No. 

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., 

Respondents. 
__________ 

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 
for the Seventh Circuit 

__________ 

PETITION FOR A WRIT OF CERTIORARI 

__________ 

ELIZABETH A. CLARK 
TIMOTHY S. BISHOP 

Mayer, Brown & Platt 
Counsel of Record 

1909 K Street, N.W. 

Mayer, Brown & Platt 

Washington, D.C. 20006 

190 South LaSalle Street 

(202) 263-3000 

Chicago, IL 60603 

(312) 782-0600 

GEORGE J. MANNINA, JR. 
O’Connor & Hannan, L.L.P. 
1666 K Street, N.W. 

Suite 500 
Washington, D.C. 20006 
(202) 887-1400 

Counsel for Petitioner 

QUESTION PRESENTED 

Petitioner Solid Waste Agency of Northern Cook County, 
which comprises 23 Cook County, Illinois municipalities, acquired 
a 500-acre-plus site to construct an urgently needed balefill facility 
to dispose of its communities’ non-hazardous solid waste. 
Petitioner’s plans called for filling some 17 acres of permanently or 
seasonally wet depressions left by earlier strip mining operations. 
The U.S. Army Corps of Engineers twice informed petitioner that it 
had no jurisdiction over the site, then abruptly changed its mind on 
the sole basis that the isolated waters on the site were used by 
migratory birds. The Corps relied on its so-called “migratory bird 
rule,” which interprets the Clean Water Act to reach isolated 
intrastate waters that do or potentially could serve as habitat for 
migratory birds. Because the Corps asserted jurisdiction, petitioner 
was required to apply for a permit to fill the waters on the site 
pursuant to Section 404 of the Clean Water Act. The Corps denied 
petitioner’s permit application, thereby destroying a significant 
municipal public works project important to some 700,000 local 
residents. 

The question presented in this case, as to which the courts of 
appeals are in conflict, is as follows: 

Whether the U.S. Army Corps of Engineers, consistent with the 
Clean Water Act and the Commerce Clause of the United States 
Constitution, may assert jurisdiction over isolated intrastate waters 
solely because those waters do or potentially could serve as habitat 
of migratory birds. 

(I) 

ii 

RULES 29.6 AND 14.1 STATEMENT 

Petitioner is the Solid Waste Agency of Northern Cook County, 
a municipal corporation created by intergovernmental agreement 
under the laws of Illinois. Its member communities are the cities and 
villages of Arlington Heights, Barrington, Buffalo Grove, Elk Grove 
Village, Evanston, Glencoe, Glenview, Hoffman Estates, Inverness, 
Kenilworth, Lincolnwood, Morton Grove, Mt. Prospect, Niles, 
Palatine, Park Ridge, Prospect Heights, Rolling Meadows, Skokie, 
South Barrington, Wheeling, Wilmette, and Winnetka. SWANCC 
has no parent corporations and no subsidiaries, wholly-owned or 
otherwise. 

Respondents are the U.S. Army Corps of Engineers; the U.S. 
Environmental Protection Agency; Arthur Williams, Lieutenant 
General, Chief of Engineers, U.S. Army Corps of Engineers; Robert 
E. Slockbower, Lieutenant Colonel, Chicago District Engineer, U.S. 
Army Corps of Engineers; Togo D. West, Jr., Secretary of the 
Army; Carol M. Browner, Administrator, U.S. Environmental 
Protection Agency; and intervenors below, the Village of Bartlett 
and Citizens Against the Balefill. 

iii 

TABLE OF CONTENTS 

Page 

QUESTION PRESENTED ..................... (I) 

RULES 29.6 AND 14.1 STATEMENT ............. 
ii 

TABLE OF AUTHORITIES ..................... v 

OPINIONS BELOW ........................... 1 

JURISDICTION ............................... 1 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED .................. 1 

STATEMENT ................................ 2 

A. The Statutory And Regulatory Scheme ..... 3 

B. SWANCC’s Balefill Project And The Corps’ 

Exercise Of Jurisdiction ................. 5 

C. SWANCC’s Challenge To The Migratory Bird 

Rule And The District Court’s Ruling ...... 
7 

D. The Seventh Circuit’s Decision ........... 8 

REASONS FOR GRANTING THE PETITION ...... 
8 

I. THE CIRCUITS ARE SPLIT OVER THE CORPS’ 

AUTHORITY TO REGULATE ISOLATED 
INTRASTATE WATERS BASED ON THEIR 
ACTUAL OR POTENTIAL USE BY 
MIGRATORY BIRDS ...................... 9 

II. THE MIGRATORY BIRD RULE IS AN 
IMPERMISSIBLE INTERPRETATION OF THE 
CWA .................................. 15 

iv 

TABLE OF CONTENTS — CONTINUED 

Page 

A. The Plain Language of the Act Requires 

Jurisdictional Waters To Be Related To 
Navigable Waters ..................... 16 

B. Legislative HistoryConfirms That Congress Did 

Not Intend The Corps To Base Jurisdiction 
Merely On The Presence Of Migratory Birds 
19 

C. No Deference Is Owed To The Migratory Bird 

Rule Because It Raises Serious Constitutional 
Concerns ............................ 22 

D. No Deference Is Owed To The Migratory Bird 

Rule Because It Impinges On Traditional State 
Powers ............................. 26 

III. THE PETITION SHOULD BE GRANTED, NOT 
HELD FOR JONES v. UNITED STATES ...... 29 

CONCLUSION .............................. 30 

v 

TABLE OF AUTHORITIES 

Page 

Cases: 

Alden v. Maine, 119 S. Ct. 2240 (1999) .............. 
27 

BFP v. Resolution Trust Corp., 
511 U.S. 531 (1994) ........................ 
26, 28 

Bailey v. United States, 516 U.S. 137 (1995) ....... 
16, 19 

Berman v. Parker, 348 U.S. 26 (1954) ............... 
28 

Board of Governors v. Dimension 

Financial Corp., 474 U.S. 361 (1986) ............. 

18 

Cargill, Inc. v. United States, 
516 U.S. 955 (1995) ........................ passim 

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

Council, 467 U.S. 837 (1984) ................... 15 

DeLovio v. Boit, 7 F. Cas. 418 
(Cir. Ct., D.Mass. 1815) ........................ 
18 

Dolan v. City of Tigard, 512 U.S. 374 (1994) .......... 
28 

Edward J. DeBartolo Corp. v. Florida Gulf Coast 

Building & Construction Trades Council, 
485 U.S. 568 (1988) ........................ 

22, 26 

Federal Power Commission v. Union Electric 

Co., 381 U.S. 90 (1965) ........................ 19 

vi 

TABLE OF AUTHORITIES — continued 

Page(s) 

Gilbert v. United States, 370 U.S. 650 (1962) .......... 
16 

Hoffman Homes, Inc. v. United States Environmental 

Protection Agency, 961 F.2d 1310 (7th Cir. 1992), 
vacated, 999 F.2d 256 (7th Cir. 1993) .......... 
13, 26 

Japan Whaling Association v. American Cetacean 

Soc’y, 478 U.S. 221 (1986) ..................... 19 

Jones v. United States, No. 99-5739 .............. 
29, 30 

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ..... 
19 

Leslie Salt Co. v. United States, 896 F.2d 354 
(9th Cir. 1990) ......................... 11, 13, 21 

Leslie Salt Co. v. United States, 55 F.3d 1388 
(9th Cir. 1995) ............................ passim 

Maryland v. Wirtz, 392 U.S. 183 (1968) .............. 
24 

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 
(1979) ...................................... 22 

New York v. United States, 505 U.S. 144 (1992) ........ 
27 

Perez v. United States, 402 U.S. 146 (1971) ........... 
24 

Presley v. Etowah County Commission, 502 U.S. 491 
(1992) ...................................... 15 

Printz v. United States, 521 U.S. 898 (1997) ........... 27 

vii 

TABLE OF AUTHORITIES — continued 

Page(s) 

Rewis v. United States, 401 U.S. 808 (1971) ........... 
26 

Seminole Tribe v. Florida, 517 U.S. 44 (1996) ......... 
27 

Tabb Lakes Ltd. v. United States, 715 

F. Supp. 726 (E.D. Va. 1988), aff’d, 
885 F.2d 866 (4th Cir. 1989) ..................... 

4 

The Daniel Ball, 77 U.S. (10 Wall.) 557 
(1870) ............................. 16, 17, 18, 20 

The Montello, 87 U.S. (20 Wall.) 430 (1874) ....... 
17, 18 

United States v. Appalachian Electric Power Co., 
311 U.S. 377 (1940) ........................ 
16, 21 

