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., 

Respondents. 
__________ 

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

__________ 

REPLY BRIEF FOR PETITIONER 

__________ 

ELIZABETH A. CLARK 
TIMOTHY S. BISHOP 

Mayer, Brown & Platt 
Counsel of Record 

1909 K Street, N. W. 

KASPAR J. STOFFELMAYR 

Washington, D.C. 20006 

Mayer, Brown & Platt 

(202) 263-3000 

190 South LaSalle Street 

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 

i 

TABLE OF CONTENTS 

Page 

REPLY BRIEF FOR PETITIONER ............ 1 

1. The decision below conflicts with the Fourth 
Circuit’s ruling in Wilson ............... 1 

2. Other factors also make review timely ..... 3 

3. The CWA does not authorize the Corps to 
regulate SWANCC’s property ............ 4 

4. The bird rule is not entitled to Chevron de- 
ference because it raises serious Commerce 
Clause concerns ..................... 6 

5. The bird rule infringes traditional state and 
local powers ......................... 9 

CONCLUSION ......................... 10 

ii 

TABLE OF AUTHORITIES 

Cases: Page 

Chamber of Commerce v. FEC, 69 F.3d 600 
(D.C. Cir. 1995) ...................... 6 

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

Defense Council, 467 U.S. 837 (1984) 
... 6, 7 

Dolan v. City of Tigard, 512 U.S. 374 (1994) ... 10 

Edward J. DeBartolo Corp. v. Florida Gulf 

Coast Building & Construction Trades 
Council, 485 U.S. 568 (1988) .......... 6, 7 

FDA v. Brown & Williamson Tobacco Corp., 

No. 98-1152 (Mar. 21, 2000) ............ 6 

Federal Power Commission v. Union Electric Co., 
381 U.S 90 (1965) .................... 4 

Greene v. McElroy, 360 U.S. 474 (1959) ....... 7 

Maryland v. Wirtz, 392 U.S. 183 (1968) 
....... 8 

National Cable Television Ass’n v. United 

States, 415 U.S. 336 (1974) ............. 7 

NLRB v. Jones & Laughlin Steel Corp., 
301 U.S. 1 (1937) 

.................... 8 
Printz v. United States, 521 U.S. 898 (1997) .... 9 

Rewis v. United States, 401 U.S. 808 (1971) .... 9 

iii 

Tabb Lakes Ltd. v. United States, 885 F.2d 
866 (4th Cir. 1989) ................... 2 

Texas Office of Pub. Util. Counsel v. FCC, 
183 F.3d 393 (5th Cir. 1999), petitions 
for cert. filed, No. 99-1072 (Dec. 23, 
1999), No. 99-1244 (Jan. 26, 2000), 
No. 99-1249 (Jan. 26, 2000) 

TABLE OF AUTHORITIES—Continued 

Page 

............ 6 

The Daniel Ball, 77 U.S. (10 Wall.) 557 
(1870) ........................... 4, 5 

United States v. Appalachian Electric Power 

Co., 311 U.S. 377 (1940) ............... 5 

United States v. Darby, 312 U.S. 100 (1941) .... 7 

United States v. Lopez, 514 U.S. 549 
(1995) ........................... 4, 7, 8 

United States v. Riverside Bayview Homes, 
474 U.S. 121 (1985) ................. 4, 5 

United States v. Utah, 283 U.S. 64 (1931) ...... 5 

United States v. Wilson, 133 F.3d 251 
(4th Cir. 1997) ..................... 2, 3 

Wickard v. Filburn, 317 U.S. 111 (1942) ....... 8 

iv 

TABLE OF AUTHORITIES—Continued 

Page 

Statutes and Regulations: 

33 U.S.C. § 1251(a)(2) .................... 6 

33 CFR § 320.1(a)(2) ..................... 3 

33 CFR § 320.4(a) ....................... 9 

33 CFR § 328.3(a)(3) 
................... 2, 3 

33 CFR § 331.1-.12 ...................... 3 

Miscellaneous: 

