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

supreme Court, US

EIQED

Gy SUL 27 2009

No. 99-1178 - Office ON BM CLERK

IN THE

Supreme Court of the United States

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 AMICUS CURIAE OF JAMES J. WILSON

IN SUPPORT OF PETITIONER

STEVEN A. STEINBACH

Counsel of Record

GERALD A. FEFFER

CRAIG D. SINGER

ANDREW W. RUDGE

WILLIAMS & CONNOLLY LLP

725 12th Street, N.W.

Washington D.C. 20005

(202) 434-5000

Attorneys for Amicus Curiae

James J. Wilson

za 704m

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...........ccccccccccccscsesscecees ili

INTEREST OF AMICUS CURIAE ..............00.0000c0ceeeees ]

SUMMARY OF ARGUMENT ...................0..0.0cceeeee 4

I inctiictipdambidbiacieniiniiiiipieienimennmenoeneess 5

I. Because the Clean Water Act Contains

Criminal Sanctions, the Court Should Not

Give Chevron Deference to the Corps’

Statutory and Regulatory Interpretations,

Including the Migratory Bird Rule..................... 5

A. Criminal Prosecutions Under the

Clean Water Act Are Frequent................ 6

B. The Government Repeatedly Has

Attempted to Blur the Distinction

Between Criminal and Civil

Enforcement Actions Under the

I 7

l. The Invocation of Chevron

Deference in Criminal Clean

Water Act Prosecutions................ 8

2. The Dilution of Intent

Requirements in Criminal

Clean Water Act Prosecutions...... 10

+d No Deference Should Be Given to

the Corps’ Informal Interpretations

of the Clean Water Act. ...................... 12

1. Chevron Deference is

Inappropriate in Criminal

Clean Water Act Prosecutions...... 12

ii -

2. Accordingly, Chevron

Deference is Also

Inappropriate in Civil Clean

Water Act Cases. ..............0eeees 14

Il. The Government’s Limitless View of the

Corps’ Regulatory Jurisdiction Should

Be RabeetOd. .cccccccoccessscscsnssscsteesscnesonennennenne 18

A. The Corps Has Attempted to

Regulate All Waters Anywhere. ............ 19

l. The Corps’ Position Prior to

Wilson: Regulation of All

Waters, Under the

Migratory Bird Rule. ................ 19

2. The Corps’ Position During

Wilson: Regulation of All

Waters, Under the “All Other

3. The Corps’ Position After

Wilson: Regulation of All

Waters, Under the

“Tributaries” Theory. ............... 23

B. This Court Should Adopt the

Fourth Circuit’s Construction of

Clean Water Act Jurisdiction. ............... 25

CONCLUSION ...cccccccccnccccccscssosssossosscssessdecssensens 27

iil

TABLE OF AUTHORITIES

Cases:

American Petroleum Inst. v. Environmental Protection

Agency, 540 F.2d 1023 (10th Cir. 1976)........... 14

Avoyelles Sportsmen's League, Inc. v. Marsh, 715

ES nndiccepencnaseesosceveosecceces 9

Babbitt v. Sweet Home Chapter of Communities for

a Great Oregon, 515 U.S. 687 (1995).............. 16

Bailey v. United States, 516 U.S. 137 (1995) .............. 26

Case v. Los Angeles Lumber Prods. Co. , 308 U.S.

EEE LETTE 26

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

Council, Inc., 467 U.S. 837 (1984) ............ passim

Commissioner of Internal Revenue v. Acker, 361 U.S.

TEES SE ODDO OOOO EEE 13

Crandon. United States, 494 U.S. 152 (1990) ....... 16, 17

Cummings v. Chicago, 188 U.S. 410 (1903) ............... 27

E.I. DuPont de Nemours & Co. v. Train, 541 F.2d

1018 (4th Cir. 1976), aff'd in part and rev'd

in part, 430 U.S. 112 (1977) .................cceeeee 14

Edward J. Debartolo Corp. v. Florida Gulf Coast

Bidg. & Constr. Trades Council, 485 U.S.

ST tii ttinteienenneanenenneneneneseeseneses 27

iv

Federal Communications Comm’n v. American

Broad. Co., Inc., 347 U.S. 284 (1954)............. 15

Hoffman Homes, Inc. v. Admin.strator, United States

Environmental Protection Agency, 961 F.2d

1310, reh'g granted, order vacated, 975 F.2d

SO Ges HEED caccccevesssscctecnnnntniensioinees 19

Hooker Chems. & Plastics Corp. v. Train, 537 F.2d

os 14

Jones v. United States, 120 S. Ct. 1904 (2000) ............ 27

Leslie Salt Co. v. United States, 55 F.3d 1388

ETD csccndnontuuddenaieieniiniinaineniiddians 19

Liparota v. United States, 471 U.S. 419 (1985)............ 12

Loving v. United States, 517 U.S. 748 (1996).............. 13

M. Kraus & Bros., Inc. v. United States, 327 U.S.

CED cciccnnscuiiseduicscihadeinsinntitsiaaitinismeiaiinpailiieaiaiainn 13

Mills v. United States, 36 F.3d 1052 (11th Cir. 1994)...... 7

Mossburg v. Montgomery County, 666 A.2d 1253

GE, GB, Fie cececesnnsensnseconnesepeensensnsesi 22, 25

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 191

te 1,5

Tabb Lakes, Ltd. v. United States, 715 F. Supp. 726

(E.D. Va. 1988), aff'd, 885 F.2d 866, 1989

WL 106990 (4th Cir. 1989)............. ccc cece eens 20

United States v. Ahmad, 101 F.3d 386 (Sth Cir. 1996)... 11

United States v. Ashland Oil and Transp. Co., 504

een 16

United States v. Bass, 404 U.S. 336 (1971) ....... 12, 13, 26

United States v. Borowski, 977 F.2d 27 (ist Cir.

1992) siteeeeseeseneeseseesesenssseserececssncescecicaseaens 12

United States v. Eaton, 144 U.S. 677 (1892)............... 13

United States v. Ellen, 961 F.2d 462 (4th Cir. 1992) ....7, 8

United States v. Gradwell, 243 U.S. 476 (1917)........... 13

United States v. Hamel, 551 F.2d 107 (6th Cir. 1977) ... 17

United States v. Hartsell, 127 F.3d 343 (4th Cir.

United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995)... 11

United States v. Lopez, 514 U.S. 549 (1995) ..........0.-+. 27

United States v. Mango, 199 F.3d 85 (2d Cir. 1999) ....... 7

United States v. Plaza Health Labs., Inc., 3 F.3d

ae eens 9,12

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) ......cccccccsceseceeeeeeeeeee. 18, 26

United States v. Sinskey, 119 F.3d 712 (8th Cir.

