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

Supreme Court, U.S.

FILED

No. 99-1178

IN THE

Supreme Court of the Ynited Spat

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,

— Petitioner,

Ve

UNITED STATES ARMY CORPS OF ENGINEERS, ef al,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF ENVIRONMENTAL DEFENSE,

NATURAL RESOURCES DEFENSE COUNCIL,

NATIONAL WILDLIFE FEDERATION,

CHESAPEAKE BAY FOUNDATION, WORLD

WILDLIFE FUND, AND DEFENDERS OF WILDLIFE

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

MICHAEL BEAN Louls R. COHEN

TIMOTHY SEARKCHINGER Counsel of Record

ENVIRONMENTAL DEFENSE JAMES R. WRATHALL

1875 Connecticut Ave.,. N.W. JOHN V.H. PIERCE

Washington, D.C. 20009 R. KEVIN BAILEY

(202) 387-3500 WILMER, CUTLER &

PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

September 20, 2000 (202) 663-6000

Counsel for Amici Curiae

DANIEL ROSENBERG

NATURAL RESOURCES DEFENSE COUNCIL

1200 New York Avenue, N.W.

Suite 400

Washington, D.C. 20005

(202) 289-2389

JULIE SIBBING

NATIONAL WILDLIFE FEDERATION f

1400 16th Street, N.W. .

Suite 100 7

Washington, D.C. 20036

(202) 797-6832

—

DAVID ANDERSON

CHESAPEAKE BAY FOUNDATION

162 Prince Georges Street

Annapolis, MD 21401

(410) 268-8816

ROBERT IRVIN

CHRISTOPHER WILLIAMS

WORLD WILDLIFE FUND

1250 24th Street, N.W.

Washington, D.C. 20037

(202) 861-8382

MIKE P. SENATORE -

DEFENDERS OF WILDLIFE

1101 14th Street, N.W.

Suite 1400

Washington, D.C. 20005

(202) 682-9400

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

UTS Ce RI CII ccescccccsccsesecsesessceseseccsesees l

STATEMENT ....... emeininanenisieinineineiingsesamatimmanass 2

SUMMARY OF ARGUMENT ooo eeeeeees 4

FEREITT vesscsssnscocssninasnicihicinnensttitaitiahdianeeataiednaamaiaiie 9

1 THE CLEAN WATER ACT REGULATES

POLLUTION OF ISOLATED, INTRASTATE

WATERS TO THE MAXIMUM EXTENT OF

CONGRESS’S COMMERCE CLAUSE POWER ...... 9

A. The Clean Water Act Regulates Pollution of

All “Waters of the United States,” Regardless

IIE . cccisusitinbiicsennnnietniatitendiedhbutiadaniin 9

B. In Amending the Clean Water Act, Congress

Ratified the Settled Judicial and Adminis-

trative Interpretation of “Waters of the United

States” as Extending to the Maximum Reach

of Congress’s Commerce Clause Power ............. 13

C. The Court Should Not Alter the Balance of

Federal-State Regulatory Authority Estab-

lished by Congress in the Clean Water Act ........ 16

Il CONGRESS HAS COMMERCE CLAUSE

POWER TO REGULATE CONSTRUCTION AND

OPERATION OF A SOLID WASTE LANDFILL

THAT WOULD POLLUTE INTRASTATE

SURFACE WATERS USED AS HABITAT BY

Se 18

A. The Commerce Clause Confers Plenary

Federal Power Over Economic Activity that

Concerns More States than One ......................... 18

B. The Clean Water Act Regulates Economic

IUTIINY ‘onisishéptdbibcsiacsimsesiniaininaiasiicctsiamemiatiaiatemun adelaide . 20

TABLE OF CONTENTS — Continued

Page

C. This Case Challenges Regulation of Economic

AREER ETE Ie ae o ae nee NNT 21

D. ‘hee is a Rational Basis for Determining that

Water Pollution Harm to Migratory Birds, in

the Aggregate, Substantially Affects Interstate

I iicttiacsceiehietiidasndeaeaeslciniaeiceacaet anaes, .. 22

E. Even if This Case Challenged Regulation of

Non-Economic Activity, Federal Protection of

Water Resources and Habitat Meets the Tests

of Lopez and Morrison : sili 26

CONCLUSION iunipieeigidaauadtasaanenaanaaaaeieah —

TABLE OF AUTHORITIES

Page(s)

Alabama State Federation of Labor v. McAdory,

ee TD cninccccnicticecniasnnbemsbiadiinaniaitiuaiine 21

Albemarle Paper Co. v. Moody, 495 U.S. 405

STITT idhsseeenisetinnsiaticsitahietinasisiacaiasdcianihamibeaninanamna 5, 13, 15

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

foo, FE ee 11

Babbitt v. Sweet Home Chapter, 515 U.S. 687

SITET csesbinccencehaiigsamandlitiniaiadintanpanivane Admmsametiaaitinmiidadddia 15

California Coastal Commission v. Granite Rock

ein UT I ets 27

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

Council, 467 U.S. 837 (1984) ooo cccocccccecesesceveveeee 4

City of Milwaukee v. Illinois, 451 U.S. 304 (1980) ............. 9

City of Philadelphia v. New Jersey, 437 U.S. 617

RA eS Oe ARE clin 5 6, 22

Cochrane v. United States, 92 F.2d 623 (7th Cir.

ER ES ee ee 26

Douglas v. Seacoast Products, Inc., 431 U.S. 265

ERE ee ee es 15

FERC v. Mississippi, 456 U.S. 742 (1982) .......0.0..00000...... 19

Fund for Animals v. Frizzell, 530 F.2d 982 (D.C.

Sin, CIA ii ohaeh Thal iadahianiaehlieiailinnadeniaplibiisbidgiaanenicatt 24

Gibbons v. Ogden, 9 Wheat. 1 (1824) ......000000000...... 5, 18, 19

Gibbs v. Babbitt, 214 F 3d 483 (4th Cir. 2000) ................ 25

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

REG REN AEA A a eO wee 6, 19

Hodel v. Indiana, 452 U.S. 314 (1981) ...00............ 19, 21, 25

Hodel v. Virginia Surface Mining & Reclamation

Association, 452 U.S. 264 (1981)... passim

International Paper Co. v. Ouellette, 479 U.S. 481

STITT ctdisiniineshibtaialchdenninaenatandoanabisenaliniinesitetueisaandanimoniainite 11, 28

Johnson v. United States, 120 S. Ct. 1795 (2000) .............. 12

Katzenbach v. McClung, 379 U.S. 294 (1964) _................. 18

Leslie Salt Co. v. Froehlke, 403 F. Supp. 1292

US TUETITTD caisiaiiedibdiclicteasnsadliesaidiatsantacsdianeibialadeiiaie 15

IV

TABLE OF AUTHORITIES — Continued

Page(s)

Leslie Salt Co. v. United States, 896 F.2d 354 (9th

Chi, COED oa ccencssececvcgrecececescces EOL ae TORE 11, 25

Leslie Salt Co. v. United States, 55 F.3d 1388 (9th

REE a a 2 ee Oe 25

Maryland v. Wirtz, 392 U.S. 183 (1968) 0000. 25

Middlesex County Sewerage Authority v. National

Sea Clammers Association, 453 U.S. 1 (1981) ....... 9, 10

Milwaukee v. Illinois, 451 U.S. 304 (1981) ....000...... naan 9

Missouri v. Holland, 252 U.S. 416 (1920) 20000000. 28

NLRB vy. Gullett Gin Co., 340 U.S. 361 (1951) .................. 15

NLRB v. Jones & Laughlin Steel Corp., 301 US. |

SEN al Pi he 18

PUD No. 1 v. Washington Dep't of Ecology, 5\\

Ng ERE Se ere eee 22

Perez v. United States, 402 U.S. 146 (1971) ............... 18, 19

Quivira Mining Co. v. EPA, 765 F.2d 126 (10th Cir.

NCTE aE SES Se ee ee 11

SWANCC v. Corps, 191 F.3d 845 (7th Cir. 1999) ... 4, 11, 30

Sporhase v. Nebraska, 458 U.S. 941 (1982) 2.000000... 26

United States v. Ashland Oil, 504 F.2d 1317 (6th

a ie 11, 15

United States v. Byrd, 609 F.2d 1204 (7th Cir.

