No. 99-1178
In the Supreme Court of the United States
SOLID WASTE AGENCY OF NORTHERN COOK COUNTY, PETITIONER
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
JOHN A. BRYSON
ETHAN G. SHENKMAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the United States Army Corps of Engineers may, consistent with the
Clean Water Act and the Commerce Clause, exercise regulatory jurisdiction
over a series of permanent and seasonal ponds and small lakes that are used
as habitat for numerous species of migratory birds.
In the Supreme Court of the United States
No. 99-1178
SOLID WASTE AGENCY OF NORTHERN COOK COUNTY, PETITIONER
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-13a) is reported at 191
F.3d 845. The opinion of the district court (Pet. App. 14a-36a) is reported
at 998 F. Supp. 946.
JURISDICTION
The judgment of the court of appeals was entered on October 7, 1999. Justice
Stevens granted an extension of time to and including January 14, 2000,
for filing a petition for a writ of certiorari, and the petition was filed
on that date. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATEMENT
1. Congress enacted the Federal Water Pollution Control Act (Clean Water
Act or CWA) in 1972 "to restore and maintain the chemical, physical,
and biological integrity of the Nation's waters." 33 U.S.C. 1251(a).
One of the chief goals of the CWA is to attain "water quality which
provides for the protection and propagation of fish, shellfish, and wildlife."
33 U.S.C. 1251(a)(2). A major tool in achieving that purpose is a prohibition
on the discharge of any pollutants, including dredged or fill material,
into "navigable waters" except in accordance with the Act. 33
U.S.C. 1311(a), 1362(12)(A). The CWA provides that "[t]he term 'navigable
waters' means the waters of the United States, including the territorial
seas." 33 U.S.C. 1362(7). The Conference Report accompanying the CWA
explained that "[t]he conferees fully intend that the term 'navigable
waters' be given the broadest possible constitutional interpretation unencumbered
by agency determinations which have been made or may be made for administrative
purposes." S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972).
Discharges of dredged or fill material into "waters of the United States"
may be authorized by a permit issued by the Army Corps of Engineers (Corps)
pursuant to Section 404 of the CWA, 33 U.S.C. 1344. The Corps' original
regulations limited the geographic scope of the Corps' authority to waters
that were navigable-in-fact. After that narrow interpretation was rejected
by the courts,1 the Corps issued interim final regulations in 1975, see
40 Fed. Reg. 31,320, and final regulations in 1977, see 42 Fed. Reg. 37,122.
The final regulations defined the term "waters of the United States"
to include, inter alia, "isolated wetlands and lakes, intermittent
streams, prairie potholes, and other waters that are not part of a tributary
system to interstate waters or to navigable waters of the United States,
the degradation or destruction of which could affect interstate commerce."
33 C.F.R. 323.2(a)(5) (1978).2 The regulation in its current form contains
similar language. See 33 C.F.R. 328.3(a)(3).3 Regulations promulgated by
the Environmental Protection Agency (EPA) include a substantially identical
definition of the term "waters of the United States." See 40 C.F.R.
230.3(s)(3).
In 1986, the Corps consolidated and recodified its regulatory provisions
defining "waters of the United States" for purposes of the Section
404 program. See 51 Fed. Reg. 41,216-41,217 (1986). The Corps explained
that the new regulations neither reduced nor expanded the scope of its jurisdiction.
Id. at 41,217. Rather, their "purpose was to clarify the scope of the
404 program by defining the terms in accordance with the way the program
is presently being conducted." Ibid. In its discussion of the regulations,
the Corps observed that the EPA had "clarified that waters of the United
States" include waters "[w]hich are or would be used as habitat
by birds protected by Migratory Bird Treaties," as well as waters "[w]hich
are or would be used as habitat by other migratory birds which cross state
lines." Ibid.
2. a. Petitioner Solid Waste Agency of Northern Cook County is a consortium
of Illinois municipalities formed for the purpose of locating and developing
a disposal site for nonhazardous waste. Pet. App. 1a-2a. Petitioner owned
a 533-acre parcel of land in Cook and Kane Counties, Illinois, on which
it proposed to locate a solid waste landfill. Ibid. The project site was
410 acres in size, 298 acres of which was an "early successional stage
forest." Id. at 2a. Over time, "[w]hat were once gravel pits"
have evolved into "over 200 permanent and seasonal ponds * * * rang[ing]
from less than one-tenth of an acre to several acres in size, and from several
inches to several feet in depth." Ibid.
