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

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——— — eupreme Court, U.S.

FILED

6) wl 2 f 2000 |

No. 99-1178 | CLERK

IN THE —

Supreme Court of the Gnited States

—

“

Pe R

o. < SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,

Petitioner,

= Q v.

E> 8

Lind 2

es Ry Respondents.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,

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 (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

BEST AVAILABLE COPY

4 ee?

TABLE OF CONTENTS

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

The Regulation Exceeds Congress’s Commerce

Clause Powers

CONCLUSION

( ll

T \BLE OF AUTHORITIES

Page

Cases

Alden v. Maine,527 U.S. 706 (1999) oo... cccccccccccceeeeeeeeees 2

Andrus v. Allard, 444 U.S. $1 (1979) oo......ccccccccccccceccecees 5

Berman v. Parker, 348 U.S. 26 (1954) .o.......cccccceccceeees 13

Bragdon v. Abbott, 524 U.S. 624 (1998) 000.0... 7

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

Defense Council, Inc., 467 U.S. 837 (1984) ................ s)

City of Boerne v. Flores, 521 U.S. 507 (1997) ..........0.0.0.. 2

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ........ 13

FERC v. Mississippi, 456 U.S. 742 (1982) ..........00000000.. 13

Garcia v. San Antonio Metro. Transit Auth. , .

46D U.S. SAB CISTI SD cuviisovessunctesiisunennsiuniaiien anna 9

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ...... 10, 11

Gregory v. Ashcroft, 501 U.S. 452 (1991) ..0........c.ccccce. 2

Jones v. United States, 120 §. Ct. 1904 (2000) ............ 7,8

Katzenbach v. McClung, 379 U.S. 294 (1964) .....0..00006. 10

Lake Country Estates, Inc. v. Tahoe Regional

Planning Agency, 440 U.S. 391 (1979) oo... 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.

SAB CRGBS) ....<0000censssncepisscenbsensnasiieneneanannnannnnnnnnnn 11

Missouri v. Holland, 252 U.S. 416 (1920) ...........0000...000. 5

NLRB v. Jones & Laughlin Steel Corp.,

FOL U.S. 2 CIGD GD ....scsccsscsecsessateetenenmeseneennnne 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) .00.00.0..... 11

Railroad Co. v. Maryland, 88 U.S. 456 (1874) ................ 6

Saenz v. Roe, 526 U.S. 489 (1999) ooo... cece ce eeeeeees 2

The Daniel Ball, 77 U.S. 557 (1870) ..........0.ccccccccecee eee 6

TABLE OF AUTHORITIES (Cont'd)

Page

United States v. Appalachian Electric Power Co.,

Ee 6

United States v. Bass, 404 U.S. 336 (1971) ................ —_

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

United States v. Morrison, —-

I, ED. cccccdccsosscovensscosesoes 2, 11, 12, 13

United States v. O'Brien, 391 U.S. 367 (1968) .............. 1]

Utah v. United States, 403 U.S. 9 (1971) ©0000... 6

Warth v. Seldin, 422 U.S. 490 (1975) .00000.0...ccccens. 13

Statutes

Tee 8

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TED os ccncccscesccesseoveesees aE Sener 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 wildiife

and the diverse habitats they need to survive.

Why, then, does Alabama support a challenge to the migra-

tory 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 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, SOS 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

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

federalist 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 's

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

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 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. Eyery 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 (again, 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.

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 U.S. 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.

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 regulat. 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 interpreta-

tions have settled the meaning of an existing statutory

provision,” it has long been clear, “repetition of the same

language in a new statute indicatés, as a general matter, the

intent to incorporate its administrative and judicial inter-

pretations 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. fi

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 Ene 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—junisdiction 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

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 proclama-

tion in the statute. “It is the policy,” the statute says, “of

Congress to recognize, preserve, and protect the primary

responsibilities and rights 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 interpreta-

tion. 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 n9. Applied here, those rules eliminate the

discretion-giving ambiguity that lends Chevron force. More

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 National 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

only give Chevron a bad name. This rule should not be

upheld.

Il. The Regulation Exceeds Congress’s Commerce Clause

Powers.

The initial statutory inquiry not only avoids a serious

constitutional question but also a 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.

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 is

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

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

retained 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 1 754.

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

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

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-

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.

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

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)

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.)

ee ee oe ee oe

oS maa

moa EF le OE ARE PE BE

gt ee

at Ee

hese

ARIZONA

WETLAND ARIZ. REV. STAT.

