No. 99-1178 

In the Supreme Court of the United States 

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY, 
PETITIONER 

v. 

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT 

BRIEF FOR THE RESPONDENTS IN OPPOSITION 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

LOIS J. SCHIFFER 

Assistant Attorney General 

JOHN A. BRYSON 
ETHAN G. SHENKMAN 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether the United States Army Corps of Engi- 
neers may, consistent with the Clean Water Act and 
the Commerce Clause, exercise regulatory jurisdiction 
over a series of permanent and seasonal ponds and 
small lakes that are used as habitat for numerous 
species of migratory birds. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statement ........................................................................................ 2 

Argument ........................................................................................ 9 

Conclusion ....................................................................................... 22 

TABLE OF AUTHORITIES 

Cases: 

Andrus v. Allard, 444 U.S. 51 (1979) ................................. 

18 

Avoyelles Sportsmen’s League, Inc. v. Marsh, 

715 F.2d 897 (5th Cir. 1983) ................................................. 

15 

Bronkala v. Virginia Polytechnic Inst. & State 

Univ., 169 F.3d 820 (4th Cir. 1999), cert. granted, 

Nos. 99-5 & 99-29 (argued Jan. 11, 2000) ....................... 

11, 21 

C & A Carbone, Inc. v. Town of Clarkstown, 

511 U.S. 383 (1994) ................................................................ 

11 

Cerritos Gun Club v. Hall, 96 F.2d 620 (9th Cir. 

1938) ......................................................................................... 18 

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

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

8 

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

1937), cert. denied, 303 U.S. 636 (1938) ............................. 

18 

De Bartolo Corp. v. Florida Gulf Coast Bldg. & 

Constr. Trades Council, 485 U.S. 568 (1988) ................... 

20 

Hoffman Homes, Inc. v. United States Environ- 
mental Protection Agency, 999 F.2d 256 (7th Cir. 

1993) ..................................................................................... 18, 19 

(III) 

IV 

Cases—Continued: Page 

Leslie Salt Co. v. United States: 

896 F.2d 354 (9th Cir. 1990), cert. denied, 498 U.S. 

1126 (1991) ...................................................................... 

13, 15 

55 F.3d 1388 (9th Cir.), cert. denied, 515 U.S. 955 

(1995) ................................................................................... 13 

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

18 

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

18 

Natural Resources Defense Council, Inc. v. 

Callaway, 392 F. Supp. 685 (D.D.C. 1975) ....................... 

3 

North Dakota v. United States, 460 U.S. 300` 

(1983) ...................................................................................... 

7, 18 

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

1985), cert. denied, 474 U.S. 1055 (1986) ........................... 

15 

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

15 

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

15 

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

20 

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

cert. denied, 522 U.S. 899 and 1004 (1997) ........................ 

15 

United States v. Hallmark Constr. Co., 

14 F. Supp. 2d 1069 (N.D. Ill. 1998) .................................... 

13 

United States v. Hartsell, 127 F.3d 343 (4th Cir. 

1997), cert. denied, 523 U.S. 1030 (1998) ........................... 

15 

United States v. Holland, 373 F. Supp. 665 (M.D. 

Fla. 1974) ................................................................................. 

3 

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

6, 11, 17 

United States v. Nathan, 202 F.3d 230 (4th Cir. 

2000) ......................................................................................... 11 

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

1993), cert. denied, 510 U.S. 1110 (1994) ........................... 

15 

United States v. Riverside Bayview Homes, Inc., 

474 U.S. 121 (1985) ............................................... 

14, 15, 16, 17 

United States v. Sargent County Water Resource 

Dist., 876 F. Supp. 1081 (D.N.D. 1992) ............................. 13 

V 

Cases—Continued: Page 

United States v. Tull, 769 F.2d 182 (4th Cir. 

1985), rev’d on other grounds, 481 U.S. 412 

(1987) ........................................................................................ 15 

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

1997) ................................................................ 

8, 9, 10, 11, 12 

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

13 

Village of Oconomowoc Lake v. Dayton Hudson 

Corp., 24 F.3d 962 (7th Cir.), cert. denied, 

513 U.S. 930 (1994) ................................................................ 

15 

Statutes and regulations: 

Administrative Procedure Act, 5 U.S.C. 701 et seq. ........... 

6 

Clear Water Act: 

33 U.S.C. 1251(a) .................................................................. 

1, 14 

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

2, 14 

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

2, 9 

33 U.S.C. 1319(c)(2)(A) ......................................................... 

9 

33 U.S.C. 1344 (§ 404) ........................................................... 

2, 5 

33 U.S.C. 1344(a) .................................................................... 

13 

33 U.S.C. 1344(f ) .................................................................... 

16 

33 U.S.C. 1362(7) .................................................................. 

2, 13 

33 U.S.C. 1362(12)(A) ............................................................ 

2 

Emergency Wetlands Resources Act of 1986: 

16 U.S.C. 3901(a) .................................................................... 

21 

16 U.S.C. 3901(a)(2) ............................................................... 

19 

16 U.S.C. 3901(b) ................................................................... 

21 

North American Wetlands Conservation Act, 

16 U.S.C. 4401(a)(8) ............................................................... 

19 

Water Bank Act, 16 U.S.C. 1301 ............................................ 

19 

18 U.S.C. 844(i) (1994 & Supp. IV 1998) ............................... 

21 

18 U.S.C. 922(g) ......................................................................... 

11 

42 U.S.C. 13981 .......................................................................... 

21 

33 C.F.R.: 

Section 320.4(b)(2)(i) ............................................................. 

15 

Section 323.2(a)(5) (1978) ...................................................... 