Se csnccncnmscnninaimnitiaindniglineneinbingieenesion 11

United States v. Standard Oil Co., 384 U.S. 224

Sol incsnteneiscasssssmnensionindsnionssincnnination 16, 17

United States v. Thompson/Center Arms Co..,

Fee We SEE GOED cccocccsscconcceccscsseese 16, 17, 18

United States v. Weitzenhoff, 35 F.3d 1275

Es GUID curricntnsinesuscconsscosccnuncsmasenses 11,17

United States v. Wilson, 133 F.3d 251

GG: FED cccnnsccnsssnascnscsecescscsccosscess passim

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76

i ncensndanncnnssinscnnsaudcsmpeensceneemsaneacredens 12

Constitutions and Statutes:

ees Ge GAO, Bi, BG crceeccensscnsecnncncnnssancsmmessenaen 4

lise 0b i iecechuececnsccssesnssesenssnsncnninncenastenenannt 20

BP lise ©) Pe vecccnscccassessenscnsngecnssessonssensuean 26

BP ilies WED ereteicnneensencccnsenscessnnstonsnsesensnninininns 26

BD Glise SIGHT casccsnacnesecccensenssnsscnnpennonstscemannete 26

BP De Bce & BAe OP GOD ccccccsssccccceccceccosesccceseccesesosees 2

BD Ge © Bee pr cccccccsscccsesccnscnsvenvecesssscessvens 2, 10

vii

ee es Op SE Rittccssnencicnssanesaductesene 2,6, 7, 10, 11

SP ie Ee PED csccnenscncntadicnnmansienessanienitennintes 6

BP ie OP SEE rrcnccunnensdcnnmncssnseninaresesanienides 17

Be es OF ED dcititinininscinitinsenseeninesetanecins 4, 25

ee ie OF SE eviiicnstniicnsniissdninanianiaiianeieidinadin 25

Regulations and Rules:

BP Gale BED caccesecccccccsesesesseces 3, 23, 24, 25

PD TIED scinusicccnconcecuindsnsecsenbenntenande 24

BP Ee UNIT cnceicnsneccanidensenticinticannionineneetens 8

51 Fed. Reg. 41,206 (Nov. 13, 1986) ....................2008. 4

Be ED I xccincicomsdasieeonsedadccodamenennnien l

Other Authorities:

2 Law of Environmental Protection, § 12.08[1}{d]

(Sheldon M. Novick et al., eds., 2000)............... 6

1995 Wetlands Delineation Field Evaluation Form

I ceil 22

Clean Water Act Section 404 Jurisdiction Over

Isolated Waters in Light of Tabb Lakes v.

United States (Jan. 24, 1990). ...............cccccee. 20

viil

Guidance for Corps and EPA Field Offices Regarding

Clean Water Act Section 404 Jurisdiction Over

Isolated Waters in Light of United States v.

James Wilson (May 29, 1998, as revised

Bene D., FD cccccccccesccesnecencanapsesasansensocccesos

J. Blanding Holman, Note, After United States v.

Lopez: Can the Clean Water Act and the

Endangered Species Act Survive Commerce

Clause Attack?, 15 Va. Envtl. L.J. 139 (1995) ...

19

INTEREST OF AMICUS CURIAE

James J. Wilson submits this brief amicus curiae in

support of the petitioner.' All parties to this case have

given their written consent to the participation of Mr.

Wilson, and copies of these written consents have been

lodged with the Clerk pursuant to Rule 37.3(a) of the

Supreme Court Rules.

Mr. Wilson was the prevailing party in United States v.

Wilson, a criminal wetlands prosecution brought in the

District of Maryland in 1996. His conviction at trial and

21 month sentence were overturned by the Court of

Appeals for the Fourth Circuit, see 133 F.3d 251 (4th Cir.

1997), in a decision virtually ignored by the Seventh

Circuit below, see Solid Waste Agency of Northern Cook

County v. United States Army Corps of Engineers, 191

F.3d 845, 851-52 (7th Cir. 1999).

Mr. Wilson submits this amicus brief because the Wilson

prosecution sheds light on two significant matters relevant

to the present controversy: (1) the government’s repeated

and aggressive efforts to bring criminal prosecutions under

the Clean Water Act (“CWA” or “Act”), based on

expansive statutory and _ regulatory interpretations

propounded by the U.S. Army Corps of Engineers

(“Corps”) in civil cases and administrative proceedings;

and (2) the government’s limitless view of the Corps’

jurisdiction to define and regulate waters and wetlands

under the CWA, as exemplified by the government’s

positions before, during, and in the aftermath of the Wilson

case. The Wilson prosecution persuasively demonstrates

that the government believes the Corps has the power to

' Counsel for amicus curiae James J. Wilson wrote this entire brief.

No person or entity other than amicus made any monetary contribution

to the preparation or submission of this brief.

regulate all waters anywhere, and will employ the full

force of the criminal sanction to further its regulatory

objectives, even at the expense of such basic criminal law

protections as fair warning and mens rea.

* * *

Mr. Wilson is the founder and former Chief Executive

Officer of Interstate General Co., L.P., a public'y traded

land development company. Over the past three decades

and at a cost in excess of $150 million, Mr. Wilson has

designed and developed the 9100-acre planned community

of St. Charles, Maryland.

Mr. Wilson developed the St. Charles project— in

partnership with the federal government and after years of

careful environmental planning, which included detailed

plans for the ditching and draining of wet areas on the

property. The Corps reviewed these plans (as did other

federal agencies) and concluded that the CWA did not

provide jurisdiction over the development as proposed.

Thereafter, for nearly 20 years, Mr. Wilson developed the

project in accordance with these plans and without the

Corps raising any CWA-related concerns.

In September 1995, Mr. Wilson and two limited

partnerships were indicted in the District of Maryland for

four felony and four misdemeanor violations of the CWA,

33 U.S.C. § 1251 et seg. Following a seven week trial, a

jury convicted each defendant on the four felony counts

charging them with knowingly discharging fill material

(i.e., dirt) into wetlands without a permit, in violation of

33 U.S.C. §§ 1319(c)(2)(A) and 1311(a). In June 1996,

the district court sentenced Mr. Wilson to 21 months

imprisonment, one year of supervised release, and a

$1,000,000 fine. The partnership defendants were jointly

fined $3,000,000, placed on probation for five years, and

ordered to implement a wetlands restoration and mitigation

plan proposed by the government.

The properties that were at issue in the Wilson

prosecution are situated more than ten miles from the

Chesapeake Bay and more than six miles from the Potomac

River, and are as far removed from navigable waterways as

any land in southern Maryland. Nevertheless, the

government argued that wetlands on these properties were

subject to federal regulation as “waters of the United

States” because they form part of the “drainage pattern” in

the region, and “eventually” drain or flow (through a series

of intermittent streams and non-navigable creeks) into

larger waters. Under this theory, few (if any) waterbodies

in the country would be beyond federal authority.