United States v. Bird, 124 F.3d 667 (5th Cir. 1997), 
cert. denied, 523 U.S. 1006 (1998) ............... 24 

United States v. Larkins, 852 F.2d 189 
(6th Cir. 1988) ............................... 13 

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

United States v. Riverside Bayview Homes, 
474 U.S. 121 (1985) ................... 
9, 17, 18, 21 

United States v. Utah, 283 U.S. 64 (1931) 
......... 20, 21 

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

viii 

TABLE OF AUTHORITIES — continued 

Page(s) 

Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984) ......... 
11 

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) ..... 
28 

Village of Euclid v. Ambler Realty Co., 
272 U.S. 365 (1926) ........................... 
28 

Constitutional and Statutory Provisions 

U.S. CONST. art. I, § 8 .............................. 
1 

16 U.S.C. § 817 ................................. 19 

28 U.S.C. § 1254(1) ............................... 1 

33 U.S.C. § 403 ................................. 19 

33 U.S.C. § 1311(a) .............................. 3 

33 U.S.C. § 1344(a) ........................ 
1, 3, 5, 16 

33 U.S.C. § 1362(7) 
......................... 1, 3, 16 

33 U.S.C. § 1362(12) .............................. 3 

33 C.F.R. § 320.4(a) .............................. 
27 

33 C.F.R. § 328(a)(3) .......................... passim 

40 C.F.R. § 230.3(s) ............................... 
4 

51 Fed. Reg. 41,206 (Nov. 13, 1986) ........... 1, 4, 21 

ix 

TABLE OF AUTHORITIES — continued 

Page(s) 

Other Authorities 

THE ATLAS OF BIRD MIGRATION (ed. J. Elphick 1995)....... 
25 

Bablo, Leslie Salt Co. v. United States: Does 
the Recent Supreme Court Decision in 
United States v. Lopez Dictate the Abrogation 
of the “Migratory Bird Rule”?, 14 TEMP. ENVT’L L. 
& TECH. J. 277 (1995) ......................... 15 

BLACK’S LAW DICTIONARY (4th ed. 1968) 
............. 16 

Bueschen, Do Isolated Wetlands Substantially Affect 

Interstate Commerce?, 46 AM. U. L. REV. 931 
(1997) ...................................... 14 

118 Cong. Rec. (1972) ............................ 20 

THE FEDERALIST (C. Rossiter ed. 1961) ................ 
27 

Gilbert, The Migratory Bird Rule After Lopez: 

Questioning the Value of State Sovereignty in the 
Context of Wetland Regulation, 39 WM. & 
MARY L. REV. 1695 (1998) ...................... 

14 

H.R. REP. NO. 92-911, 92d Cong., 
2d Sess. (1972) .............................. 21 

Holman, After United States v. Lopez: Can the Clean 

Water Act and the Endangered Species Act 
Survive Commerce Clause Attack?, 15 VA. ENVT’L 
L.J. 139 (1995) ............................... 26 

x 

TABLE OF AUTHORITIES — continued 

Page(s) 

Leman, The Birds: Regulation of Isolated Wetlands 
and the Limits of the Commerce Clause, 
28 U.C. DAVIS L. REV. 1237, 1267 (1995) .......... 
14 

Lessner, Leslie Salt Co. v. United States: Keep the 

Birds Out of Your Birdbath: It May Be 
Considered The Jurisdiction of the Army Corps 
of Engineers as a “Water of the United States,” 
2 VILL. ENVT’L L.J. 463 (1991) 
.................. 15 

Linehan, Endangered Regulation: Why the Commerce 
Clause May No Longer Be Suitable Habitat for 
Endangered Species and Wetlands Regulation, 
2 TEX. REV. L. & POL. 365 (1998) 
................ 14 

Nagle, The Commerce Clause Meets the Delhi 

Sands Flower-Loving Fly, 97 MICH. L. REV. 
174 (1998) ............................... 14, 25 

R. PETERSON, A FIELD GUIDE TO BIRDS 
(4th ed. 1980) ................................ 25 

S. REP. NO. 92-1236, 92d Cong., 
2d Sess. (1972) ............................... 21 

1 L. TRIBE, CONSTITUTIONAL LAW (3d ed. 2000) ......... 
25 

Warner, The Potential Impact of United States v. 

Lopez on Environmental Regulation, 
7 DUKE ENVT’L L. & POLICY FORUM 321 (1997) ...... 14 

PETITION FOR A WRIT OF CERTIORARI 

_____________ 

Petitioner Solid Waste Agency of Northern Cook County 
respectfully petitions for a writ of certiorari to review the judgment 
of the United States Court of Appeals for the Seventh Circuit in this 
case. 

OPINIONS BELOW 

The opinion of the court of appeals (App., infra, 1a-13a) is 
reported at 191 F.3d 845. The opinion of the district court (App., 
infra, 14a-36a) is reported at 998 F. Supp. 946. The U.S. Army 
Corps of Engineers’ decision denying petitioner’s revised Section 
404 permit application is set out at Pet. C.A. App. 85-171 (deci- 
sion) and U.S. C.A. App. 29-189 (appendices). 

JURISDICTION 

The judgment of the court of appeals was entered on October 
7, 1999. On December 16, 1999, Justice Stevens extended the time 
for filing the petition for certiorari to and including January 14, 2000. 
The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

The Commerce Clause of the Constitution provides in relevant 
part that “Congress shall have Power * * * To regulate Commerce 

* * * among the several States.” U.S. CONST. art. I, § 8. 

The relevant provisions of the Clean Water Act, 33 U.S.C. §§ 
1344(a) and 1362(7), are reproduced at App., infra, 37a-38a. The 
pertinent regulation, 33 CFR § 328.3(a)(3) (the “other waters rule”), 
and preamble to 51 Fed. Reg. 41,206 (1986) (the “migratory bird 
rule”), are reproduced at App., infra, 39a-40a. 

2 

STATEMENT 

The issue in this case is whether, pursuant to the Clean Water 
Act (“CWA” or “Act”), the U.S. Army Corps of Engineers 
(“Corps”) properly has jurisdiction over isolated waters that are not 
navigable and not connected or adjacent to navigable waters, but 
that do or could provide habitat for migratory birds. The Corps has 
asserted such jurisdiction in this case and others through its “migra- 
tory bird rule” (App., infra, 40a), which interprets the navigable 
“waters of the United States” subject to the CWA to include all wa- 
ters that are an actual or potential habitat for migratory birds. 

The Corps’ unprecedentedly broad claim of jurisdiction has 
caused sharp disagreement among the courts of appeals. The Fourth 
Circuit has rejected the Corps’ jurisdictional grab as contrary to the 
text of the CWA and constitutionally impermissible. United 
States v. Wilson, 133 F.3d 251 (4th Cir. 1997). The Seventh and 
Ninth Circuits, in contrast, have upheld the Corps’ authority. App., 
infra, 1a-13a; Leslie Salt Co. v. United States, 55 F.3d 1388 (9th 
Cir. 1995) (Leslie Salt II). Even the Ninth Circuit, however, 
recognized that “[t]he migratory bird rule certainly tests the limits of 
Congress’s commerce powers and, some would argue, the bounds 
of reason.” Id. at 1396. Mirroring this circuit split, Justice Thomas 
and a number of appellate judges have criticized the Corps’ position 
in individual concurrences and dissents. Cargill, Inc. v. United 
States, 516 U.S. 955 (1995) (Thomas, J., dissenting from denial of 
certiorari); see infra, pp. 12-13. 

The Seventh Circuit’s ruling in this case is legally erroneous. The 
notion that the Corps has jurisdiction over isolated intrastate waters 
based merely on the actual or potential presence of migratory birds 
is inconsistent with the plain language and legislative history of the 
CWA. The migratory bird rule also raises substantial constitutional 
concerns under the Commerce Clause, which mandate a narrower 
reading of the Act to avoid the constitutional difficulty. In those 

3 

circumstances, the Corps’ migratory bird rule is entitled to no 
deference under Chevron, and it should be set aside. 

Given the split among the circuits and the statutorily and con- 
stitutionally untenable basis of the Corps’ assertion of jurisdiction, it 
is time for this Court to address the question presented. Review of 
the Corps’ migratory bird rule in this case is especially appropriate 
and necessary. The Corps’ unfounded claim of jurisdiction has 
brought to an abrupt halt the coordinated efforts of 23 municipalities 
to address the important local problem of the disposal of solid waste 
generated by their 700,000 citizens, derailing a vital, $20-million- 
plus public project. Cooperative, multi-municipality efforts to 
address common local issues are not properly matters for federal 
control. Yet so expansive is the migratory bird rule that it is difficult 
to imagine any significant state or municipal project (or private de- 
velopment) that would not require the Corps’ approval. 