Approximately 121 species of birds have been observed on the project site,
including species that "depend on aquatic environments for a significant
portion of their life requirements" and "migrate through portions
of the United States." C.A. App. 90. "Among the species that have
been seen nesting, feeding, or breeding at the site are mallard ducks, wood
ducks, Canada geese, sandpipers, kingfishers, water thrushes, swamp swallows,
redwinged blackbirds, tree swallows, and several varieties of herons."
Pet. App. 3a. Each of the above-listed species is on the list of migratory
bird species protected under international treaties. See 50 C.F.R. 10.13.
"[T]he site is a seasonal home to the second-largest breeding colony
of great blue herons in northeastern Illinois, with approximately 192 nests
in 1993." Pet. App. 3a.
b. Petitioner's proposed balefill would involve the filling of approximately
17.6 acres of the ponds and small lakes on its property. Pet. App. 3a, 15a.
The Corps ultimately concluded that the ponds are "waters of the United
States" falling within its regulatory jurisdiction under 33 C.F.R.
328.3(a)(3) because (inter alia) "the water areas are used as habitat
by migratory birds[s] which cross state lines." C.A. App. 90; see also
Pet. App. 3a-4a, 15a-16a. Petitioner subsequently applied to the Corps for
a permit under Section 404 of the CWA, 33 U.S.C. 1344. C.A. App. 85-86;
Pet. App. 4a, 16a. After an extensive public review process and input from
numerous local, state, and federal agencies, the Corps denied the permit
in July 1994. C.A. App. 84-171; Pet. App. 4a, 16a. The Corps based the permit
denial on the agency's findings that (inter alia) (1) the landfill would
seriously degrade or eliminate the value of the area as habitat for numerous
species of birds and other wildlife (C.A. App. 155-157); (2) petitioner
had failed to demonstrate that there were no practicable alternatives to
the proposed landfill that would be less environmentally damaging (id. at
170); and (3) the project posed "an unacceptable risk to the public's
drinking water supply," due to the possibility that leachate from the
landfill could contaminate groundwater aquifers (id. at 171).
3. Petitioner filed suit in federal district court, seeking judicial review
of the Corps' decision under the Administrative Procedure Act, 5 U.S.C.
701 et seq. Pet. App. 14a. Petitioner challenged both the Corps' assertion
of regulatory jurisdiction over its property and the merits of the permit
denial. Id. at 1a. The district court granted summary judgment for the government
on the issue of CWA jurisdiction. Id. at 14a-36a. Petitioner then consented
to the dismissal with prejudice of its remaining claims, and the district
court entered final judgment in favor of the government. Id. at 2a.
4. The court of appeals affirmed. Pet. App. 1a-13a. The court observed that
petitioner had "abandoned its challenge to the merits of the Corps'
decisions and ha[d] instead focused exclusively on its challenge to"
the Corps' assertion of regulatory jurisdiction over the property based
on the presence of migratory birds. Id. at 4a. The court therefore "accept[ed]
as true the Corps' factual findings with regard to [petitioner's] permit
application, including the crucial finding that the waters of this site
were a habitat for migratory birds." Id. at 5a.
a. The court of appeals rejected petitioner's contention that "Congress
lacked the power to grant the Corps regulatory jurisdiction over isolated,
intrastate waters based on the presence of migratory birds alone."
Pet. App. 5a. Prior to this Court's decision in United States v. Lopez,
514 U.S. 549 (1995), the court explained, "it had been established
that Congress' powers under the Commerce Clause were broad enough to permit
regulation of waters based on the presence of migratory birds." Pet.
App. 5a (citing cases). The court found that Lopez had not undermined that
rule. It observed that "Lopez expressly recognized, and in no way disapproved,
the cumulative impact doctrine, under which a single activity that itself
has no discernible effect on interstate commerce may still be regulated
if the aggregate effect of that class of activity has a substantial impact
on interstate commerce." Id. at 6a. The court summarized statistical
evidence showing that Americans engage in frequent interstate travel and
spend substantial sums of money in order to hunt and observe migratory birds.
Id. at 7a. It concluded that
the destruction of migratory bird habitat and the attendant decrease in
the populations of these birds "substantially affects" interstate
commerce. The effect may not be observable as each isolated pond used by
the birds for feeding, nesting, and breeding is filled, but the aggregate
effect is clear, and that is all the Commerce Clause requires.