On appeal, the Fourth Circuit reversed Mr. Wilson’s

convictions, in part because it held invalid one of the

federal regulations - 33 C.F.R. § 328.3(a)(3) - on which

the government’s limitless jurisdictional theory was based.

See Wilson, 133 F.3d at 257. The court of appeals found

that by defining “waters of the United States” to include

“[ajll other waters,” the use, degradation, or destruction of

which “could affect” interstate commerce, section

328.3(a)(3) “expands the statutory phrase ‘waters of the

United States’ beyond its definitional limit.” Jd. “[A]s a

matter of statutory construction,” the Fourth Circuit held,

“one would expect that the phrase ‘waters of the United

States’ when used to define the phrase ‘navigable waters’

refers to waters which, if not navigable in fact, are at least

interstate or closely related to navigable or interstate

waters.” Id.

Following remand to the district court, the government

dismissed all criminal and civil charges against Mr.

Wilson, and accepted a corporate plea on a single felony

count from one of the limited partnerships.

SUMMARY OF ARGUMENT

In determining the reach of the phrase “waters of the

United States,” 33 U.S.C. § 1362(7), and thus the scope of

the Corps’ jurisdiction under the CWA, this Court should

find that the statute regulates only waters that are navigable

in fact, interstate, or closely related to navigable or

interstate waters. This standard comports both with the

language and history of the CWA, and with the scope of

authority delegated to the federal government under the

Commerce Clause of the United States Constitution, Art. I,

§ 8, cl. 3. Because the Corps’ so-called “migratory bird

rule,” 51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986),

interprets “waters of the United States” to include isolated,

intrastate waters that have nothing to do with navigable or

interstate waters, this Court should hold that it is invalid.

As the Court confronts this question of statutory

construction, two significant matters that relate to the

government’s enforcement of the CWA should inform its

decision. First, although the present appeal involves a civil

permit dispute, violations of the CWA can and do result in

severe criminal penalties. In seeking such penalties, the

gove:nment has repeatedly based criminal prosecutions on

expansive statutory and regulatory interpretations obtained

by the Corps in civil and administrative proceedings where

Chevron deference is routinely provided. The fair warning

concerns implicated by this practice are particularly acute

given the diluted mens rea requirement many courts have

applied under the Act. Precisely because the CWA is a

criminal statute, amicus submits that it should be

interpreted consistently as such, with any ambiguities being

resolved against the government. No deference should be

given to the Corps’ informal interpretations of the Act or

the regulations promulgated thereunder.

Second, the Corps has failed to draw any line - or even

to hint at the possibility that any line could or should be

drawn - limiting the reach of federal authority under the

Clean Water Act. Rather, by employing various regulatory

schemes, all of which espouse a theory of jurisdiction that

is without bounds, the Corps has revealed its intent to

regulate all waters anywhere. As the history of the Wilson

prosecution demonstrates, the government does not

concede any jurisdictional limits on the Corps’ power to

regulate the nation’s waters, and it consistently ignores

and/or evades any judicial decisions that identify

boundaries to federal jurisdiction.

ARGUMENT

I. Because the Clean Water Act Contains Criminal

Sanctions, the Court Should Not Give Chevron

Deference to the Corps’ Statutory and Regulatory

Interpretations, Including the Migratory Bird Rule.

Invoking Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), the Corps has

repeatedly argued for and obtained expansive statutory and

regulatory interpretations of the offenses prohibited and

areas subject to regulation under the CWA. In the decision

below, for example, the Seventh Circuit applied Chevron

deference in approving the migratory bird rule. See Solid

Waste Agency, 191 F.3d at 851-52. The government has

then relied on these far-reaching civil and administrative

precedents to buttress statutory and regulatory arguments in

criminal prosecutions under the Act - a context where

deference tO expansive agency interpretations is

impermissible. This Court should make clear that because

the CWA is a criminal statute, the Corps is not entitled to

Chevron deference in support of its questionable statutory

and regulatory interpretations.

A. Criminal Prosecutions Under the Clean Water

Act Are Frequent.

Since its inception in 1972, the CWA has contained a

dual civil/criminal enforcement structure, whereby both

civil and criminal penalties are available for violations of

the various statutory offenses. 33 U.S.C. § 1319. Under

this scheme, the distinction between civil and criminal

violations is a mens rea element; while civil enforcement

actions require no proof of mens rea, criminal prosecutions

must establish a “culpable” state of mind. Compare id.

§ 1319(c) with id. § 1319(d). Where the requisite mens rea

can be established, heightened penalties, including

incarceration, are available. See id.

Prior to 1987, the single criminal provision of the

CWA, which covered both “willful” and “negligent”

violations, was only a misdemeanor, and provided for

incarceration of not more than one year, and/or a fine of

$2,500 to $25,000 per day of violation. 33 U.S.C.

§ 1319(c)(1) (1972).. As a result, federal law enforcement

personnel were perhaps less than enthusiastic about

devoting resources to the investigation and prosecution of

CWA offenses. See 2 Law of Environmental Protection

§ 12.08[1][{d] (Sheldon M. Novick et al., eds., 2000).

In 1987, however, Congress amended and significantly

enhanced the criminal penalties available under the CWA,

replacing the single criminal provision with the separate

misdemeanor and felony provisions that now appear at 33

U.S.C. § 1319(c)(1)-(2) (1987). Negligent violations of

the Act remain punishable by up to one year imprisonment

and/or a fine of up to $25,000 per day, while “knowing”

violations are punishable by up to three years

imprisonment, and/or a fine of from $5,000 to $50,000 per

day of violation. See id.* These maximum sanctions are

doubled for violations committed after a first conviction.

See id.

As a result of the 1987 amendments to the CWA,

criminal prosecutions - and the threat of such prosecutions

—- are now a prominent feature of the CWA enforcement

landscape. See, e.g., United States v. Mango, 199 F.3d 85

(2d Cir. 1999); Wilson, 133 F.3d 251 (4th Cir. 1997);

United States v. Hartsell, 127 F.3d 343 (4th Cir. 1997);

United States v. Eidson, 108 F.3d 1336 (11th Cir. 1997);

Mills v. United States, 36 F.3d 1052 (11th Cir. 1994);

United States v. Ellen, 961 F.2d 462 (4th Cir. 1992); see

also cases cited infra p. 11.

B. The Government Repeatedly Has Attempted to

Blur the Distinction Between Criminal and Civil

Enforcement Actions Under the Clean Water Act.

Given the lengthy periods of incarceration imposed for

criminal violations of the CWA, one would expect distinct

standards for proving civil and criminal violations.

