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

No. 9914178

i

In The SEP 2 0 2000 |

4 R. fway

SOLID WASTE AGENCY OF NORTHERN7-——~- ~-—~

COOK COUNTY.

Supreme Court of the United States |

+ (CLERK

Petitioner,

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Respondents.

+

On Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

+

BRIEF OF THE STATES OF CALIFORNIA, IOWA,

MAINE, NEW JERSEY, OKLAHOMA, OREGON,

VERMONT, AND WASHINGTON AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

+

Bit Lockyer THomas J. MILLER

Attorney General of the Attorney General of the

State of California State of lowa

RicHARD M. FRANK

Chief Assistant Attorney

General

J. MatrHew Ropriquez

Senior Assistant Attorney JouHN J. Farmer, Jr.

General Attorney General of the

Dennis M. EAGAN State of New Jersey

Supervising Deputy

Attorney General

JosePH BARBIERI

Deputy Attorney General

ANDREW KETTERER

Attorney General of the

State of Maine

W. A. Drew EDMONDSON

Attorney General of the

State of Oklahoma

Counsel of Record Harpy Myers

1515 Clay Street, Attorney General of the

Suite 2000 State of Oregon

Oakland, California

94612-1413

Telephone: (510) 622-2139

(Additional counsel listed on inside cover)

BEST AVAILABLE COPY

WittiaM H. Sorrece

Attorney General of the State of Vermont

CuristineE O. GREGOIRE

Attorney General of the State of Washington

Attorneys for Amici Curiae

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE ................... 1

SUMMARY OF ARGUMENT....................... 3

ET s06n0ceudecdueeseccedaetesaccetdasess 4

I. THE PLACEMENT OF DREDGED OR FILL

MATERIAL IN THE WATERS OF THE UNITED

STATES IS A CLASS OF ECONOMIC ACTIVITY

THAT SUBSTANTIALLY AFFECTS INTERSTATE

EE ceendewecseccecsvencnssacddsondsce

A. Lopez and Morrison Require Close Scrutiny of

the Regulation of Noneconomic Activity .....

The Relevant Class of Activity Is the Place-

ment of Dredged or Fill Material in Naviga-

Bee SE desehodenscsesesdecdsconeessesss

The Placement of Dredged or Fill Material Is

am Boomemtic Activity......cccccccccccccess

The Placement of Dredged or Fill Material in

Wetlands Substantially Affects Interstate

BE eddeedusdeuscnesesdsdsécotessese

1. Where Economic Activity Is Involved,

Legislation Should Be Sustained Unless

There Is No Rational Basis for Congress

to Conclude That the Economic Activity

in the Aggregate Substantially Affects

Interstate Commerce...................

2. There Was a Rational Basis for Congress

to Conclude That the Placement of

Dredged or Fill Material in Wetlands

Substantially Affects Interstate Com-

ED ccccseccnccncsscceccecesccacecde:

11

12

il

TABLE OF CONTENTS - Continued

Page

Il. SECTION 404’S PERMIT REQUIREMENT IS

NOT LAND USE CONTROL, BUT ENVIRON-

MENTAL REGULATION THAT PROTECTS THE

STATES FROM THE INTERSTATE IMPACTS OF

WETLAND DEGRADATION ..............-++--

A. Section 404 Protects the Individual States

From the Consequences of Fill in Other

States, and Complements the States’ Own

PROGTAGNS ... 2. ccc cccccccccccccccesccess

B. Section 404’s Permit Requirement Is Environ-

mental Regulation, Not a Form of Land Use

and Zoning Traditionally Reserved to the

BRURED cc occcccecccsccccesccsccccseeessucces

ese)! 6+ | PPPPPPPPTPTTTTITITT TTT TT

21

21

et mene en

—— ee

iii

TABLE OF AUTHORITIES

Page

Cases

Allied Local and National Regional Manufacturers

Caucus v. United States Environmental Protection

Agency, 215 F.3d 61 (D.C.Cir. 2000)................ 20

Andrus v. Allard, 444 U.S. 51 (1979) ................. 27

C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S.

BP Gee co cnccaccncccosccecoucateoscceseeses 18, 19

California Coastal Commission v. Granite Rock Co.,

Ge Wd BOE GPa cccccnccncccccscescosencceesce 28

Camps Newfound/Owatonna, Inc. v. Town of Har-

Sem, SES WH. SES CHGTT) « cc ccccccccccccccccess 18, 19

Chemical Waste Management v. Hunt, 504 U.S. 334

GRP poccccccccccsessotessacecnsoessesceseseceses 10

Cooley v. United States, 46 Fed. Cl. 538 (2000)........ 10

Fort Gratiot Sanitary Landfill, Inc. v. Michigan

Department of Natural Resources, 504 U.S. 353

SUPE v ccccccccccecccescescccccescecsesscccoces 18, 19

Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir.

Pees cccecgccnescecscncessccconesscencsonsectces 9

Garcia v. San Antonio Metropolitan Transit Author-

Se Ge Se GE Cc ccccvcceencsssscccesscseses 8

Gibbs v. Babbitt, 214 F.3d 483 (2000) ................. 20

Hartsell v. United States, 127 F.3d 343 (1997), cert.

denied, 523 U.S. 1030 (1998)............ceceee eens 20

Heart of Atlanta Motel, Inc. v. United States, 379 U.S.

Be Cv oeecccccsccccececoveccessevcessccussees 24

Hill v. Boy, 144 F.3d 1446 (11th Cir. 1998)............ 9

iv

TABLE OF AUTHORITIES - Continued

Hodel v. Virginia Surface Mining & Reclamation

Association, 452 U.S. 264 (1981) ........ 14, 19,

Hoffman Homes, Inc. v. Environmental Protection

Agency, 999 F.2d 256 (7th Cir. 1993)...........

Hughes v. Oklahoma, 441 U.S. 322 (1996).........

Maryland v. Wirtz, 392 U.S. 183 (1968)...........

Michigan Peat v. United States Environmental Protec-

tion Agency, 175 F.3d 422 (6th Cir. 1999) ......

Minnesota v. Mille Lacs Band of Chippewa Indians,

BD We BPSe CNN ccc cccccescccocccescesccess

Monongahela Power Company v. Marsh, 809 F.2d 41

SE EEPD cc cccccecccccevecsecvccessessss

National Association of Homebuilders v. Babbitt, 130

F.3d 1041 (D.C.Cir. 1997), cert. denied, 524 U.S.

GE GO cv ccccccccccccccccccssenvecececeseces

National League of Cities v. Usery, 426 U.S. 833

SE chinceecendedeseséncnceusssseeneeadesses

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

Perez v. United States, 402 U.S. 146 (1942) .......

Philadelphia v. New Jersey, 437 U.S. 617 (1978)....

Printz v. United States, 521 U.S. 898 (1997).......

Proyect v. United States, 101 F.3d 11 (2d Cir. 1996)

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 191 F.3d

Be? eee GN. Gee vccccccnccccccccccesesseses

Tabb Lakes, Ltd. v. United States, 10 F.3d 796 (Fed.

ld DEED ducdenesacbacdatndedeavendusaeuaedss

Page

24, 28

> SO Se me me om mea

2 _—— oe wee. -

Vv

TABLE OF AUTHORITIES - Continued

Page

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 216 F.3d 764 (9th Cir.

DP M-etsedsuneieunenensendadbedbnokaadanaiandaccds 22

United States v. Brace, 41 F.3d 117 (3d Cir. 1994)...... y

United States v. Deaton, 209 F.3d 331 (4th Cir. 2000) ..... 4

United States v. Bramble, 103 F.3d 1475 (9th Cir.

SUE 0508505 66000006eeneeseeccuesdenseooesesndens 20

United States v. Darby, 312 U.S. 100 (1941)........... 24

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

United States v. Morrison, __ U.S. __, 120 S.Ct.