Challis, Standing Alone in Murky Waters, 
34 WAKE FOREST L. REV. 1179 (1999) 
...... 3 

THE FEDERALIST (C. Rossiter ed. 1961) ........ 9 

REPLY BRIEF FOR PETITIONER 
_______________ 

The issue in this case is whether the Corps of 
Engineers runs afoul of the Commerce Clause and 
the Clean Water Act when it claims authority to 
prohibit a municipal corporation from filling isolated 
waters on its land—a necessary incident to creating 
a long-planned and urgently required public waste 
disposal project—solely because those waters “are 
used as habitat by migratory bird[s] which cross 
state lines” or are protected by migratory bird 
treaties. Pet. C.A. App. 78; see Pet. 6 n.3.1 The 
Corps’ head-in-the-sand approach to the serious 
federalism concerns raised by its intrusion into a 
$20 million municipal project that had obtained 
every necessary state and local approval, as well as 
its strained defense of its reading of the CWA, 
confirm the need for immediate review. Four amicus 
briefs urging this Court to grant certiorari—filed by 
the National Association of Home Builders, the 
American Farm Bureau Federation, Cargill, Inc., and 
the Pacific Legal Foundation—attest to the 
importance of the question presented. 

1. The decision below conflicts with the Fourth 
Circuit’s ruling in Wilson. The Corps ignores the array 

1 The Solicitor General (at 5) tries to hint with 
citationless “inter alias” that there might have been 
some basis other than the migratory bird rule for 
asserting federal jurisdiction over the depressions and 
trenches on SWANCC’s land. He identifies none in his 
brief in opposition, the Corps identified none to the 
courts below, and the Corps articulated none in its 
Section 404 denials. 

(1) 

2 

of individual opinions and legal scholarship 
explaining why the migratory bird rule violates the 
Commerce Clause and CWA. See Pet. 13-14 & n.5. 
It does admit (at 10) that “Wilson is in some tension 
with the court of appeals’ ruling in this case.” But 
that is an understatement. The Fourth Circuit would 
have decided this case differently. It held in Wilson 
that the “other waters” rule, 33 CFR § 328.3(a)(3), “is 
unauthorized by the [CWA] as limited by the 
Commerce Clause and therefore is invalid.” 133 F.3d 
at 254. The bird rule purports to “clarif[y]” that 
invalidated regulation (see Pet. App. 40a) and falls 
with it. Even apart from Wilson, the Corps may not 
rely on the migratory bird rule in the Fourth Circuit. 
It was invalidated in Tabb Lakes Ltd. v. United 
States, 885 F.2d 866 (4th Cir. 1989) (per cur.), for 
APA violations that the Corps has never rectified. 
Pet. 4 & n.2. 

The Fourth Circuit’s critique of the “other waters” 
rule applies with equal force to the migratory bird 
rule. First, the court invalidated § 328.3(a)(3) 
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.” 133 F.3d at 257. The migratory bird rule 
likewise does not mention interstate commerce, 
requiring only that isolated waters “are or would be 
used as habitat by birds protected by Migratory Bird 
Treaties” or “which cross state lines.” Pet. App. 40a. 
And the Corps made no finding that bird use of 
SWANCC’s property implicated interstate commerce 
in any way, nor could it plausibly do so. 

Second, “as a matter of statutory construction,” the 

3 

Fourth Circuit held, “‘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)—something that 
the “other waters” and migratory bird rules fail to 
recognize. Unlike the Corps (at 12), we see no sign 
that this interpretation of the CWA “is merely 
dictum.” To the contrary, the quoted language 
introduces this clear holding: “When viewed in light 
of its statutory authority, 33 C.F.R. § 328.3(a)(3), 
which defines ‘waters of the United States’ to include 
intrastate waters that need have nothing to do with 
navigable or interstate waters, expands the statutory 
phrase ‘waters of the United States’ beyond its 
definitional limit.” As one commentator observed, 
“the Solid Waste Agency court reached the opposite 
conclusion regarding congressional intent from the 
Wilson court,” and it was the “Fourth Circuit [that 
applied] the proper analysis.” Challis, Standing Alone 
in Murky Waters, 34 WAKE FOREST L. REV. 1179, 
1187 n.75, 1204 (1999). 