RITES Rca Reh ARs re sO nod CR 11

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

RARE RR SUR see Nien ee oon RCM 20

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

RE a ie Sa ees 1]

United States v. Lopez, 514 U.S. 549 (1995) ........... 1, 19, 25

United States v. Morrison, 120 S. Ct. 1740 (2000) ..... passim

United States v. Phelps Dodge Corp., 39\ F. Supp.

I La 15

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

ERNE ease ree 11

United States v. Riverside Bayview Homes, Inc.,

SE PIII ctisiisictnsicictsesincnsnneniis 4, 11, 12, 15, 20

Vv

TABLE OF AUTHORITIES — Continued

Page(s)

United States v. Sargent County Water Resource

District, 876 F. Supp. 1081 (D.N.D. 1992) ....-............ 25

United States v. Smithfield Foods, Inc., 965 F. Supp.

ee I Se iiceiineetnnieccentctesenindaitonsilabninccepicimes 17

Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984) 000000... 25

Wetlands Action Network v. United States Army

Corps of Engineers, __ F.3d __, 2000 WL

1175081 (9th Cir. Aug. 21, 2000) .00000.0. 20

Wickard v. Filburn, 317 U.S. 111 (1942) .............. 18, 19, 25

CONSTITUTIONAL PROVISIONS

RE ESC RNAS Ae 5,18

STATUTORY PROVISIONS

Water Bank Act, 16 U.S.C. § 130] 2000.0, 24

Endangered Species Act, 16 U.S.C. §§ 1531 ef seq. .......... 27

Emergency Wetlands Resources Act of 1986, 16

TRESS ne Oe aaa I 26

North American Wetlands Conservation Act, 16

I semedads 24

Surface Mining Control and Reclamation Act, 30

RRS RT RE a a 27

RAS ERED Pee ARI RN ere So nae 12

TT RT Ee oa 4,9, 11, 23

kA RESIS IE maT Se eAaD UD Dee: ASR IIS 10

i 10

EE ESR tonne R ESS mNaneN 15, 29

0 EAE ES oe 4,10, 11

Resource Conservation and Recovery Act of 1976,

ERE EE eT 27

Clean Air Act, 42 U.S.C. § 7607(b) 2000000000 occcccccceececcces 27

Comprehensive Environmental Response,

Compensation, and Liability Act, 42 U.S.C. §§

SEUTETEEPTIIED - iesioveunidtidientntsnctntinnpntonnsieenindatndnaanindicheaeiin 27

vi

TABLE OF AUTHORITIES — Continued

Page(s)

RULES AND REGULATIONS

TEETER OS NINE TS OTN 23

i senineepniaieuniaaadaa 28

IIE in ncccnncesssiennanepianetetedionsinesmansenesntia 23

ee IIT... secmsasetinceanannonsanseansennns 20

i II ican cccacsvesneciiassanscsneminbeeoninntaie 13

51 Fed. Reg. 41,206, 41,217 (1986) cee, 23

U.S. Supreme Court Rule 37 ............... eee eeeeeeeeeeees 1,2

LEGISLATIVE MATERIALS

H.R. 3199, 95th Cong. 39 (1977) ............ saaeninadieminaadmaile 13

S. Rep. No. 92-414 (1971), reprinted in 1972

SEE I ee ea enero e 9,10

S. Rep. No. 95-370 (1977), reprinted in 1977

i asesimneseiiinone 14, 23

ID i naccncstnarentaicieensscincinelipiie 14

Se GA, GU, BPI I OD cvcccccccescccccsossccsescsseccosesosesses 14

ee A EE, UMP UOD cccrccccsecscccsseseccsssconssesscoesncess 14

Senate Debate, Aug. 4, 1977, reprinted in 4 A

Legislative History of the Federal Water

Pollution Control Act Amendments of 1977, at

901 (1978) (Committee Print compiled for the

Committee on Public Works by the Library of

ERROR Estonia oe aaa esse yore a a 14

Testimony of Michael Davis, Deputy Assistant

Secretary of the Army for Civil Works, before

Senate Environment and Public Works

Committee, March 28, 2000 20000ooooooooo oo oooooococccccceen, 29

BOOKS, ARTICLES & TREATISES

V. Albrecht & B. Goode, Wetland Regulation in the

ERS A Se ec ee eee ee 20

vii

TABLE OF AUTHORITIES — Continued

Page(s)

Oliver A. Houck & Michael Rolland, Federalism in

Wetlands Regulation: A Consideration of .

Delegation of Clean Water Act Section 404 and

Related Programs to the States, 54 Md. L. Rev.

RE EE CERES Se eee nen NP eR oA 17

OTA, U.S. Congress, Wetlands: Their Use and

IIIT sciiintedsadintenicsendicadsdsedtensinninnitioninenies 23

Peter W. Salsich, Jr. & Timothy J. Tryniecki, Land

Use Regulation (ABA 1998) .00.00000.......055..ccccccecceeeee. 27

1 Secretary of the Interior, 7he /mpact of Federal

— Programs on Wetlands: The Lower Mississippi

Alluvial Plain and the Prairie Pothole Region

TSR RS See SOE eno ee Oe a Oe 24

U.S. Fish & Wildlife Service, 1996 National Survey

of Fishing, Hunting & Wildlife Associated

EE a A 23, 24

OTHER AUTHORITIES

43 Op. Att’y Gen. No. 15 (Sept. 5, 1979) 200, 12

This case presents the question whether Congress, under

the Commerce Clause and the Clean Water Act, has power to

regulate economic activities that pollute or destroy intrastate

surface waters, where those waters are used as habitat by

migratory birds. The answer to this question, entirely

consistent with this Court’s opinions in United States v.

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

120 S. Ct. 1740 (2000), is yes.

INTEREST OF AMICI CURIAE

Amici are national nonprofit organizations with strong

interests in the protection of water resources and

conservation of habitat and wildlife.’ With a total of more

than 2 4 million members collectively throughout the United

States, amici strongly support Congress’s power to enact

legislation protecting the environment and the Clean Water

Act’s purpose of “restoring and maintaining the physical,

chemical and biological integrity of our Nation’s waters.”

Petitioner, the Solid Waste Agency of Northern Cook

County (“SWANCC’”), argues that its proposed landfill and

the resulting water pollution are not subject to federal

regulation because the Clean Water Act protects only

“navigable” waters of the United States and waters that are

adjacent to such navigable waters. Alternatively, SWANCC

argues that Congress does not have power under the

Commerce Clause to regulate water pollution resulting from

construction and operation of the proposed landfill.

If adopted, SWANCC’s interpretation of the Clean

Water Act would roll back the scope of federal water

pollution control to the pre-Act 1960s, invalidating much of

Pursuant to this Court’s Rule 37.6, amici state that this brief was not

authored in whole or in part by counsel for any party and that no person

or entity, other than amici and their counsel, made any monetary

contribution to the preparation or submission of this brief. Written

consent to the filing of this brief has been obtained from the parties.

Copies of the consent letters have been filed with the Clerk.

2

the current federal regulation of water pollution, including

point source industrial discharges, into lakes and ponds,

wetlands, and intermittent streams. Millions of acres of

“isolated” surface waters and wetlands throughout the Nation

would be removed from federal protection under this

interpretation.

SWANCC’s constitutional theory would have even more

far-reaching consequences, effectively overruling the rational

basis test applied by this Court for more than sixty years in

Commerce Clause cases involving regulation of economic

activities, and subjecting jurisdictional nexus tests under the

Clean Water Act and dozens of other federal regulatory

programs to a new, strict scrutiny standard of review.

Amici file this brief pursuant to this Court’s Rule 37, in

the interest of clarifying the statutory and constitutional basis

for the well-established, plenary authority of Congress and

the Executive Branch to regulate economic activities that

threaten our Nation’s water resources and wildlife.

STATEMENT

SWANCC is a corporation formed by a consortium of 23

municipalities under Illinois state law. During the late

1980’s, SWANCC proposed to construct and operate a

landfill in Northern Cook County, Illinois. (A.R. 15573.)

As originally proposed, the landfill would cover

approximately 410 acres, including 298 acres of forest, and

would require the discharge of fill material — a pollutant

under the Clean Water Act — into 31 acres of ponds and

other on-site surface waters. (A.R. 15573-74.) The landfill

would have total economic impacts of $69 million and would

receive hundreds of thousands of tons of solid waste per year.

(A.R. 15635, 15622.)

The landfill was proposed to be located at a site of

significant ecological value. Undisturbed since the early

‘ References to “A.R.” are to the Administrative Record below.

3

1950’s, the site includes a number of ponds, up to six feet

deep, and teems with birds, fish and wildlife. (A.R. 15669.)