Sp Sn bbegsedecdccnidenensseneuseeensads passim

United States v. Olin Corp., 107 F.3d 1506 (11th Cir.

Seen hecsncdndccccnncasccesesssescocesescucesed 8, 20

United States v. Riverside Bayview Homes, Inc., 474

eh GE GEE So vesvesvecccesesecsesess 9, 14, 16, 20

United States v. Pozsgai, 999 F.2d 719 (3d Cir. 1993),

cert. denied, 510 U.S. 1110 (1994)................... y

United States v. Wilson, 133 F.3d 251 (4th Cir. 1997) ..... 9

Wickard v. Filburn, 317 U.S. 111 (1942)............... 11

CONSTITUTION

United States Constitution Commerce Clause.... passim

FepeRAL Statutes & REGULATIONS

15 U.S.C.

EPRI PT OTT CERES TEA. 19

vi

TABLE OF AUTHORITIES - Continued

Page

16 U.S.C

Un Dt oe de 27

eet 20 r aaeaeaneneel 27

ce TERETE SSDS Remo peer eaIE Ten Eno ET 24

DE ASPIRE Rens en EE ED ei E ene ep EE ey 19

SS NER ERE LO NEPAL LEME PEE 19

IIR noes ee ce eneeueuaineieanneel 19

© IRENE Rae Stee ene enna eR He 19

ESTEE LED LE SCE PEN OE AE OPE 24

30 U.S.C

SERRE RM PRE IANS BED ee E OPT 19

SE ERS M ene Nimml eke mee a 19

33 U.S.C.

NAAR SIS OPAPP oN EEE EEN Baer 6, 28

cS beer ae a 6

SERRE ELSE HOSEA SLED DL OS ee 26

42 U.S.C

EILEEN LN PN OL 19

ot a 19

ee a ee ee 24

ne ae as eae aneelin’ 19

Apalachicola-Chattahoochee-Flint River Basin Com-

pact, Pub. L. No. 105-104, 111 Stat. 2219 (1997) .... 22

vii

TABLE OF AUTHORITIES - Continued

Page

33 C.F.R

7 i terndséuneeedkebedsescesusesedesunsesees 10

PPS od¢ccbsianspicdededdeesdushddanccsoseedec 26

42 Fed. Reg. 26,961 (May 24, 1977)...............0.. 24

65 Fed. Reg. 12,818 (Mar. 8, 2000)................... 11

State Statutes & REGULATIONS

California Fish & Game Code

I RSERUAGURSASE Ree Diet Etendadscecéeuocenceens 7

California Public Resources Code

PE oANbENNE Ket dneSsNSeeNenbeesesseceenceceese 7

California Code of Regulations, Title 14

PS cbcheessswouededeneusetesecéekbeessucenense 25

Connecticut Gen. Stat.

ED 66.604 w60000650b6500eenedsesdeneseeeenss 7

20 Illinvis C.S.A.

§ 830/ PUSS SSndseeecncnssecensoccensccecsecsdceeessci 7

District of Columbia Code

TT Hedeebneens dence oe0nueussesbescisneceectes 7

Kentucky Rev. Stat.

SEL OREO LEE E LOPE ODD 7

Massachusetts Ann. Laws, ch. 131

VSS Sp ecesesdeceneonseéeresesdocceecncsooeecesss 7

Vili

TABLE OF AUTHORITIES - Continued

Page

Maryland Env. Code

G S-OOU(A). 0... cee c cece e eee n cence eeececeeceeccceeeeee 7

New Hampshire Rev. Stat.

SS ee eee ee 7

Nebraska Rev. Stat.

© QOD.SOB onc cccccccccccccccccsccscccvcscccsccecees 7

Oregon Rev. Stat.

§ 196.800(16) ...... 2... cece cece cece eee e eee e ee eee ences 7

Texas Nat. Res. Code

G Z2V.OOUG) ... 2... ccc rrccvcccvccccccecesscccccceccess 7

Virginia Code Ann.

GB GD.1-O6.S... ccc ncccccccccccccccesccccecccccccceees 7

Wisconsin Stat.

GB WGA)... cc ccccccccccccccccccvccccccscescoscces 7

Delaware Code Ann., Tit. 7

GE GGO1-G620.. ... ccc cc cccccccccccccecccceseces 23

Georgia Code Ann.

GB UDBDBD ow ccc ccccccccccccccccccccccsesscceseces 23

Michigan Comp. Ann.

GG. 281.683-685 .. 0... cece c cece cece e eee eeeees 23

GE QBL.FOUK-T22 ... cc cccccccccccvcccessccscccscees 23

KY 7) i 2. 23

ix

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

Cal. Travel and Tourism Comm’n, Fast Facts 2000

PP AD RGNSAdRE cere hecdundnkéacdsccesdesecscenscss 18

California Wetlands Information Systems, <http:/ /

ceres.ca.gov /wetlands/geoinfo/vernal_pools>..... 25

Chicago Tribune, Aug. 13, 2000..................... 18

Demissie, et al., Influence of Wetlands on Streamflow

in Illinois, Ill. State Water Survey .................. 15

Gibbs, Importance of Small Wetlands for the Persis-

tence of Local Populations of Wetland-Associated

Animals, Wetlands, Vol. 13, No. 1, Mar. 1993....... 17

Houck & Rolland, Environmental Federalism in Wet-

lands Regulation, 54 Md.L.Rev. 1242 (1995)...... 15, 17

Ill. Dept. of Natural Resources, Nationwide Survey

of State Wetland Regulatory Programs (Oct. 1997) .... 23

Kettering, Praise for General Permits, National Wet-

lands Newsletter, Vol. 16, No. 4, July/Aug. 1994 .... 26

Kusler, et al., State Wetland Regulation: Status of Pro-

grams and Emerging Trends, Prepared for the Asso-

ciation of State Wetland Managers (1995)......... 25, 26

Kusler, et al., Wetlands, Scientific American (Jan.

McClurg, The Klamath River Basin: A Microcosm of

Water in the West, Western Water Magazine,

ND SEs heres thndndecesssconncoccssaceeens 22

es Dy DP SED SEP nccdsccsccsececseccessccees 16

Office of Technology Assessment, U.S. Congress,

Wetlands: Their Use and Regulation (1984) ...15, 16, 17

TABLE OF AUTHORITIES - Continued

San Francisco Bay Conservation and Dev.

Comm'n, 1999 Annual Report..................

Southwick Associates, The Economic Benefits of

Watchable Wildlife Recreation During 1996 in Ill-

WEED GRISED on cecescccscvesccccestannenesseceses

Stewart, Technical Aspects of Wetlands as Bird Habi-

tat, U.S.G.S. Water Supply Paper 2425 .........

The Economic Value of Wetlands, Wetlands’ Role in

Flood Protection in Western Washington, Wash.

Dept. of Ecology, Oct. 1997................055

Costanza, et al., The Value of the World's Ecosystem

Services and National Capital, Nature, Vol. 387,

PB MTT

U.S. Fish and Wildlife Service, 1994 Update to the

North American Waterfowl Management Plan.....

U.S. Fish and Wildlife Service, 1996 National Sur-

vey of Fishing, Hunting, and Wildlife Associated

I (@ . -. eb cee eens Ceesnghesdeenekaneeueeee

U.S. Fish and Wildlife Service, The Economic Impor-

Romer of Timbiag (IGT. . 2. cccccccccccccvees 17,

Zinn and Copeland, Wetland Issues, Congressional

Research Service Issue Brief, May 1, 2000......

