1997) (Environmental
Conservation — special
provisions)
§ 70-2303 (McKinney
1997) (Environmental
Conservation Law —
Violation — penalties)
NEW MEXICO
NEW YORK
§ 70-2307 (McKinney
1997) (Environmental
Conservation Law —
Abatement of
pollution)
§ 71-2507 (McKinney
1997) (Pollution of
Tidal Wetlands)
MIGRATORY
BIRD
STATUTES
1978 N.M. LAWS § 17-
1-14 (General powers
and duties of state game
commission)
NY ENVIR.
CONSERV.
§ 11-0307 (McKinney
1997) (Migratory
game birds —
regulation)
62a
63a
NORTH CAROLINA
NORTH DAKOTA
§ 113-270.2B (1999)
(Voluntary migratory
waterfowl conservation
print)
§ 113-270.3 (1999)
(Special activity
licenses; big game kill
reports)
§ 113-291.1
(1999)(Manner of taking
birds)
NORTH CAROLINA NORTH DAKOTA
WETLAND N.C CONST Art.14§5 | N.D.CENT. CODE:
STATUTES (1973)(Conservation of
natural resources) § 20.1-02-17.1 (Supp.
1999) (Procedures and
N.C. GEN STAT.: conditions for land
acquisition for wildlife
§113-230 (1999) (Orders | and fish restoration)
to control activities in
coastal wetlands) §§ 61-32-01 — 61-32-
06 (1995) (Wetlands
§ 113A-113 Act)
(1999) Areas of
Environmental concern) | § 61-32-07 (Supp.
1999) (Wetlands Act)
§ 113A-120
(1999)(Grant or denial § 61-32-08 - 61-32-
of permits) 10 (1995) (Wetlands
Act)
§§ 143-214.8 — 143-
214.13 (1999) (Wetlands
Restoration Program)
MIGRATORY N.C. GEN STAT.: N.D.CENT. CODE:
BIRD
STATUTES § 113-129 § 20.1-03-25 (1991)
(1999) Wildlife (Hunting by
resources — Definitions) | nonresidents)
§ 113-270.2 (1999)
(Hunting licenses)
OHIO OKLAHOMA
WETLANDS OHIO REV.CODE OKLA. STAT.:
STATUTES ANN.:
2 § 9-205.3 (Supp.
§ 1533.101 (Supp. 1999) | 2000) (Oklahoma
(Reissued licenses and Concentrated Animal
permit fees) Feeding Operations
Act)
§1533.112 (Supp. 1999)
(Wetlands Habitat 27A § 3-2-108 (1997)
Stamps) (Wetlands
management strategy)
80 § 1 (1995)(State’s
consent to acquisition
of lands by the United
States)
MIGRATORY OHIO REV.CODE OKLA. STAT.:
BIRD ANN.:
STATUTES 29§ 5-406 (1991)
§ 1531.021 (Supp. 1991) | (Protected Game —
(Sunday hunting Migratory Birds)
prohibited)
§ 1533.101 (Supp. 1991)
(Reissued licenses and
permit fees)
65a
OREGON PENNSYLVANIA
WETLAND OR. REV. STAT.: 2000 supp. PA CODE
STATUTES § 4212 (Aquacultural
§ 196.600 (Supp. 1990) | development —
(Wetlands and rivers — wetlands)
definitions )
§§ 196.605 — 196.660
(Supp. 1990) (Wetlands
Mitigation Banks)
§§ 196.668 — 196.687
(Supp. 1990) (Wetland
conservation plans)
§ 197.279 (Supp. 1990)
(Approved wetland
conservation plans)
§ 215.418 (Supp. 1990)
(Approval of
development on
wetlands)
§§ 537.015 — 537.022
(1999) (Registration of
water for wetland,
stream or mpanan
restoration or storm
water management)
OREGON PENNSYLVANIA
MIGRATORY 1997 PA CODE §
BIRD 2103 (Game or
STATUTES wildlife protection)
67a
RHODE ISLAND SOUTH CAROLINA
WETLAND R.I GEN. LAWS: S.C. CODE ANN:
STATUTES
§§ 2-1-18 — 2-1-24 § 47-20-10 (Supp.