The site is used as habitat by many species of water-

dependent migratory birds, including a sizeable rookery of

great blue herons, a colonial nesting bird that is among the

largest water birds in North America. (A.R. 15578; 15697-

700.)

In 1990, SWANCC requested a determination by

Respondent, the U.S. Army Corps of Engineers (“Corps”),

whether construction and operation of the landfill would

require a permit under the Clean Water Act. After extensive

administrative review, the Corps determined that because 31

acres of waters proposed to be polluted or destroyed by the

landfill were used as habitat by scores of nesting great blue

herons and approximately 120 other species of migratory

birds, SWANCC was required to obtain a permit. (A.R. 780-

81, 15578, 15582, 34636.)

SWANCC’s permit application described several

pctential environmental hazards posed by the landfill,

including discharges of leachate contaminated by hazardous

organic chemicals. (A.R. 15666-67, 15717.) Following

lengthy permit proceedings, the Corps determined that the

proposed landfill posed significant environmental risks,

including potential contamination of a major drinking water

source for several local communities. (A.R. 15721.) The

Corps found that pollution of waters at the site would harm

many of the migratory birds that nested and foraged there.

(A.R. 15692-710, 15654-55.) In addition, the Corps found

that the proposed stormwater management plan for the

landfill was insufficient, threatening contamination of nearby

wetlands in the event of greater than average rainfall events.

(A.R. 15645-47.) Because SWANCC did not propose

effective mitigation measures to address these harms, the

Corps denied the permit application. (AR. 15658-59.)

SWANCC did not challenge the Corps’ findings below; it

voluntarily dismissed all of its claims other than the

constitutional and statutory arguments that are presented

4

here. See SWANCC v. Corps, 191 F.3d 845, 849 (7th Cir.

1999).

SUMMARY OF ARGUMENT

In 1972, Congress passed the Federal Water Pollution

Control Act (“Clean Water Act” or “Act”) “to restore and

maintain the chemical, physical, and biological integrity of

the Nation’s waters.” 33 U.S.C. § 1251(a). Responding to

the failure of state and local governments to avert what had

become a national water pollution crisis, Congress created a

comprehensive, federal water pollution control program

establishing nationwide standards and federal permitting and

enforcement procedures.

The Clean Water Act regulates activities that cause

pollution of “navigable waters,” defined in the Act as “waters

of the United States.” 33 U.S.C. § 1362(7). By 1977, the

U.S. Environmental Protection Agency (“EPA”) and the

Corps, jointly charged by Congress with responsibility for

administering the Act, had determined that the phrase

“waters of the United States” was intended by Congress to

extend to “all waters within the reach of the Commerce

Clause power,” and had _ promulgated regulations

implementing that interpretation. The numerous federal

courts that have ruled on the issue since 1972 have uniformly

agreed with EPA and the Corps, holding that the phrase

“waters of the United States” is to be “given the broadest

possible constitutional interpretation.” This conclusion is

compelled by the text and structure of the Act, its purposes

and goals, and legislative history. This Court has held that

the Corps’ determinations regarding the scope of its

jurisdiction under the Act are to be given deference under

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

467 U.S. 837 (1984). See United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121 (1985). The Corps’ interpretation

here clearly “is reasonable, in light of the language, policies,

and legislative history of the Act.” Jd. at 133.

SWANCC argues that the Act must include a

“navigability” requirement because of the use of the term

5

“navigable waters,” even though that term is defined to

include all “waters of the United States.” But the statute’s

history refutes this argument. “Navigable waters” operates

as a definitional term that was held over from prior federal

water pollution legislation dating back to the Rivers and

Harbors Act of 1899. In 1972, Congress chose to redefine

that term, rather than replace it, but did so in enacting a

comprehensive long-range policy for the elimination of water

pollution that does not make any reference to “navigation” or

“navigability” elsewhere in the text of the statute. Moreover,

Congress ratified the settled interpretation of this term as

meaning all waters of the United States within the Commerce

Clause power when it substantially amended the Clean Water

Act in 1977 and 1987, well after that interpretation had been

established by the Executive Branch agencies and uniformly

upheld in the federal courts. See Albemarle Paper Co. v.

Moody, 422 U.S. 405, 414 n.8 (1975). Thus, the principal

issue in this case is whether Congress has power under the

Commerce Clause to regulate SWANCC’s landfill pollution.

Article I, § 8 of the Constitution grants the federal

government power to “regulate Commerce . . . among the

several States.” This includes commerce that “concerns

more States than one,” or “affects other States,” even if the

regulated activity occurs within a single state. Gibbons v.

Ogden, 22 U.S. (9 Wheat.) 1, 194-95 (1824).

Water pollution is a quintessential example of a national

problem, having substantial cumulative impacts on interstate

commerce, that requires a uniform, nationwide solution.

Federal regulation of intrastate activities that cause

environmental degradation has long been held to be within

the Commerce Clause power. Hodel v. Virginia Surface

Mining & Reclamation Ass'n, 452 U.S. 264, 277 (1981).

This Court consistently has held that where Congress is

regulating economic activity, deference must be accorded to

the judgments of the Legislative and Executive branches

regarding effects on interstate commerce. See Gibbons, 22

U.S. (9 Wheat.) at 197. If there is a rational basis for finding

6

that the regulated economic activity, in the aggregate, may

have interstate effects, and where the regulations are

reasonably tailored to address the underlying problem, the

courts will not substitute their judgments for those of the

political branches of government. Heart of Atlanta Motel,

Inc. v. United States, 379 U.S. 241, 258 (1964). “Where

economic activity substantially affects interstate commerce,

legislation regulating that activity will be sustained.” (/nited

States v. Morrison, 120 S. Ct. 1740, 1749 (2000).

The Clean Water Act regulates economic activity. The

activities regulated under the Act that result in discharges of

pollutants to surface waters — land development,

manufacturing, agriculture, mining, construction, and waste

disposal, for example — are overwhelmingly and obviously

commercial in nature. This case in particular involves

federal regulation of economic activity. SWANCC proposed

to build and operate a $69 million landfill that would receive

hundreds of thousands of tons of solid waste, generate

millions of dollars of revenues annually, and employ 81 full-

time workers. The business of solid waste disposal is

“commerce.” See City of Philadelphia v. New Jersey, 437

U.S. 617 (1978).

Since they have power to regulate intrastate economic

activity only where it has a sufficient nexus with interstate

commerce to confer federal jurisdiction, EPA and the Corps

have developed a number of tests to determine such a nexus

on a case-by-case basis. In this case, federal jurisdiction was

based on the undisputed fact that ponds and other surface

waters that would be polluted by the proposed SWANCC

landfill were used as nesting, breeding, and foraging habitat

by 121 species of migratory birds.

Migratory birds are the basis of substantial interstate

economic activities, including migratory bird hunting (a $1.3

billion dollar annual industry) and migratory bird watching

(14.3 million trips annually specifically to observe, feed or

photograph waterfowl, many of them across state lines).

Congress has formally determined that pollution and

7

destruction of surface waters and wetlands nationwide

threatens the very survival of many migratory bird species,

including endangered species, and that the loss of these

species would cause profound, long-term economic

consequences for our Nation. A rational basis clearly exists

for determining that pollution and destruction of waters used

by migratory birds would, in the aggregate, substantially

affect interstate commerce, and the Clean Water Act permit

program is reasonably tailored to address that harm. Where

the elected branches of government and expert administrative

agencies have so thoroughly considered a matter, this Court

should not substitute its judgment for their economic and

scientific findings regarding effects on interstate commerce.

“The judicial task is at an end once the [C]Jourt determines

that Congress acted rationally in adopting a particular

regulatory scheme.” Hodel, 452 US. at 276.

The Court’s decisions in Lopez and Morrison do not

alter this analysis. Those cases expressly did not overturn the

Court’s Commerce Clause jurisprudence of the last sixty

years. In enacting the statutes challenged in Lopez and

Morrison, Congress sought to regulate social problems, not

economic activity. Since the regulated activities were non-

economic, the Court determined that the deferential standard

of review traditionally applied in Commerce Clause analysis

was inappropriate. By contrast, Congress through the Clean

Water Act is regulating commerce directly. In this case, the

Corps, through the Clean Water Act permit process,

restricted and conditioned the pollution of surface waters

proposed as part of the development and operation of a solid

waste landfill, an obviously “economic endeavor.”

Morrison, 120 §. Ct. at 1750.