2. Other factors also make review timely. The use of 
many millions of acres of land and tens of millions 
of isolated waters is directly and significantly 
affected by the bird rule. See NAHB Br. 4; AFBF Br. 

7. Yet, as the Pacific Legal Foundation explains in its 
amicus submission (at 9-14), the rule has rarely 
been challenged in court because the Corps 
routinely denies landowners “final decisions” on 
their permit applications and thereby precludes 
litigation. The Corps’ recent institution of new 
administrative exhaustion requirements makes it 
even less likely that a challenge like this will be 

4 

ripened in the future. See id. at 14; 33 CFR 
§§ 320.1(a)(2), 331.1-.12 (1999). This Court’s 
opportunities to address the bird rule are rare; it 
should not pass this one up. 

Moreover, the intolerable uncertainty that the bird 
rule creates for landowners is not solely a result of 
conflicting circuit precedent and different views of 
Lopez; it inheres in the itinerant nature of migratory 
birds. One year’s habitat may be abandoned the 
next; the bird’s arrival on particular land is 
unpredictable. Because of the bird rule, virtually 
every major land-use project is in jeopardy 
throughout its planning and construction. At any 
point, a migratory bird may arrive at a wet spot, 
creating Corps jurisdiction and triggering Section 
404 permit requirements. A rule imposing such 
heavy burdens so unpredictably requires clear just- 
ification—not statutory and constitutional 
contortions like those on display in the Corps’ brief. 

3. The CWA does not authorize the Corps to regulate 
SWANCC’s property. We have already refuted (at Pet. 
16-22) the Corps’ argument, repeated in its brief in 
opposition, that the CWA authorizes it to regulate 
waters that are not navigable, potentially navigable, 
or in any way connected or related to navigable 
waters. The language and legislative history of the 
CWA demonstrate that the Corps’ interpretation is 
untenable. The Corps misreads Riverside Bayview 
Homes (see Pet. 17-18, 21), and it does not even 
deign to cite Federal Power Commission or discuss 
the Federal Power Act provisions interpreted in that 
case, though these are directly at odds with the 
Corps’ position. See Pet. 19 & n.6. 

5 

Astonishingly, the Corps (at 15 n.9) dismisses as 
irrelevant The Daniel Ball and other cases discussed 
in our petition on the grounds that they 
“significantly predate the CWA” and “construed the 
term ‘navigable waters of the United States.’” We 
have shown, however (at Pet. 20-21), that Congress 
expressly referenced this Court’s decisions 
interpreting the term “navigable waters of the United 
States” when it adopted the CWA, that those 
decisions were an important backdrop to the 
statute, and that they must inform its interpr- 
etation. By using the term “navigable waters” and 
defining them as “waters of the United States,” 
Congress tapped into this Court’s precedents. It 
rejected the narrowest interpretation of navigability, 
set forth in The Daniel Ball, in favor of the broader 
interpretation embraced by this Court in United 
States v. Utah and Appalachian Electric, which 
includes waters capable of being made navigable. 
Add together Utah, Appalachian Electric, and 
Riverside Bayview Homes and you have a statute 
that indeed reaches “some waters that would not be 
deemed ‘navigable’ under the classical under- 
standing” (474 U.S. at 133)—but nothing like the 
wet trenches and depressions, totally devoid of any 
connection to navigable or interstate waters, that the 
bird rule subjects to federal control. See Pet. 16- 

21. 