Nevertheless, as the history of Mr. Wilson’s prosecution

illustrates, there is little practical difference between a civil

enforcement action and a criminal prosecution, because

courts in the latter context: (1) rely on (and allow the

government to argue based on) deference-driven civil and

administrative precedents that expansively define statutory

and regulatory terms; and (2) interpret the mens rea

requirement of the felony provision as prescribing far less

than a specific intent standard.

> The 1987 amendments also added a provision prohibiting “knowing

endangerment” - where a defendant knowingly places another person

in imminent danger - with penalties of up to 15 years imprisonment

and/or a fine (for individual defendants) of up to $250,000. 33

U.S.C. § 1319(c)(3).

1. The Invocation of Chevron Deference in

Criminal Clean Water Act Prosecutions.

The considerable deference that courts have given to

agency interpretations of the CWA in civil and

administrative proceedings has allowed the Corps to

expand significantly the reach of the statute, both in terms

of the areas supposedly subject to regulation and the

activities allegedly proscribed by the Act. Armed with

these precedents, the government has aggressively pursued

criminal prosecutions based not on the plain and

unmistakable terms of the Act or the _ regulations

promulgated thereunder, but on those saine expansive

statutory and regulatory interpretations.

For example, in Wilson, the government relied on civil

precedents to argue that the waters at issue - located miles

from the nearest navigable waterway - were subject to

federal jurisdiction. Specifically, the government

requested that in instructing the jury on the terms “waters

of the United States” and “adjacent,” the district court

incorporate standards derived solely from civil case law.

Thus while the Code of Federal Regulations defines

“adjacent” as “bordering, contiguous, or neighboring,” 33

C.F.R. § 328.3(c), the government sought (and received)

an additional instruction that a wetland may be “adjacent”

even “without a direct or indirect surface connection to

other waters of the United States” - a dramatic expansion

of the Act based on prior civil decisions. Wilson, 133 F.3d

at 258. Cf. Ellen, 961 F.2d at 465-66 (government

witnesses at criminal trial permitted to testify that certain

areas were wetlands based on definitions contained in

Corps’ “wetland delineation” manual).

The government in Wilson also relied extensively on

civil cases to support its contention that the activities at

issue were proscribed by the Act. Specifically, the

government sought to incorporate standards derived from

civil cases when instructing the jury on the terms

“pollutant,” “discharge of dredged or fill material,” and

“point source.” Thus, for example, in the absence of any

explicit statutory or regulatory support for its claim that

“sidecasting” (the placement of excavated dirt alongside

drainage ditches in wetlands) constitutes the “discharge” of

a pollutant, the government relied on Avoyelles

Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (Sth Cir.

1983). Yet as the Fifth Circuit made clear in that civil

case, its decision was guided by deference to an

interpretation espoused by the Corps and _ the

Environmental Protection Agency (“EPA”). See id. at 924

n.43 (“We hold only that the agencies’ interpretation that

redepositing materials may be a discharge requiring a

§ 404 permit is ‘““correct” to the extent that it can be said

with complete assurance that any particular interpretation

of [this] complex statute . . . is the “correct” one.’”)

(citation omitted). In other words, a _ statutory

interpretation originally derived in a civil setting using

deference is then held out by the government in a

subsequent criminal prosecution as the applicable legal

standard, despite the absence of any other statutory or

regulatory support.

The government’s misuse of such civil precedents in

seeking criminal convictions is not an uncommon practice.

See, e.g., United States v. Plaza Health Labs., Inc. , 3 F.3d

643, 648-49 (2d Cir. 1993) (rejecting government’s

reliance on “broad dicta” from civil case in support of its

argument that a “human being” can constitute a “point

source” under the Act, and reversing conviction). This

process of defining standards for criminal prosecutions by

bootstrapping from prior Chevron-based decisions deprives

criminal defendants of fair warning. See infra pp. 12-14.

10

2. The Dilution of Intent Requirements in

Criminal Clean Water Act Prosecutions.

The government’s use of expansive statutory and

regulatory interpretations arrived at in civil proceedings to

sustain criminal convictions is especially troubling in view

of its simultaneous efforts to dilute the mens rea

requirement for CWA convictions. Although the Act

provides that a felony is committed only if one “knowingly

violates” the statute’s proscriptions, 33 U.S.C.

§ 1319(c)(2)(A), the government consistently has taken the

position that this language requires proof neither of the

defendant’s knowledge of the law, nor the defendant’s

knowledge of all of the relevant facts that render his

conduct illegal, nor any culpable state of mind on his part.

This watered-down intent standard, which some courts of

appeals have adopted, see infra p. 11, leaves a defendant

virtually powerless to rebut any showing that he acted with

a “criminal” state of mind.

For example, Mr. Wilson was charged with “knowingly

violat{ing]” 33 U.S.C. § 1311(a), a substantive offense

consisting of four elements: (i) the addition of a pollutant;

(ii) from a point source; (iii) into waters of the United

States; (iv) without a permit. Wilson, 133 F.3d at 260. In

instructing the jury on the requisite mens rea, the district

court required the government to prove only that Mr.

Wilson knew: “one, that the areas which are the subject of

these discharges had the general characteristics of wetland;

and, two, the general nature of [his] acts.” Jd. Such an

instruction barred consideration of all evidence of good

faith and lack of criminal intent on Mr. Wilson’s part.

Instead of being required to prove that he deliberately

intended to violate the law, the government was obligated

to show only that he knew that dirt had been added to the

properties in question.

11

On appeal, the Fourth Circuit held that the district

court’s mens rea instruction was erroneous, warranting a

new trial. See Wilson, 133 F.3d at 265. But the court of

appeals did not adopt a specific intent standard; rather, the

government was required to prove only the defendant’s

knowledge of the facts establishing each essential element

of the offense. See id. at 262. The Fifth Circuit has

adopted a similar test. See United States v. Ahmad, 101

F.3d 386, 389-91 (Sth Cir. 1996). But other courts of

appeals - specifically, the Second, Eighth, and Ninth

Circuits - have acquiesced in the government’s contention

that felony CWA convictions may be based upon a

defendant’s knowledge of only the most minimal facts. See

United States v. Sinskey, 119 F.3d 712, 715-17 (8th Cir.

1997); United States v. Hopkins, 53 F.3d 533, 537-41 (2d

Cir. 1995); United States v. Weitzenhoff, 35 F.3d 1275,

1283-86 (9th Cir. 1993). In each of these cases, the

government was required to show only that the defendants

were aware they were discharging the pollutants in

question - a wholly lawful activity expressly authorized by

their permits - not that they knew their discharges

exceeded permit limitations. In at least these circuits, then,

CWA defendants can be convicted despite a good faith,

albeit mistaken, belief that the discharge in question was

authorized by permit.

Because none of the circuits (thus far) has interpreted

§ 1319(c)(2)(A) as imposing a specific intent standard, and

because several circuits have interpreted that provision as

essentially consistent with a form of strict liability, fair

warning concerns become particularly acute in criminal

CWA prosecutions.