Even if Lopez and Morrison applied, Clean Water Act

regulation of intrastate waters clearly meets the standards of

those cases. Water pollution regulation is not an area of

traditional local control. The federal government has

regulated water pollution since 1899, and has exercised

comprehensive regulatory power over pollution of waters of

the United States for nearly thirty years. Nor did the Corps

in this case impermissibly act as a zoning authority or land

use planner. The Corps reviewed and denied SWANCC’s

permit application because of the substantial environmental

harms threatened by the proposed landfill, and did not

otherwise attempt to exercise traditional land use functions.

It is irrelevant that federal environmental regulation may

preempt exercises of state police power, including land use

power. Hodei, 452 U.S. at 291-92.

Finally, the Corps’ application of the migratory bird

jurisdictional nexus test over the last fifteen years has not

resulted in limitless federal regulation. Many federal statutes

intensively regulate activities at the local level, including the

Fair Labor Standards Act, Occupational Safety and Health

Act, the Clean Air Act, the Americans With Disabilities Act,

the Resource Conservation and Recovery Act, the Superfund

law, the Clean Water Act, and dozens of other federal

programs. For Commerce Clause purposes, however, these

regulatory programs are not “limitless” — they are

constrained to that which is appropriately national by the

terms of the regulations themselves. Here, the Corps’

regulation is limited to pollution of waters that are used as

habitat by migratory birds.

SWANCC in effect asks the Court to determine, under

the guise of Commerce Clause analysis, that federal authority

here is inappropriate as a matter of policy, and that power to

regulate pollution of isolated water bodies should be returned

to the states. Aside from being wrong under settled

Commerce Clause jurisprudence, SWANCC’s approach

would fundamentally restructure the balance of power at the

federal level as well, establishing the courts as the

substantive decision-makers with regard to numerous

technical and economic analyses conducted to determine

federal jurisdiction under many different statutes. Since

1937, the Court has consistently declined to assume that role,

and it should not do so in this case.

aggregate, would substantially affect interstate commerce.

The Corps was fully authorized to regulate water pollution

that would result from construction and operation of the

SWANCC solid waste landfill Accordingly, the Court

should affirm the judgment of the Court of Appeals for the

Seventh Circuit.

ARGUMENT

I. THE CLEAN WATER ACT REGULATES

POLLUTION OF ISOLATED, INTRASTATE

WATERS TO THE MAXIMUM EXTENT OF

CONGRESS’S COMMERCE CLAUSE POWER

A. The Clean Water Act Regulates Pollution of All

“Waters of the United States,” Regardless of

Navigability

1. Congress enacted the Clean Water Act in 1972,

establishing a comprehensive federal program “to restore and

maintain the chemical, physical, and biological integrity of

the Nation’s waters.” 33 U.S.C. § 1251(a). Prior to 1970,

responsibility for regulation of water pollution had largely

been left to state and local authorities. See Middlesex County

Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1,

11 (1981). By 1972, however, water pollution had become a

national crisis, the state-led system proved to be

“ineffective,” id, and “inadequate in every vital aspect.” S.

Rep. No. 92- 414, at 7, reprinted in 1972 U.S.C.C_A.N. 3668,

3674 (cited in City of Milwaukee v. Illinois, 451 U.S. 304,

318 (1981)).

10

Congress determined that a comprehensive federal water

pollution regulatory program was necessary for several

reasons. First, water pollution — of any substantial body of

water — is a problem that inherently crosses state

boundaries. “Water moves in hydrologic cycles [of

evaporation and precipitation] and it is essential that

discharge of pollutants be controlled at the source.” S. Rep.

No. 92-414, at 77, reprinted in 1972 U.S.C.C.A.N. at 3742.

Pollution or destruction of water resources in one state may

cause adverse environmental consequences far beyond that

state’s borders. See Middlesex County, 453 U.S. at 11 (1981).

Second, virtually all significant direct discharges of

pollutants result from economic activities, such as industrial

production, land development, agriculture, and solid waste

disposal. The harm caused to water resources by those

activities represents an economic externality of economic

activities — a cost of goods or services that may not be borne

by the seller or passed along to the consumer. States and

localities seek to attract economic investment, to build local

tax bases, and to provide services to residents at the lowest

possible cost. They have strong disincentives to enforce

programs that shift substantial external costs back to the

businesses and municipal entities that create them. Congress

therefore determined that minimum federal standards were

necessary to avoid a continued “race to the bottom” of states

relaxing environmental requirements (or refusing to enforce

them) in order to attract business. See S. Rep. No. 92-414, at

5, reprinted in 1972 U.S.C.C.A.N. at 3671-72 (noting lax

state enforcement of pre-1970 water pollution control

programs).

The Act prohibits “the discharge of any pollutant by any

person,” into any “waters of the United States” unless

authorized by a permit. 33 U.S.C. §§ 1311(a), 1362(7).

Congress divided federal responsibilities for implementing

and enforcing the Clean Water Act permit program between

EPA and the Corps. Under Section 404 of the Act, the Corps

ll

administers permits “for the discharge of dredged or fill

material” at specified disposal sites. 33 U.S.C. § 1344.

2. The Clean Water Act regulates pollution of

“navigable waters,” which are defined in the Act as “the

waters of the United States, including the territorial seas.” 33

U.S.C. § 1362(7). The Seventh Circuit and all six of the

other courts of appeals that have squarely addressed the

question have held that the phrase “waters of the United

States” “reaches as many waters as the Commerce Clause

allows.”? Similarly, this Court has noted that the term

“navigable” as used in the Act has “limited import,”

Riverside Bayview, 474 U.S. at 133, and that “the Act applies

to virtually all surface water in the country,” /niternational

Paper Co. v. Ouellette, 479 U.S. 481, 486 (1987).

SWANCC’s attempt to limit federal protection under the

Clean Water Act to “navigable” and immediately adjacent

waters directly conflicts with these rulings and with the

purpose of the Act: “to restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.” 33

U.S.C. § 1251(a). The Act expressly seeks to protect water

quality to “provide[] for the protection and propagation of

fish, shellfish, and wildlife and provide[] for recreation in

and on the water” 33 USC. § 125l(a)(2). The

“[p]rotection of aquatic ecosystems, Congress recognized,

demanded broad federal authority to control pollution.”

Riverside Bayview, 474 U.S. at 132-33. By contrast, the Act

does not refer to navigation among its purposes nor does it

> See SWANCC v. Corps, 191 F.3d 845, 845 (7th Cir. 1999); United

States v. Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979); United States v.

Pozsgai, 999 F.2d 719, 731 (3d Cir. 1993), Avoyelles Sportsmen's

League, Inc. v. Marsh, 715 F.2d 897, 914-15 (Sth Cir. 1983), United

States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1325 (6th Cir.

1974); Leslie Salt Co. v. United States, 896 F.2d 354, 357 (9th Cir. 1990),

Quivira Mining Co. v. EPA, 765 F.2d 126, 129-30 (10th Cir. 1985),

United States v. Eidson, 108 F.3d 1336, 1341 (11th Cir. 1997).

12

include any requirement intended to address navigability.

The Court should “give effect to congressional purpose so

long as the congressional language does not itself bar that

result.” Johnson v. United States, 120 S. Ct. 1795, 1805 n.10

(2000).

3. Even if there were any ambiguity with regard to this

point in the original text of the Act, EPA and the Corps have

undertaken extensive rulemaking and other administrative

proceedings in establishing the broad meaning of “waters of

the United States."* The Court has held that Chevron

deference is granted to the Corps’ interpretation of the scope

of its jurisdiction under the Clean Water Act. Riverside

‘Bayview, 474 U.S. at 133. “Accordingly, our review is

limited to whether it is reasonable, in light of the language,

policies, and legislative history of the Act for the Corps to

exercise jurisdiction” in this case. /d. at 131.

4. SWANCC argues that because Congress is

presumed not to use words that have no operative effect, a

“navigability” requirement must be read back into the

definition of “waters of the United States.” (Pet. Br. at 18.)

The use and relationship of these terms is readily explained

by the history of federal water pollution regulation. Congress

has regulated water pollution since 1899. In the Rivers and

Harbors Appropriations Act of 1899 (“RHA”), a predecessor

to the Clean Water Act, protecting navigability was a primary

Statutory purpose. Section 13 of the RHA — known as the

Refuse Act — prohibited the discharge of “refuse matter of

* EPA considered the Clean Water Act definitional issues prior to and

at greater length than the Corps, and had ultimate administrative authority

for determining the reach of the term “waters of the United States.” 43

Op. Att'y Gen. No. 15, at 1 (Sept. 5, 1979). SWANCC challenges the

history of the Corps’ regulation, but fails to note that the Corps relied

largely on EPA — the expert agency charged by Congress with primary

responsibility to implement much of the Clean Water Act — in

promulgating the Corps’ regulation.