2 

2 Oddly, at the same time the Corps insists that 
navigability is irrelevant to its powers, it relies (at 15-16) 
on the statement in the Conference Report that “[t]he 
conferees fully intend that the term ‘navigable waters’ be 
given the broadest possible constitutional 
interpretation.” S. Conf. Rep. No. 92-1236, at 144. The 

6 

The Corps’ contention (at 14-15) that its bird rule 
is authorized because the CWA regulates waters in 
part to protect wildlife proves far too much. If 
protection of wildlife were sufficient for CWA 
jurisdiction, no bird-bath or ornamental pond would 
be safe from federal regulation. Equally, no 
swimming pool would be beyond the Corps’ 
authority, because another goal of the CWA is to 
protect waters for their recreational value. See 33 
U.S.C. § 1251(a)(2). “[W]e must be guided to a degree 
by common sense” in interpreting a statute, and 
common sense dictates that the CWA’s goals may 
properly be pursued only through regulation of 
waters with some real connection to the navigable 
waters of the United States. FDA v. Brown & 
Williamson Tobacco Corp., Slip op. 10 (Mar. 21, 
2000). “[A]n administrative agency’s power to 
regulate * * * must always be grounded in a valid 
grant of authority from Congress.” Id. at 39. A basis 
for the Corps’ assertion of jurisdiction over tens of 
millions of puddles and ponds on private land 
cannot remotely be located in the CWA. 

4. The bird rule is not entitled to Chevron deference 
because it raises serious Commerce Clause concerns. 
The Corps’ citation (at 20) to United States v. Darby, 

Corps does not respond to our explanation that 
Congress thereby meant merely to choose the Utah and 
Appalachian Electric approach over that of The Daniel 
Ball. Nor does the Corps provide any reasoned way to get 
from the Conference Report statement about navigable 
waters to the Seventh Circuit’s broad holding that the 
CWA “reaches as many waters as the Commerce Clause 
allows.” Pet. App. 9a. 

7 

312 U.S. 100 (1941), does not support its claimed 
entitlement to Chevron deference. As this Court held 
in Edward J. DeBartolo Corp., 485 U.S. at 574-577, 
an agency’s statutory construction is entitled to no 
deference when it raises “serious constitutional 
concerns.” See Texas Office of Pub. Util. Counsel v. 
FCC, 183 F.3d 393, 443 n.95 (5th Cir. 1999) (“a 
court will reject an agency interpretation of a statute 
that would ordinarily receive deference under 
Chevron step-two if it believes the agency’s reading 
raises serious constitutional doubts”); Chamber of 
Commerce v. FEC, 69 F.3d 600, 605 (D.C. Cir. 1995) 
(in light of court’s “oblig[ation] to construe the 
statute to avoid constitutional difficulties,” agency 
was “not entitled to Chevron deference”). Nothing in 
Darby requires this Court, contrary to DeBartolo, to 
defer to the Corps’ constitutionally dubious 
expansion of its own reach under the CWA. Even if 
Congress had authority under the commerce power 
to enact the migratory bird rule, after making 
appropriate legislative findings, a mere agency does 
not. See Greene v. McElroy, 360 U.S. 474, 507 
(1959); National Cable Television Ass’n v. United 
States, 415 U.S. 336, 342 (1974). 

The Corps pretends (at 17-18) that exercising juris- 
diction over SWANCC’s property based on the bird 
rule “fits comfortably” within federal commerce 
power because “[c]ommerce associated with 
migratory birds has a measurable impact on the 
national economy,” and because the “aggregate 
effects” of filling “isolated waters that are actually 
used as habitat for migratory birds” have a 
“substantial impact” on this commerce. That 
argument is wrong. 