Beyond that, the ubiquitous presence of migratory birds, which 
number in the billions, means that land-use matters traditionally 
subject to local control are now dependent upon federal approval by 
the Corps sitting as a sort of super zoning body determining the 
“public interest.” That federalization of local land-use matters is not 
what Congress had in mind when it adopted the CWA, and the 
Commerce Clause does not permit it. 

A. The Statutory And Regulatory Scheme 

The CWA prohibits the discharge of “pollutants,” including 
dredged and fill materials, into “navigable waters” without a permit 
from the Corps. 33 U.S.C. §§ 1311(a), 1344(a), 1362(12). 
“Navigable waters” are defined in the CWA only as “the waters of 
the United States.” § 1362(7). 

4 

The Corps has defined the “waters of the United States” in 
regulations to include not only navigable waters, tidal waters, and 
waters adjacent to such waters, but also [a]ll other waters such as 
intrastate lakes, rivers, streams (including intermittent streams), 
mudflats, sandflats, wetlands, sloughs, prairie potholes, wet mead- 
ows, playa lakes, or natural ponds, the use, degradation or destruc- 
tion of which could affect interstate commerce * * *. 

33 CFR § 328.3(a)(3) (1998), App., infra, 39a.1 

In the preamble to regulations promulgated in 1986, the Corps 
further defined these “other” waters: 

EPA has clarified that waters of the United States at [33] CFR 
328.3(a)(3) also include the following waters: 

a. Which are or would be used as habitat by birds protected by 
Migratory Bird Treaties; or 

b. Which are or would be used as habitat by other migratory 
birds which cross state lines * * *. 

51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986), App., infra, 40a. 
It is the Corps’ reliance on this “migratory bird rule” —which the 
Corps never promulgated in accordance with Section 553 of the 
Administrative Procedure Act and which therefore has never been 
subject to notice and comment —that petitioner challenges as a2 
legally improper basis for federal jurisdiction over petitioner’s 
proposed balefill site. 

1 

definition, 40 CFR § 230.3(s), which is not directly at issue here. 

See Tabb Lakes Ltd. v. United States, 715 F. Supp. 726, 729 

2 

(E.D. Va. 1988) (the migratory bird rule is invalid as a substantive 
rule promulgated without notice and comment), aff’d, 885 F.2d 866 
(4th Cir. 1989). 

The Environmental Protection Agency has issued an identical 

5 

B. SWANCC’s Balefill Project And The Corps’ Exercise Of 

Jurisdiction 

The Solid Waste Agency of Northern Cook County 
(“SWANCC”) is a municipal corporation comprised of 23 munici- 
palities located in northern and northwestern Cook County, Illinois. 
SWANCC was formed to develop a system for the safe and 
efficient disposal of non-hazardous municipal waste for the approxi- 
mately 700,000 people who live in its member communities. As part 
of its mission, SWANCC proposed to locate and develop a site for 
disposal of that waste. App., infra, 2a. 

SWANCC purchased a 533-acre parcel of land to create a 
balefill—a landfill where baled, rather than loose, waste is 
dumped—on 410 acres of the site located exclusively in Cook 
County. Part of the balefill site was agricultural land and part, 298 
acres, an “early successional stage forest” that had grown up on land 
previously used as a strip mine for gravel. The forested portion of the 
site contained “a labyrinth of trenches and other depressions” left by 
the strip mining. These trenches and depressions collect rainwater 
during some or all of the year, forming “permanent or seasonal 
ponds” ranging from one-tenth of an acre to several acres in size, 
and from a few inches to several feet in depth. App., infra, 2a. 

In 1987, after ten public hearings and 2,500 pages of testimony, 
the local zoning board and the Cook County Board of Commission- 
ers approved SWANCC’s balefill project. Pet. C.A. App. 54. In 
1989, SWANCC further obtained a permit for the project from the 
Illinois Environmental Protection Agency, which had reviewed 
SWANCC’s 1,700 page appli-cation and conducted four days of 
hearings. Id. at 50-51, 55-56. Because SWANCC planned to fill 

17.6 acres of trenches and depressions within the forested area to 
construct the balefill, it also requested rulings from the Corps of 
Engineers as to whether it required a permit under Section 404 of 
the CWA, 33 U.S.C. § 1344(a). After conducting an on-site 
inspection, the Corps informed SWANCC in 1986 and again in 

6 

1987 that those 17.6 acres were not subject to the Corps’ regula- 
tory authority over “navigable waters” and that a Section 404 permit 
was not required. App., infra, 3a-4a, 16a. 

The Corps changed its position after the Illinois Nature Pre- 
serves Commission informed the Corps in July 1987 that its staff had 
observed migratory bird species on the property during a brief site 
visit. App., infra, 4a. Based on that assessment, and invoking its 
“migratory bird rule,” the Corps concluded that the isolated, 
intrastate strip-mining depressions on the balefill site were “naviga- 
ble” “waters of the United States” within its jurisdiction under the 
CWA because they “are used or would be used as habitat by other 
migratory birds which cross state lines.” Ibid. 

In response to the Corps’ assertion of jurisdiction, SWANCC 
submitted an application for a Section 404 permit, which the Corps 
denied in 1991. The Corps also denied SWANCC’s revised 
application in 1994. App., infra, 4a.3 

3 

mined that migratory birds actually used waters on the balefill site as 
habitat. App., infra, 10a. To be sure, the Corps stated, in denying 
SWANCC’s permit application, that “the water areas are used as 
habitat by migratory bird[s] which cross state lines.” But it did so 
based not on any recorded observation of birds using the water areas 
as habitat, but based solely on the fact that thirteen species of 
migratory birds observed at least once on the 533-acre site “are 
known to depend on aquatic environments for a significant portion of 
their life requirements.” Pet. C.A. App. 78; see also id. at 94, 780- 
781. Nothing in this case turns, however, on whether the balefill site 
was actually or only potentially habitat for migratory birds. Though 
the extension of federal jurisdiction to wet areas that might be used 
by migratory birds may be even more statutorily and constitutionally 
problematic, there is no basis for jurisdiction over actual habitat 
either. 

The court of appeals incorrectly assumed the Corps had deter- 

7 

C. SWANCC’s Challenge To The Migratory Bird Rule And 

The District Court’s Ruling 

In December 1994, SWANCC brought suit against the Corps 
in the District Court for the Northern District of Illinois. SWANCC 
challenged both the merits of the Corps’ decision and the theory 
under which it asserted jurisdiction. Both sides moved for summary 
judgment on the issue of jurisdiction, and, on March 25, 1998, the 
district court granted summary judgment for the Corps on that 
question. App., infra, 14a. 

The district court rejected SWANCC’s contention that the 
migratory bird rule exceeds the bounds of the Corps’ authority to 
define “navigable waters” and “waters of the United States.” The 
court recognized that “the Fourth Circuit reached the opposite 
conclusion in United States v. Wilson.” App., infra, 30a. But it 
“decline[d] to follow” Wilson, holding that the migratory bird rule is 
justifiable because one purpose of the CWA is “to restore and 
maintain the chemical, physical, and biological integrity of the 
Nation’s waters.” Id. at 29a, quoting 33 U.S.C. § 1251(a). 

The district court also rejected SWANCC’s argument that the 
Commerce Clause and United States v. Lopez, 514 U.S. 549 
(1995), bar the migratory bird rule and require the statute to be read 
more narrowly. App., infra, 30a-31a. Distinguishing Wilson and 
Lopez, the court relied on prior circuit precedent and Leslie Salt II 
to conclude that 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.” Ibid.; see also id. at 17a-24a. Subsequently, 
SWANCC dismissed the remainder of its claims and the district 
court entered final judgment for the Corps. Id. at 2a. 

8 

D. The Seventh Circuit’s Decision 

The Seventh Circuit affirmed. It first rejected SWANCC’s 
argument that the migratory bird rule violates the Commerce Clause, 
or at least raises enough constitutional problems to mandate a 
narrow interpretation of “navigable” “waters of the United States.” 
App., infra, 5a-9a. The court acknowledged that the migratory bird 
rule can be justified, if at all, only under the third prong of federal 
regulatory power set forth in Lopez: “regulation of activities that 
‘substantially affect’ interstate commerce.” Id. at 5a, quoting 514 
U.S. at 558-559. It then held that although the Corps had made no 
showing that the use of SWANCC’s balefill site by migratory birds 
had any effect on interstate commerce, “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.” App., infra, 6a. Finally, the court held that 
“destruction of the natural habitat of migratory birds in the aggregate 
‘substantially affects’ interstate commerce” because “millions of 
people annually spend more than a billion dollars on hunting, 
trapping, and observing migratory birds,” including by “trave[l] 
across state lines.” Id. at 7a. 