STATUTES ANN.:

§ 49-243 (West Supp.

2000) (Aquifier

protection permits)

§ 49-772 (West 1997)

(Location restrictions for

solid waste landfills)

MIGRATORY ARIZ. REV. STAT.

BIRD ANN.:

STATUTES

§ 17-235 (West 1996)

(Game & Fish

Department — Powers &

Duties concerning

migratory birds)

§ 17-270 (West 1996)

(Waterfowl conservation

fund)

§ 17-333 (West Supp.

2000) (Taking &

handling of wildlife —

license, classes & fees)

ARIZONA

§ 17-731 (West Supp.

2000) (Migratory birds

may only be possessed

transported in with the

Migratory Bird Treaty

Act)

ee Cee oe sy: | —

a Tone >

ee ee

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)

§ 15-20-705 (Michie

1987) (Scenic Resources

Act — duties of agencies)

§ 15-20-802 (Michie

1987) (Soil & Water

Conservation

Commission Pooled

Loan Securitization Act)

§ 15-21-501 (Michie

1987) (State Land

Information Board —

purpose)

Conservation Program

Art. 1-3)

§§ 1776-1796 (West

1998) (Sacramento-

San Joaquin Valley

Wetlands Mitigation

Bank Act of 1993)

§ 2620 (West

1998) Habitat

Enhancement

Program)

§§ 2785-2786 (West

1998) (California

Wildlife Protection

Act of 1990)

ARKANSAS

CALIFORNIA

§ 15-22-1001 (Michie

1987) — § 15-22- 1012

(Michie 1987) (Wetlands

Mitigation Bank Act )

§ 15-57-409 (Michie

1987) (Reclamation of

land)

§§ 26-51-1502 (Michie

1987) - 26-51-1506

(Michie 1987) (Private

Wetland & Riparian

Zone Creation &

Incentive)

Acts 1993, No. 150, § §

1-9 (Historical Notes)

Acts 1995, No. 1224

(Historical Notes)

CAL GOV. CODE:

§65081.3 (West 1997)

(Transportation

planning and

programming)

§§ 66602.1 — 66682

(West 1997) (San

Franciso Bay

Wetlands)

§ 66907.12 (West

1997)(California

Tahoe Conservancy)

§ 67675 (West 1997)

(Fort Ord Reuse

Authority)

CAL. HARB & NAV.

CODE:

§ 523 (West 2000

Supp.) (Removal of

vessel from public

waterway)

§ 1720 (West 2000

Supp.) (Port facility

construction)

dn ot OE erin eee ee me

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)

ARKANSAS

CALIFORNIA

§ 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)

CALIFORNIA

6 ee Re 6 Ce eer Re

§ 5096.352 (West

Supp. 2000) (Safe

Neighborhood Parks.

Clean Water, Clean

Air and Coastal

Protection Bond Act

of 2000-Coasta!

Protection Program)

§ 5096.357 (West

Supp. 2000) (Safe

Neighborhood Parks,

Clean Water, Clean

Aw and Coastal

Protection Bond Act

of 2000-Fish and

Game Program)

§§ S810 418 (West

1984) (Wetlands

Protection Act)

§ 5850 (West Supp.

2000) (San Francisco

Bikeway System)

10a

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)

lla

CALIFORNIA

- ‘tl am. UR ml

§ 8613 (West Supp.

2000) (Kapiloff Land

Bank Act -- Wetlands

citicn)

§ 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 !,2, and 5)*

§ 30116 -

30607.1(West 1996)

(California Coastal

Act)

* This statute contains information on both “Wetlands and Migratory

Waterfowl”

12a

CALIFORNIA

§ 31006 (West Supp.

2000) (State Coastal

(San Francisco Bay

§31354 (West 1996)

(State Coastal

Conservancy-

Establishment)

§ 32023 (West 1996)

(California Urban

Waterfront Area

Restoration Financing

Authority Act —

Definitions — Coastal

zone)

§ 35031 (West Supp.

2000) (Coastal County

and City Offshore

Energy Assistance)

atta

13a

ARKANSAS

CALIFORNIA

CAL. WATER

CODE:

§ 10633 (West Supp.

2000) (Urban Water

management Plans —

Content of plans) —

§ 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

Control — Coastal

Marine Environment)

14a

ARKANSAS

CALIFORNIA

§ 13576 (West Supp.