12

C. No Deference Should Be Given to the Corps’

Informal Interpretations of the Clean Water Act.

In evaluating the agency’s statutory interpretation at

issue here, i.e., the migratory bird rule, the Court should

not apply Chevron deference, but should instead use the

rule of strict construction applicable in criminal

prosecutions.

1. Chevron Deference is Inappropriate in

Criminal Clean Water Act Prosecutions.

“The rule that penal laws are to be construed strictly, is

perhaps not much less old than construction itself.” United

States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820).

This “time-honored interpretive guideline” serves to ensure

both that citizens are given fair warning of the boundaries

of criminal conduct and that legislatures, not courts, define

criminal liability. Liparota v. United States, 471 U.S. 419,

427 (1985); see also United States v. Bass, 404 U.S. 336,

347-48 (1971). The rule of strict construction is no less

applicable in criminal prosecutions for violations of the

CWA. See, e.g., Plaza Health Labs., 3 F.3d at 649

(applying rule of lenity to construe ambiguous statutory

term “point source” strictly in favor of defendant in CWA

prosecution); United States v. Borowski, 977 F.2d 27, 31-

32 (ist Cir. 1992) (strictly construing ambiguous term in

“knowing-endangerment” provision in CWA prosecution).

As a result, deference to agency interpretations of

ambiguous statutes and regulations is inappropriate in the

criminal setting.

First, giving deference to an agency’s expansive

interpretation of an ambiguous CWA provision in a

criminal context would be incompatible with the bedrock

principle of fair warning. Under Chevron, if “Congress

has not directly addressed the precise question at issue,”

the reviewing court typically will defer to the agency’s

13

interpretation as long as it is reasonable. 467 U.S. at 843.

In a criminal case, however, the government may not seize

on statutory ambiguities to criminalize activities that

Congress has not expressly outlawed. See Commissioner

of Internal Revenue v. Acker, 361 U.S. 87, 91-94 (1959);

United States v. Eaton, 144 U.S. 677, 687-88 (1892).

Similarly, although this Court has recognized that, given

precise criteria of delegation, administrative agencies have

power to define criminal proscriptions through regulations,

see Loving v. United States, 517 U.S. 748, 768 (1996), any

such regulation “must be explicit and unambiguous in order

to sustain a criminal prosecution.” M. Kraus & Bros., Inc.

v. United States, 327 U.S. 614, 621 (1946); see also id. at

622 (“Not even the Administrator’s interpretations of his

own regulations can cure an omission or add certainty and

definiteness to otherwise vague language. The prohibited

conduct must, for criminal purposes, be set forth with

clarity in the regulations ... .”). Because criminal

defendants cannot, consistent with fair warning, be

convicted unless their conduct is “‘plainly and

unmistakably’ within the provisions of some statute” or

regulation, United States v. Gradwell, 243 U.S. 476, 485

(1917), courts must resolve ambiguities in their favor - not

in favor of agencies’ expansive policymaking initiatives.

Second, applying Chevron deference in criminal cases is

inconsistent with a further rationale underlying the rule of

strict construction: because of the seriousness of criminal

penalties, and because criminal punishment represents the

“moral condemnation of the community," defining criminal

activity should remain within the province of the

legislature. Bass, 404 U.S. at 348. Chevron deference

allows agency policy judgments, rather than the language

of the statute as written by Congress, or the language of the

regulation as written by an agency pursuant to a proper

delegation of authority, to determine what conduct merits

14

criminal sanction. And the Corps has no special expertise

in determining which types of conduct should be

punishable by criminal sanctions.

Given the substantial loss of liberty at stake for

defendants charged with criminal violations of the CWA,

deference to the Corps is inappropriate. Nothing in

Chevron or its progeny indicates an intention to depart

from the rules of statutory construction that have long

applied in the criminal arena.

2. Accordingly, Chevron Deference is Also

Inappropriate in Civil Clean Water Act Cases.

Theoretically, courts could use different rules of

construction to interpret the same statutory provisions in

different contexts. That is, in a criminal case, courts could

potentially apply the rule of strict construction when

interpreting a statute, while applying Chevron deference to

an agency’s construction of the same statute in a non-

criminal matter. And, if a statute is relatively free of

ambiguity, the choice might not matter, as both interpretive

principles might yield the same result. The Clean Water

Act, however, is notoriously ambiguous, and has been

variously described as a “poorly drafted and astonishingly

imprecise statute”’ that is “difficult to understand, construe

and apply”* and “devoid of plain meaning.”” In CWA

cases, then, allowing the context of the case to determine

> EJ. DuPont de Nemours & Co. v. Train, 541 F.2d 1018, 1026 (4th

Cir. 1976), aff'd in part and rev'd in part, 430 U.S. 112 (1977).

* American Petroleum Inst. v. Environmental Protection Agency, 540

F.2d 1023, 1027 (10th Cir. 1976).

> Hooker Chems. & Plastics Corp. v. Train, 537 F.2d 620, 627 (2d

Cir. 1976).

3g OB

15

whether Chevron deference is applied would inevitably lead

to inconsistent interpretations of the same statutory

provisions.

The need to construe a given term consistently,

however, compels the conclusion that no deference is owed

to agency interpretations of criminal statutes such as the

CWA, regardless of the context of the case. This result

follows from this Court’s decision in Federal

Communications Comm'n v. American Broad. Co., Inc.,

347 U.S. 284 (1954), which involved a facial challenge to

an FCC regulation governing broadcasting licenses. The

Court held that, in promulgating a regulation that would

withhold licenses from stations that broadcast lotteries of a

type prohibited by § 1304 of the criminai code, the FCC

had interpreted the criminal provision too broadly.

It is true, as contended by the Commission, that

these are not criminal cases, but it is a criminal

statute that we must interpret. There cannot be

one construction for the Federal

Communications Commission and another for

the Department of Justice. If we should give §

1304 the broad construction urged by the

Commission, the same construction would

likewise apply in criminal cases. We do not

believe this construction can be sustained... .

{I]t would do violence to the well-established

principle that penal statutes are to be construed

strictly.

American Broad. Co., 347 U.S. at 296.

More recently, this Court has confirmed that particular

care is required when resolving ambiguities in statutes

containing dual civil/criminal enforcement schemes,

because an interpretation arrived at in a civil setting may

implicate criminal enforcement of the statute:

16

After applying the ordinary rules of statutory

construction, then, we are left with an

ambiguous statute. The key to resolving the

ambiguity lies in recognizing that although it is

a tax statute that we construe now in a civil

setting, the [statute] has criminal applications

that carry no additional requirement of

willfulness. . . . It is proper, therefore, to

apply the rule of lenity and resolve the

ambiguity in [the defendant’s] favor.