(1998) (Fresh Water 1999) (Confined Swine
Wetlands) Feeding Operations —
Definitions)
§ 23-27.3-600 (1997)
(State building code — §§ 48-39-10 — 48-39-
fresh water wetlands) 355 (Supp. 1999)
(Environmental
protection and
conservation — Coastal
tidelands and
68a
RHODE ISLAND SOUTH CAROLINA
MIGRATORY R.1. GEN LAWS: S.C. CODE ANN:
BIRD
STATUTES § 20-2-34 (1998) (Fish §1-30-75 (Supp. 1999)
and wildlife — licensing — | (Department of natural
definitions) resources)
§ 20-2-35 (1998) (Fish § 50-9-510 (Supp.
and wildlife — licensing — | 1999) (licenses
Waterfowl stamp authorized for sale)
required)
§ 50-9-530 (Supp.
1999) (Migratory
waterfowl stamps;
fees)
§ 50-11-20 (Supp.
1999) (Definitions;
migratory waterfowl
committee )
69a
SOUTH DAKOTA TENNESSEE
WETLANDS S.D CODIFIED LAWS'__| TENN.CODE ANN.:
STATUTES
§ 1-41-3.2 (Michie Supp. | §§ 11-14-401 (1999)
2000) Office of — 11-14-407
agricultural policy (1999)(Natural Areas
created) Protection Fund —
wetlands)
MIGRATORY S.D CODIFIED LAWS'__| TENN.CODE ANN.:
BIRD
STATUTES § 41-1-1(Michie Supp. § 70-5-111 (1995)
2000)(Game, fish, parks | (Federal wildlife
and forestry — definitions | refuges in the state)
and general provisions )
§ 41-3-6 (Michie
1991)(Assent to federal
acquisition of property
for migratory bird
conservation)
70a
Tla
TEXAS
TEXAS
WETLANDS
STATUTES
TEX. HEALTH &
SAFETY CODE ANN.:
§ 361.099 (West 1992)
(Prohibition on permit
for Hazardous Waste
Management Unit in
Wetlands)
TEX NAT. RES. CODE
ANN.:
§ 33.203 (West 2000
supp.) (Management of
coastal public land —
definitions)
§§ 33.231 — 33.237
(West 2000 supp.)
(Coastal Wetlands
Acquisition Act)
§§ 221.001 — 221.044
(West 2000 supp.)
(Wetland mitigation)
TEX PARKS & WILD.
CODE
§§ 14.001 — 14.002
(West 2000 supp.) (Parks
and wildlife department
powers and duties
concerning wetlands)
TEX. WATER CODE
§§ 11.501 — 11-506
(West 2000) (Wetlands
Act)
MIGRATORY
BIRD
STATUTES
TEX PARKS & WILD.