——

1

INTERESTS OF AMICI CURIAE

Scientific and technological progress has brought

with it an increased awareness that the cumulative effects

of many isolated human activities have serious conse-

quences for the environment. Not that long ago, it would

have been considered implausible to suggest that

spraying an aerosol can damaged the earth’s atmosphere,

that eating a hamburger contributed to the loss of rain

forest, or that filling a small “depression” of water

harmed wildlife. Despite this growing awareness, our

knowledge of how human intervention in the environ-

ment affects the nation remains imperfect. Translated into

constitutional terms, it means that, in a world with few

certain answers, courts should be extremely reluctant to

find that Congress is powerless to determine that a par-

ticular environmental harm affects the national economy

and requires a national solution. Unless the legislative

judgment is truly irrational, it should be left to the politi-

cal process to decide whether Congress has gone too far.

In this case, Congress made a rational judgment,

supported by a wealth of compelling evidence, that a

national response to prevent the degradation of the

nation’s remaining wetlands was necessary. The individ-

ual States benefit from this national approach. The harm-

ful effects of wetland destruction - such as impaired

water quality, increased flooding, reduced ground water

supply, and the destruction of wildlife habitat - do not

respect interstate boundary lines. Wisely employed, fed-

eral regulation insures a measure of protection for the

nation’s wetlands and helps reduce the cumulative

impacts that the placement of fill in one State may have

on the environment and economy in other States. Federal

regulation supplements the efforts of those States that

2

have wetland regulations, and fills the regulatory vac-

uum in others that have chosen not to adopt their own

wetland programs.

The protection of migratory birds provides a perfect

subject for federal regulation. No matter how comprehen-

sively one State were to regulate wetlands, its regulation

would never be able to adequately protect migratory

birds whose survival necessarily depends on regulation

that insures the supply of wetland habitat in many States.

Migratory birds, like wetlands themselves, are a type of

interstate resource whose loss would have substantial

repercussions on the economies of the States. Although

the individual States can take action to protect these

resources within their borders, only the federal govern-

ment can insure that the States’ interests in these inter-

state resources are fully protected by a national

regulatory scheme.

From time to time Congress has improperly imposed

its will on the States, and this Court has stepped in when

necessary to remind Congress of the appropriate bound-

aries of federalism. E.g., Printz v. United States, 521 U.S.

898 (1997). But this is not one of those cases. Congress

made a policy judgment to address the impacts that the

filling of millions of acres of wetlands would have on the

nation’s health and economy. This was a conventional

exercise of federal environmental regulation, not land use

planning traditionally reserved to the States. There may

be times when wetland regulation under section 404 will

duplicate or conflict with the approach taken by an indi-

vidual State. Any such policy disputes should be worked

out within the political system, however, and not be

converted into a constitutionally-mandated prohibition

on Congress’ ability to respond to a national environmen-

tal crisis.

— --

a

-—— ~~ +e

3

SUMMARY OF ARGUMENT

1. An analysis of the validity of legislation under

the Commerce Clause begins with a definition of the class

of activity being regulated. In this case, Congress defined

the relevant class of activity as the discharge of dredged

or fill material into “navigable waters” as defined in the

Act. The petitioner incorrectly assumes that the relevant

class of activity is limited to wetlands subject to the

“migratory bird rule.” This approach improperly narrows

Congress’ classification because the Act does not distin-

guish among subcategories of wetlands and rationally

treats the discharge of dredged or fill material as a single

subject of national concern.

2. The decisions in United States v. Lopez, 514 U.S.

549 (1995) and United States v. Morrison, __ U.S. __, 120

S.Ct. 1740 (2000) set limits on Congress’ authority to

regulate noneconomic activity under the Commerce

Clause. But the placement of fill - an activity typically

associated with commercial development or public works

projects — is economic activity. Because the class of activ-

ity being regulated is economic, it is permissible to aggre-

gate the impacts of the activity to determine whether the

regulated activity has an impact on interstate commerce,

even if the particular activity itself is intrastate and even

if, in trivial instances, it has no discernible impact on

interstate commerce. The deposition of dredged or fill

material in wetlands, with its resulting adverse impacts

on water quality, flood control, erosion control and wild-

life, has substantial effects on interstate commerce. Even

if the Court were to consider only the impacts of the

“migratory bird rule,” there is a rational basis for con-

cluding the destruction of migratory bird habitat would

have a substantial impact on interstate commerce.

4

3. Because the filling of wetlands has significant

interstate impacts, federal wetlands regulation is both

appropriate and necessary. In addition to protecting the

citizens of one State from the consequences of wetlands

fill that occurs in another State, federal wetlands regula-

tion supplements existing State regulation and provides

the States with additional resources and expertise. Fed-

eral, State and local governments are working together to

improve the regulatory process, and are capable of

resolving any policy conflicts through the political proc-

ess.

4. Federal regulation of the filling of wetlands does

not intrude into an area of traditional State concern. The

federal government long has legislated in the field of

pollution control and resource protection. This environ-

mental regulation embodied in the Clean Water Act does

not dictate land uses and is fundamentally different than

the planning and zoning functions traditionally reserved

to the States.

ARGUMENT

I. THE PLACEMENT OF DREDGED OR FILL MATE-

RIAL IN THE WATERS OF THE UNITED STATES

IS A CLASS OF ECONOMIC ACTIVITY THAT

SUBSTANTIALLY AFFECTS INTERSTATE COM-

MERCE

A. Lopez and Morrison Require Close Scrutiny of

the Regulation of Noneconomic Activity

The Court’s recent decisions in Lopez and Morrison

were significant for at least two reasons. The decisions

imposed substantive outer limits on the reach of Con-

gress’ authority under the Commerce Clause, and they

emphasized that while judicial scrutiny of legislation

under the Commerce Clause remains highly deferential,

5

the courts have an obligation to review Congress’ obser-

vance of the clause’s limitations. Although the Court

found the federal statutes in Lopez and Morrison deficient

for a number of reasons, the critical analytical distinction

was that the statutes regulated what the Court found to

be essentially “noneconomic” activity. Lopez, 514 U.S. at

560-561; Morrison, __ U.S. __, 120 S.Ct. at 1750 (“the

noneconomic, criminal nature of the conduct at issue was

central to our decision in [Lopez}”). Where noneconomic

activity is involved, it is necessary to show that the

activity itself has a direct impact on interstate commerce.

Lopez, 514 U.S. at 559-61; Morrison, __ U.S. __, 120 S.Ct.

at 1751. Where statutes regulate economic activity, Con-

gress may regulate the activity if, in the aggregate, the

activity has a substantial effect on interstate commerce,

even if the particular activity in question involves solely

intrastate activity and even if its impacts would be

deemed trivial. Id.

The federal legislation at issue in Lopez and Morrison

understandably prompted the concern of the Court. Both

statutes regulated what was essentially noneconomic

activity (the possession of handguns and gender-related

violence) and both arguably required the piling of infer-

ences to explain why these activities affected the com-

merce of the country. The Court found that these statutes

exceeded the outer limits of the Commerce Clause

because neither directly touched economic activity and

both relied on an analytical path that would have swept

every topic of legislation within congressional reach.

B. The Relevant Class of Activity Is the Placement

of Dredged or Fill Material in Navigable Waters

Despite the restrictions announced in Lopez and Mor-

rison, the regulation at issue in this case fits comfortably

6

within the permissible scope of the Commerce Clause

power. Any analysis regarding the scope of congressional

authority under the Commerce Clause begins with an

identification of the class of activity being regulated. The

activity being regulated here is neither navigable waters

nor the movement of migratory birds. The class of activ-

ity being regulated is that for which a permit is required:

the “discharge of dredged or fill material” into navigable

waters as defined by the Act. 33 U.S.C. § 1344(a).