United States v. Thompson/Center Arms Co., 504 U.S.

505, 517-18 (1992). See also Crandon v. United States,

494 U.S. 152, 158-60 (1990) (finding it appropriate to

apply, in a civil case, the rule of lenity in resolving any

ambiguity in the ambit of a criminal statute’s coverage).°

The Court should use this opportunity to reject squarely

the dicta by Justice Douglas in United States v. Standard

Oil Co., 384 U.S. 224, 225-26 (1966), suggesting that the

rule of lenity does not apply to the interpretation of

“pollution” statutes. Jd. (“whatever may be said of the

rule of strict construction, it cannot provide a substitute for

common sense, precedent, and legislative history” when

construing the Rivers and Harbors Act). Lower federal

courts have cited Standard Oil to approve exceedingly

broad interpretations of - and unlimited federal jurisdiction

under - the CWA in both criminal and civil cases. See,

e.g., United States v. Ashland Oil and Transp. Co., 504

F.2d 1317, 1329 (6th Cir. 1974) (as regards water

pollution statutes, “the strict construction rule applicable to

° And, unlike Babbitt v. Sweet Home Chapter of Communities for a

Great Oregon, 515 U.S. 687, 704 n.18 (1995), no long-standing

agency regulation promulgated under the formal rulemaking provisions

of the Administrative Procedure Act is at issue.

17

criminal statutes has clearly been modified by the Supreme

Court”); United States v. Hamel, 551 F.2d 107, 112-13

(6th Cir. 1977) (“it is the rule of Standard Oil . . . [that

water pollution legislation] be given a generous” rather

than a strict construction).

Justice Harlan, in his dissent in Standard Oil, 384 U.S.

at 236, forcefully rebutted the majority’s suggestion that

strict construction was not required in reading a criminal

Statute, simply because it concerned the subject of water

pollution. /d. (Harlan, J., dissenting) (“The policy [of the

rule of lenity] . . . is based primarily on a notion of fair

play: in a civilized state the least that can be expected of

government is that it express its rules in language all can

reasonably be expected to understand.”). Justice Harlan’s

position is most consistent with this Court’s recent holdings

in Thompson Center/Arms and Crandon, which establish

that deference to an agency’s expansive statutory or

regulatory interpretations is misplaced when a criminal

Statute is at issue. Cf. Crandon, 494 U.S. at 160

(“Because construction of a criminal statute must be guided

by the need for fair warning, it is rare that legislative

history or statutory policies will support a construction of a

statute broader than that clearly warranted by the text.”).

The requirement of careful, narrow construction of

criminal statutes is particularly appropriate as applied to the

CWA, given the tremendous range of activity purportedly

regulated by the Act. Indeed, while “[mJost statutes permit

anything except what is prohibited, [the CWA] prohibits all

regulated conduct involving waters and wetlands except

what is permitted.” Weitzenhoff, 35 F.3d at 1293

(Kleinfeld, J., dissenting from order rejecting suggestion

for rehearing en banc). And because innocuous substances

such as rock, hot water, and sand are classified as

“pollutants” by the Act, see 33 U.S.C. § 1362(6),

18

ordinary, productive, otherwise-innocent conduct falls

within the CWA’s purported coverage. The need for fair

warning is thus especially strong since casual, day-to-day

activities can result in severe criminal sanctions. -

Because the Act has severe “criminal applications that

carry no _ additional requirement of willfulness,”

Thompson/Center Arms, 504 U.S. at 517, Strict

construction of statutory and regulatory ambiguities is

required. There is no place here for Chevron; no place

here for deference.

II. The Government’s Limitless View of the Corps’

Regulatory Jurisdiction Should be Rejected.

While recognizing in United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121 (1985), that “at least some

waters that would not be deemed ‘navigable’ under the

classical understanding of that term” may be subject to

federal regulation under the Clean Water Act, id. at 133

(emphasis added), this Court twice pointedly declined to

endorse the Corps’ assertion of regulatory authority over

“all” intrastate waters, id. at 124 n.2 & 131-32 n.8. The

waters at issue in that case were “river-side,” i.e., situated

immediately next to a navigable waterway, i.e., “actually

abut[ting]) . . . a navigable waterway.” Jd. at 135.

Nothing in Riverside Bayview stands for the proposition

that the Corps has the authority to regulate every

intermittent stream, swale, drainage flow, and wetland in

the nation.

Nonetheless, in the fifteen years since Riverside

Bayview, the government steadfastly has attempted to

expand its authority under the CWA into a mandate to

regulate every drop of water in the country. Seizing on the

undefined statutory phrase “waters of the United States”

(which in turn defines the phrase “navigable waters”), the

Corps consistently asserts its jurisdiction to the fullest -

19

and beyond. As the history of the Wilson prosecution

illustrates, the government will not recognize or concede

any limits on the Corps’ (or EPA’s) jurisdiction under the

CWA.

A. The Corps Has Attempted to Regulate All Waters

Anywhere.

1. The Corps’ Position Prior to Wilson:

Regulation of All Waters, Under the

Migratory Bird Rule.

In every circuit save the Fourth, the Corps purports to

regulate isolated waters of the type at issue both in Wilson

and in the present appeal based on the possibility that

migratory birds crossing state lines might visit them. See,

e.g., Leslie Salt Co. v. United States, 55 F.3d 1388, 1390-

92 (9th Cir. 1995). As the government itself has conceded,

the “migratory bird rule” purports to allow federal

regulation of any body of water - or even puddle - where a

well-traveled bird might choose to alight. See Hoffman

Homes, Inc. v. Administrator, United States Environmental

Protection Agency, 961 F.2d 1310, 1321 n.9, reh’g

granted, order vacated, 975 F.2d 1554 (7th Cir. 1992).

This assertion of jurisdiction is boundless, and would

stretch the CWA to cover virtually every piece of property

in the country.’

In Wilson, however, the government could not assert

jurisdiction over the properties based on the actual or

” See, e.g., J. Blanding Holman, Note, After United States v. Lopez:

Can the Clean Water Act and the Endangered Species Act Survive

Commerce Clause Attack?, 15 Va. Envtl. L.J. 139, 197 (1995)

(“[M)Jigratory flyways cover the entire United States and, as

birdwatchers will attest, migratory birds will alight almost anywhere.

Thus the migratory bird rule . . . operates as a limiter-manque - a

limiting rule with no limits.”).

20

potential presence of migratory birds. Prior to Mr.

Wilson’s indictment, the Fourth Circuit in Tabb Lakes,

Ltd. v. United States, 715 F. Supp. 726, 728-29 (E.D. Va.

1988), aff'd, 885 F.2d 866, 1989 WL 106990 (4th Cir.