2000) (Water

Recycling Act of

1991)

§§ 14906-14907 (West

Supp. 2000) (San

Joaquin Valley

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 Control Act)

15a

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 ARK. CODE ANN: CAL FISH & GAME

BIRD CODE:

STATUTES § 5-73-130 (Michie

1987) (Unlawful for § 307 (West

guide of persons hunting | 1998)(Bag and

migratory birds to carry | possession limits)

a gun)

§§ 355-357 (West

§ 15-41-105 (Michie 1998) (Regulations

1987) (Programs for pertaining to

migratory waterfowl) migratory birds)

l6a 17a

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 (VW est |

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)

ee ee ee ed

* This statute contains information on both “Wetlands and Migratory

Waterfowl” |

18a

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)

19a

ARKANSAS

CALIFORNIA

ee ee Den ed

—

§ 15-22-1001 (Michie

1987) — § 15-22- 1012

(Michie 1987) (Wetlands

Mitigation Bank Act )

§:15-57-409 (Michie

1987) (Reclamation of

land)

§§ 26-51-1502 (Michie

1987) - 26-51-1506

(Michie 1987) (Private

Wetland & Riparian

Zone Creation &

Incentive)

Acts 1993, No. 150, § §

1-9 (Historical Notes)

‘| Acts 1995, No. 1224

(Historical Notes)

CAL GOV. CODE:

§65081.3 (West 1997)

(Transportation

planning and

programming)

§§ 66602.1 — 66682

(West 1997) (San

Franciso Bay

Wetlands)

§ 66907.12 (West

1997)(California

Tahoe Conservancy)

§ 67675 (West 1997)

(Fort Ord Reuse

Authority)

CAL. HARB & NAV.

CODE:

§ 523 (West 2000

Supp.) (Removal of

vessel from public

waterway)

§ 1720 (West 2000

Supp.) (Port facility

construction)

20a

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.RFS.CODE:

§ 5096.139 (West

1984) (Nejedly-Hear*

State, Urban, and

Coastal Park Bond Act

| of 1976)

“ ae

2la

ARKANSAS

CALIFORNIA

§ 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)

22a

23a

CALIFORNIA

ARKANSAS

CALIFORNIA

§ 5096.352 (West

§ 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)

§§ 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 iands)

§ 8601 (West Supp.

2000) (Kapiloff Land

Bank Act -

Definitions)

§ 8602 (West Supp.

2000) (Kapiloff Land

Bank Act — Legislative

findings and

declarations)

24a

CALIFORNIA

§ 8613 (West Supp.

2000) (Kapiloff Land

Bank Act — Wetlands

sition)

§ 21080.23 (West

§ 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)

(Califorma Coastal

Act)

CALIFORNIA

* This statute contains information on both “Wetlands and Migratory

Waterfowl”

§ 31006 (West Supp.

2000) (State Coastal

§31354 (West 1996)

(State Coastal

Conservancy-

Establishment)

§ 32023 (West 1996)

(Califorma Urban

§ 35031 (West Supp.

2000) (Coastal County

and City Offshore

Energy Assistance)

26a

CALIFORNIA

27a

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

Control — Coastal

Marine Environment)

CALIFORNIA

§ 13576 (West Supp.

2000) (Water

Recycling Act of

1991)

§§ 14906-14907 (West

Supp. 2000) (San

Joaquin Valley

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 Control Act)

28a

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)

29a

ARKANSAS CALIFORNIA

§ 15-42-104 (Michie § 375 (West

1987) (Hunting and 1998)(Compact

fishing license fees) between AZ and CA

for hunting rights)

§ 22-7-206 (Michie

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”

30a

ARKANSAS

CALIFORNIA

§ 29760 (West Supp.

2000) (Delta

Protection Act of 1992

— Long term resource

management plan)

3la

COLORADO

CONNECTICUT

ee ee ee

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

account)

§§ 22a-28 (1995) -

22a-45c (Supp. 2000)

(Wetlands and

watercourses)

32a

COLORADO

CONNECTICUT

§§ 22a-91 (1995) -

22a-113a (1995)

(Environmental

protection — coastal

management)

§ 22a-1130 (1995)

(Environmental

protection — harbor

management)

§§ 22a-349a (1995)

- 22a-361 (1995)

(Environmental

protection — water

resources — general

permits)

§ 22a-363b (Supp.

