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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0351%3A33

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 159

## Text

——— — eupreme Court, U.S.
FILED

6) wl 2 f 2000 |
No. 99-1178 | CLERK

IN THE —
Supreme Court of the Gnited States

—

“
VU

Pe R
o. < SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,
Ss

Petitioner,
= Q v.
E> 8
Lind 2

c
es Ry Respondents.
CS

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
cee 3,6
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

2

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

PE

=

3

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

4

particular effort by the homeowner, and potentially to violate
a criminal law the next time grass clippings or leaves are
inadvertently dumped there. An attempt to delegate such
sweeping authority must be clearly stated. It was not, and the
rule accordingly exceeds the Corps’ authority.

2. In the event Congress did in fact 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.

5

ARGUMENT

At the outset, it may be useful to clarify the parameters of
dispute. Neither Alabama as amicus curiae nor petitioner
argues that the Constitution’s limited and enumerated powers
disable Congress from regulating wetlands in general or
migratory birds in particular. On the contrary, the National
Legislature has broad powers at its disposal to do so; they
simply were not permissibly invoked in this instance. Congress
may, for example, use its carrot-and-stick Spending Clause
powers to regulate migratory birds and wetlands. See North
Dakota v. United States, 460 U.S. 300, 309 (1983) (“The
protection of migratory birds has long been recognized as ‘a
national interest of very nearly the first magnitude.’”) (quoting
Missouri v. Holland, 252 U.S. 416, 435 (1920)). It may use
its uniquely wide-ranging Treaty Clause powers, which have in
fact been properly invoked to regulate migratory birds. See
Missouri v. Holland, 252 U.S. at 430-31, 435. And, most
customarily, it may use its broad Commerce Clause powers to
regulate waters that in fact flow interstate or are reasonably
connected to such waters, or likewise may do so with regard
to commercial transactions involving animals. See Andrus v.
Allard, 444 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.

6

I. The Clean Water Act Does Not Give The Corps
Authority To Regulate Isolated, Intrastate waters
Merely Because They Provide A Potential Or Actual
Habitat For Migratory Birds.

A careful review of the terms of the Clean Water Act
together with its legislative record confirm what a brief glance
at the two suggest: Congress did not engage in the debate that
the Court is officiating now. At no point did the National
Legislature offer any meaningful indication that the Act would
delegate such free-ranging authority to the Corps, and at no
point did Congress consider the constitutional implications of

permitting an agency to 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

7

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

°
v

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

9

than that, Chevron cannot tenably be applied in this sensitive
area of Federal-State authority. It is one thing to assume that
the States protect their interests in the Halls of Congress when
this 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

10

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.

1]

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

12

“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

13

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

14

jurisdictional element. And it contains not a single
congressional factfinding that would reasonably support this
assertion of authority. In these respects, the rule is more far-
reaching than the laws invalidated in Lopez and Morrison. It
deserves a similar fate.

Nor, we respectfully submit, would a decision to invalidate
the migratory bird rule dishonor the inter-branch imperative
that the Court accord a respectful presumption of
constitutionality to the actions of the political branches—here
to the views of Congress and the Army Corps of Engineers.
That presumption of constitutionality, it bears emphasis, runs
in two directions on occasions like this one. In controversies
over the constitutional lines of authority between one
politically-accountable branch and another, the Court
customarily engages in zero-sum decisionmaking. One side’s
loss invariably becomes the other’s gain. Take, for example, a
horizontal separation-of-powers dispute between Congress and
the President. Both deserve deference in obeying their oaths
to follow the Constitution, and neither has a greater claim to
the benefit of constitutional doubt than the other. The same is
true of vertical separation-of-powers disputes. When the
national government and local governments square off over the
reach of their respective powers, Congress’s aggrandizement
of power customarily leads to a diminution of local power.
And the opposite, of course, is true. One simply cannot give
Congress the presumption of interpreting the Constitution
correctly without slighting the States’ capacity to do the same.
It is, in short, no more aggressive to deny Congress’s assertion
of authority than it is an act of judicial restraint to respect a
State’s traditional constitutional prerogative in that same area.

15

CONCLUSION

For the foregoing reasons, the decision of the court of
appeals should be reversed.

Respectfully submitted,

BILL PRYOR JEFFREY S. SUTTON
Attorney General of (Counsel of Record)

Alabama JONES, DAY, REAVIS & POGUE
ALICE ANN BYRNE 1900 Huntington Center
Assistant Attorney General 41 South High Street
State House Columbus, Ohio 43215
11 South Union Street (614) 469-3855

Montgomery, AL 36130
(334) 242-7300

July 27, 2000

APPENDIX

la

ALABAMA ALASKA

WETLANDS Code of Alabama: ALASKA STAT.:
STATUTES

§ 9-7-10 (1977) § 41.21.522 (Michie

(Definitions) 1998) (Acquisitions)

§ 9-9-5 (1977) § 16.20.034 (Michie

(Establishment of 1998) (Wetlands game

district) refuge)

§ 41-10-235 (1991) § 41.17.950 (Michie

(Commemorative Supp. 1999)

markers and plaques) (Definitions)

Constitutional § 41.21.518 (Michie

Amendments: 1998) (Establishment

Ala. Const. Amend. No.

543 (1993)

of wetlands
management area)

§ 41.21.520 ( Michie
1998) (Incompatible
uses)

2a
ALABAMA ALASKA

MIGRATORY Code of Alabama: ALASKA STAT.:
BIRD
STATUTES § 9-11-244 (1997) § 16.20.039 (Michie

(Taking of protected 1998) (Migratory

birds) waterfowl refuge)

§ 9-11-430 (1997)

(Preservation of

wetlands and migratory

waterfowl — definitions)

§ 9-11-431 (1997)
(Construction of article)

§ 9-11-432 (Supp. 1999)
(Stamp requirement for
hunting migratory fowl)

§ 9-11-433 ( Supp. 1999)
(Issuance of stamp)

§ 9-11-434 (1997)
(Revenue used in
preservation of wetlands
for migratory fowl)

§ 9-11-435 (1997)
(Requirements for
approving projects
outside U.S.)

ee ee oe ee oe

oS maa

moa EF le OE ARE PE BE

gt ee

at Ee

hese

3a

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)

4a

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

Sa
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)

6a

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

7a

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)

8a

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

ee

§ 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

—

a

§ 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

ee

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

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)

a
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 (

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0351%3A33. Public record. Not legal advice.