1989), rebuffed the government’s reliance on the 1985

internal Corps memorandum that first asserted this dubious

theory of jurisdiction. The Fourth Circuit found the

memorandum to be a substantive rule that should have been

promulgated in accordance with the notice and comment

requirements of the Administrative Procedure Act, 5

U.S.C. § 553. See Tabb Lakes, 1989 WL 106990 at *2.

Soon after the Tabb Lakes ruling, the Corps and EPA

issued a joint memorandum, which pronounced the

decision “incorrect” and expressly instructed their

personnel not to obey the ruling outside the Fourth Circuit.

See Clean Water Act Section 404 Jurisdiction Over Isolated

Waters In Light of Tabb Lakes v. United States (Jan. 24,

1990). The memorandum further instructed Corps and

EPA officials within the Fourth Circuit to continue to assert

jurisdiction over isolated wetlands, but not to base such

jurisdiction on the migratory bird memorandum. See id.

In other words, the Corps simply ignored the Jabb Lakes

ruling, and carried on with its practice of regulating all

waters everywhere. This became unmistakably evident

during the Wilson prosecution.

2. The Corps’ Position During Wilson:

Regulation of All Waters, Under the “All

Other Waters” Drainage Theory.

Although located miles from the nearest navigable

water, the government argued that the properties at issue in

Wilson were subject to federal regulation because they

form part of the “drainage pattern” in the region: any

surface moisture on the parcels “eventually” drains into

21

“intermittent streams,”* which in turn “eventually” drain

into two non-navigable creeks, which in turn “eventually”

connect with the “headwaters” of the Potomac River. At

trial, one government witness - a Corps employee -

testified that federal jurisdiction under the Act covers all

upstream waters “to the tip of the drainage.” He explained

that because St. Charles, Maryland, has an average

elevation of more than 200 feet above sea level, “all the

water runs downhill . . . leaves the site and goes down the

streams.” In the prosecutor’s words: “It’s all in the

drainage. . . . [I]t’s all in the drainage, it all drains

downward... . It’s all heading down to the Potomac.”

Regulation of the Wilson parcels was thus grounded on

the assertion that a sporadic water flow in a drainage

watershed - however tiny, however intermittent, and

however remote from a navigable waterway - is sufficient

to establish federal jurisdiction. The government went so

far at trial as to assert jurisdiction merely because rainfall

landed on the properties: “It’s true, is it not, [that] .. .

water that falls on these areas is going to eventually drain

into either the system that goes to Port Tobacco Creek or

into the system that goes to Piney Branch?”; “What is

rainfall when it hits the ground but surface water?”.

The prosecution offered no evidence that the allegedly

illegal CWA discharges (i.e., the addition of dirt) actually

affected navigable waters or interstate commerce in any

way. Instead, the government’s “proof” of an interstate

commerce “effect” consisted of generalized speculation

that conduct similar to Mr. Wilson’s might have some

remote impact upon beavers and rockfish that could

potentially travel in interstate commerce. To this end, a

® The water flow in so-called “intermittent streams” disappears entirely

for long portions of the year.

22

“fur-bearing expert” testified at trial that 48 beavers were

trapped in all Charles County in 1990 and 1991 (but none

on Mr. Wilson’s properties); that beaver pelts are shipped

out of Maryland for processing; and that there is a market

for muskrat and raccoon meat. Similarly, a “rockfish

expert” told the jury that increased sediment and nutrients

downstream might affect the supply of aquatic creatures

eaten by rockfish in larger bodies of water, before the

rockfish travel to even larger bodies of water where they

are sometimes caught by out-of-state fishermen and sold to

out-of-state consumers. The government also presented

testimony that tadpoles, beavers, fox tracks, crayfish - and

at least one swimming muskrat - were present on the

Wilson parcels. The prosecution made no attempt,

however, to prove that Mr. Wilson’s actions actually

affected beavers or rockfish - or water - in any way

whatsoever, or otherwise caused any adverse

environmental impacts.

The conception of federal jurisdiction espoused by the

government in Wilson is thus without bounds. Under this

view, every drop of surface water anywhere becomes a

federal water - because rain falls everywhere, and virtually

every area above sea level eventually drains to something

that ultimately finds its way to a navigable water. See

Mossburg v. Montgomery County, 666 A.2d 1253, 1259 &

n.5 (Md. App. 1995) (all surface water in Maryland

eventually drains into the Chesapeake Bay, Atlantic Ocean,

or Gulf of Mexico). Indeed, pursuant to this theory, the

Corps has previously claimed to regulate over 27,800 miles

of “headwaters streams” in Maryland alone, as well as

every water and wetland anywhere near such

“headwaters,” “intermittent streams,” and “drainage

areas.” 1995 Wetlands Delineation Field Evaluation Form

(Maryland) (June 1995). And, under the government's

tadpole/fox tracks/crayfish approach to the Commerce

23

Clause, all property everywhere is subject to federal

regulation because animal life is ubiquitous.

On appeal the Fourth Circuit flatly rejected the

“drainage pattern” theory of jurisdiction. See Wilson, 133

F.3d at 256-57. The court of appeals recognized that

“[tJhe government [had] demonstrated that water from

these lands flowed in a drainage pattern through ditches,

intermittent streams, and creeks, ultimately joining the

Potomac River, a tributary of the Chesapeake Bay.” /d. at

254-55. The Fourth Circuit concluded, however, that this

daisy-chain situation was far from adequate to establish

federal jurisdiction. Rather, the “waters of the United

States” would include only those waters which, “if not

navigable in fact, are at least interstate or closely related to

navigable or interstate waters.” /d. at 257. Thus, because

the Corps’ “other waters” regulation, 33 C.F.R.

§ 328.3(a)(3), defined “waters of the United States” to

include intrastate waters having nothing to do with

navigable or interstate waters (e.g., headwaters,

intermittent streams, creeks, etc.), the court of appeals

declared the regulation invalid. /d.

3. The Corps’ Position After Wilson: Regulation

of All Waters, Under the “Tributaries”

Theory.

The government's response to the Wilson decision was

similar to its strategy after Tabb Lakes. Neither the

Department of Justice nor the Corps sought to clarify or

overturn the Fourth Circuit’s opinion by seeking either en

banc consideration or review from this Court. Instead, the

government took the position that even after Wilson it

could continue to regulate all waters both outside and

within the Fourth Circuit.

To this end, in May 1998 the Corps and EPA issued a

document providing “guidance” on the effect (or non-

24

effect) that Wilson would have on their assertion of federal

jurisdiction under the CWA. See Guidance for Corps and

EPA Field Offices Regarding Clean Water Act Section 404

Jurisdiction Over Isolated Waters in Light of United States

v. James J. Wilson (May 29, 1998, as revised June 2,

1998) (“Guidance”). To begin with, the agencies

announced their intention not to follow the Wilson holding

outside the jurisdiction of the Fourth Circuit. See id. at 2

(“The Fourth’s Circuit’s decision in the Wilson case is not

binding outside the Fourth Circuit, and therefore will not

be implemented outside the Fourth Circuit.”). Then, the

agencies adopted a business-as-usual posture even within

the Fourth Circuit. Despite the clear holding in Wilson,

the Guidance essentially reenacts the limitless “[ajll other

waters” drainage theory of jurisdiction under 33 C.F.R.