13

any kind” into “navigable water of the United States.” 33

U.S.C. § 407. Later amendments of the RHA and new

federal water legislation in 1940 continued to use the

jurisdictional term “navigable waters.” The current version

of the Clean Water Act was enacted as an amendment to the

water pollution statutes in existence in 1972, which had their

origin in the 1899 RHA. Rather than replace the term

“navigable waters,” Congress redefined it to extend to all

“waters of the United States.” Thus, the term continues to

have an “operative effect” as the subject of the expansive

definition that Congress put in place in 1972. However, it

does not limit or affect the scope of the Act in any way.

B. In Amending the Clean Water Act, Congress

Ratified the Settled Judicial and Administrative

Interprétation of “Waters of the United States”

as Extending to the Maximum Reach of

Congress’s Commerce Clause Power.

In 1977 and 1987, Congress passed sweeping

amendments to the Clean Water Act, but did not alter the

established definition of “waters of the United States” as

extending to the limits of federal power under the Commerce

Clause. By doing so, Congress ratified the existing

interpretation. See Albemarle Paper Co. v. Moody, 422 U.S.

405, 414 n.8 (1975).

The definition of “waters of the United States” to include

those waters, the use or misuse of which could affect

interstate commerce, was first promulgated in 1975. See 40

Fed. Reg. 31,320 (1975). In 1977, Congress reexamined the

definition of “navigable waters” under the Act. H.R. 3199,

introduced by Congressman Roberts, would have redefined

“navigable waters” as “all waters which are presently used,

or are susceptible to use in their natural condition or by

reasonable improvement as a means to transport interstate or

foreign commerce.” H.R. 3199, 95th Cong. 39 (1977). S.

1952, introduced by Senator Edmund Muskie, rejected the

change and left the definition of “navigable waters” intact,

14

reflecting the committee’s intention “to assure continued

protection of all the Nation’s waters.” S. Rep. No. 95-370, at

75, reprinted in 1977 U.S.C.C.A.N. 4326, 4400.

A proposal by Senator Bentsen to amend S. 1952 to limit

the definition of “navigable waters” to waters “presently used

or susceptible to use in their natural condition or by

reasonable improvement as a means to transport interstate or

foreign commerce” was also rejected. Senate Debate, Aug.

4, 1977, reprinted in 4 A Legislative History of the Federal

Water Pollution Control Act Amendments of 1977, at 901,

911 (1978) (“Committee Print” compiled for the Committee

on Public Works by the Library of Congress). A number of

members of Congress noted that jurisdiction under the Act

extended to isolated, intrastate waters. See 123 Cong. Rec.

26,711 (1977) (statement of Sen. Bentsen) (warning that if

the Act were not amended, “[t]he [Section 404] program

would still cover all waters of the United States, including

small streams, ponds, [and] isolated marshes .. .”); 123

Cong. Rec. 34,852 (1977) (Rep. Abdnor, extension of

remarks) (explaining that the Corps was asserting jurisdiction

over “all waters — from the smallest to the largest, including

isolated wetlands and lakes, intermittent streams, and prairie

potholes”). After heated debate in both the Senate and the

House, and consideration of the five years of Corps and EPA

implementation, Congress made no changes to the definition

of “navigable waters.” Committee Print at 938; see 123

Cong. Rec. 39,209 (1977) (statement of Senator Baker) (the

1977 Amendments “retainfed]) the comprehensive

jurisdiction over the Nation’s waters exercised in the [Act] to

control pollution to the fullest constitutional extent’).

Between enactment of the Clean Water Act in 1972 and

passage of the 1977 Amendments to the Act, the federal

courts were uniform in their interpretation of “waters of the

United States” as extending EPA’s and the Corps’

ORS ewe Ne Neen ee et

15

jurisdiction to the limits of the Commerce Clause.° Congress

ratified this well-settled interpretation when it substantially

amended the Act in 1977, and again in 1987, without

modification of the key definitional term. See NLRB vy.

Gullett Gin Co., 340 U.S. 361, 366 (1951) (when Congress

amended National Labor Relations Act without modification,

it accepted the existing administrative construction that had

been approved by the courts); Douglas v. Seacoast Prods.,

Inc., 431 U.S. 265, 279 (1977) (where provisions of a statute

were repeatedly reenacted in the same form, the Court had

“no doubt that Congress has ratified the statutory

interpretation” settled in the courts); Albemarle Paper Co. v.

Moody, 422 U.S. 405, 414 n.8 (1975) (where the courts were

unanimous in their interpretation of Title VII requirements,

and Congress reenacted the statute without altering that

interpretation, despite the introduction of a bill designed to

do so, “Congress plainly ratified th{at] construction’).

See, e.g., Ashland Oil, 504 F.2d at 1328 (6th Cir. 1974) (“Congress,

[in the 1972 Act,] intended to exercise its full constitutional powers”);

Leslie Salt Co. v. Froehlke, 403 F. Supp. 1292, 1296-97 (N.D. Cal. 1974)

(following Holland and concluding that Congress’s exercise of the

commerce power [to combat pollution of the nation’s waters] is not

limited by traditional “navigable waters” definitions”); United States v.

Phelps Dodge Corp., 391 F. Supp. 1181, 1184-87 (D. Ariz. 1975) (same).

Rather than change the definition of “waters of the United States,”

Congress took other steps to address concerns about the scope of the

Section 404 program. The 1977 Amendments added new exemptions for

certain farming, construction, road maintenance, and other activities. 33

U.S.C. § 1344(f). Ratification is particularly indicated where, as here,

Congress considered overruling an agency interpretation of a key term

and instead enacted other ameliorative provisions. See Babbitt v. Sweet

Home Chapter, 515 U.S. 687, 707-08 (1995) (Congress focused on the

term “harm” in amending the Endangered Species Act and enacted a

permit program rather than overrule the Secretary’s interpretation);

Riverside Bayview, 474 U.S. at 137 (Congress debated “waters of the

United States” in legislation “specifically designed to supplant” the

agency construction and left the agency’s interpretation undisturbed).

16

C. The Court Should Not Alter the Polance of

Federal-State Regulatory Authority Established

by Congress in the Clean Water Act

Much of SWANCC’s Brief is aimed at persuading the

Court that current federal environmental policy is

inappropriate, because, for example, law review articles say

that states have “acted as leaders in environmental

regulation,” and “adequately protect” local water resources.

(Pet. Br. at 29, 30.) SWANCC implies that this case should

be used by the Court to restructure the balance of regulatory

power established by Congress, shifting power back to the

states and localities that SWANCC asserts will do a better

job than the Corps and EPA. Under our constitutional

system, of course, this is a judgment that is reserved to the

people, through their elected representatives.

Moreover, SWANCC is wrong to argue that primary

federal authority is no longer necessary. As Professor Oliver

Houck has observed:

The money to be made on coastal, lakeside,

riverside, and wetlands development is all but

irresistible. State and local governments stand to

gain considerable employment and tax revenue as

well. The countervailing impacts of any one permit

proposal on overall -wetlands functions are

extremely difficult for any regulator to identify, and

are even less persuasive to the permit applicant.

The harm from wetland development is cumulative,

not individual... . [A] state’s perspective . . . might

differ from that of other states, or the national

interest... . Nearly every contested federal

wetlands permit decision — and they are numerous

— is one that, by federal regulation, already

received all necessary state approvals. If the

interests of receiving states — of downstream and

downflight Americans — are going to be

17

represented, those interests will have to be protected

by more than an agency of a state... .”

The spillover effects and the “race to the bottom” that

Congress addressed in 1972 continue to threaten water

resources and wildlife even in the current federal-state

framework. In United States v. Smithfield Foods, Inc., 965 F.

Supp. 769, 774-76 (E.D. Va. 1997), for example, EPA was

forced to bring a district court action where Virginia,

authorized as the lead Clean Water Act permitting agency,

had failed to enforce the Act’s requirements against a major

in-state employer, resulting in thousands of violations and

contamination of the Pagan River over a six year period.

In this case, SWANCC describes the review undertaken

by Cook County and the Illinois EPA in approving its landfill

project. Yet Illinois granted its approval without effectively

addressing the substantial harm to habitat resources, local

drinking water supplies, and nearby wetlands that the Corps

identified — substantial environmental harms that SWANCC

did not dispute in the District Court.