Turning to SWANCC’s argument that the migratory bird rule is 
not a permissible interpretation of the CWA, the court of appeals 
held that the “scope of the Act reaches as many waters as the 
Commerce Clause allows.” Accordingly, it concluded, “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 * * * Corps to interpret the 
Act in such a manner.” App., infra, 10a. 

REASONS FOR GRANTING THE PETITION 

This Court should grant review because the circuits are split as 
to the jurisdictional reach of the CWA, and because the Seventh 
Circuit reached a decision in this case that is erroneous as a matter 

9 

of statutory interpretation and constitutional law and seriously 
infringes on prerogatives reserved to States and municipalities in our 
system of federalism. 

I. THE CIRCUITS ARE SPLIT OVER THE CORPS’ 
AUTHORITY TO REGULATE ISOLATED INTRA- 
STATE WATERS BASED ON THEIR ACTUAL OR 
POTENTIAL USE BY MIGRATORY BIRDS 

In United States v. Riverside Bayview Homes, 474 U.S. 121, 
129 (1985), this Court upheld the Corps’ construction of the Clean 
Water Act to cover not only “navigable or interstate waters and their 
tributaries” but also wetlands “adjacent” to such waters. (Emphasis 
added). This Court reserved and did “not express any opinion” 
regarding the Corps’ much more ambitious claim of authority “to 
regulate discharges of fill material into wetlands that are not adjacent 
to bodies of open water”—referencing specifically the Corps’ claim 
in 33 CFR § 328.3(a)(3) to have jurisdiction over “other waters 

* * * the use, degradation or destruction of which could affect 
interstate commerce.” 474 U.S. at 131 n.8. The courts of appeals 
have disagreed about the question reserved in Riverside Bayview 
Homes, including about the very furthest reach of the Corps’ 
assertion of jurisdiction over “other waters,” the migratory bird rule. 

1. The Fourth Circuit in Wilson held “invalid” the Corps’ “other 
waters” regulation, 33 CFR § 328(a)(3)—the regulation that the 
migratory bird rule expressly purports to “clarif[y]” (App., infra, 
39a)—on the ground that it “exceeded [the Corps’ regulatory 
power] under the Clean Water Act.” 133 F.3d at 257. Had 
Congress enacted § 328(a)(3) as a statute, the court pointed out, “it 
would present serious constitutional difficulties * * * under the 
Commerce Clause,” because it “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.” Ibid. But, the court held, because the other 
waters regulation “is not a statute,” “[a]bsent a clear indication to the 

10 

contrary, we should not lightly presume that merely by defining 
‘navigable waters’ as ‘the waters of the United States,’ * * * 
Congress authorized the Army Corps of Engineers to assert its juris- 
diction in such a sweeping and constitutionally troubling manner.” 
Ibid. 

In addition to identifying constitutional difficulties with the Corps’ 
claim to jurisdiction over “other waters,” the Fourth Circuit held that 
§ 328(a)(3) “expands the statutory phrase ‘waters of the United 
States’ beyond its definitional limit.” 133 F.3d at 257. “[A]s a matter 
of statutory construction,” the Fourth Circuit held, “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 interstate 
or navigable waters.” Ibid. 

The Seventh Circuit thought Wilson irrelevant for two reasons, 
both mistaken. First, Wilson “involved a challenge to 33 C.F.R. 
§ 328(a)(3),” while SWANCC “limited its objections to the 
propriety of the migratory bird rule as an interpretation of” 
§ 328(a)(3). App., infra, 10a. Obviously, however, the Fourth 
Circuit would not, under its reasoning, uphold an interpretation or 
clarification of the very regulation it held invalid: Wilson effectively 
struck down not just § 328(a)(3), but also the migratory bird rule. 
That is especially clear because the migratory bird rule even more 
broadly interprets “waters of the United States” than the underlying 
regulation. Instead of requiring a connection or potential connection 
with interstate commerce, like the regula-tion, the rule only requires 
a connection or potential connection with migratory birds that are 
“protected by Migratory Bird Treaties” or “cross state lines.” App., 
infra, 40a. 

Second, the Seventh Circuit pretended that the Wilson ruling 
was limited to the question whether “Congress may regulate waters 
based on their potential to affect interstate commerce.” App., infra, 
at 10a. As the quotations from Wilson set out above show, Wilson 

11 

cannot be so narrowly cabined. The Fourth Circuit struck down the 
“other waters” rule because it does not require a showing of a 
“substantial effect on interstate commerce” or a “nexus” with 
navigable or interstate waters. 133 F.3d at 257. Unsurprisingly, 
since it is solely an interpretation of § 328(a)(3), the migratory bird 
rule does not require a showing of a substantial effect on interstate 
commerce or any nexus with navigable or interstate waters either. 
The Fourth Circuit’s Commerce Clause analysis thus applies equally 
to the migratory bird rule. The Seventh Circuit also simply ignored 
the alternative statutory basis for the Wilson decision. Ibid. Without 
doubt, the Fourth Circuit holds the migratory bird rule, as well as the 
regulation it interprets, beyond the Corps’ statutory authority 
because it requires no connection to navigable or interstate waters 
or waters closely related thereto. 

Wilson cannot be distinguished, and it is flatly at odds with the 
Seventh Circuit’s decision in this case that the migratory bird rule is 
constitutionally unproblematic and statutorily authorized, as well as 
with the similar decisions of other circuits. See Leslie Salt Co. v. 
United States (Leslie Salt I), 896 F.2d 354, 360 (9th Cir. 1990) 
(“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”); 
Utah v. Marsh, 740 F.2d 799, 803-804 (10th Cir. 1984) (uphold- 
ing Corps jurisdiction over intrastate lake because its waters were 
used for fisheries and to irrigate crops which were subsequently 
marketed interstate, it was visited by out-of-state tourists, and it was 
on migratory bird flyways). 

Had SWANCC’s balefill been located in the Fourth Circuit, the 
result in this case would certainly have been different. This Court 
should not tolerate a circuit split on an issue as important as the 
scope of federal jurisdiction under 
national legislation like the Clean 

Water Act. Municipalities and other landowners are entitled to 
consistent treatment under the CWA throughout the country; the fate 

12 

of their projects should not turn on the happenstance of where their 
land is located. And the need for national uniformity is especially 
great because anyone planning to dredge or fill waters within the 
Corps’ jurisdiction must obtain a permit or risk facing criminal 
sanctions. See, e.g., Wilson, 133 F.3d 251 (criminal convictions at 
issue). Whether an act is a federal crime or not should not depend 
on where in the country the act takes place. 

2. Justice Thomas questioned the validity of the Corps’ 
migratory bird rule in his dissent from the denial of certiorari to 
review the Leslie Salt II decision. He stated that the issue presented 
in that case—as here—“raises serious and important constitutional 
questions about the limits of federal land-use regulation in the name 
of the Clean Water Act.” Cargill, Inc. v. United States, 516 U.S. 
955, 959 (Thomas, J., dissenting from denial of certiorari). 

Justice Thomas observed that “[t]he basis asserted to create 
federal jurisdiction over petitioner’s land”—“the actual or potential 
presence of migratory birds on petitioner’s land” —is “even more 
far-fetched than that offered, and rejected, in Lopez.” 516 U.S. at 
957-958. Justice Thomas described as “improper” the Corps’ 
“assumption * * * that the self-propelled flight of birds across state 
lines creates a sufficient interstate nexus to justify the Corps’ 
assertion of jurisdiction.” Id. at 958. He observed that in Leslie Salt, 
as here, the Corps made “no showing that humans ever went to 
petitioner’s property to hunt, trap, or observe migratory birds,” or 
“that the cumulative effect of land use involving * * * wholly isolated 
[waters] would have a substantial effect on interstate commerce.” Id. 
at 959. There was, in short, absolutely no explanation how “the 
activity on the land to be regulated * * * substantially affect[ed] 
interstate commerce.” Ibid. 

13 

Justice Thomas concluded that the migratory bird rule “likely 
stretches Congress’ Commerce Clause powers beyond breaking p- 
oint” and expressed, “[i]n light of Lopez, * * * serious doubts about 
the propriety of the Corps’ assertion of jurisdiction over petitioner’s 
land.” 516 U.S. at 958. 

Although Justice Thomas’ position did not garner four votes to 
review the Leslie Salt II decision, review of the migratory bird rule 
has since become more urgent with the Fourth Circuit’s 1997 rejec- 
tion of the Corps’ jurisdiction over “other waters” in Wilson. 