The petitioner assumes that the relevant class of

activity is the filling of wetlands that are used by migra-

tory birds because the wetlands on its property happened

to fall into this particular subcategory of section 404

permit jurisdiction. If the petitioner's approach to classi-

fication were accepted, the filling of every subcategory of

wetlands - prairie potholes, vernal pools and the like -

would be subject to a separate Commerce Clause anal-

ysis, and the federal government would be required to

justify separately why each particular subcategory of

wetlands bore the requisite impact on interstate com-

merce. Section 404, however, does not discriminate

among categories of wetlands; it applies to the placement

of dredged or fill material in any waters within the scope

of the Act.!

There is a rational basis supporting this broader clas-

sification. The purposes of the Clean Water Act, 33 U.S.C.

! Under the petitioner's approach, a separate Commerce

Clause challenge could be launched for each of the more than

1,000 listed endangered species. Aside from the enormous

burden this approach creates for the courts, these efforts to

segment Congress’ broader scheme into subclasses understate

the impacts of the activity being regulated and conflict with the

principle that economic activities must be reviewed for their

aggregated effects on interstate commerce.

7

§ 1251, apply to all wetlands because all wetlands, includ-

ing isolated wetlands, perform the same beneficial func-

tions such as water quality protection, flood control,

erosion control and the preservation of wildlife habitat.

See pp. 15-19, 21-22 infra. This approach also conforms to

that taken in most wetland legislation, which treats wet-

lands as a single resource to be protected and does not

distinguish between isolated and nonisolated wetlands.

See, e.g., Cal. Pub. Resources Code § 30121 (broadly defin-

ing wetlands without distinguishing between isolated

and nonisolated wetlands); Cal. Fish & Game Code

§ 2785(g); Conn. Gen. Stat. § 22a-29(2); D.C. Code

§ 6-921(27); 20 Ill.C.S.A. § 830/1-6; Ken. Rev. Stat.

§ 146.550(1); Mass. Ann. Laws ch. 131, § 40; Nebr. Rev.

Stat. § 244.388; N.H. Rev. Stat. § 482-A:2; Ore. Rev. Stat.

§ 196.800(16); Tex. Nat. Res. Code § 221.001(6); Va. Code

Ann. § 62.1-44.3; Wis. Stat. § 23.32(1); but cf. Md. Env.

Code § 5-901(f) (defining “isolated nontidal wetland”).

That the Corps chose to subcategorize various types of

wetlands for administrative purposes does not alter this

conclusion. The migratory bird rule is just one essential

part of a “larger regulation” to protect the nation’s waters

from the environmental and economic impacts of fill, see

Lopez, 514 U.S. at 561, and its impacts should not be

singled out and scrutinized in isolation from the impacts

of the other activities subject to section 404’s permit

requirement.

This broader approach to classification honors the

language of section 404. It also is consistent with the

Court’s approach under the Commerce Clause, which has

analyzed the generic activity that is the subject of the

regulation and not some narrowly-defined activity that is

a subset of the congressional scheme. See Maryland v.

Wirtz, 392 U.S. 183, 197 n. 7 (1968), overruled on other

8

grounds, National League of Cities v. Usery, 426 U.S. 833

(1976), overruled by Garcia v. San Antonio Metropolitan

Transit Authority, 469 U.S. 528 (1985) (recognizing the

power of Congress “to declare that an entire class of

activities affects commerce”); Perez v. United States, 402

U.S. 146, 152-54 (1942) (emphasizing need to analyze the

impacts of a “class of activities”). This approach has been

followed by the lower courts, which have refused to

define the class of activity “so narrowly as to cover only

those activities that do not have a substantial impact on

interstate commerce.” Proyect v. United States, 101 F.3d 11,

14 (2d Cir. 1996); see United States v. Olin Corp., 107 F.3d

1506, 1509 (11th Cir. 1997) (court’s approach in defining

class cannot be excessively narrow). Thus, the placement

of dredged or fill material in navigable waters (however

that term is ultimately construed by the Court) is the

appropriate class of activity to be analyzed.?

C. The Placement of Dredged or Fill Material Is an

Economic Activity

The next question is whether this class of activity

constitutes “economic activity” for the purposes of the

Court’s Lopez/Morrison analysis. The placement of

dredged or fill material in wetlands is economic activity.

In virtually every reported decision involving a section

404 permit, the placement of fill is an integral part of a

commercial activity, such as the construction of a residen-

tial subdivision, an industrial building, or a public works

2 Even if the relevant class of activity were more narrowly

defined as the placement of dredged or fill material into isolated

wetlands used by migratory birds, the activity still would

constitute economic activity and, albeit on a smaller scale, still

would substantially affect interstate commerce. See pp. 16-18

infra.

9

project similar to the solid waste facility proposed by the

petitioner here. See United States v. Riverside Bayview

Homes, Inc., 474 U.S. 21 (1985) (placement of fill on 80

acres of wetlands for construction of residential housing

development); United States v. Deaton, 209 F.3d 331 (4th

Cir. 2000) (discharge of fill into 5-acre wetlands site for

construction of residential housing development); Solid

Waste Agency of Northern Cook County v. United States

Army Corps of Engineers, 191 F.3d 845 (7th Cir. 1999)

(proposing to fill 17.6 acres of wetlands for disposal of

balefill); Michigan Peat v. United States Environmental Pro-

tection Agency, 175 F.3d 422 (6th Cir. 1999) (proposing

discharge into more than 2,000 acres of wetlands for peat

mining operations); Hill v. Boy, 144 F.3d 1446 (11th Cir.

1998) (discharge of dredge and fill material into 33 acres

of wetlands as part of construction of earthen dam and

650-acre reservoir); United States v. Wilson, 133 F.3d 251

(4th Cir. 1997) (filling of wetlands as part of planned unit

development project serving 80,000 residents); United

States v. Brace, 41 F.3d 117 (3d Cir. 1994), cert. denied, 515

U.S. 1158 (1995) (discharge of material into 30-acre site

for commercial farming operation); Hoffman Homes, Inc. v.

Environmental Protection Agency, 999 F.2d 256 (7th Cir.

1993) (filling of 14 acres of wetlands as part as residential

subdivision); United States v. Pozsgai, 999 F.2d 719 (3d Cir.

1993), cert. denied, 510 U.S. 1110 (1994) (dumping of rub-

ble into 14-acre wetland for construction of commercial

truck repair garage); Monongahela Power Company v.

Marsh, 809 F.2d 41 (D.C.Cir. 1987), cert. denied, 484 U.S.

816 (1987) (discharge of material into 7,000 acres of wet-

lands during construction of hydroelectric facility);

Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986)

(approving permit to fill 17-acre wetland site for sawmill

logging complex). The types of dredged or fill material

10

identified in the Corps’ regulations also contemplate that

the material will be placed in conjunction with economic

activity.*

In addition, the Court itself has characterized the

disposal of solid waste, the type of fill involved here, as a

commercial activity. See Chemical Waste Management v.

Hunt, 504 U.S. 334, 340 n.3 (1992) (noting that waste long

has been recognized as an “article of commerce”); City of

Philadelphia v. New Jersey, 437 U.S. 617, 621-23 (1978)

(waste is an article of commerce and subject to the Com-

merce Clause). It would be paradoxical if landowners did

not characterize the placement of fill as an economic

activity, because they have frequently argued that the

denial of a permit under section 404 constitutes the denial

of all economic use of their property. See, e.g., Tabb Lakes,

Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir. 1993);

Cooley v. United States, 46 Fed. Cl. 538 (2000) (awarding

over $2 million for taking of property based on denial of

section 404 permit).

* The “discharge of fill material” is defined to include the

“Placement of fill that is necessary for the

construction of any structure in a water of the United

States; the building of any structure or impoundment

requiring rock, sand, dirt, or other material for its

construction; site-development fills for recreational,

industrial, commercial, residential, and other uses;

causeways or road fills; dams and dikes; artificial

islands; property protection and/or reclamation

devices such as riprap, groins, seawalls, breakwaters,

and revetments; beach nourishment; levees; fill for

structures such as sewage treatment facilities, intake

and outfall pipes associated with power plants and

subaqueous utility lines; and artificial reefs.” 33

C.F.R. § 323.2(f).