As a matter of environmental policy, Illinois and Cook

County may value a landfill more than they value the

integrity of the water and wildlife resources at issue here. In

the absence of federal jurisdiction, many local authorities no

doubt would feel similar economic pressures to ignore

potential environmental harms — an accurate description of

environmental regulation as it existed prior to 1972.

In passing the Clean Water Act, Congress made a

different judgment, finding that environmental resources

must be protected, for the economic benefit and well being of

the Nation as a whole. This case presents precisely the type

Oliver A. Houck & Michael Rolland, Federalism in Wetlands

Regulation: A Consideration of Delegation of Clean Water Act Section

404 and Related Programs to the States, 54 Md. L. Rev. 1242, 1252-53

(1995).

18

of problem that Congress intended to remedy by establishing

uniform national water pollution standards and consistent

federal administrative and enforcement mechanisms.

Il. CONGRESS HAS COMMERCE CLAUSE POWER

TO REGULATE CONSTRUCTION AND

OPERATION OF A SOLID WASTE LANDFILL

THAT WOULD POLLUTE INTRASTATE

SURFACE WATERS USED AS HABITAT BY

MIGRATORY BIRDS

A. The Commerce Clause Confers Plenary Federal

Power Over Economic Activity that Concerns

More States than One

Article I, § 8 of the Constitution grants the federal

government power to “regulate Commerce .. . among the

several States.” Since the earliest days of the Republic, the

term “commerce” has been broadly construed to encompass

“every species of commercial intercourse” that “concerns

more States than one.” Gibbons v. Ogden, 22 US. (9

Wheat.) 1, 193 (1824).

Under this conception, the Court since 1937 has upheld

Congressional regulation of a broad variety of economic

activities that are themselves conducted locally, including

management of a steel plant, NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. 1 (1937); cultivation of wheat for personal

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

operation of a small family restaurant, Katzenbach v.

McClung, 379 U.S. 294 (1964); participation in extortionate

credit transactions, Perez v. United States, 402 U.S. 146

(1971); and coal mining, Hodel v. Virginia Surface Mining

Reclamation Ass'n, 452 U.S. 264 (1981).

To exercise effective control over economic matters of

genuinely national concern in modern society, Congress has

the power to regulate economic activities that have a

substantial effect on interstate commerce in the aggregate,

even if instances of such activities have little or no effect

considered in isolation. See Hodel, 452 U.S. at 277

19

(permitting regulation of activity which “‘combined with like

conduct by others similarly situated, affects commerce

among the several States’”) (citation omitted); Wickard, 317

U.S. at 127-28 (regulating personal growth and consumption

of wheat).

The Commerce Clause grants “plenary authority” to

Congress over commerce that concerns more states than one.

Hodel, 452 U.S. at 276. The “sole restraints” on Congress’s

exercise of Commerce Clause authority are political, arising

from “[t]he wisdom and discretion of Congress, their identity

with the people, and the influence which constituents possess

at elections... .” Gibbons, 22 U.S. (9 Wheat.) at 197.

Where Congress passes a statute that has the primary effect

of regulating economic activity, the Court’s review is limited

to considering whether there is a rational basis for the finding

of substantial interstate economic effects, and whether the

means employed are reasonably tailored to the objectives of

the statute. Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241, 258 (1964). The Court will uphold regulation

under the Commerce Clause unless it “is clear that there is

no rational basis” for a determination that the regulated

activity substantially affects interstate commerce. FERC v.

Mississippi, 456 U.S. 742, 753-54 (1982) (quoting Hodel v.

Indiana, 452 U.S. 314, 323-24 (1981) (emphasis added).

Congress “normally is not required to make formal findings

as to the substantial burdens that an activity has on interstate

commerce.” United States v. Lopez, 514 U.S. 549, 562

(1995) (quoted in United States v. Morrison, 120 S. Ct. 1740,

1750 (2000)). See also Heart of Atlanta Motel, 379 U.S. at

252 (while race discrimination legislation carried no formal

congressional findings, record evidenced burdens on

interstate commerce); Perez, 402 U.S. at 156 (particularized

findings not necessary for Congress to legislate).

20

B. The Clean Water Act Regulates Economic

Activity

The activities regulated under the Clean Water Act are

obviously and overwhelmingly economic in nature.

Discharges of pollutants into surface waters are caused

primarily by industrial and commercial operations, including

manufacturing, construction, resource extraction, land

development, agriculture, and waste disposal. See, e.g., 40

CFR. Parts 403-610 (EPA effluent guidelines for 73

categories of industrial activities, filling over 1500 pages of

the Code of Federal Regulations). Indeed, SWANCC

concedes, in arguing that the Corps’ action here may not be

upheld under the Treaty Power, that “[mJany environmental

laws regulate commercial activity... . As such, they are

clearly permissible under the commerce power.” (Pet. Br. at

49.)

Federal cases involving Section 404 permits issued by

the Corps illustrate the economic nature of the regulated

activities. In Riverside Bayview, for example, the respondent

was a corporation seeking a permit to fill 80 acres of

wetlands to prepare for construction of a housing

development. 474 U.S. at 124; see also Wetlands Action

Network v. U.S. Army Corps of Engineers, __ F.3d __.,

2000 WL 1175081, at *2 (9th Cir. Aug. 21, 2000) (permit

sought by developer of 1,000-acre district, to include

residential areas, a marina, hotels, and retail establishments),

United States v. Deaton, 209 F.3d 331, 333 (4th Cir. 2000)

(permit sought for development of residential subdivision) .*

* SWANCC cites a study of the Corps’ regulation under Section 404

which demonstrates that the overwhelming majority of acreage for which

Section 404 permits are sought is intended for commercial, industrial, or

other economic use. See V. Albrecht & B. Goode, Wetland Regulation in

the Real World, ex. 3 (1994) (sampling of Section 404 permit

applications in 1992) (cited in Pet. Br. at 38).

21

SWANCC expresses concern that a “homeowner” might

be denied a Clean Water Act permit based on application of

the migratory birds jurisdictional nexus test. (Pet. Br. at 31.)

That is emphatically not this case, but in any event, “[a]

complex regulatory program .. . can survive a Commerce

Clause challenge without a showing that every single facet of

the program is independently and directly related to a valid

congressional goal. It is enough that the challenged

provisions are an integral part of the regulatory program and

that the regulatory scheme when considered as a whole

satisfies this test.” Hodel v. Indiana, 452 U.S. at 329 n.17.

C. This Case Challenges Regulation of Economic

Activity

SWANCC asserts that this is “an as-applied, not a facial

challenge,” (Pet. Br. at 31 n.12), but then challenges as

unconstitutional the “regulation of isolated waters” in the

abstract, divorced from the underlying conduct of the human

and corporate actors. SWANCC repeatedly attacks the

hypothetical scope of the Corps’ authority, which it describes

as “stretch[ing] to virtually every body of water in the

country — including seasonally wet areas in homeowners’

backyards, used as a feeding or resting place by birds.” (/d.

at 11.)

Of course, “[i]t has long been this Court's considered

practice not to decide abstract, hypothetical, or contingent

questions, .. . or to formulate a rule of constitutional law

broader than is required by the precise facts to which it is to

be applied, .. . or to decide any constitutional question

except with reference to the particular facts to which it is to

be applied.” Alabama State Fed'n of Labor v. McAdory, 325

U.S. 450, 460-61 (1946) (refusing to rule on constitutionality

of labor statute as it hypothetically could be applied).

SWANCC’s argument in the abstract also largely ignores the

regulatory framework of the Act. The Clean Water Act

regulates project development activities that alter the

physical and biological integrity of water, not the receiving

22

waters themselves. See PUD No. | v. Washington Dep't of

Ecology, 511 U.S. 700 (1994).

It is well-settled that the activity of solid waste disposal

is “commerce” for purposes of Commerce Clause analysis.

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

Indeed, if the SWANCC landfill is built, it will be

constitutionally required to accept solid waste from outside

the state of Illinois, and therefore will itself be within the

stream of interstate commerce. See id. at 623.

SWANCC is a municipal corporation that proposed to

build and operate a 142-acre, $69 million solid waste landfill

(AR. 15635.) The landfill would receive hundreds of

thousands of tons of waste each year, generating millions of

dollars of revenue, and employ hundreds of personnel. (AR.

15622.) This obviously is an “economic endeavor.”

