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

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## Record

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

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0351%3A38. Public record. Not legal advice.