3. Circuit judges have been equally critical of the “other waters” 
and migratory bird rules in individual opinions. In his concurrence in 
Hoffman Homes, Inc. v. United States Envtl Protection Agency, 
999 F.2d 256, 262-263 (7th Cir. 1993), for example, Judge 
Manion concluded both that the CWA gives no federal jurisdiction 
over “isolated wetlands” that “have no effect on the waters of the 
United States,” and that even if it did, “the Commerce Clause does 
not empower Congress to regulate isolated wetlands * * *. To hold 
other-wise would be, in effect, to hold that Congress’ power under 
the Commerce Clause is virtually limitless.” Id. at 263; see also ibid. 
(“The commerce power as construed by the courts is indeed 
expansive, but not so expansive as to authorize regulation of puddles 
merely because a bird traveling interstate might decide to stop for a 
drink”). Judge Rymer, in her separate opinion in Leslie Salt I, was4 
likewise unimpressed with the legal basis for the Corps’ migratory 
bird rule. Leslie Salt I, 896 F.2d at 361 n.1 (Rymer, J., concurring 
in part and dissenting in part); see also United States v. Larkins, 
852 F.2d 189, 193-194 (6th Cir. 1988) (Merritt, J., concurring); 

4 

vacated opinion for the Seventh Circuit in Hoffman Homes, Inc. v. 
United States Envtl Protection Agency, 961 F.2d 1310 (7th Cir. 
1992). 

Judge Manion’s analysis is more fully set forth in his subsequently 

14 

Leslie Salt II, 55 F.3d at 1396 (“The migratory bird rule certainly 
tests the limits of Congress’ commerce powers and, some would 
argue, the bounds of reason”). 

It is no surprise, given these disagreements, that the Corps’ juris- 
dictional grab has also drawn considerable scholarly attention. By 
and large, commentators recognize that the Corps’ exercise of juris- 
diction over “isolated waters” and migratory bird habitat pushes the 
edges (at the very least) of federal Commerce Clause power. E.g., 
Nagle, The Commerce Clause Meets the Delhi Sands Flower- 
Loving Fly, 97 MICH. L. REV. 174, 185 n.49 (1998) (“Why the fact 
that a bird or animal crosses state lines of its own volition and 
without being itself an object of interstate commerce is sufficient for 
Commerce Clause purposes remains unexplained”).5 

5 

Questioning the Value of State Sovereignty in the Context of 
Wetland Regulation, 39 WM. & MARY L. REV. 1695, 1696 (1998) 
(noting “concerns” regarding the validity of the migratory bird rule “in 
view of the Lopez decision”); Linehan, Endangered Regulation: 
Why the Commerce Clause May No Longer Be Suitable Habitat 
for Endangered Species and Wetlands Regulation, 2 TEX. REV. L. 
& POL. 365, 414 (1998) (isolated wetland regulations “will be 
susceptible to Commerce Clause attack because they are indefensible 
as proper regulations of ‘commerce’ under any untortured definition 
of the word”); Bueschen, Do Isolated Wetlands Substantially 
Affect Interstate Commerce?, 46 AM. U.L. REV. 931, 950 (1997) 
(explaining that in light of Lopez, the migratory bird rule “could be in 
jeopardy”); Warner, The Potential Impact of United States v. Lopez 
on Environmental Regulation, 7 DUKE ENVT’L L. & POLICY 
FORUM 321, 351 (1997) (“A rule permitting jurisdiction to be 
determined solely by potential use of a wetland by migratory birds is 
arguably too tenuously connected to interstate commerce to trigger 
the commerce power in light of Lopez’s substantiality requirement”); 

See also, e.g., Gilbert, The Migratory Bird Rule After Lopez: 

15 

Beyond the clear circuit split with Wilson, the separate opinions 
by Justice Thomas and others and the wealth of critical academic 
commentary demonstrate the diversity of views on the propriety of 
the migratory bird rule and show that confusion in this area will 
continue and likely escalate absent this Court’s immediate interven- 
tion. 

II. THE MIGRATORY BIRD RULE IS AN IMPERM- 
ISSIBLE INTERPRETATION OF THE CWA 

The Seventh Circuit’s decision to defer to the Corps’ interpreta- 
tion of the Clean Water Act is incorrect. Courts properly defer to an 
agency’s interpretation of a statute “only if Congress has not 
expressed its intent with respect to the question, and then only if the 
administrative interpretation is reasonable.” Presley v. Etowah 
County Comm’n, 502 U.S. 491, 508 (1992). A court “ascertains 
[whether] Congress had an intention on the precise question at issue” 
by “employing traditional tools of statutory construction,” including 
analysis of the text, structure, “history and policy of the Act.” 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 

Leman, The Birds: Regulation of Isolated Wetlands and the Limits 
of the Commerce Clause, 28 U.C. DAVIS L. REV. 1237, 1267 (1995) 
(“It is unreasonable to argue that the potential use of an isolated 
wetland by any species of migratory bird substantially affects 
interstate commerce”); Bablo, Leslie Salt Co. v. United States: Does 
the Recent Supreme Court Decision in United States v. Lopez 
Dictate the Abrogation of the “Migratory Bird Rule”?, 14 TEMP. 
ENVT’L L. & TECH. J. 277, 278 (1995) (“the very tenuous tie between 
migratory birds and interstate commerce does not satisfy the tests of 
the Commerce Clause enunciated in Lopez”); Lessner, Leslie Salt 
Co. v. United States: Keep the Birds Out of Your Birdbath: It May 
Be Considered The Jurisdiction of the Army Corps of Engineers 
as a “Water of the United States,” 2 VILL. ENVT’L L.J. 463, 500 
(1991) (expressing doubt that a migratory bird habitat “can be 
declared to be such a nexus to interstate commerce as to warrant 
Army Corps of Engineers jurisdiction”). 

16 

467 U.S. 837, 843 n.9, 862 (1984). Applying that familiar standard, 
the migratory bird rule is invalid. It is inconsistent with the language 
and history of the CWA, and it fails to pass muster under established 
canons of interpretation requiring that a statute be construed to avoid 
raising serious constitutional questions and to avoid impinging on 
areas traditionally regulated by the states. 

A. The Plain Language of the Act Requires Jurisdictional 

Waters To Be Related To Navigable Waters 

The plain language of the CWA prohibits discharges into 
“navigable waters,” defined as “waters of the United States.” 33 
U.S.C. §§ 1344(a), 1362(7). The Corps and the court below 
played favorites with these terms, ignoring the phrase “navigable 
waters” and focusing exclusively on the phrase “waters of the United 
States.” App., infra, 9a. But “‘[j]udges should hesitate * * * to treat 
[as surplusage] statutory terms in any setting.’” Bailey v. United 
States, 516 U.S. 137, 145 (1995). The statutory phrases “navigable 
waters” and “waters of the United States” are both essential to 
divining congressional intent. The former concept, properly under- 
stood, forecloses the Corps’ migratory bird rule. 

1. “Navigable waters” is a term of art that traditionally meant 
“waters navigable in fact” (The Daniel Ball, 77 U.S. (10 Wall.) 
557, 563 (1870)), but that was refined over time to include those 
waters capable of navigation through reasonable improvements. 
United States v. Appalachian Elec. Power Co., 311 U.S. 377, 
298-299 (1940); see BLACK’S LAW DICTIONARY 1179 (4th ed. 
1968); Gilbert v. United States, 370 U.S. 650, 655 (1962) 
(statutory terms are generally to be given their established common 
law meaning). No one asserts that the gravel-mining depressions on 
SWANCC’s property are navigable in either sense. 

2. The Seventh Circuit ignored this settled common-law 
meaning of “navigable waters” and treated that statutory phrase as 
surplusage. It justified that approach by pointing to the CWA’s 
definition of “navigable waters” as the “waters of the United States,” 

17 

then treating that phrase as the sole source of limits on the Corps’ 
jurisdiction. App., infra, 9a. 

It was error for the court of appeals to write the phrase 
“navigable waters” out of the CWA. In fact, the meaning of the 
phrase “waters of the United States,” while somewhat broader than 
“navigable waters,” is informed by and incorporates the idea of 
navigability. As this Court has held, the phrase means those waters 
which “form in their ordinary condition by themselves, or by uniting 
with other waters, a continued highway over which commerce is 
or may be carried on with other States or foreign countries in the 
customary modes in which such commerce is conducted by 
water.” The Daniel Ball, 77 U.S. at 563 (emphasis added); see 
also The Montello, 87 U.S. (20 Wall.) 430, 443 (1874). 