11

The petitioner’s argument that the placement of fill is

noneconomic because a section 404 permit sometimes

may be required for a small, private project is unpersua-

sive. The largest fill projects are invariably commercial or

public works projects, see pp. 9-10 supra, and it can be

assumed that small, private projects cumulatively con-

tribute only a small portion of the total fill material for

which section 404 permits are sought. Additionally, the

placement of dredged or fill material for individual resi-

dential projects is likely to be covered by a nationwide

permit, and not subject to individualized permit review.

See, e.g., 65 Fed. Reg. 12,818 (Mar. 8, 2000). Furthermore,

even the placement of dredged or fill material for private

non-commercial use fairly may be characterized as an

economic activity, because the activity itself costs money

to perform and affects the value of the property that is

being filled.

D. The Placement of Dredged or Fill Material in

Wetlands Substantially Affects Interstate Com-

merce

Because it involves the regulation of an economic

activity, section 404’s regulation of the placement of

dredged or fill material in wetlands satisfies the Lopez

analysis as long as the activity in the aggregate has a

substantial effect on interstate commerce, even though it

may involve solely intrastate activity and even though in

individual instances there may be only a trivial impact on

interstate commerce. Lopez, 514 U.S. at 558-61; Morrison,

__U.S. __, 120 S.Ct. at 1751; see Wickard v. Filburn, 317

U.S. 111 (1942).

12

1. Where Economic Activity Is Involved, Leg-

islation Should Be Sustained Unless There

Is No Rational Basis for Congress to Con-

clude That the Economic Activity in the

Aggregate Substantially Affects Interstate

Commerce.

Preliminarily, there are significant practical diffi-

culties that a court encounters when evaluating whether

the regulation of a particular economic activity substan-

tially affects interstate commerce that it does not confront

when evaluating noneconomic activities. In cases such as

Lopez and Morrison, courts are competent to analyze the

impact of the noneconomic activity on interstate com-

merce because they are capable of testing the logic and

inferences that purport to connect the noneconomic activ-

ity to interstate commerce. In cases involving economic

activity, there is an inherent relationship between the

activity and interstate commerce, either because the activ-

ity involves the expenditure of money, setting off a chain

of events in the marketplace, or because the activity

causes a physical change to the environment, generating

a series of commercial transactions in response to the

physical change.

Consequently, where the regulation of economic

activity is being challenged, a court is required to make

what is primarily a factual, technical assessment of the

activity’s impact on interstate commerce. In a case such

as this, for example, the Court is asked to consider the

functions of wetlands, the direct and cumulative physical

impacts that the filling of wetlands in one State has on the

natural resources in other States, and the interstate eco-

nomic consequences that result from unregulated fill.

ee emai i

13

This inquiry implicates a considerable number of techni-

cal and economic issues.*

The practical problem becomes a philosophical one -

is it appropriate for the courts to resolve these highly

technical issues in the absence of an evidentiary record,

and at what point does this ad hoc, judicial fact gathering

lead the courts to substitute their judgment on the need

for environmental protection for that of Congress? That

wetlands were thought to be worthless swamps less than

a century ago is more than just ironic; it says that courts

should be hesitant to foreclose Congress’ authority to

respond to the dangers created by human intervention in

the physical environment when the constitutional answer

depends on an evolving body of knowledge that the

experts themselves do not purport to fully understand.

Convenient access to scientific information should not

induce the courts to substitute their views on the wisdom

of legislation for the fact-finding and representative deci-

sionmaking that is the hallmark of the politically account-

able legislative process.

* The list might include matters such as: (1) the

methodologies for identifying and quantifying wetlands; (2) the

hydrology of isolated wetlands and their relationship to the

larger aquatic system; (3) the functions of isolated wetlands; (4)

the methodology that should be used to quantify the economic

impacts caused by filling of wetlands on water quality, flood

control and erosion control, and the assessment of those

economic impacts; (5) the aggregated effect that the loss of

wetlands has on migratory birds and other wildlife; (6) the

economic impact from lost recreation opportunities such as

hunting and birdwatching caused by these impacts; and (7) the

economic cost of replacing wetlands if they are filled without

restrictions.

14

The Court’s recent Commerce Clause decisions have

not abandoned this view. Morrison reiterated the require-

ment that the Court would invalidate a statute only upon

a “plain showing” that Congress had exceeded its consti-

tutional bounds. Morrison, 120 S.Ct. at 1748; see Lopez, 514

U.S. at 573-574 (Kennedy, J., concurring). Nor has the

Court repudiated its rule that the Court “must defer to a

congressional finding that a regulated activity affects

interstate commerce, if there is any rational basis for such

a finding.” Hodel v. Virginia Surface Mining & Reclamation

Association, 452 U.S. 264, 276 (1981); see Riverside Bay View

Homes, Inc., 474 U.S. at 134 (deferring to EPA’s technical

expertise that adjacent wetlands are bound up with the

waters of the United States); Perez, 402 U.S. at 154-55

(deferring to congressional judgment that intrastate

extortionate credit transactions affect interstate com-

merce).

Therefore, absent a demonstration by the petitioner

that there was no rational basis for Congress to conclude

that the placement of dredged or fill material in the

aggregate substantially affects interstate commerce, the

legislation should be sustained.

2. There Was a Rational Basis for Congress to

Conclude That the Placement of Dredged or

Fill Material in Wetlands Substantially

Affects Interstate Commerce

There was a rational basis for concluding that the

placement of dredged or fill material in wetlands has a

substantial effect on interstate commerce. These impacts

are addressed in the other briefs supporting the federal

government’s position and the following discussion is not

exhaustive.

15

a. Wetlands, including isolated wetlands, represent

one of the most important components in preserving

environmental quality. Wetlands enhance water quality

by cycling nutrients, storing organic material, and filter-

ing some types of pollutants such as heavy metals. Office

of Technology Assessment, U.S. Congress, Wetlands: Their

Use and Regulation 43, 48-51 (1984). It has been reported,

for example, that the loss of 50% of the country’s remain-

ing wetlands could result in expenditures of $75 billion

just for increased sewage treatment for the removal of

nitrogen. Houck & Rolland, Environmental Federalism in

Wetlands Regulation, 54 Md.L.Rev. 1242, 1245 (1995). With

the country’s extensive network of interstate watersheds,

pollution in one State can readily affect the water quality

in another; pollution in six States has been held responsi-

ble for the poor health of Chesapeake Bay. Id.

Wetlands also facilitate flood control by detaining

flood water and thereby curtailing flow peaks in down-

stream reaches. E.g., Demissie et al., Influence of Wetlands

on Streamflow in Illinois, Ill. State Water Survey, 1-2 (1993);

Office of Technology Assessment, supra, at 43-46. Two

case studies in the State of Washington demonstrated that

the value of wetlands for flood control ranged from

$8,000 to $51,000 per acre. The Economic Value of Wetlands,

Wetlands’ Role in Flood Protection in Western Washington,

Wash. Dept. of Ecology, Oct. 1997, at 5. One study by the

Corps concluded that the loss of headwaters in the

Charles River could lead to annual flood damages of over

$17 million, Office of Technology Assessment, supra, at

37; another documented the benefits provided by wet-

lands in reducing flood flows in southern Illinois, id. at

44-45. The loss of wetlands contributed to the enormous

interstate damage caused by 1993 floods of the upper

Mississippi, and wetlands have been identified as an

16

important resource for controlling flood damage along

the Passaic River. N.Y. Times, July 20, 1993, § C (Science

Desk), at 1, col. 1. Wetlands also provide enormous eco-

nomic value with their contribution to the reduction of

shoreline erosion. Office of Technology Assessment,

supra, at 46-47.

rhe attributes of isolated wetlands - their value for

water filtration, flood and erosion control, and species

habitat — are similar to those of adjacent wetlands that the

Court found appropriate for federal regulation in River-

side Bayview Homes, Inc., 474 U.S. at 134-35. These wetland

services, although often difficult to quantify, provide real

value to the national economy. The services that ecosys-

tems provide have been estimated worldwide at $33 tril-

lion — 1.8 times more than the global gross national

product. Costanza, et al., The Value of the World’s Ecosys-

tem Services and National Capital, Nature, Vol. 387, May 15,

1997, at 259. The economic services provided by wetlands

(such as water supply, nutrient cycling, waste treatment

and wildlife) alone has been estimated globally at more

than $330 billion annually. Id. at 254, 256.

b. Even if one were to narrowly define the class of

regulated activity at issue in this case as the filling of

isolated wetlands used by migratory birds, the loss of

those wetiands would have a substantial impact on inter-

state commerce. Wetlands provide food, shelter, resting

and feeding places on migratory routes, and a!' migratory

birds depend on wetlands for their survival. E.g., U.S.