2000) (Activities

eligible for certificate

of permission)

§ 22a-378a (1995)

(Environmental

-protection — general

permits for minor

activities)

33a

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

cornidor protection

plan)

34a

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)

35a

DELAWARE

DISTRICT OF

COLUMBIA

PAE cel te he Re a a Te Fe ae A te

WETLANDS

STATUTES

DEL. CODE ANN. tit.:

7 § 4001 (1991)

(Erosion and

Sedimentation Control —

legislative findings)

7 § 6036 (1991)

(Ex. vironmental 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 -

elements of plan)

9 § 4956 (Supp. 1998)

(Quality of Life Act -

elements of plan)

36a

DISTRICT OF

SELLA Ae COLUMBIA

9 § 6956 (Supp. 1998)

(Quality of Life Act -

elements of plan)

MIGRATORY DEL. CODE ANN. tit: | D.C. CODE ANN.:

BIRD

STATUTES 7 § 707 (Supp. 1998) § 22 — 1628 (1996)

(Hunting or shooting

from a motor vehicle)

7 § 717 (Supp. 1998)

(Frightening or harassing

migratory birds)

(Game and fish Laws)

i ee et

— ve Nan ee

37a

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 §12-5-472 (1996)

comprehensive plan (Water supply)

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)

38a

FLORIDA

§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)

(Management and

storage of surface

waters)

§373.421 (West 2000)

§373.4211 (West 2000)

(Management and

storage of surface

waters)

§375.031 (West 2000)

(Land acquisition and

conservation)

39a

FLORIDA

GEORGIA

Se ee ee a a eae -

§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)

(Alteration & trimming

of mangroves)

§403.9332 (West 1998)

(Mitigation and

enforcement)

40a

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)

4la

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)

42a

ILLINOIS

INDIANA

WETLANDS

STATUTES

20 ILL. COMP. STAT.

ANN. 830/1-2 (West

1993) - 830/3-6

(West 1993)

(Interagency Wetland

Policy Act)

30 ILL. COMP. STAT.

ANN. 150/3 (West

1993) (Natural Heritage

Fund Act — purpose)

70 ILL. COMP. STAT.

ANN.1832/20 (West

Supp. 2000) (Mid-

America Intermodal

Authority Port District

Act)

210 ILL. COMP. STAT.

ANN. 95/2 (West 1993)

(Campground Licensing

& Recreational Act)

505 ILL. COMP. STAT.

ANN. 25/1-3 (West

1993) (Illinois

Conservation

Enhancement Act)

IND. CODE ANN.:

§14-12-2-1 (West

1998) (Indiana

Heritage Trust

Program — purpose)

§14-12-2-4 (West

1998) (Indiana

Heritage Trust

Program — “project”

defined)

§14-26-2-16 (West

1998) (Lake

preservation —

applicability to water

supply reservoirs,

§14-30-2-22 (West

1998) (Maumee River

Basin Commission —

powers pertaining to

property)

43a

ILLINOIS

INDIANA

Se meh ee ee ote aed.

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)

44a

45a

ILLINOIS INDIANA

515 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)

520 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

— effect of federal

laws)

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. 5/3.1 - 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

permits)

47a

IOWA

KANSAS

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)

§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)

48a

49a

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 waterfowl

project approval

requirement)

IOWA

KANSAS

§484A.6 (West 1999)

(Penalty for violating

migratory waterfowl

provisions)

§484B.4 (West Supp.

2000) (Hunting

preserves)

50a

KENTUCKY

LOUISIANA

WETLANDS

STATUTES

KY. REV. STAT. ANN.:

§ 146.550 (Banks-

Baldwin 1996)

(Wetlands — definition)

§ 146.555 (Banks-

Baldwin 1996) (Natural

Resources &

Environmental

Protection Cabinet

Heritage Land

Conservation —

legislative finding)

§ 146.565 (Banks-

Baldwin 1996)

(Acquisition of natural

areas & wetlands)

§ 224.60-137 (Banks-

Baldwin Supp. 1998 )

(Underground storage

facilities)

LA. CONST. Art. 7, §

10.2 (Supp. 2000)

(Wetlands

Conservation &

Restoration Fund)

LA. REV. STAT.

ANN::

§ 30.25 (West Supp.

2000) (Closure of

production pits in the

wetlands)

§ 30:907 (West Supp.

2000) (Surface Mining

& Reclamation Act)

§ 30:2073 (West 2000)

(Louisiana Water

Control Law —

Definitions)

§ 30:2074 (West 2000)

(Secretary of

environmental quality

— powers & duties)

Sla

KENTUCKY LOUISIANA

§ 34:3103 (West Supp.

2000) (Offshore

Terminal Authority —

jurisdiction)

§ 34:3473 (West Supp.