Thus, as the Fourth Circuit explained in Wilson, “the phrase 
‘waters of the United States’ when used to define the phrase 
‘navigable waters’” naturally “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. The migratory bird rule, like the 
regulation it purports to interpret, “defines ‘waters of the United 
States’ to include waters that need have nothing to do with navigable 
or interstate waters,” and deserves no deference because it 
“expands the statutory phrase ‘waters of the United States’ beyond 
its definitional limit.” Ibid. 

3. The Seventh Circuit’s reliance on this Court’s decision in 
Riverside Bayview Homes as support for its interpretation of the 
CWA is misplaced. This Court explained in Riverside Bayview that 
Congress’ use of the phrase “waters of the United States” in the 
CWA evidences an intent to “regulate at least some waters that 
would not be deemed ‘navigable’ under the classical understanding,” 
and in that sense (only), the concept of navigability “is of limited 
import” in the CWA. Riverside Bayview Homes, 474 U.S. at 133 
(emphasis added). Nowhere, however, has this Court suggested that 

18 

the Corps can ignore altogether the concept of navigability, as it 
does in its “other waters” and migratory bird rules. 

To the contrary, in stark contrast to Corps’ sweeping definition 
of “waters of the United States,” the definition this Court found 
reasonable in Riverside Bayview—navigable waters and their 
“adjacent wetlands”—does accord with the traditional interpretation 
of “waters of the United States” as a “continued highway for 
commerce.” “Adjacent wetlands” abut navigable waters, thus 
forming a “continued highway” and becoming “waters of the United 
States.” The Daniel Ball, 77 U.S. at 563; The Montello, 87 U.S. 
at 443; see also DeLovio v. Boit, 7 F.Cas. 418, 423 (Cir. Ct., 
D.Mass. 1815) (Storey, J.) (“marsh land, bordering on the sea” may 
be within the admiralty jurisdiction). Isolated, man-made depressions 
that fill with rainwater are not remotely similar. Thus, Riverside 
Bayview provides no support for the extraordinary extension of 
federal jurisdiction over local land use approved by the Seventh 
Circuit. 

4. The only statutory analysis engaged in by the court below 
was its iteration of the purpose of the Act, which includes the phrase 
“biological integrity” and the goal of ensuring “water quality which 
provides for the protection and propagation of * * * wildlife.” App., 
infra, 10a. But “[a]pplication of ‘broad purposes’ of legislation at 
the expense of specific provisions ignores the complexity of the 
problems Congress is called upon to address and the dynamics of 
legislative action * * * and, in the end, prevents the effectuation of 
congressional intent.” Board of Governors v. Dimension Fin. 
Corp., 474 U.S. 361, 373-374 (1986). 

In contrast to the highly generalized purposes of the Act relied 
on by the Seventh Circuit, the CWA’s text is specific and transpar- 
ently clear. When it enacted the CWA, Congress was no stranger 
to the terms “navigable waters” and “waters of the United States,” 
including their common law meanings and alternatives. It had 

19 

previously used both concepts “to determine the extent of the 
authority of the [Corps] under the Rivers and Harbors Appropriation 
Act of 1899,” 33 U.S.C. § 403. Kaiser Aetna v. United States, 
444 U.S. 164, 171 (1979). Congress’ choice to use those well- 
understood terms to define the scope of the CWA should not be 
treated lightly, and it supports the Fourth Circuit’s view of the 
Corps’ jurisdiction, not the Seventh Circuit’s interpretation. 

Equally telling, in the Federal Power Act Congress gave an 
agency authority over activities not only on “navigable waters,” but 
also on streams “other than those defined in this chapter as 
navigable waters, and over which Congress has jurisdiction 
under its authority to regulate commerce with foreign nations 
and among the several States.” 16 U.S.C. § 817 (emphasis 
added). It follows that “Congress knew how to draft a statute to6 
reach” all nonnavigable waters over which Congress has Commerce 
Clause jurisdiction. Bailey, 516 U.S. at 150. That Congress used no 
similar language in the CWA indicates that, contrary to the ruling 
below, it did not intend the CWA to apply so broadly. 

B. Legislative History Confirms That Congress Did Not 

Intend The Corps To Base Jurisdiction Merely On The 
Presence Of Migratory Birds 

This Court will not defer to an agency construction where “the 
legislative history of the enactment shows with sufficient clarity that 
[it] is contrary to the will of Congress.” Japan Whaling Ass’n v. 
American Cetacean Soc’y, 478 U.S. 221, 233 (1986). Such is the 
case here. 

6 

Power Act, this Court has refused to extend congressional authority 
to “intrastate nonnavigable waters which do not flow into any 
navigable streams.” Federal Power Comm’n v. Union Elec. Co., 
381 U.S. 90, 97 & n.9 (1965). 

It is noteworthy that even under the broadly worded Federal 

20 

1. Section 404(a) and the definition of “navigable waters” as 
“waters of the United States” originated in the Federal Water 
Pollution Control Act Amendments of 1972. In the thousands of 
pages of legislative history of those amendments, isolated waters are 
mentioned not once. Neither the government nor the court below has 
produced a single such reference. Yet the extension of federal 
jurisdiction to isolated waters implicates many millions of acres. 
Given the important policy and political interests at stake in drawing 
the boundary line between federal and local control of development, 
such a vast expansion of federal authority over heretofore local 
concerns would hardly have passed in silence. 

Congressional statements about the language that was used in 
the statute—“navigable waters” and “waters of the United 
States”—reflect established common law definitions. See 118 
CONG. REC. H33,756 (1972) (statement of Rep. Dingell, House 
floor manager); id. at H33,699 (statement of Sen. Muskie, Senate 
floor manager). By defining “navigable waters” as “waters of the 
United States,” the legislative history shows, Congress merely sought 
to avoid giving “navigable waters” its most “limited” or “technical” 
meaning—navigable in fact—“derived from the Daniel Ball case.” 
Id. at H33,756 (Rep. Dingell). Congress wanted a definition “in line 
with more recent judicial opinions” that “expanded that limited view 
of navigability * * * to include 
waterways which would be ‘suscepti- 
ble of being used * * * with reasonable improvement,’ as well as 
those waterways which include sections presently obstructed by 
falls, rapids, sand bars, currents, floating debris, et cetera.” Ibid., 
quoting United States v. Utah, 283 U.S. 64, 72 (1931). See also 
ibid. (Rep. Dingell quotes cases, which all involve waters previously 
or currently obstructed to navigation). In other words, the text was 
designed to reference the broader definitions of “navigable waters” 
and “waters of the United States” established by this Court. See also 
118 CONG. REC. H33,699 (statement of Sen. Muskie). 

21 

In light of these explanations, the statement in the House and 
Senate conference reports that “[t]he conferees fully intend that the 
term ‘navigable waters’ be given the broadest possible constitu- 
tional interpretation” is clear. S. REP. No. 92-1236, 92d Cong., 2d 
Sess. 144 (1972) (emphasis added); see also H.R. REP. No. 92- 
911, 92d Cong., 2d Sess. 131 (1972). Congress simply meant that 
the CWA should reach waters capable of navigation by reasonable 
improvement, consistent with this Court’s decisions in cases such as 
Appalachian Electric and United States v. Utah. It does not 
mean, as the Seventh and Ninth Circuits have held, that the CWA 
“reaches as many waters as the Commerce Clause allows.” App., 
infra, 9a (emphasis added); Leslie Salt I, 896 F.2d at 360. Had 
that been Congress’ intent, it would have said so expressly, as it did 
in the Federal Power Act. 

2. No different message was sent by Congress when, in 1977, 
it rejected amendments that would have limited the Corps’ authority 
to waters navigable in fact and their adjacent wetlands. This Court 
concluded in Riverside Bayview Homes that Congress’ inaction 
showed that “the scope of the Corps’ asserted jurisdiction over 
wetlands was specifically brought to Congress’ attention,” and that 
“even those who thought that the Corps’ existing authority under § 
404 was too broad” recognized that existing legislation should be 
read to cover adjacent wetlands. 474 U.S. at 137-138 (emphasis 
added). Neither conclusion supports the migratory bird rule. 

First, the migratory bird rule was not officially promulgated by 
the Corps until 1986. 51 Fed. Reg. 41206, 41217 (1986); App., 
infra, 39a. Absent clairvoyance, Congress could not have “acqui- 
esced in the Corps’ definition of waters” (474 U.S. at 138) in the 
migratory bird rule by its failure to act in 1977. See Leslie Salt I, 
896 F.2d at 361 n.1 (Rymer, J., dissenting) (rejecting argument that 
Congress acquiesced in the migratory bird rule because “[t]his 1986 
addition to, or clarification of, the Corps’ regulations was not 
considered during congressional debates on the [CWA] of 1977”). 