Fish and Wildlife Service, 1994 Update to the North Ameri-

can Waterfowl Management Plan 20. Destroying bird habi-

tat is simply a slower and more insidious way of

destroying the birds themselves. See, e.g., Stewart, Techni-

cal Aspects of Wetlands as Bird Habitat, U.S.G.S. Water

17

Supply Paper 2425, at 7, 10. The filling of isolated wet-

lands is of particular concern because, for many migra-

tory birds, small isolated wetlands provide a unique

habitat that is essential to their survival. Gibbs, Impor-

tance of Small Wetlands for the Persistence of Local Popula-

tions of Wetland-Associated Animals, Wetlands, Vol. 13, No.

1, Mar. 1993, at 25. The draining of prairie potholes in

North Dakota, for example, has threatened to eliminate a

variety of wintering waterfowl of Virginia, Maryland and

Delaware. Houck & Rolland, supra, 54 Md.L.Rev. at 1248

(citing study).

No speculative inferences are needed to connect the

reduction of migratory bird populations to substantial

impacts on interstate commerce. Billions of dollars are

spent annually on the hunting, recreational observation

and study of migratory birds. Studies show, for example,

that in 1996 those engaged in the hunting of migratory

birds expended more than $2.99 billion, U.S. Fish and

Wildlife Service, The Economic Importance of Hunting (pre-

pared by Southwick Associates) at 8 (1998); those

engaged in observation and photography of wildlife

spent more than $9.6 billion in 1991 for related goods and

services, U.S. Fish and Wildlife Service, 1996 National

Survey of Fishing, Hunting, and Wildlife Associated Recre-

ation, at 90-91 (tables 39, 40). See also Hoffman Homes, 999

F.2d at 261 (“millions of people spend billions of dollars

annually on hunting, trapping, and observing migratory

birds”); 1994 Update to the North American Waterfowl Man-

agement Plan, supra, at 4 (more than 30 million people

spend billions of dollars annually on recreational activity

related to migratory waterfowl); Office of Technology

Assessment, supra, at 54. Much of this money is spent in

rural areas where “sportsmen’s dollars often mean the

18

difference between real jobs or hard-core unemploy-

ment.” The Economic Importance of Hunting, supra, at 5.

To say, as the petitioner does, that the pursuit of

hunting and birdwatching is a noncommercial activity is

to engage in a form of denial about the enormous role

that tourism and recreation plays in the economy of the

country. The performance of a recreational activity is the

end product of a series of economic transactions between

the recreational user and the persons that supply the

goods and services. All objects of interstate trade merit

Commerce Clause protection, Philadelphia v. New Jersey,

437 U.S. at 622, including service industries, Camps New-

found/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 577

n. 10 (1997).°

c. The disposal of solid waste, the purpose for

which fill was proposed in this case, has a substantial

effect on interstate commerce. See C&A Carbone, Inc. v.

Town of Clarkstown, 511 U.S. 383, 390-91 (1994) (referring

to the profitable business of waste collection); Fort Gratiot

Sanitary Landfill, Inc. v. Michigan Department of Natural

Resources, 504 U.S. 353, 359 (1992) (commercial transac-

tions involving waste disposal “unquestionably have an

interstate character”). Public and private entities

involved in waste disposal often seek to deposit waste

across state lines; for example, the petitioner here cur-

rently sends the waste intended for the proposed balefill

facility to Bristol, Wisconsin. Chicago Tribune, Aug. 13,

2000, § 4, at 1. Indeed, an entire branch of dormant

Commerce Clause jurisprudence has risen around the

5 For example, tourism and travel is the third largest

employer in California, generating expenditures of over $67

billion statewide. Cal. Travel and Tourism Comm'n, Fast Facts

2000, at 2 (2000).

19

efforts of States to regulate the flow of solid waste across

state lines. E.g., C&A Carbone; see Hughes v. Oklahoma, 441

U.S. 322, 326 n.2 (1996) (definition of commerce is same

when relied on to strike down state legislation as it is

when relied on to support federal regulation).°

d. A determination that Congress is powerless to

regulate the filling of our nation’s wetlands would call

into question the validity of considerable federal environ-

mental legislation. Statutes such as the Comprehensive

Environmental Response, Compensation and Liability

Act of 1980, 42 U.S.C. §§ 9601-9675, the Surface Mining

Control and Reclamation Act, 30 U.S.C. §§ 1201-1328, and

the Resource Conservation and Recovery Act, 42 U.S.C.

§§ 6901-6992k, are not meaningfully distinguishable from

the Clean Water Act. They all regulate forms of economic

activity that are often, but not always, intrastate in char-

acter, and that in the aggregate have an enormous impact

on the national economy.’ The Court's cases have “uni-

formly found the power conferred by the Commerce

Clause broad enough to permit congressional regulation

of activities causing air or water pollution.” Hodel v.

Virginia Surface Mining, 452 U.S. at 282-283 (permitting

¢ The petitioner, correctly, does not contend that its status

as a governmental entity changes the Commerce Clause

analysis. See Camps Newfound/Owatonna, Inc. v. Town of Harrison,

520 U.S. 564, 583-84 (1997); Fort Gratiot Sanitary Landfill, Inc., 504

U.S. at 359.

7 The list of federal statutes protecting the environment and

natural resources is extensive. E.g., Coastal Zone Management

Act, 16 U.S.C. §§ 1451-1464; Marine Mammal Protection Act of

1972, 16 U.S.C. §§ 1361-1421h; the Magnuson Fishery

Conservation and Management Act of 1976, 16 U.S.C.

§§ 1801-83; the Endangered Species Act, 16 U.S.C. §§ 1531-1544;

the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2671; the

Safe Drinking Water Act, 42 U.S.C. §§ 300f-300).

20

regulation of harmful environmental effects of surface

coal mining); see Riverside Bayview Homes, 474 U.S. 121

(upholding Corps’ regulation of adjacent wetlands under

the Clean Water Act as within scope of Commerce

Clause). If Congress can order the cleanup of intrastate

sites, it is difficult to understand why it should not have a

say about the type of material that goes into them in the

first place.®

Therefore, Congress is authorized to regulate the

placement of fill within navigable waters, including iso-

lated wetlands, because the placement of fill is an eco-

nomic activity that in the aggregate has a substantial

effect on interstate commerce.’