Ibid. The court also stated that "the numerous international treaties
and conventions designed to protect migratory birds, * * * as well as the
case law recognizing the 'national interest of very nearly the first magnitude'
in protecting such birds," refuted petitioner's contention that the
protection of migratory bird habitat is a matter of purely local concern.
Id. at 8a (quoting North Dakota v. United States, 460 U.S. 300, 309 (1983)).
b. The court of appeals rejected petitioner's argument that the Corps' exercise
of regulatory jurisdiction over the ponds in question exceeded its authority
under the CWA. The court observed that the construction of the statutory
term "waters of the United States" utilized by the Corps and EPA
is entitled to deference under the principles set forth in Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Pet.
App. 9a. The court found it "well established that the geographical
scope of the Act reaches as many waters as the Commerce Clause allows."
Ibid. (citing cases). It concluded that, "because Congress' power under
the Commerce Clause is broad enough to permit regulation of waters based
on the presence of migratory birds, it is certainly reasonable for the EPA
and the Corps to interpret the Act in such a manner." Id. at 10a.
c. The court of appeals rejected petitioner's contention that the Corps'
exercise of regulatory jurisdiction in this case was inconsistent with United
States v. Wilson, 133 F.3d 251 (4th Cir. 1997). Wilson involved a challenge
to 33 C.F.R. 328.3(a)(3), which defines "waters of the United States"
to include all waters "the use, degradation or destruction of which
could affect interstate or foreign commerce." The court of appeals
in the instant case explained that the Wilson court "found the regulation
to be an unreasonable interpretation of the [CWA] based on its suspicion
that Congress lacks the power to regulate waters that 'could' affect interstate
or foreign commerce." Pet. App. 10a. The court of appeals stated that
in the present case,
the question whether Congress may regulate waters based on their potential
to affect interstate commerce is not presented, because the unchallenged
facts show that the filling of the 17.6 acres would have an immediate effect
on migratory birds that actually use the area as a habitat. Thus, we need
not, and do not, reach the question of the Corps' jurisdiction over areas
that are only potential habitats.
Ibid.
ARGUMENT
The court of appeals' decision is correct and does not conflict with any
decision of this Court or any other court of appeals. Further review is
not warranted.
1. Petitioner contends that the decision of the court of appeals conflicts
with the ruling of the Fourth Circuit in United States v. Wilson, 133 F.3d
251 (1997). That claim is incorrect.
a. Wilson was a criminal case in which the defendants were convicted of
knowingly discharging dredged or fill material into waters of the United
States without a permit, in violation of 33 U.S.C. 1311(a) and 1319(c)(2)(A).
See 133 F.3d at 254. With respect to the jurisdictional element of the CWA,
the jury was instructed that "[t]he government must prove that these
waters have some potential connection with interstate commerce." Id.
at 256.4 The district court based that instruction on the regulatory definition
of "waters of the United States" contained in 33 C.F.R. 328.3(a)(3),
which encompasses "[a]ll other waters such as intrastate * * * wetlands
* * * or natural ponds, the use, degradation or destruction of which could
affect interstate or foreign commerce." The defendants argued that
"the regulation and jury instructions [we]re fatally flawed * * * because
of their invocation of 'potential' uses and effects on commerce." 133
F.3d at 256.
The Wilson court reversed the convictions and remanded for a new trial.
It stated that 33 C.F.R. 328.3(a)(3) permits the exercise of CWA jurisdiction
over waters "solely on the basis that the use, degradation, or destruction
of such waters could affect interstate commerce. The regulation requires
neither that the regulated activity have a substantial effect on interstate
commerce, nor that the covered waters have any sort of nexus with navigable,
or even interstate, waters." 133 F.3d at 257. The court concluded that
the Corps had exceeded its authority under the CWA by defining the term
"waters of the United States" in that manner, and that the jury
instructions based upon the regulation were therefore erroneous. Ibid.5
b. Although the decision in Wilson is in some tension with the court of
appeals' ruling in this case, no square conflict exists. The Wilson court
held that the Corps had exceeded its authority by asserting jurisdiction
over all waters the use, degradation, or destruction of which could potentially
affect interstate commerce. The court did not attempt to describe the sorts
of connections to interstate commerce that would suffice to bring a particular
body of water within the CWA's coverage. See 133 F.3d at 256 ("we need
not resolve these difficult questions about the extent and limits of congressional
power to regulate nonnavigable waters to resolve the issue before us").