Morrison, 120 §S. Ct. at 1750. Accordingly, the Corps’

jurisdictional nexus test should be considered under the

Court’s traditional rational basis standard of review.

D. There is a Rational Basis for Determining that

Water Pollution Harm to Migratory Birds, in the

Aggregate, Substantially Affects Interstate

Commerce

As this Court noted in Morrison, an important issue for

Commerce Clause analysis is whether the federal program

includes an “express jurisdictional element” or nexus test that

establishes that the program is “in pursuance of Congress’

regulation of interstate commerce.” 120 S. Ct. at 1751. The

migratory birds jurisdictional nexus test serves this function,

guiding the Corps in determining the scope of Clean Water

Act jurisdiction on a case-by-case basis. This is one of

several nexus tests established under the regulatory definition

of “waters of the United States,” which include, inter alia:

All other waters such as intrastate lakes, rivers,

streams (including intermittent streams), mudflats,

sandflats, wetlands, sloughs, prairie potholes, wet

meadows, playa lakes, or natural ponds, the use,

23

degradation or destruction of which could affect

interstate or foreign commerce, including any such

waters [which are or could be]:

(1) used by interstate or foreign travelers for recreational or

other purposes; (2) the source of fish or shellfish taken and

sold in interstate or foreign commerce; (3) used for industrial

purposes by industries in interstate commerce; (4) used as

habitat by birds protected by migratory bird treaties; (5) used

as habitat by other migratory birds which cross state lines, (6)

used as habitat for endangered species, or (7) used to irrigate

crops sold in interstate commerce. See 33 CFR. §

328. 3(a(3), 40 CFR. § 230.3(s); 51 Fed. Reg 41,206,

41,217 (1986).

Pollution or destruction of aquatic habitat in one state

reduces the number of birds dependent on that habitat that

can be observed or hunted in other states. Congress was

concerned about “the systematic destruction of the Nation’s

wetlands” and noted that these wetlands are “nesting areas

for a myriad of species of birds and wildlife”” S. Rep. No.

95-370 (1977), reprinted in 1977 US.C.C._AN. 4326, 4336.

Protection of wildlife is an express purpose of the Act. 33

U.S.C. § 1251(a)(2).

The migratory birds jurisdictional nexus test is supported

by extensive data regarding impacts on interstate commerce.

The U.S. Congress, Office of Technology Assessment issued

a report in 1984 finding that in 1980, 5.3 million Americans

hunted migratory birds, spending $638 million in the process

OTA, U.S. Congress, Wetlands: Their Use and Regulation

52 n.12 (1984) More than 55 million Americans spent

almost $10 billion in 1980 to watch and photograph

wetlands-dependent birds, many of which are migratory. /d

at 7. Approximately 77 million U.S. residents participated in

wildlife-related activities in 1996. US. Fish & Wildlife

Service, 1996 National Survey of Fishing, Hunting &

Wildlife Associated Recreation 22-23, 60 (1997).

Expenditures associated with wildlife-related recreational

activities — such as travel, lodging, equipment, and books

24

and magazines — totaled $101 billion in 1996, including

$20.6 billion expended on hunting activities and $29.2 billion

expended on wildlife-watching activities. /d. Out of 17.7

million bird-watchers, 14.3 million people took trips

specifically to observe, feed or photograph waterfowl, 95

million took trips to view other water-associated birds, such

as herons. /d. at 45, 90. Migratory bird hunters numbered

3.1 million, who spent $1.3 billion on their activities. /d.

Pollution and destruction of isolated waters and wetlands

are a principal threat to migratory birds. See Fund for

Animals v. Frizzell, 530 F.2d 982, 986 (D.C. Cir. 1975); see

also 1 Secretary of the Interior, The Impact of Federal

Programs on Wetlands: The Lower Mississippi Alluvial

Plain and the Prairie Pothole Region 20 (1988) (“Prairie

potholes [isolated surface waters similar to those at the

SWANCC site] are among the most important and also the

most threatened ecosystems in the United States. They are

prime nesting grounds for many species of North American

waterfowl .. . . [providing] up to 50 percent of the US.

production of migratory waterfowl”). Reduced habitat area

not only provides fewer foraging and breeding sites, but also

concentrates remaining birds in less space, resulting in

increased avian disease and mortality. /d. at 29. .

Congress has confirmed the link between habitat loss

and impacts on migratory birds in a number of statutes. See,

e.g., North American Wetlands Conservation Act, 16 U.S.C.

§ 4401(a)(8) (nationwide loss of wetlands has contributed to

serious declines in populations of migratory bird species),

Water Bank Act, 16 U.S.C. § 1301 (national public policy to

preserve wetlands as migratory bird habitat), Emergency

Wetlands Resources Act of 1986, 16 USC. § 3901

(wetlands essential for the ultimate survival of migratory

birds; enumerating benefits of wetlands to “all citizens of the

Nation” and declaring national goal to conserve remaining

wetland resources).

Congress, EPA, and the Corps have a rational basis for

determining that pollution of intrastate surface waters, taken

25

in the aggregate, could substantially affect interstate

economic activity. The federal courts that have considered

the issue have uniformly concluded that use of intrastate

waters by migratory birds is sufficiently connected with

interstate commerce to permit federal regulation. Leslie Salt

Co. v. United States, 896 F.2d 354, 360 (9th Cir. 1990);

Leslie Salt Co. v. United States, 55 F.3d 1388, 1395 (9th Cir.

1995) (use of 12.5 acres of seasonally ponded areas by 55

species of migratory birds sufficient); Utah v. Marsh, 740

F.2d 799, 803-04 (10th Cir. 1984) (isolated lake used for

recreation, including wildlife observation, with two percent

(2%) of visitors from out of state); United States v. Sargent

County Water Resource District, 876 F. Supp. 1081, 1087

(D.N.D. 1992) (use of isolated sloughs by migratory birds

and potentially by interstate travelers supports jurisdiction).

SWANCC argues that pollution of the pond: on its

property will not substantially affect interstate commerce.

However, the possibility that SWANCC’s landfill might not,

by itself, affect interstate commerce is irrelevant. Even

activity that is seemingly insignificant may be regulated

where its “contribution, taken together with that of many

others similarly situated, is far from trivial.” Wickard v.

Filburn, 317 U.S. 111, 128 (1942). “[W]here a general

regulatory statute bears a substantial relation to commerce,

the de minimis character of individual instances arising under

that statute is of no consequence.” Lopez, 514 US. at 558

(quoting Maryland v. Wirtz, 392 U.S. 183, 197 n.27 (1968)).

As this Court noted in Hodel v. Indiana, water pollution is a

quintessential example of the type of national economic

problem that Congress is empowered to address at the local

level under the Commerce Clause. 452 U.S. at 324. Accord

Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000) (upholding,

under Lopez and Morrison, Endangered Species Act

regulation that prohibited taking of reintroduced wolves on

private land as necessary part of comprehensive federal

program). ™

26

E. Even if This Case Challenged Regulation of Non-

Economic Activity, Federal Protection of Water

Resources and Habitat Meets the Tests of Lopez

and Morrison

1. Congress has well-recognized authority to protect

scarce national resources, including wildlife, under the

Commerce Clause. Preservation of environmental resources

is a traditional and important federal role that has long been

upheld by the Court. In Sporhase v. Nebraska, for example,

the Court noted that ground water was in short supply and

needed in many Western states, and that there was therefore

“a significant federal interest in conservation as well as in

fair allocation of this diminishing resource.” 458 U.S. 941,

953-54 (1982). The depletion of ground water was “a

national problem” and the Commerce Clause gave Congress

“the power to deal with it on that scale.” /d. at 954; see also

Cochrane v. United States, 92 F.2d 623, 627 (7th Cir. 1937)

(holding that “Congress may lawfully legislate, under the

Commerce Clause .. . to protect the game, nongame, and

insectivorous birds which migrate”).

2. Contrary to SWANCC’s argument, this case does

not obliterate the distinction between what is national and

what is local. SWANCC argues that the Corps acted as a

“sort of super zoning board or land use authority,”

impermissibly encroaching on the traditional jurisdiction of

state and local agencies. (Pet. Br. at 28-29.) But the Corps

only enforced the requirement of the Act that SWANCC

obtain and comply with a permit before discharging

pollutants into surface waters. The Corps denied

SWANCC’s permit application because it would (a)

seriously degrade or eliminate habitat used by numerous

species of birds and other wildlife; and (b) threaten nearby

drinking water supplies and wetlands.