8 Lower court decisions applying Lopez or Morrison and

upholding environmental regulation include Allied Local and

National Regional Manufacturers Caucus v. United States

Environmental Protection Agency, 215 F.3d 61 (D.C.Cir. 2000)

(rejecting challenge to Clean Air Act architectural coatings rule);

Gibbs v. Babbitt, 214 F.3d 483 (2000) (concluding that Fish and

Wildlife Service regulation prohibiting the taking of red wolf on

private land is valid exercise of power under Commerce

Clause); National Association of Homebuilders v. Babbitt, 130 F.3d

1041 (D.C.Cir. 1997), cert. denied, 524 U.S. 957 (1998) (upholding

protection of endangered species that exist within a single

state); Hartsell v. United States, 127 F.3d 343 (1997), cert. denied,

523 U.S. 1030 (1998) (upholding congressional authority to

regulate pollution discharge into nonnavigable waters); Olin

Corp., 107 F.3d 1506 (finding that regulation of onsite waste

disposal constitutes an appropriate element of Congress’

broader scheme to protect interstate commerce from pollution

and upholds constitutionality of CERCLA); United States v.

Bramble, 103 F.3d 1475 (9th Cir. 1996) (rejecting challenge to

constitutionality of Bald Eagle Protection Act).

% The States join in the argument of the federal government

that the Corps’ assertion of jurisdiction over isolated wetlands

and its reliance on the migratory bird rule was procedurally

21

Il. SECTION 404’S PERMIT REQUIREMENT IS NOT

LAND USE CONTROL, BUT ENVIRONMENTAL

REGULATION THAT PROTECTS THE STATES

FROM THE INTERSTATE IMPACTS OF WET-

LAND DEGRADATION

A. Section 404 Protects the Individual States From

the Consequences of Fill in Other States, and

Complements the States’ Own Programs

There are numerous reasons why federal wetlands

regulation benefits the States and complements their own

wetland protection programs.

1. The citizens of one State have a legitimate inter-

est in maintaining healthy wetlands throughout the coun-

try. Federal wetlands regulation insures some measure of

protection from the effects that the filling of wetlands in

one State may have on water quality, flood control and

wildlife in another State. Citizens in one State have an

additional reason to be concerned about what goes on in

other States, because their federal taxes help pay the bill

when federal assistance is required through increased

public healthcare costs, flood protection, emergency relief

and environmental cleanups when wetlands are not

allowed to do their job.

The interstate nature of these various impacts was

previously addressed. See pp. 15-19 supra. Wetlands are

not static water systems; they are linked to other wet-

lands and to other aquatic systems and are highly

affected by human activity throughout the watershed.

Kusler, et al., Wetlands, Scientific American 68-76 (Jan.

1994). Numerous water basins and water bodies overlap

state lines, and are affected by wetlands degradation

proper and that, as a matter of statutory construction, was

within the scope of the Clean Water Act.

22

originating in one State. Further examples include the

Klamath River basin that California shares with Oregon,

see McClurg, The Klamath River Basin: A Microcosm of

Water in the West, Western Water Magazine, May/June

2000, at 11-12; Lake Tahoe, which is shared by California

and Nevada, see Tahoe-Sierra Preservation Council, Inc., v.

Tahoe Regional Planning Agency, 216 F.3d 764, 767-68 (9th

Cir. 2000) (describing effect of wetlands disturbance on

water quality of Lake); and the Apalachicola-Chat-

tahoochee-Flint (ACF) River system, which stretches

across Florida, Georgia and Alabama, see the Apalachicola-

Chattahoochee-Flint River Basin Compact, Pub. L. No.

105-104, 111 Stat. 2219 (1997).

2. The citizens of the individual States particularly

benefit from section 404’s protection of migratory bird

habitat. In Illinois, for example, the hunters of migratory

birds spent approximately $293 million in 1996 alone,

U.S. Fish and Wildlife Service, The Economic Importance of

Hunting, supra, at 8, and more than 1.2 million people in

Illinois (including over 100,000 non-residents) spent an

average of $231 each in the observation, feeding and

photographing of waterfowl, Southwick Associates, The

Economic Benefits of Watchable Wildlife Recreation During

1996 in Illinois, at 4, 8 (1998). The destruction of wetland

habitat in one State that is used by the migratory birds of

Illinois therefore will have an impact on the citizens of

Illinois who engage in these recreational pursuits, as well

as those who provide them goods and services. The pro-

tection of the habitat of migratory birds - a natural

resource that no one State truly possesses - is the ideal

subject for federal concern.

3. The petitioner extols the State of Illinois’ review

of its project, contending that federal intervention is

“unnecessary” and “burdensome.” Brief for Petitioner at

23

30. That one of the 50 States may have adequately

reviewed a particular project does not answer the larger

question whether the regulation of the interstate impacts

of wetland fill is within Congress’ enumerated powers.

To win the necessity argument, the petitioner at a mini-

mum would need to demonstrate that all 50 States have

adopted and enforced wetland regulatory programs that

are comparable to Section 404.

In fact, very few States have adopted comprehensive

wetland regulation.'° Some States, such as Delaware and

Georgia, regulate tidal wetlands but are entirely depen-

dent on section 404 for the protection of isolated, inland

wetlands. See Del. Code Ann., Tit. 7, §§ 6601-6620; Ga.

Code Ann., § 12-5-280. Those States with no or limited

wetland regulation include Alabama, Arizona, California,

Colorado, Georgia, Idaho, Kansas, Kentucky, Mississippi,

Missouri, Montana, Nebraska, Nevada, New Mexico,

North Dakota, Ohio, Oklahoma, South Dakota, Tennes-

see, Texas, Utah, West Virginia, and Wyoming. See Kusler,

et al., State Wetland Regulation: Status of Programs and

Emerging Trends, prepared for the Association of State

Wetland Managers (1995), at 5-8; Ill. Dept. of Natural

Resources, Nationwide Survey of State Wetland Regulatory

Programs (Oct. 1997). Indeed, most state wetland regula-

tion occurs pursuant to the State’s federally-inspired sec-

tion 401 water quality certification program, or as coastal

regulation assisted by the federal Coastal Zone Manage-

ment Act. Id.

Consequently, there is a compelling need for federal

wetland regulation because of the regulatory void that

10 Michigan is an example of a State that has adopted a

comprehensive wetland program. See Mich. Comp. Ann.

§§ 281.683-685, 281.701-722Z, 322.701 et seq.

24

would exist in its absence. In any event, the petitioner’s

claim that federal regulation is unnecessary and burden-

some involves a matter of congressional policy, not con-

stitution: uthority.

4. The citizens of one State should not be placed at a

competitive disadvantage because they have chosen to

implement environmental standards when other States

have not. This Court more than once has sustained fed-

eral legislation to prevent interstate competition that

would frustrate an important and legitimate federal

objective. In Hodel v. Virginia Surface Mining, 452 U.S. at

281-82, the Court acknowledged that preventing destruc-

tive interstate competition is a traditional role for Con-

gress under the Commerce Clause, and deferred to

Congress’ determination that nationwide standards were

necessary to insure that interstate competition in coal

mining would not undermine environmental quality. In

United States v. Darby, 312 U.S. 100, 114 (1941), the Court

upheld a law prohibiting the interstate shipment of goods

that were produced in violation of the Fair Labor Stan-

dards Act, preventing employers in one State from gain-

ing a competitive advantage through substandard

working conditions. See Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 241, 257-58 (1964) (preventing

channels of commerce from being used for racial discrim-

ination).

In this case the United States has identified wetland

preservation as an important national objective, spending

hundreds of millions of dollars on both regulatory and

non-regulatory programs (such as the North American

Wetlands Conservation Act, 16 U.S.C. §§ 4401-14 and the

Water Bank Act, 16 U.S.C. §§ 1301-11). See generally Exec.

Order No. 11990, 42 Fed. Reg. 26,961 (May 24, 1977),

reprinted as amended in 42 U.S.C. § 4321. This objective

25

would be frustrated, to the detriment of the States, unless

there is federal wetlands regulation that insures that fed-

eral wetland policy is not undercut by inadequate State

standards. Although the petitioner disagrees that there is

a need to prevent a “race to the bottom,” Brief for Peti-

tioner at 29, that objection goes to the wisdom of federal

wetland regulation, not to whether Congress has the

power to prevent persons from gaining a competitive

advantage by pursuing their projects in States with inade-

quate wetland regulation.