2000) (Millennium

Port Authority —

jurisdiction)

§ 38:18 (West 1989)

(Dept. of Public

Works — conference

with wildlife &

fisheries commission)

§§ 49:213.1 (West

Supp. 2000) -

49:213.22 (West Supp.

2000) (Wetlands

Conservation &

Restoration Authority

— creation,

management, funding,

etc.)

52a

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)

(Nutria control cost-

sharing)

§ 56:579.1 (West

Supp. 2000)

(Permitting of

mariculture in the

coastal zone)

53a

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

§ 150.3230 (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)

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)

55a

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) -

(Environmental 8-1210 (1990)

Protection Board — (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

Corridor)

56a

MAINE

MARYLAND

38 § 1901 (West 1989)

(Coastal Barrier

Resources System —

findings & declaration of

policy)

38 § 2001 (West Supp.

1999) (Coastal & lake

watershed districts —

districts authorized)

38 § 2007 (West Supp.

1999) (Coastal & lake

watershed districts —

powers)

57a

MAINE MARYLAND

12 § 7407 (West 1994) § 10-407 (Supp. 1999)

(Migratory waterfowl (Open season for

hunting) wetland game birds,

wild waterfowl, and

other migratory birds

regulated by federal

rule)

MIGRATORY

BIRD

STATUTES

ME. REV. STAT. ANN.

tit.:

12 § 753 (West 1994)

(State consent to the U.S.

to acquire national

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)

58a

59a

MASSACHUSETTS

WETLANDS

STATUTES

MASS. GEN. LAWS

ANN.:

ch. 12, § 1'D (West

1996) (Creation of

division of

enviro imental protection

in the Gop. of the

attorney general)

ch. 21 A, ¢ 2 (West 1994)

(Executive Office of

Envirenmental 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)

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 % (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)

60a

MASSACHUSETTS

ch. 164, § 69J '% (West

Supp. 2000) (Petitions to

construct generating

facilities — wetlands

impact)

ch. 214 § 7A (Damage to

environment — remedy &

procedure)

6la

MICHIGAN

MINNESOTA

MIGRATORY

BIRD

STATUTES

WETLAND

STATUTES

MICH. COMP. LAWS.

ANN:

§§ 324.30104 —

324.30323 (West 1999)

(Habitat Protection,

Inland Waters — Wetland

Protection)

§ 324.60904 (West

1999) (Land resource

inventory; format;

contents; wetland

protection)

2000 Minn. Sess. Law

Serv. Ch. 382 (West)

(Natural Resources —

Wetland Regulation)

1995 Minn Laws §

£4.0895 (Supp.

2000)(Department of

Natural Resources —

Protection of

threatened and

endangered species)

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)

62a

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)

63a

MICHIGAN MINNESOTA

MIGRATORY MICH. COMP. LAWS.

BIRD ANN:

STATUTES

§ 324.36501 (West

1999) (Endangered

Species Protection —

Definitions)

§ 324.43525 (West

1999) (Waterfowl

hunting license)

65a

MISSISSIPPI

MISSOURI

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)

§ 17-17-151 (1999)

(Hazardous Waste

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 nparian

nghts)

§ 49-15-9 (1999)

(Seafood — Riparian

Rights)

certification without

conditions of

application to impacts

on wetlands)

§ 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)

MONTANA

NEBRASKA

67a

WETLANDS

STATUTES

MONT. CODE ANN.:

§ 2-15-3405 (1999)

(Appointment of

NEB. REV. STAT-.:

§ 39-1320 (1998)

(State highways)

2000 Neb. Laws 957

NEVADA

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)

WETLANDS

STATUTES

NEV. REV. STAT.:

§ 244.388 (Supp. 1999)

(Establishment, use &

operation of wetlands

mitigation bank)

MIGRATORY

BIRD

STATUTES

NEV. REV. STAT-.:

§ 503.584 (1995)

(Conservation,

protection, &

propagation of selected

species — legislative

findings)

§ 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)

68a

NEW HAMPSHIRE NEW JERSEY

WETLANDS N.H. REV. STAT. 1987 N.J. LAWS

STATUTES ANN.: 2A:35A-3

(Environmental

§ 21-0:5-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 NJ. LAWS

4:27-13 (Aquaculture

§ 79-A:2 (1991) development — coastal

(Taxation — definitions)

§ 310-A:76 (1995)

(Certified wetland

scientist)

§§ 482-A:1 (Supp. 1999)

— 482-A: 27 (Supp.