22 

Second, even the government has not ventured to suggest that “even 
those who thought that the Corps’ existing authority under § 404 
was too broad” would comfortably read the existing legislation to 
cover isolated intrastate depressions visited by migratory birds. Nor 
could it: the migratory bird rule marks the very furthest extent of 
asserted federal jurisdiction and is a giant leap beyond the normal 
bases upon which the federal government inserts itself into local 
affairs. In sum, the legislative history of Section 404 provides no 
support for, but contradicts, the migratory bird rule. 

C. No Deference Is Owed To The Migratory Bird Rule 

Because It Raises Serious Constitutional Concerns 

1. The migratory bird rule is also entitled to no deference 
because it raises “serious constitutional concerns” and “there is 
another interpretation that may fairly be ascribed” to the Act. 
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & 
Constr. Trades Council, 485 U.S. 568, 577 (1988); see also 
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 501 (1979) 
(when an agency’s “exercise of its jurisdiction * * * would give rise 
to serious constitutional questions” no deference is owed unless the 
regulation denotes “the affirmative intention of the Congress clearly 
expressed”). The Commerce Clause “is subject to outer limits.” 
Lopez, 514 U.S. at 557. The migratory bird rule hovers around or 
exceeds those limits, at minimum raising “serious constitutional 
questions.” Even defenders of the migratory bird rule acknowledge 
that it “tests the limits of Congress’ commerce powers, and, some 
would argue, the bounds of reason.” Leslie Salt II, 55 F.3d at 1396. 

2. The Seventh Circuit recognized that the migratory bird rule 
can be justified, if at all, only as regulation of an activity that 
“substantially affect[s]” interstate commerce. App., infra, 6a-7a; 
Lopez, 514 U.S. at 558-559. But the court did not rest its decision 
that the rule is constitutionally unproblematic on a showing by the 
Corps that filling gravel-mining depressions on SWANCC’s 

23 

propertywould “substantially” affect interstate commerce. The terms 
of the migratory bird rule require nothing more than the particular 
waters in question “are or would be used” as a habitat by migratory 
birds that are protected by international treaty or that “cross state 
lines” (App., infra, 40a), and the Corps made no showing beyond 
that requirement when it determined that SWANCC’s balefill 
property is within its jurisdiction. See App., infra, at 6a (acknowl- 
edging that any impact on birds on SWANCC’s property “has no 
discernible effect on interstate commerce”). The migratory bird rule’s 
lack of any connection to commerce, reflected in the Corps 
jurisdictional determination in this case, renders the basis for federal 
jurisdiction “even more farfetched than that offered, and rejected in 
Lopez” and raises “serious doubts” about the “propriety of the 
Corps’ assertion of jurisdiction.” Cargill, 516 U.S. at 958 (Thomas, 
J., dissenting from denial of certiorari). 

3. The Seventh Circuit avoided the difficulty that migratory bird 
use of SWANCC’s property has “no discernable effect on interstate 
commerce” by theorizing that the “cumulative impact” of “the 
destruction of migratory bird habitat” “substantially affects” interstate 
commerce in hunting and birdwatching. App, infra, 6a-7a. The7 
commerce power may not be extended by that kind of bootstrap- 
ping. 

7 

a “showing that the cumulative effect of land use involving * * * 
water that is wholly isolated from any water used, or usable, in 
interstate commerce” would have a substantial effect on migratory 
birds, much less “a substantial effect on interstate commerce.” 
Cargill, 516 U.S. at 959 (Thomas, J.) (emphasis added). There is no 
evidence that the numbers of any commercially relevant bird species 
would diminish as a result of the Corps not regulating isolated waters. 
The speculative assumption that filling a particular intrastate pond or 
trench will have a noticeable effect on migratory birds, which in turn 
will have a substantial effect on commerce, depends on “pil[ing] 
inference upon inference,” an approach rejected in Lopez. 514 U.S. 
at 567. 

The Seventh Circuit disregarded the fact that there has never been 

24 

To be sure, “[w]here the class of activities is regulated and that 
class is within the reach of federal power” because of its aggregated 
effect on commerce, “the courts have no power ‘to excise, as trivial, 
individual instances’ of the class.” Perez v. United States, 402 U.S. 
146, 154 (1971), quoting Maryland v. Wirtz, 392 U.S. 183, 193 
(1968). But “the de minimis character of individual instances * * * 
is of no consequence” only when those instances are “essential 
part[s]” of “a general regulatory statute” that “bears a substantial 
relation to commerce.” Lopez, 514 U.S. at 558. Here, isolated, 
purely intrastate wet areas are not within the class obviously 
regulated by Congress in the CWA, nor did Congress show any 
concern in the CWA with migratory birds as a class. And the Corps 
has never explained how preventing the filling of isolated, intrastate, 
man-made depressions is “essential” to any goal identified by 
Congress in the CWA. 

The “regulated class” approach to Commerce Clause analysis, 
which recognizes federal jurisdiction despite the lack of any 
significant effect on commerce of particular regulated circumstances, 
should have no application in cases such as this where there is a 
glaring disconnect between the class covered by the statute (“naviga- 
ble” “waters of the United States”) and the asserted basis of an 
agency’s jurisdiction (migratory birds), and where the agency has 
failed to show that extending its jurisdiction is essential to the 
achievement of any statutory goal. See, e.g., United States v. Bird, 
124 F.3d 667, 676 (5th Cir. 1997) (rejecting the government’s 
claim that “Congress need only identify a broad ‘class of activities’ 
and determine that, viewed in the aggregate, the class ‘substantially 
affects’ interstate commerce,” requiring instead the separate 
incidents be connected to interstate commerce).8 

8 

Professor Nagle points out that this Court “has said little about how 

25 

4. The migratory bird rule contains no “jurisdictional element 
which would ensure, through case-by-case enquiry” that particular 
isolated waters “affec[t] interstate commerce.” Lopez, 514 U.S. at 
561. Under the rule, it is enough that the waters “are or would be 
used as habitat” by any migratory bird. App., infra, 40a. Accord- 
ingly, the Corps conducted no analysis of the impact on commerce 
of filling the gravel-mining depressions on SWANCC’s balefill site. 

5. The basis of the Corps rule and assertion of jurisdiction here 
appears to be that the self-propelled flight of birds across state or 
national boundaries alone is enough to implicate the Commerce 
Clause, allowing regulation of every place where the birds might 
naturally stop. The ramifications of this assertion are astonishing. 
Approximately five billion land birds migrate across North America 
every year, with flyways covering the entire continental United 
States. THE ATLAS OF BIRD MIGRATION 54-83 (ed. J. Elphick 
1995); R. PETERSON, A FIELD GUIDE TO BIRDS 305-370 (4th ed. 
1980). By the Corps’ rationale, the Commerce Clause would stretch 

far Congress can reach in aggregating activities or how one decides 
what aggregations are permissible.” But he notes that the “available 
clues counsel against overly broad aggregations” like that relied on 
below: “Lopez rejects any Commerce Clause test that every 
conceivable federal statute could satisfy. The Court’s frequently 
stated concern about federalism pushes toward less sweeping 
aggregations. And lower courts have rejected the contention that 
Congress can satisfy the Commerce Clause simply by choosing a 
broad category of activities whose aggregate effect on interstate 
commerce is substantial.” 97 MICH. L. REV. at 197-198 (footnotes 
omitted). See also 1 L. TRIBE, CONSTITUTIONAL LAW 825 n.68 (3d 
ed. 2000) (“Lopez leaves unanswered many questions regarding 
focus and levels of generality [in aggregation] that were raised by 
Wickard and its progeny”). Review in this case would give this 
Court an opportunity to guide the lower courts in their application of 
the aggregation principle, which has taken on greater practical 
significance after Lopez. 

26 

to cover virtually every piece of property in the country, regardless 
of its commercial or noncommercial use. 

As in Lopez, “if we were9 

to accept the Government’s arguments, we are hard pressed to posit 
any activity by an individual that Congress is without power to 
regulate.” 514 U.S. at 564. 

At the very least, the migratory bird rule raises “serious constitu- 
tional concerns.” Edward J. DeBartolo Corp., 485 U.S. at 577; 
see Cargill, 516 U.S. at 959 (“This case raises serious and 
important constitutional questions about the limits of federal land-use 
regulation in the name of the [CWA] that provide a compelling 
reason to grant certiorari”) (Thomas, J.). Because the Corps’ 
dubious approach lacks support in the text or legislative history, 
much less the requisite “clearest indication” of congressional support, 
the Seventh Circuit’s deference to the rule cannot be sustained. 