5. Concurrent federal regulation more often than

not supports the States’ own environmental objectives,

and may lessen the financial burdens on the States. For

example, where an activity violates both federal and State

pollution control laws, the State may choose to defer to

federal enforcement, thereby saving the States the burden

of duplicative regulation. In other instances, the States

may coordinate their environmental studies with the fed-

eral government, avoiding duplication and effecting cost

savings to the States and permit applicants. See, e.g., Cal.

Code Reg., tit. 14, § 15226. The federal government also

may provide expertise to State and local governments

through the identification and mapping of wetlands.

Kusler, et al., State Wetland Regulation: Status of Programs

and Emerging Trends, supra, at 14. Some States simply may

choose to find that the federal government's regulation of

wetlands is sufficient, and apply the money saved to

some other beneficial purpose.

6. The process of government regulation continues

to mature, and the relationship between State and federal

regulators has become increasingly cooperative. In Cali-

fornia, for example, state agencies have joined with fed-

eral agencies to establish an Interagency Vernal Pool

Initiative. See California Wetlands Information Systems,

26

<http://ceres.ca.gov/wetlands/geoinfo/vernal—pools>. State

and federal regulators in California have experimented

with a single permitting process in which an applicant

who wishes to dredge and dispose of fill makes a single,

multi-agency application and any environmental study is

conducted jointly by the regulatory authorities. See San

Francisco Bay Conservation and Dev. Comm'n, 1999

Annual Report, 17. State and federal personnel also coop-

erate in the enforcement of their respective statutory

requirements. Id. at p. 12 (describing Environmental Law

Enforcement Task Force).

California’s experience has been repeated throughout

the country. States such as Delaware, Illinois, Oregon,

Virginia, Wyoming, New Jersey, Kansas, Alabama and

Alaska have adopted joint permitting procedures with

the Corps. Kusler, State Wetland Regulation: Status of Pro-

grams and Emerging Trends, supra, at 22. Other States such

as the New England States, Maryland, New York and

Pennsylvania have State Programmatic General Permit

Authority, under which the Corps and the States have

agreed to divide permit responsibility on particular pro-

jects. Kettering, Praise for General Permits, National Wet-

lands Newsletter, Vol. 16, No. 4, July/Aug. 1994, at 8. In

Wisconsin, Indiana and Minnesota, the States and the

Corps have agreed upon a regional general permit, which

tailors general permits to the needs and conditions in a

particular State. See Association of State Wetland Managers,

<http:/Ajoww.aswm.org/nationwidepermits>. Of course, any

State may seek to assume section 404 permit authority

and displace the Corps, 33 U.S.C. §§ 1344(g); 33 C.F.R.

§ 323.5, although only Michigan and New Jersey to date

have chosen to do so. Kusler, State Wetland Regulation:

Status of Programs and Emerging Trends, supra, at 99, 121. If

they are to be “laboratories for experimentation,” Lopez,

27

514 U.S. at 581 (Kennedy, J., concurring), the States’ free-

dom to innovate should include the opportunity to coor-

dinate the management of their natural resources with

the federal government.

B. Section 404’s Permit Requirement Is Environ-

mental Regulation, Not a Form of Land Use and

Zoning Traditionally Reserved to the States

The petitioner’s claim that the migratory bird rule

intrudes upon the traditional authority of State and local

governments to engage in land use planning - a rationale

that would apply to any form of federal wetland regula-

tion — is misplaced. This is a not a case in which a federal

regulation has crossed the line dividing “what is truly

national and what is truly local.” Lopez, 514 U.S. at

567-68.

1. Controlling the impacts of pollution and protect-

ing natural resources has long been a matter of joint

Federal and State concern. See, e.g., Minnesota v. Mille Lacs

Band of Chippewa Indians, 526 U.S. 172, 204 (1999) (States’

authority in regulating wildlife and natural resources is

shared with the Federal Government); North Dakota v.

United States, 460 U.S. 300, 309 (1983) (describing national

interest in protecting migratory birds); Andrus v. Allard,

444 U.S. 51, 63 n. 19 (1979) (national commerce power

reaches migratory wildlife). There is a long history of

federal legislation in the area of pollution control and

resource protection, and it is unnecessary to recount it all

here. E.g., Lacey Act, 16 U.S.C. § 701; Migratory Bird

Treaty Act of 1918, 16 U.S.C. §§ 703-12; see p. 19, n. 7

supra. Moreover, the Court has acknowledged that federal

protection of the environment and natural resources is

28

the proper subject of federal regulation under the Com-

merce Clause. See pp. 19-20 supra. One may fairly debate

the wisdom of these measures, but any debate about the

legitimacy of a federal presence in environmental protec-

tion should have ended a long time ago.

2. Although land use planning and zoning is tradi-

tionally a matter of State and local concern, the permit

requirement in section 404 does not constitute conven-

tional land use planning or zoning. Section 404 is a form

of environmental protection or pollution control, see 33

U.S.C. § 1251, and leaves the ultimate determination of

land use to State and local authorities.

In California Coastal Commission v. Granite Rock Co.,

480 U.S. 572 (1987) (O’Connor, J.), the Court found the

distinction between land use planning and environmental

protection critical to its preemption analysis. The Court in

Granite Rock upheld the authority of a state agency to

regulate the impacts of mining on federal public lands

because it found that the agency’s review was limited to

the environmental impacts of mining and did not deter-

mine the underlying land use. The Court expressed the

distinction this way: “Land use planning in essence

chooses particular uses for the land; environmental regu-

lation, at its core, does not mandate particular uses of the

land but requires only that, however the land is used,

damage to the environment is kept within prescribed

limits.” Id. at 587; see Hodel v. Virginia Surface Mining, 452

U.S. at 275-76.

Section 404 does not dictate the particular use to

which a parcel of property may be employed; it regulates

the manner in which the proposed use can be accom-

plished by eliminating or mitigating the environmental

impacts of fill. That the Corps rarely denies a section 404

Sn eaten = ne —

29

permit provides further corroboration that the Corps is

not dictating land uses. Zinn and Copeland, Wetland

Issues, Congressional Research Service Issue Brief, May 1,

2000 (between 1995 and 1999 the Corps denied only 0.3%

of the annual 74,500 permit requests). Even in those rare

cases where a permit is denied, landowners still may be

able to modify their project and proceed with their

intended use of the property, or else pursue their Fifth

Amendment remedy. See p. 10 supra. Section 404 is a

classic form of environmental regulation, not land use

and zoning.

3. Federal regulation is not always a good thing.

Federal regulation sometimes imposes costs or inefficien-

cies that the States properly resist, or values the interests

of some States over those of others. The issue here,

though, is power, not policy. Virtually every day there is

new information that changes how we view the physical

world, and the public continues to discover how their

lives are affected by what goes on in the rest of the

country. For matters as profound as the preservation of

the nation’s remaining wetlands, the courts should not

prohibit Congress from choosing a federal solution as

long as Congress has a rational basis for finding that a

particular economic activity in the aggregate has a sub-

stantial effect on the commerce of the country. If the

federal solution turns out to be too costly, ineffective, or

intrusive, the States and their citizens will look to the

political process to make the necessary adjustments.

30

CONCLUSION

The judgment of the Seventh Circuit should be

affirmed.

Respectfully submitted,

Brit Lockyer

Attorney General of the

State of California

RicHARD M. FRANK

Chief Assistant Attorney General

J. MatrHew Ropriquez

Senior Assistant

Attorney General

Dennis M. EaGANn

Supervising Deputy

Attorney General

JosePH BARBIERI

Deputy Attorney General

Counsel of Record

Attorneys for Amici Curiae

September 2000