Potential destruction of wildlife habitat, water pollution,

and groundwater contamination are not the principal subjects

of zoning and land use law. Rather, zoning and land use laws

provide for a “uniform plan or design” of community

27

development, establishing certain siting and building

characteristics, such as size (e.g., area in square feet, number

of stories), use (residential, commercial, industrial), utility

hook ups, signage, building code and safety requirements,

and road and transportation access. See Peter W. Salsich, Jr.

& Timothy J. Tryniecki, Land Use Regulation at 136-37

(ABA 1998) (definition of zoning). “Land use planning in

essence chooses particular uses for the land; environmental

regulation, 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.”

California Coastal Comm'n v. Granite Rock Co., 480 U.S.

572, 586 (1987).

Many federal programs limit local police powers to

some degree. See, e.g., Endangered Species Act, 16 U.S.C.

§§ 1531 ef seg. (regulating land use that affects endangered

species); | Comprehensive Environmental _—_ Response,

Compensation, and Liability Act, 42 U.S.C. §§ 9601 ef seq.

(hazardous substance site cleanup); Surface Mining Control

and Reclamation Act, 30 U.S.C. § 1276(a) (reclamation of

former strip mines); Resource Conservation and Recovery

Act, 42 U.S.C. § 6976 (solid waste disposal); Clean Air Act,

42 U.S.C. § 7607(b) (controlling use of property that affects

air quality). However, incidental impacts on local authority

are irrelevant. “This Court has upheld as constitutional any

number of federal statutes enacted under the commerce

power that preempt particular exercises of state police

power.” Hodel v. Virginia Surface Mining & Reclamation

Ass'n, 452 U.S. 264, 292 (1981) (multiple citations omitted)

(rejecting argument that surface mining regulations

impermissibly interfered with State police powers by

regulating land use).

Moreover, protection of migratory birds has never been

viewed as an area of predominantly local concern. Since the

early part of this century, the federal government has been

active in the protection and preservation of migratory birds

through enactment of a series of international migratory bird

28

treaties. See Missouri v. Holland, 252 U.S. 416, 435 (1920)

(finding that protection of migratory birds constitutes “a

national interest of very nearly the first magnitude” as to

which “[i]t is not sufficient to rely on the States’).

3. Clean Water Act regulation of pollution of intrastate

surface waters used as habitat by migratory birds is not

limitless. SWANCC argues that the migratory bird

jurisdictional nexus test is unconstitutional under Morrison

because it would result in “limitless federal regulation.” As

discussed above, the scope of federal jurisdiction under the

Clean Water Act is extremely broad, extending to “virtually

all surface water in the country.” /nternational Paper Co. v.

Ouellette, 479 U.S. 481, 486 (1987). This broad jurisdiction

is necessary to achieve the purposes of the Act — to restore

and maintain the chemical, physical, and biological integrity

of our Nation’s waters. However, this does not mean that

regulation under the Acct is limitless; it is not.

The Clean Water Act extends to discharges by small

family farms, wastewater treatment system operations by

towns and villages; shopping mall parking lots upon which

rain water flows; dirty bath water running through municipal

sewer systems; cooling water discharged by utilities; and

filling of wetlands in land development. But this is not the

same as unlimited federal regulation of all things

everywhere. For example, rain water runoff from parking

lots is subject to Clean Water Act jurisdiction, but this does

not mean that EPA regulates all people parking all cars

everywhere. Regulated commercial parking lot operations

are authorized by a “general permit” issued by EPA, which

requires minimal storm water management activities as a

means of complying with the applicable federal

requirements. See 40 C.F.R. § 122.26. Similarly, filling of

virtually all wetlands is subject to Clean Water Act

jurisdiction, but Congress and the Corps have developed an

elaborate system of exceptions and exemptions that have

allowed a great deal of wetlands destruction over the last

fifteen years, without significant federal regulatory

29

constraints.” See 33 U.S.C. § 1344(f) (exemptions from

permit requirements).

The Clean Water Act is not unique in providing broad

federal jurisdiction where necessary to address a national

problem. The Clean Air Act extends to all emissions of

hazardous pollutants, whether or not they individually have

interstate effects. The Superfund statute governs cleanup at

many contaminated hazardous waste sites that have no

physical connection whatsoever with other states. The Safe

Drinking Water Act applies to isolated intrastate groundwater

aquifers as well as to those that cross state lines. The

Endangered Species Act prohibits killing of endangered

species, even in the privacy of a person’s back yard. The

Fair Labor Standards Act, Occupational Safety and Health

Act, and National Labor Relations Act extend jurisdiction

over the vast majority of workers in the United States, but

this does not mean that they regulate all workplace activities

everywhere. These statutes govern activities that are largely

local in nature, which contribute collectively to nationwide

problems. But the scope of regulation under these programs

is limited by the terms of the regulations themselves.

Provided that they are appropriately tailored to meet the harm

addressed, the Court will not invalidate such regulations on

Commerce Clause grounds. Hodel, 452 U.S. at 292. If this

Court were to rule in SWANCC’s favor, hundreds of similar

challenges would be brought seeking strict scrutiny judicial

review of interstate commerce connections under these and

° — SWANCC paints a picture of the Corps as an overzealous federal

regulator running rampant on the rights of innocent developers. Yet of

the average of 74,500 Section 404 permit requests received by the Corps

each year from 1996 to 1999, only three tenths of one percent (0.3%)

were denied. See Testimony of Michael Davis, Deputy Assistant

Secretary of the Army for Civil Works, before Senate Environment and

Public Works Committee, Subcommittee on Air Quality, Wetlands,

Private Property, and Nuclear Safety, March 28, 2900.

30

many other federal environmental, health, and safety

programs that regulate economic activities.

Here, the Corps does not interpret the scope of migratory

bird jurisdiction to the extremes that SWANCC presents, and

it did not apply the test in such a way in this case. As the

Seventh Circuit recognized, the Corps’ migratory bird test

protects waters or wetlands not on the basis of a fleeting

migratory bird presence, but only where such waters or

wetlands are “suitable” for providing actual migratory bird

habitat. See SWANCC v. Corps, 191 F.3d 845, 850 (7th Cir.

1999).

Finally, unlike the programs challenged in Lopez and

Morrison, the Court need not speculate regarding the

potential scope of federal regulation in this case. The Corps

has applied the current version of the Section 404 program,

including the migratory bird jurisdictional nexus test, for

more than fifteen years. SWANCC offers no evidence that

the Corps has attempted to implement “plenary federal

authority over land use.” Given the limitations established in

the program itself, and the political constraints that would

prevent such scenarios, it is clear that the Clean Water Act

has not threatened, and will not threaten, the “distinction

between what is truly national and what is truly local.”

Morrison, 120 S. Ct. at 1754. The Act will continue to be

applied to meet the Congressional purpose of restoring and

maintaining the integrity of our Nation’s waters, and State

and local governments will continue to have primary land use

and zoning authority, as they would have in this case, but for

the substantial environmental threats pased by the SWANCC

landfill.

CONCLUSION

The Court should affirm the decision of the Court of

Appeals for the Seventh Circuit.

MICHAEL BEAN

TIMOTHY SEARCHINGER

ENVIRONMENTAL DEFENSE

1875 Connecticut Ave., N.W.

Washington, D.C. 20009

(202) 387-3500

DANIEL ROSENBERG

NATURAL RESOURCES

DEFENSE COUNCIL

1200 New York Avenue, N.W.

Suite 400

Washington, D.C. 20005

(202) 289-2389

JULIE SIBBING

NATIONAL WILDLIFE

FEDERATION

1400 16th Street, N.W.

Suite 100

Washington, D.C. 20036

(202) 797-6832

DAVID ANDERSON

CHESAPEAKE BAY FOUNDATION

162 Prince Georges Street

Annapolis, MD 21401

(410) 268-8816

September 20, 2000

Respectfully Submitted,

LOUIS R. COHEN

Counsel of Record

JAMES R. WRATHALL

JOHN V.H. PIERCE

R. KEVIN BAILEY

WILMER, CUTLER &

PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000

ROBERT IRVIN

CHRISTOPHER WILLIAMS

WORLD WILDLIFE FUND

1250 24th Street, N.W.

Washington, D.C. 20037

(202) 861-8382

MIKE P. SENATORE

DEFENDERS OF WILDLIFE

1101 14th Street, N.W.

Suite 1400

Washington, D.C. 20005

(202) 682-9400

Counsel for Amici Curiae