1999)(Fill and Dredge in

Wetlands Act)

§ 483:10 (1992)(Rivers

Corridor Management

Plans)

wetlands)

1991 NJ. LAWS

13:1D-29

(Construction permits

- definitions)

2000 supp. N_J.

LAWS 13:1D-101

(Permit application

checklist; permit

defined)

~ ew

69a

NEW HAMPSHIRE NEW JERSEY

§ 483-A:7 (1992)(Lakes | 2000 supp. N.J.

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)

70a

NEW HAMPSHIRE

NEW JERSEY

Tla

1991 NJ.LAWS

13:1E-57 (Solid waste

management)

2000 supp. N.J.LAWS

13:8C-24 (Garden

State Preservation

Trust)

1991 NJ.LAWS

13:19-19 (Coastal

Protection —

Application of

Wetlands Act)

2000 supp. N.J.

LAWS 13:9C-1 —

13-9C:4 (Wetlands

Mitigation Council)

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)

NEW HAMPSHIRE

NEW JERSEY

2000 supp. N.J.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)

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.J.LAWS

23:3-lg (Fee for

hunting migratory

birds)

72a

NEW HAMPSHIRE

NEW JERSEY

§ 209:8-a( 1989)(Game

Birds —Exceptions)

§ 214:1-d (Supp.

1999) Licenses)

§ 214:9 (Supp.

1999)( Licenses — fees)

1997 N.J.LAWS 23:3-

75 — 23:3-81 (New

Jersey Waterfowl

Stamp Act)

1997 N.J.LAWS 23:4-

1 (Open and close

seasons)

1997 N.J.LAWS 23:4-

3 (Bag limit for

migratory birds)

1997 N..LAWS 23:4-

18 (Hunting migratory

waterfowl)

73a

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

i997) (County and

regional

environmental

management councils)

§ 49-0205 (McKinney

1997) (State Land

Acquisition}

74a

NEW MEXICO

NEW YORK

75a

§ 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)

NEW MEXICO

NEW YORK

§ 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)

76a

NEW MEXICO

NEW YORK

§ 70-2307 (McKinney

1997) (Environmental

Conservation Law —

Abatement of

pollution)

§ 71-2507 (McKinney

1997) (Pollution of

Tidal Wetlands)

MIGRATORY 1978 N.M. LAWS § 17- | NY ENVIR.

BIRD 1-14 (General powers CONSERV.

STATUTES and duties of state game

commission)

§ 11-0307 (McKinney

1997) (Migratory

game birds —

regulation)

77a

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

§ L13A-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)

78a

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

wild animals and wild

birds)

79a

OHIO OKLAHOMA

WETLANDS OHIO REV.CODE OKLA. STAT.:

STATUTES ANN.:

2 § 9-205.3 (Supp.

§ 1533.101 (Supp. 1999) | 2000) (Oklahoia

(Reissued licenses and Concentrated Animai

permit fees) Feeding Operations

Act)

§1553.112 (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)

(Sunday hunting

prohibited)

, § 1533.101 (Supp. 1991)

(Reissued licenses and

permit fees)

(Protected Game —

Migratory Birds)

80a

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 mparian

restoration or storm

water management)

8la

OREGON PENNSYLVANIA

MIGRATORY 1997 PA CODE §

BIRD 2103 (Game or

STATUTES wildlife protection)

82a

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

wetlands)

83a

RHODE ISLAND SOUTH CAROLINA

MIGRATORY R.I. 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

and wildlife — licensing —

Waterfowl stamp

required)

§ 50-9-510 (Supp.

1999) (licenses

authorized for sale)

§ 50-9-530 (Supp.

1999) (Migratory —

waterfowl stamps;

fees)

§ 50-11-20 (Supp.

1999) (Definitions;

migratory waterfowl

committee )

- 84a

85a

TEXAS

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

and forestry — definitions

and general provisions )

§ 41-3-6 (Michie

1991)( Assent to federal

acquisition of property

for migratory bird

conservation)

(Federal wildlife

refuges in the state) -

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)

86a

TEXAS

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 1991)

(Reciprocal License

Agreements: Border

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)

87a

VERMONT VIRGINIA

WETLANDS VT STATE ANN. tit. 10 | VA COPS ANN.::

STATUTES

§ 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)

§§ 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)

88a

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

e 1997) (Exemption

from application of

article)

89a

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)

90a

WASHINGTON

WEST VIRGINIA

9la

§ 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)

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)

92a

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)

93a

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 (

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