The Wilson court did not, in particular, address the question "whether
the destruction of the natural habitat of migratory birds in the aggregate
'substantially affects' interstate commerce." Pet. App. 7a.6 Thus,
nothing in Wilson purports to resolve the question whether use of a particular
body of water as habitat for migratory birds is sufficient to bring the
water within the Corps' jurisdiction under the CWA.7
Finally, petitioner argues (Pet. 11) that its ponds cannot be "waters
of the United States" under the Fourth Circuit's view of the CWA because
they have "no connection to navigable or interstate waters or waters
closely related thereto." Petitioner refers (Pet. 10) to the suggestion
in Wilson that, "[e]ven as a matter of statutory construction, one
would expect that the phrase 'waters of the United States' when used to
define the phrase 'navigable waters' refers to waters which, if not navigable
in fact, are at least interstate or closely related to navigable or interstate
waters." 133 F.3d at 257. That statement, however, is merely dictum
and does not constitute an "alternative" holding (Pet. 11).
c. The lower courts that have specifically considered the question have
uniformly upheld the Corps' authority to regulate isolated waters that serve
as habitat for migratory birds. See Leslie Salt Co. v. United States, 896
F.2d 354, 360 (9th Cir. 1990) (Leslie Salt I) ("The commerce clause
power, and thus the Clean Water Act, is broad enough to extend the Corps'
jurisdiction to local waters which may provide habitat to migratory birds
and endangered species"), cert. denied, 498 U.S. 1126 (1991); Leslie
Salt Co. v. United States, 55 F.3d 1388, 1394-1396 (9th Cir.) (Leslie Salt
II) (adhering to Leslie Salt I in a post-Lopez decision, under law of the
case doctrine), cert. denied, 516 U.S. 955 (1995); see also Utah v. Marsh,
740 F.2d 799, 804 (10th Cir. 1984) (evidence that "lake is on the flyway
of several species of migratory waterfowl" supports jurisdiction over
isolated lake under CWA and Commerce Clause); United States v. Hallmark
Constr. Co., 14 F. Supp. 2d 1069, 1075 (N.D. Ill. 1998); United States v.
Sargent County Water Resource Dist., 876 F. Supp. 1081, 1087 (D.N.D. 1992).
2. The court of appeals' decision is correct.
a. Petitioner contends (Pet. 17) that because Section 404 of the CWA uses
the term "navigable waters," 33 U.S.C. 1344(a), the Corps' jurisdiction
must be strictly limited to those waters that are "navigable in fact,"
"interstate," or "closely related to navigable or interstate
waters." That argument is without merit. Congress defined the term
"navigable waters" broadly to include, without qualification,
"the waters of the United States." 33 U.S.C. 1362(7). Because
the CWA does not further define the term "waters of the United States,"
the administrative construction given that term by the Corps and EPA is
"entitled to deference if it is reasonable and not in conflict with
the expressed intent of Congress." United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121, 131 (1985).
In Riverside Bayview, this Court upheld as reasonable the Corps' interpretation
of "waters of the United States" to encompass "wetlands adjacent
to navigable bodies of water and their tributaries." 474 U.S. at 123.8
The Court explained that "the Act's definition of 'navigable waters'
as 'the waters of the United States' makes it clear that the term 'navigable'
as used in the Act is of limited import." Id. at 133; see also ibid.
("Congress evidently intended to repudiate limits that had been placed
on federal regulation by earlier water pollution control statutes and to
exercise its powers under the Commerce Clause to regulate at least some
waters that would not be deemed 'navigable' under the classical understanding
of that term.").
Petitioner's view is not only unsupported by the text, it is also antithetical
to the purposes of the statute. The focus of the CWA is not on navigation,
but on "maintaining and improving water quality" and "[p]rotect[ing]
aquatic ecosystems." Riverside Bayview, 474 U.S. at 132; see also id.
at 133 (noting "the evident breadth of congressional concern for protection
of water quality and aquatic ecosystems"); 33 U.S.C. 1251(a) and (a)(2)
(goals of the CWA include "restor[ing] and maintain[ing] the * * *
biological integrity of the Nation's waters" and "provid[ing]
for the protection and propagation of fish, shellfish, and wildlife").
Isolated waters, such as those on petitioner's property, may "function
as integral parts of the aquatic environment," and may "serve
significant natural biological functions," including "food chain
production" and the provision of "general habitat[] and nesting,
spawning, rearing and resting sites," even though they are intrastate
and nonnavigable. Riverside Bayview, 474 U.S. at 134-135 (quoting 33 C.F.R.