§ 328.3(a)(3) under the guise of regulating “tributaries”

under section 328.3(a)(5). Specifically, the federal

agencies now purport to regulate “any water body,

including any wetland, that is part of, or flows into, or is a

wetland adjacent to, a tributary system of traditional

navigable waters or interstate waters.” /d. at 3 (emphasis

added); see also id. at 4 (purporting to regulate “an aquatic

area as part of a tributary system”); id. (noting that

“[tJhese principles apply whether a portion of the tributary

system is intermittent or perennial”) (emphasis added).

By purporting to regulate “tributary systems” under the

Guidance, “whether [or not] a portion of the tributary

system is intermittent,” the government continues to assert

jurisdiction over tributaries of tributaries, and tributaries of

tributaries of tributaries, ad infinitum - even as these so-

called “tributaries” become tiny, intermittent streams. As

a practical matter, this theory of jurisdiction, if valid,

would again result in federal control over all water

anywhere, because virtually all water in the country

eventually becomes part of some drainage watershed (or

25

“tributary system”). See Mossburg, 666 A.2d at 1259 &

n.5. But again, this limitless theory of jurisdiction is

precisely the approach rejected by the Court of Appeals in

Wilson.

The Corps has thus demonstrated its unwillingness to

honor judicial constraints placed upon its authority. The

agency has declined to identify the boundaries of federal

jurisdiction consistent with the Wilson decision and the text

of the CWA itself. Rather, by employing various

regulatory schemes, all of which espouse a theory of

jurisdiction that is without bounds, the Corps has revealed

its intent to regulate all waters anywhere. This Court

should flatly reject the scheme at issue here, “the migratory

bird rule,” as well as the Corps’ limitless theory of

jurisdiction under the CWA.

B. This Court Should Adopt the Fourth Circuit’s

Construction of Clean Water Act Jurisdiction.

In rejecting the Corps’ “other waters” regulation, 33

C.F.R. § 328.3(a)(3), the Fourth Circuit explained that as

a matter of statutory construction, the CWA regulates only

“waters which, if not navigable in fact, are at least

interstate or closely related to navigable or interstate

waters.” Wilson, 133 F.3d at 257. This construction of

the Act’s jurisdictional reach is sound and should be

followed here. And because the Corps’ overly broad

interpretation of the CWA exponentially expands the

number of individuals potentially subject to criminal

prosecution, adoption of the Fourth Circuit’s construction

of the Act is particularly important.

First, this construction follows naturally from the

language of the statute itself, which expressly regulates the

discharge of certain materials into “navigable waters,”

defined to be the “waters of the United States.” 33 U.S.C.

§ 1362(7) & (12). The migratory bird rule impermissibly

26

treats the phrase “navigable waters” as mere surplusage,

see Bailey v. United States, 516 U.S. 137, 145-46 (1995),

and thereby fails to draw any line limiting federal

authority.

Second, the Fourth Circuit’s construction of the CWA is

consistent with other statutes using the same language, such

as the Rivers and Harbors Act of 1899, 33 U.S.C. § 407

(regulating any “navigable water of the United States”);

§ 403 (regulating every “navigable river, or other water of

the United States”), and the Federal Power Act, 16 U.S.C.

§ 796(8) (similar). Because Congress and the courts for

decades have interpreted these terms to refer only to actual

navigable waters and their immediate tributaries as used in

interstate navigational commerce, there is no reason to

conclude that Congress intended in the CWA to sweep

within the federal embrace all heretofore-unregulated

intrastate waters and wetlands. See Case v. Los Angeles

Lumber Prods. Co., 308 U.S. 106, 115 (1939) (“[Wyhere

words are employed in an act which had at the time a well

known meaning in the law, they are used in that sense

unless the context requires the contrary.”).

Third, the Fourth Circuit’s statutory construction of the

jurisdictional reach of the CWA is consistent with this

Court’s intimation in Riverside Bayview as to where the

line between federal and non-federal waters might be

drawn: “the waters of the United States” can be said to

include navigable waters and their immediate tributaries as

used in interstate navigational commerce, as well as

“some” waters “inseparably bound up” therewith. 474

U.S. at 134 (emphasis added).

Fourth, the Fourth Circuit’s CWA construction is

consistent with the principle that “unless Congress conveys

its purpose clearly, it will not be deemed to have

significantly changed the federal-state balance.” Bass, 404

27

U.S. at 349. If federal jurisdiction under the CWA is

completely untied from the concept of navigability, two

traditionally local functions - the regulation of land use

and the regulation of local water bodies - would become

federalized. But in the absence of “clear and explicit

language,” it cannot be assumed that Congress intended to

“supersede entirely the authority which the states . . . have

in such matters.” Cummings v. Chicago, 188 U.S. 410,

430 (1903) (rejecting a contention that the Rivers and

Harbors Act reached wholly intrastate waters).

Finally, by adopting this construction of the Act, the

Court can avoid the serious constitutional issue that would

arise under the Commerce Clause if it were to accept the

Corps’ limitless conception of CWA jurisdiction. See

Jones v. United States, 120 S.Ct. 1904, 1911-12 (2000);

Edward J. Debartolo Corp. v. Florida Gulf Coast Bldg. &

Constr. Trades Council, 485 U.S. 568, 575 (1988); cf.

United States v. Lopez, 514 U.S. 549, 564 (1995) (“[I}f we

were to accept the Government’s arguments, we are hard

pressed to posit any activity by an individual that Congress

is without power to regulate.”).

CONCLUSION

The Clean Water Act does not supply the federal

government with authority to regulate all waters in the

country, but rather bestows federal jurisdiction only over

“navigable waters.” The migratory bird rule utterly

ignores the concept of navigability, and thereby fails to

draw any line limiting federal authority. Particularly

because the CWA is a criminal statute frequently applied to

impose criminal penalties, such limitless reach, grounded

on Chevron deference, cannot be reconciled with fair

28

warning and due process. The decision of the Court of

Appeals for the Seventh Circuit should be reversed.

Respectfully submitted,

STEVEN A. STEINBACH

Counsel of Record

GERALD A. FEFFER

CRAIG D. SINGER

ANDREW W. RUDGE

WILLIAMS & CONNOLLY LLP

725 12th Street, N.W.

Washington, DC 20005

(202) 434-5000

Attorneys for Amicus Curiae

James J. Wilson

July 27, 2000