8 

The self-propelled flight of birds across state lines 
is not commercial in character. Like “any conduct in 
this interdependent world of ours,” such flight may 
have “an ultimate commercial * * * consequence.” 
Lopez, 514 U.S. at 580 (Kennedy and O’Connor, JJ., 
concurring). But any “commercial nexus” here is too 
strained to support the Corps’ “intru[sion] upon an 
area of [such] traditional state concern” as land use 
planning and control. Ibid. “Absent a stronger 
connection or identification with commercial 
concerns that are central to the Commerce Clause, 
that interference contradicts the federal balance the 
Framers designed.” Id. at 583. If the federal 
government can justify regulating every place and 
every thing used by migratory birds merely by 
pointing in a generalized way to expenditures by 
hunters and birdwatchers, then we have 
“obliterate[d] the distinction between what is 
national and what is local and create[d] a completely 
centralized government.” NLRB v. Jones & Laughlin 
Steel Corp., 301 U.S. 1, 37 (1937). 

Beyond that, the Corps points to no statistics or 
other evidence, and has made no finding, that filling 
even every single isolated water would have a 
substantial effect on interstate birdwatching or 
hunting or on migratory bird populations. In looking 
at “aggregate effects” on interstate commerce, the 
Corps (at 18-19) aggregates the wrong thing: the 
filling of all types of waters used by migratory birds, 
instead of the filling of isolated waters so used. See 
Pet. 24 n.8. 

Any impact that isolated waters have on interstate 
commerce, even in the national aggregate, is 
“relatively trivial” and cannot serve “as an excuse for 

9 

broad general regulation of state or private 
activities.” Maryland v. Wirtz, 392 U.S. 183, 197 

n.27 (1968). Filling wholly isolated waters is not an 
“activity that might, through repetition elsewhere, 
substantially affect any sort of interstate commerce.” 
Lopez, 514 U.S. at 567; see also id. at 560 (“Wickard 

* * * involved economic activity in a way that [filling 
isolated depressions and trenches] does not”).3 

5. The bird rule infringes traditional state and local 
powers. Based on its own view of the “public 
interest” (33 CFR § 320.4(a)), the Corps has blocked 
a state- and locally-approved project designed to 
benefit 700,000 residents of SWANCC’s 23 member 
municipalities. The Corps’ glib response (at 20-21) to 
our complaint that this infringes on local land use 
authority displays its cavalier approach to the 
Constitution’s federalism guarantees as it seeks to 
aggrandize its own powers. 

“[T]he local or municipal authorities 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) 

3 The Corps’ frequent references to migratory bird 
treaties are unavailing. Of course, the treaty power 
authorizes the United States to agree with other nations 
to afford protection to migratory birds. But the Corps 
does not identify any treaty that requires the federal 
government to prevent the filling of isolated waters. Nor 
does it contend that the United States would be unable 
to fulfil its treaty obligations while also respecting the 
limits of its commerce power. 

10 

(Madison), quoted in Printz, 521 U.S. at 920-921. 
Requiring SWANCC to apply for a Section 404 
permit in this case was an “ac[t] of usurpation” of 
local powers, which “deserve[s] to be treated as 
such.” THE FEDERALIST NO. 33, at 204 (A. Hamilton). 
Contrary to the Corps’ suggestion (at 21), Congress 
has never designated isolated waters as a national 
resource requiring national management. Absent an 
explicit determination of that sort, the CWA may not 
be read to “alter sensitive federal-state relationships” 
with regard to matters so “traditionally subject to 
state regulation” (Rewis, 401 U.S. at 811-812) as 
“the authority of state and local governments to 
engage in land use planning.” Dolan, 512 U.S. at 
384. 

CONCLUSION 

As the Solicitor General observes (at 21-22), the 
statutory schemes at issue in Jones, Brzonkala, and 
Morrison “are sufficiently different from the CWA 
that the Court’s decisions in those cases are unlikely 
to affect the proper disposition” here. SWANCC’s 
petition should not be held but granted forthwith, 
for the reasons stated above and in the petition. 

Respectfully submitted. 

ELIZABETH A. CLARK 
TIMOTHY S. BISHOP 

Mayer, Brown & Platt 
Counsel of Record 

1909 K Street, N.W. 
KASPAR J. STOFFELMAYR 

Washington, D.C. 20006 
Mayer, Brown & Platt 

(202) 263-3000 
190 South LaSalle Street 

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 

MARCH 2000