320.4(b)(2)(i)).9
b. Contrary to petitioner's assertions (Pet. 19-22), the Corps' interpretation
of the CWA is supported rather than undermined by the Act's legislative
history. The Conference Report accompanying the CWA explained that "[t]he
conferees fully intend that the term 'navigable waters' be given the broadest
possible constitutional interpretation unencumbered by agency determinations
which have been made or may be made for administrative purposes." S.
Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972). That understanding
was confirmed in the Senate Report accompanying the 1977 amendments to the
CWA. See S. Rep. No. 370, 95th Cong., 1st Sess. 75 (1977) (noting that "[t]he
1972 Federal Water Pollution Control Act exercised comprehensive jurisdiction
over the Nation's waters to control pollution to the fullest constitutional
extent").
The debates preceding the 1977 amendments to the CWA further support the
Corps' interpretation of the Act. Congress was well aware that the Corps'
regulations, promulgated July 19, 1977, asserted jurisdiction over all waters,
including isolated waters, to the maximum extent constitutionally permissible.
See, e.g., 123 Cong. Rec. 26,711 (Sen. Bentsen) (warning that if the CWA
were not amended, "[t]he [Section 404] program would still cover all
waters of the United States, including small streams, ponds, [and] isolated
marshes"); id. at 34,852 (Rep. Abdnor) (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"). Congress considered, but ultimately rejected, several proposals
to modify the Corps' geographic jurisdiction, instead opting to exempt certain
types of activities from the Section 404 permit requirement. See 33 U.S.C.
1344(f). In the words of Senator Baker, the 1977 amendments "retain[ed]
the comprehensive jurisdiction over the Nation's waters exercised in the
[CWA] to control pollution to the fullest constitutional extent." 123
Cong. Rec. at 39,209. In sum, Congress "acquiesced in the administrative
construction." Riverside Bayview, 474 U.S. at 136. Congress's refusal
to divest the Corps of jurisdiction over isolated waters is evidence of
the reasonableness of the Corps' approach, "particularly where the
administrative construction [was] brought to Congress' attention through
legislation specifically designed to supplant it." Id. at 137; see
generally id. at 135-137 (recounting history of 1977 amendments).10
c. Petitioner contends (Pet. 22) that "no deference" is owed to
the migratory bird rule "because it raises serious constitutional concerns"
under the Commerce Clause. To the contrary, the application of the migratory
bird rule in this case fits comfortably within Congress's commerce power.
i. "Congress' commerce authority includes the power to regulate those
[intrastate] activities having a substantial relation to interstate commerce."
Lopez, 514 U.S. at 558-559. The requirement of a "substantial"
effect on interstate commerce, however, does not mean that each individual
instance of the regulated activity must have a substantial impact. Rather,
"where 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." Id. at 558 (emphasis omitted) (quoting
Maryland v. Wirtz, 392 U.S. 183, 197 n.27 (1968)). The aggregate effects
of the regulated activity as a class- here, the filling of isolated waters
that are actually used as habitat for migratory birds-may therefore be considered
in determining whether the statute falls within the reach of Congress's
commerce power. 514 U.S. at 561.
The permit denial in the instant case was based in part on the Corps' extensive
factual findings (unchallenged by petitioners on appeal, see Pet. App. 5a)
regarding the adverse impacts that petitioner's proposed balefill would
have on the quantity and quality of migratory bird habitat on the site (C.A.
App. 155-157, C.A. Supp. App. 32-40). Those impacts included, inter alia,
the "displace[ment of] the [Great Blue Heron] rookery in its entirety."
C.A. Supp. App. 37. Prevention of such threats has long been recognized
to be a matter of national concern. See, e.g., North Dakota v. United States,
460 U.S. 300, 309 (1983) ("The protection of migratory birds has long
been recognized as 'a national interest of very nearly the first magnitude.'")
(quoting Missouri v. Holland, 252 U.S. 416, 435 (1920)); Andrus v. Allard,
444 U.S. 51, 63 n.19 (1979) (the "assumption that the national commerce
power does not reach migratory wildlife is clearly flawed"); Cochrane
v. United States, 92 F.2d 623, 626-627 (7th Cir. 1937), cert. denied, 303
U.S. 636 (1938); Cerritos Gun Club v. Hall, 96 F.2d 620 (9th Cir. 1938).