CODE
§ 41.003 (West 1997)
(Reciprocal License
Agreements: Boider
States)
§ 43.154 (West 1991)
(Hunting and fishing
licenses — permits to
control wildlife protected
by this code)
UTAH CODE ANN.:
§ 23-21-6
(1998) Acquisition of
lands by the United
States for migratory
bird refuges)
72a
VERMONT
VIRGINIA
WETLANDS
STATUTES
VT STATE ANN. tit. 10
§ 902 (1998) (Soil and
Water Conservation,
Flood Control -
Definitions)
§ 905b (Supp. 1999)
(Soil and Water
Conservation, Water
Resource Management —
Department of
Environmental
Conservation — Duties;
Powers)
§ 1272 (1998) (Water
Pollution Control —
Regulation of activities
causing discharge or
affecting significant
wetlands)
VT STATE ANN. tit. 24
§ 4303 (Supp. 1999)
(Municipal and Regional
Planning and
Development — General
Provisions; Definitions)
VA CODE ANN.:
§§ 28.2-1300 — 28.2-
1320 (Michie 1997)
(Wetlands Act)
§ 33.1-223.2:1
(Michie 1996)
(Wetlands mitigation
banking)
§ 58.1-3666 (Michie
Supp. 1998) (Wetlands
and riparian buffers)
73a
VERMONT VIRGINIA
MIGRATORY VT STATE ANN. tit. 10 | VA CODE ANN.:
BIRD
STATUTES § 1424a (1998)(Soil and | § 29.1-340 (Michie
Water Conservation; 1997) (Hunting
Flood Control — waterfowl from
Outstanding resource unlicensed blinds and
waters) without season
license)
§ 4277 (1997) (Fish and
Wildlife Conservation— | § 29.1-349 (Michie
Migratory Waterfowl 1997) (Hunting,
stamp program) erecting blind within
500 yards of licensed
blind)
§ 29.1-350 (Michie
1997) (Exemption
from application of
article)
74a
75a
WASHINGTON
WEST VIRGINIA
WASHINGTON WEST VIRGINIA
WETLAND WASH. REV. CODE W.VA. CODE :
STATUTES ANN.:
§ 22-11-3 (1998)
§ 90.84.005 (Supp. (Water Pollution
2000) (Findings— Control Act —
purpose— intent of Definitions)
wetlands mitigation
statute)
§ 90.84.010 (Supp.
2000) (Definitions)
§ 90.84.020 (Supp.
2000) (Authority for
regulating)
§ 90.84.030 (Supp.
2000) (Submission of
proposed rules to
legislative committees)
§ 90.84.040 (Supp.
2000) (Certification of
banks)
§ 90.84.050 (Supp.
2000) (Approval of use
of credits by the
departments)
§ 90.84.060 (Supp.
2000) (Interpretation of
chapter)
§ 90.84.070 (Supp.
2000) (Application to
public and private
mitigation banks) °
§ 90.84.900 (Supp.
2000) (Severability)
§ 36.32.570 (1991)
(Conservation area
acquisition and
maintenance)
§ 47.12.3330 (Supp.
2000) (Advanced
environmental
mitigation)
§ 76.09.350 (Supp.
2000) (Multispecies
landscape management
plans)
§ 79A.05.775 (Supp.
2000) (Preservation of
river wetlands)
76a
WASHINGTON
WEST VIRGINIA
§ 90.46.010 (Supp.
2000) (Definitions)
§ 90.46.044 (Supp.
2000) (Standards,
procedures, and
guidelines for discharge
to wetlands)
§ 90.46.090 (Supp.
2000) (Use of reclaimed
water into wetlands)
§ 90.74.030 (Supp.
2000) (Regulatory
decisions)
77a
WASHINGTON WEST VIRGINIA
MIGRATORY WASH. REV. CODE W.VA. CODE :
BIRDS ANN.:
STATUTES § 20-1-2 (Supp. 1999)
§ 77.08.045 (Supp. (Definitions)
2000) (Defines
migratory waterfowl) § 20-2-63
(1996)(Migratory
waterfowl stamp)
§ 20-2B-9 (Supp.
1999) (Conservation
stamp; purposes)
78a
79a
WISCONSIN
WYOMING
WISCONSIN WYOMING
WETLAND 2000 Wisc. Legis. Serv. | Wyo. Stat. Ann.:
STATUTES Act 147 (West 1999)
(Wetlands Act)
WISC. STAT.:
§ 1.13 (Supp. 2000)
(Land Use and Planning
activities)
§ 61.351 (2000)
(Villages — Zoning of
wetlands in shorelands)
§ 62.231 (2000) (Cities —
Zoning of wetlands in
shorelands)
§ 66.0295 (2000)
(Comprehensive
Planning)
§ 281.165 (Supp. 2000)
(Compliance with water
quality standards for
wetlands)
§ 35-11-308 - 35-11-
311 (1999) (Wetlands
Act)
§ 35-11-103 (Supp.
2000) (Definitions)
§ 281.22 (1999) (Fees
for water quality
determinations for
wetlands)
MIGRATORY WISC. STAT:
BIRD
STATUTES § 29.364 (Supp. 2000)
(Definition of migratory
birds)
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