D. No Deference Is Owed To The Migratory Bird Rule 

Because It Impinges On Traditional State Powers 

The migratory bird rule also runs afoul the interpretative principle 
that a court will not assume that Congress intended to substantially 
“alter sensitive federal-state relationships” by regulating conduct 
“traditionally subject to state regulation” unless Congress said so 
clearly. Rewis v. United States, 401 U.S. 808, 811-812 (1971); 
see BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994) (if 
a federal law is to be read to “radically readjus[t] the balance of 

9 

Homes. See 961 F.2d at 1321 n.9 (government conceded that its 
interpretation would allow it to regulate a puddle visited by migratory 
birds). See also Holman, After United States v. Lopez: Can the 
Clean Water Act and the Endangered Species Act Survive 
Commerce Clause Attack?, 15 VA. ENVT’L L.J. 139, 197 (1995) 
(“migratory flyways cover the entire United States and, as birdwatch- 
ers will attest, migratory birds will alight almost anywhere. Thus the 
migratory bird rule * * * operates as a limiter-manque—a limiting rule 
with no limits”). 

The government conceded as much at oral argument in Hoffman 

27 

state and national authority,” “those charged with the duty of 
legislating [must be] reasonably explicit”). 

Byvastly expanding federal jurisdiction to include tens of millions 
of acres of isolated intrastate waters and wetlands —traditionally the 
exclusive province of the States and their subdivisions—the migra- 
tory bird rule drastically alters “sensitive federal-state relationships,” 
making the Corps a sort of super zoning board for all permanently 
or seasonally wet areas of the United States. Under the migratory 
bird rule, it is the Corps that ultimately decides whether a project is 
in the “public interest” (33 CFR § 320.4(a)), supplanting the 
considered judgments of state and local authorities, as it did in this 
case. Such a rule was not anticipated by Congress, much less clearly 
intended, and therefore cannot be sustained. 

In light not only of Lopez, but also this Court’s federalism 
jurisprudence in recent cases such as last Term’s sovereign immunity 
decisions, Printz v. United States, 521 U.S. 898 (1997), Seminole 
Tribe v. Florida, 517 U.S. 44 (1996), and New York v. United 
States, 505 U.S. 144 (1992), this Court should demand much 
clearer authority from Congress before permitting an agency to 
deprive states and municipalities of their traditional police powers 
over the use of land so ephemerally connected to interstate com- 
merce. “Although the Constitution grants broad powers to Con- 
gress, our federalism requires that Congress treat the States in a 
manner consistent with their status as residuary sovereigns and joint 
participants in the governance of the Nation.” Alden v. Maine, 119 
S. Ct. 2240, 2263 (1999). The Founders likewise understood that 
the States “form distinct and independent portions of the supremacy, 
no more subject, within their respective spheres, to the general 
authority, than the general authority is subject to them, within its own 
sphere.” THE FEDERALIST NO. 39, at 245 (C. Rossiter ed. 1961) (J. 
Madison). 

28 

BFP is instructive. There, this Court rejected an interpretation 
of the Bankruptcy Code that would have preempted state foreclo- 
sure law. The Court explained that the power to ensure the security 
of titles to real estate “inheres in the very nature of [state] govern- 
ment” and that the construction urged by the government would in- 
trude on “the essential [state] sovereign interest in the security and 
stability of title to the land.” 511 U.S. at 544 & n.8. This Court 
would not permit an interpretation of the Code that “displace[d] tra- 
ditional state regulation in such a manner” absent a “‘clear and mani- 
fest’” statement of congressional intent. Id. at 544; see also Lopez, 
514 U.S. at 567-568 (emphasizing the need to maintain “a distinc- 
tion between what is truly national and what is truly local”). 

The same principle governs here. The migratory bird rule allows 
for intrusive federal land-use regulation that impinges on “the 
authority of state and local governments to engage in land use 
planning,” which this Court has recognized “as long ago as our 
decision in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 
(1926).” Dolan v. City of Tigard, 512 U.S. 374, 384 (1994). 
Because land-use decisions are the prerogative of States and their 
subdivisions, this Court has repeatedly deferred to these interests. 
See Village of Belle Terre v. Boraas, 416 U.S. 1, 4 (1974); 
Village of Euclid, 272 U.S. at 388; see also Village of Belle Terre, 
416 U.S. at 13 (Marshall, J., dissenting on other grounds) (“zoning 
is a complex and important function of the State” which “may indeed 
be the most essential function performed by local government”). Just 
as federal courts “do not sit to determine whether a particular 
housing project is or is not desirable” (Berman v. Parker, 348 U.S. 
26, 32 (1954)), so too should federal agencies forbear from 
becoming local land-use authorities. 

Thus, the text and history of the CWA, together with important 
principles of statutory interpretation that serve to protect state and 
local powers from unintended federal interference, all indicate that 
the Corps’ migratory bird rule is an impermissible construction of the 

29 

Act that is owed no deference. The Seventh Circuit’s contrary 
decision is erroneous and should be reversed. 

III. THE PETITION SHOULD BE GRANTED, NOT 
HELD FOR JONES v. UNITED STATES 

This Court has granted certiorari in Jones v. United States, No. 
99-5739 (cert. granted Nov. 15, 1999), to decide whether inter- 
preting the federal arson statute to reach intra-state arson of 
residential property is permissible in light of Commerce Clause 
constraints on federal power. See Order List, Nov. 15, 1999 
(reformulating the question for review as “[w]hether, in light of 
United States v. Lopez, * * * and the interpretative rule that 
constitutionally doubtful constructions should be avoided, * * * [18 
U.S.C.] Section 844(i) applies to the arson of a private residence; 
and if so, whether its application to the private residence in the 
present case is unconstitutional”). 

It appears likely that in Jones this Court will provide guidance 
as to the effect Commerce Clause concerns should have on the 
proper interpretation of jurisdictional grants in federal statutes. 
Stated in the abstract, that issue is of obvious relevance to this case: 
we contend that Commerce Clause problems raised by the migra- 
tory bird rule mean that it is an impermissible construction of the 
CWA under the established “interpretative rule that constitutionally 
doubtful constructions should be avoided.” Nevertheless, holding this 
petition for Jones would not be useful or appropriate. 

To begin with, this case and Jones involve very different statutes 
and entirely different factual bases that are alleged by the United 
States to provide a sufficient nexus to interstate commerce. There is 
no reason to believe that this Court’s ruling whether a federal arson 
conviction may be based on the burned residence’s receipt of out- 
of-state gas (and the like) will illuminate whether the presence of 
migratory birds is a proper basis for CWA jurisdiction. The different 
language of the statutes involved, their different regulatory histories, 

30 

and the vastly different questions whether the supply of natural gas 
to a residence or use of wet areas by migratory birds are “interstate 
commerce,” suggest that however this Court decides Jones, the 
issue in this petition will remain alive and in urgent need of this 
Court’s review. 

The two cases also involve completely different Commerce 
Clause issues. Jones concerns a “case-by-case inquiry” into 
evidentiary sufficiency under a statutory jurisdictional element. This 
case raises the wholly different question of when deference is owed 
to agencies that seek to stretch their own jurisdiction to (or beyond) 
constitutional limits. 

Moreover, the Seventh Circuit made abundantly clear that it 
regards protecting migratory bird habitat as implicating interstate 
commerce and sees no constitutionally doubtful interpretation at all 
in this case. A ruling in Jones that Commerce Clause problems are 
to be avoided by narrowing interpretations of jurisdictional grants 
would have no impact whatsoever on the Seventh Circuit on remand 
following a GVR, for the Seventh Circuit sees no conceivable 
Commerce Clause problem to begin with. 

In light of these differences, and because the courts of appeals 
are in disarray as to an important issue concerning the scope of the 
Clean Water Act that will not be settled in Jones, we urge this Court 
to grant independent review in this case. 

CONCLUSION 

The petition for a writ of certiorari should be granted. 

Respectfully submitted. 

ELIZABETH A. CLARK 
Timothy S. Bishop 

Mayer, Brown & Platt 

Counsel of Record 

1909 K Street, N.W. 

Mayer, Brown & Platt 

Washington, D.C. 20006 

190 South LaSalle Street 

(202) 263-3000 

Chicago, IL 60603 

(312) 782-0600 
GEORGE J. MANNINA, JR. 

O’Connor & Hannan, L.L.P. 
1666 K Street, N.W. 

Suite 500 
Washington, D.C. 20006 
(202) 887-1400 

Counsel for Petitioner 
JANUARY 2000