Commerce associated with migratory birds has a measurable impact on the
national economy. See Hoffman Homes, Inc. v. United States Environmental
Protection Agency, 999 F.2d 256, 261 (7th Cir. 1993) ("Throughout North
America, millions of people annually spend more than a billion dollars on
hunting, trapping, and observing migratory birds."). As the court of
appeals observed,
[s]tatistics produced by the U.S. Census Bureau reveal that approximately
3.1 million Americans spent $1.3 billion to hunt migratory birds in 1996,
and that about 11 percent of them traveled across state lines to do so.
Another 17.7 million people spent time observing birds in states other than
their states of residence; 14.3 million of these took trips specifically
for this purpose; and approximately 9.5 million traveled for the purpose
of observing shorebirds, such as herons.
Pet. App. 7a (citation omitted). The filling of wetlands and similar aquatic
areas that serve as migratory bird habitat directly affects the ability
of people to pursue recreational and commercial activities associated with
migratory birds. See Hoffman Homes, 999 F.2d at 261 (noting that "cumulative
loss of wetlands has reduced populations of many bird species and consequently
the ability of people to hunt, trap, and observe those birds"); see
also C.A. Supp. App. 33 (Corps finding in this case that "[m]uch of
the current severe drop in area sensitive bird populations is blamed on
habitat destruction").11
ii. Petitioner argues (Pet. 26) that the statutory term "waters of
the United States" should be construed narrowly under the canon of
construction that, "where an otherwise acceptable construction of a
statute would raise serious constitutional problems, the Court will construe
the statute to avoid such problems unless such construction is plainly contrary
to the intent of Congress." DeBartolo Corp. v. Florida Gulf Coast Bldg.
& Constr. Trades Council, 485 U.S. 568, 575 (1988). This Court has recognized,
however, that Congress may authorize "an administrative board or agency
to determine whether the activities sought to be regulated or prohibited
have" such an effect on interstate commerce as to justify federal regulation.
United States v. Darby, 312 U.S. 100, 120 (1941). By broadly extending the
CWA to "the waters of the United States," Congress expressed its
intent that the Corps and EPA would exercise their regulatory jurisdiction
over the nation's waters to the maximum extent permissible under the Commerce
Clause. See pp. 2-4, supra. Petitioner's interpretive approach-which would
limit the Act's coverage to categories of waters having the "'clearest
indication' of congressional support" (Pet. 26)-would substantially
constrain the agencies' discretion in a manner "plainly contrary to
the intent of Congress." DeBartolo, 485 U.S. at 575.
d. Contrary to petitioner's contention (Pet. 27-28), the Corps' assertion
of regulatory jurisdiction over isolated waters that serve as habitat for
migratory birds does not disrupt the federal-state balance or impermissibly
impinge on the authority of state and local governments. Petitioner's argument
assumes that the protection of migratory bird habitat is a matter of purely
local concern. As the court of appeals explained, that proposition is inconsistent
with "the numerous international treaties and conventions designed
to protect migratory birds," Pet. App. 8a (citing examples), as well
as with prior decisions of this Court, ibid.; see p. 18, supra. Congress
has repeatedly recognized that wetlands and similar aquatic areas are a
national resource and that wetlands loss is a problem national in scope.
See, e.g., 16 U.S.C. 3901(a) and (b) (declaring national goal to conserve
remaining wetland resources for benefit of "all our citizens of the
Nation" and to "help fulfill international obligations contained
in various migratory bird treaties and conventions").
3. This Court recently granted certiorari in three other cases that present
questions concerning the scope of congressional authority under the Commerce
Clause. United States v. Morrison, No. 99-5 (argued Jan. 11, 2000), and
Brzonkala v. Morrison, No. 99-29 (argued Jan. 11, 2000), present the question
whether 42 U.S.C. 13981, which creates a private right of action for victims
of gender motivated violence, is a permissible exercise of Congress's power
under the Commerce Clause. Jones v. United States, No. 99-5739 (to be argued
Mar. 21, 2000), presents the question whether 18 U.S.C. 844(i) (1994 &
Supp. IV 1998), which prohibits the destruction by fire or explosives of
any building, vehicle, or other property "used in interstate or foreign
commerce or in any activity affecting interstate or foreign commerce,"
was properly applied to a residence mortgaged to an out-of-state lender,
insured by an out-of-state insurer, and supplied with natural gas in interstate
commerce. In our view, those statutory schemes are sufficiently different
from the CWA that the Court's decisions in those cases are unlikely to affect
the proper disposition of the instant case. However, the Court may wish
to hold the petition for a writ of certiorari in the instant case pending
its decisions in the above-listed cases, and then dispose of the petition
accordingly.
CONCLUSION
The petition for a writ of certiorari should be denied. In the alternative,
the petition should be held pending this Court's decisions in United States
v. Morrison, No. 99-5 (argued Jan. 11, 2000); Brzonkala v. Morrison, No.
99-29 (argued Jan. 11, 2000); and Jones v. United States, No. 99-5739 (to
be argued Mar. 21, 2000), and then disposed of as appropriate in light of
the decisions in those cases.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
JOHN A. BRYSON
ETHAN G. SHENKMAN
Attorneys
MARCH 2000
1 See, e.g., Natural Resources Defense Council, Inc. v. Callaway, 392 F.
Supp. 685, 686 (D.D.C. 1975); United States v. Holland, 373 F. Supp. 665,
670-676 (M.D. Fla. 1974). Shortly after the decision in Holland, the House
Committee on Government Operations expressed the view that the Corps' regulatory
definition of "waters of the United States" was unduly narrow.
See H.R. Rep. No. 1396, 93d Cong., 2d Sess. 23-27 (1974). The Committee
urged the Corps to adopt a new definition that "complies with the congressional
mandate that the term be given the broadest possible constitutional interpretation."
Id. at 27.
2 An explanatory footnote published in the Code of Federal Regulations stated
that "[p]aragraph (a)(5) incorporates all other waters of the United
States that could be regulated under the Federal government's Constitutional
powers to regulate and protect interstate commerce." 33 C.F.R. 323.2(a)(5),
at 616 n.2 (1978).
3 The current regulation defines "waters of the United States"
to include, inter alia, "[a]ll 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, degradation or destruction of which could affect interstate or foreign
commerce." 33 C.F.R. 328.3(a)(3).
4 The jury instructions further explained that the wetlands at issue would
be considered "waters of the United States" if the jury found
"that these waters were or could be used by visitors from other states
for recreational or other purposes"; "that fish or shellfish are
or could be taken from these waters and sold in interstate or foreign commerce";
"that these waters were used or could have been used for industrial
purposes by industries in interstate commerce"; or "that the use,
degradation or [destruction] of such waters could affect interstate commerce."
133 F.3d at 256 (emphasis added).
5 The Wilson court reversed the defendants' convictions on an additional,
independent ground, holding that the district court had erroneously instructed
the jury on the mental state requirements of the offense. 133 F.3d at 260-265.
6 The Wilson court stated that 33 C.F.R. 328.3(a)(3) was defective, in part,
because it does not require "that the regulated activity have a substantial
effect on interstate commerce." 133 F.3d at 257. The court did not
say, however, that each individual instance of the regulated activity must
substantially affect interstate commerce. The Fourth Circuit has since clarified
its views on this point in Brzonkala v. Virginia Polytechnic Institute &
State University, 169 F.3d 820 (4th Cir. 1999) (en banc), cert. granted,
Nos. 99-5 & 99-29 (argued Jan. 11, 2000). There the court recognized
that Congress may regulate "activities that arise out of or are connected
with a commercial transaction, which viewed in the aggregate, substantially
affects interstate commerce." Id. at 831 (quoting United States v.
Lopez, 514 U.S. 549, 561 (1995)) (emphasis added). See also 169 F.3d at
831 (acknowledging that federal regulations may "include a jurisdictional
element to ensure, 'through case-by-case inquiry,' that each specific application
of the regulation involves activity that in fact affects interstate commerce")
(quoting Lopez, 514 U.S. at 561); 169 F.3d at 836. Cf. United States v.
Nathan, 202 F.3d 230 (4th Cir. 2000) (rejecting argument that government
must prove a "substantial effect" on interstate commerce in every
prosecution of a felon for possession of a firearm under 18 U.S.C. 922(g)
(1994 & Supp. IV 1998)).
The court of appeals in Brzonkala went on (incorrectly, in our view) to
hold that the aggregate effects principle is generally limited to regulation
of activities that are "economic" or "commercial" in
nature (169 F.3d at 834-836) or at least have some "meaningful connection
with a[] particular, identifiable economic enterprise or transaction"
(id. at 834). Petitioner's proposal to construct and operate a municipal
solid waste landfill, however, is clearly an economic activity. Cf. C &
A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 389 (1994).
7 Petitioner contends (Pet. 10) that because the so-called "migratory
bird rule" is an "interpretation or clarification" of Section
328.3(a)(3), the Wilson court's determination that the regulation is invalid
necessarily implies that the "migratory bird rule" is invalid
as well. That is a non sequitur. The 1986 Federal Register notice (see p.
4, supra) identified waters "[w]hich are or would be used as habitat
by" migratory birds as an example of waters that would fall within
the Corps' conception of "waters of the United States." The Wilson
court's holding that the regulatory definition sweeps too broadly does not
logically suggest that this (or any) particular category of waters falls
outside the Corps' statutory jurisdiction. As the court of appeals in the
instant case observed, moreover, "the unchallenged facts show that
the filling of the 17.6 acres would have an immediate effect on migratory
birds that actually use the area as a habitat." Pet. App. 10a. The
question whether the Corps may properly assert "jurisdiction over areas
that are only potential habitats" therefore is not presented in this
case. Ibid.
8 The Court noted that regulatory jurisdiction over non- adjacent wetlands
was not at issue in that case. Riverside Bayview, 474 U.S. at 124 n.2.
9 The courts of appeals (including the Fourth Circuit) have uniformly recognized
that Congress intended the geographical scope of the CWA to extend to the
maximum extent permissible under the Commerce Clause. See, e.g., United
States v. Tull, 769 F.2d 182, 184 (4th Cir. 1985), rev'd on other grounds,
481 U.S. 412 (1987); United States v. Hartsell, 127 F.3d 343, 348 &
n.1 (4th Cir. 1997), cert. denied, 523 U.S. 1030 (1998); United States v.
Pozsgai, 999 F.2d 719, 731 (3d Cir. 1993), cert. denied, 510 U.S. 1110 (1994);
Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 914-915 (5th
Cir. 1983); Leslie Salt I, 896 F.2d at 357; Quivira Mining Co. v. EPA, 765
F.2d 126, 129-130 (10th Cir. 1985), cert. denied, 474 U.S. 1055 (1986);
United States v. Eidson, 108 F.3d 1336, 1341 (11th Cir.), cert. denied,
522 U.S. 899 and 1004 (1997). But cf. Village of Oconomowoc Lake v. Dayton
Hudson Corp., 24 F.3d 962, 965-966 (7th Cir.) ("waters of the United
States" does not cover groundwater), cert. denied, 513 U.S. 930 (1994).
Petitioner cites no case holding that the term "waters of the United
States" is limited to waters that are "closely related" to
navigable or interstate waters. Petitioner's reliance (Pet. 17) on The Daniel
Ball, 77 U.S. (10 Wall.) 557 (1870), and The Montello, 87 U.S. (20 Wall.)
430 (1874), is misplaced. Those cases, which significantly predate the CWA,
construed the term "navigable waters of the United States." The
Daniel Ball, 77 U.S. (10 Wall.) at 562 (emphasis added); The Montello, 87
U.S. (20 Wall.) at 436, 439 (emphasis added).
10 Petitioner argues (Pet. 21) that the legislative history of the 1977
CWA amendments is irrelevant because the Corps' 1977 regulations did not
specifically cite waters that are used by migratory birds as an example
of waters that possess the requisite connection with interstate commerce.
The Corps' 1977 regulations referred, however, to "all" "isolated
* * * waters that are not part of a tributary system to interstate waters
or to navigable waters * * *, the degradation or destruction of which could
affect interstate commerce." 42 Fed. Reg. at 37,144. Thus, Congress
clearly understood that the Corps would assert CWA jurisdiction over isolated
waters for which any legitimate commerce nexus could be established.
11 Congress has repeatedly recognized the importance of preserving migratory
bird habitat to the viability of migratory bird populations. See, e.g.,
North American Wetlands Conservation Act, 16 U.S.C. 4401(a)(8) (finding
that nationwide loss of wetlands has "contributed to long-term downward
trends in populations of migratory bird species"); Water Bank Act,
16 U.S.C. 1301 (declaring it "in the public interest to preserve, restore,
and improve the wetlands of the Nation * * * to preserve and improve habitat
for migratory waterfowl"); Emergency Wetlands Resources Act of 1986,
16 U.S.C. 3901(a)(2) (finding that "wetlands provide habitat essential
for the breeding, spawning, nesting, migration, wintering and ultimate survival
of * * * migratory birds").