3 

Section 328.3(a)(3) ...................................... 3, 5, 8, 9, 10, 11, 12 

VI 

Regulations—Continued: Page 

40 C.F.R. 230.3(s)(3) ................................................................. 

4 

50 C.F.R. 10.13 .......................................................................... 

5 

Miscellaneous: 

123 Cong. Rec. (1977): 

p. 26,711 ................................................................................... 

16 

p. 34,852 ................................................................................... 
16 

p. 39,209 ................................................................................... 
16 

40 Fed. Reg. 31,320 (1975) ....................................................... 
3 

42 Fed. Reg. (1977): 

p. 37,122 ................................................................................... 

3 

p. 37,144 ................................................................................... 
17 

51 Fed. Reg. (1986): 
pp. 41,216-41,217 .................................................................. 
4 

p. 41,217 ............................................................................... 4 

H.R. Rep. No. 1396, 93d Cong., 2d Sess. (1974) ................... 

3 

S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. (1972) ........... 
2, 16 

S. Rep. No. 370, 95th Cong., 1st Sess. (1977) ....................... 16 

In the Supreme Court of the United States 

No. 99-1178 

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY, 
PETITIONER 

v. 

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT 

BRIEF FOR THE RESPONDENTS IN OPPOSITION 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-13a) 
is reported at 191 F.3d 845. The opinion of the district 
court (Pet. App. 14a-36a) is reported at 998 F. Supp. 
946. 

JURISDICTION 

The judgment of the court of appeals was entered on 
October 7, 1999. Justice Stevens granted an extension 
of time to and including January 14, 2000, for filing a 
petition for a writ of certiorari, and the petition was 

(1) 

2 

filed on that date. The jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1). 

STATEMENT 

1. Congress enacted the Federal Water Pollution 
Control Act (Clean Water Act or CWA) in 1972 “to 
restore and maintain the chemical, physical, and bio- 
logical integrity of the Nation’s waters.” 33 U.S.C. 
1251(a). One of the chief goals of the CWA is to attain 
“water quality which provides for the protection and 
propagation of fish, shellfish, and wildlife.” 33 U.S.C. 
1251(a)(2). A major tool in achieving that purpose is a 
prohibition on the discharge of any pollutants, including 
dredged or fill material, into “navigable waters” except 
in accordance with the Act. 33 U.S.C. 1311(a), 
1362(12)(A). The CWA provides that “[t]he term ‘navi- 
gable waters’ means the waters of the United States, 
including the territorial seas.” 33 U.S.C. 1362(7). The 
Conference Report accompanying the CWA explained 
that “[t]he conferees fully intend that the term ‘naviga- 
ble waters’ be given the broadest possible constitu- 
tional interpretation unencumbered by agency deter- 
minations which have been made or may be made for 
administrative purposes.” S. Conf. Rep. No. 1236, 92d 
Cong., 2d Sess. 144 (1972). 

Discharges of dredged or fill material into “waters of 
the United States” may be authorized by a permit 
issued by the Army Corps of Engineers (Corps) pur- 
suant to Section 404 of the CWA, 33 U.S.C. 1344. The 
Corps’ original regulations limited the geographic scope 
of the Corps’ authority to waters that were navigable- 
in-fact. After that narrow interpretation was rejected 

3 

by the courts,1 the Corps issued interim final regula- 
tions in 1975, see 40 Fed. Reg. 31,320, and final regula- 
tions in 1977, see 42 Fed. Reg. 37,122. The final 
regulations defined the term “waters of the United 
States” to include, inter alia, “isolated wetlands and 
lakes, intermittent streams, prairie potholes, and other 
waters that are not part of a tributary system to 
interstate waters or to navigable waters of the United 
States, the degradation or destruction of which could 
affect interstate commerce.” 33 C.F.R. 323.2(a)(5) 
(1978).2 The regulation in its current form contains 
similar language. See 33 C.F.R. 328.3(a)(3).3 Regula- 
tions promulgated by the Environmental Protection 
Agency (EPA) include a substantially identical 

1 See, e.g., Natural Resources Defense Council, Inc. v. Calla- 
way, 392 F. Supp. 685, 686 (D.D.C. 1975); United States v. Holland, 
373 F. Supp. 665, 670-676 (M.D. Fla. 1974). Shortly after the 
decision in Holland, the House Committee on Government Opera- 
tions expressed the view that the Corps’ regulatory definition of 
“waters of the United States” was unduly narrow. See H.R. Rep. 
No. 1396, 93d Cong., 2d Sess. 23-27 (1974). The Committee urged 
the Corps to adopt a new definition that “complies with the con- 
gressional mandate that the term be given the broadest possible 
constitutional interpretation.” Id. at 27. 

2 An explanatory footnote published in the Code of Federal 
Regulations stated that “[p]aragraph (a)(5) incorporates all other 
waters of the United States that could be regulated under the 
Federal government’s Constitutional powers to regulate and pro- 
tect interstate commerce.” 33 C.F.R. 323.2(a)(5), at 616 n.2 (1978). 

3 The current regulation defines “waters of the United States” 
to include, inter alia, “[a]ll other waters such as intrastate lakes, 
rivers, streams (including intermittent streams), mudflats, sand- 
flats, wetlands, sloughs, prairie potholes, wet meadows, playa 
lakes, or natural ponds, the use, degradation or destruction of 
which could affect interstate or foreign commerce.” 33 C.F.R. 
328.3(a)(3). 

4 

definition of the term “waters of the United States.” 
See 40 C.F.R. 230.3(s)(3). 

In 1986, the Corps consolidated and recodified its 
regulatory provisions defining “waters of the United 
States” for purposes of the Section 404 program. See 
51 Fed. Reg. 41,216-41,217 (1986). The Corps explained 
that the new regulations neither reduced nor expanded 
the scope of its jurisdiction. Id. at 41,217. Rather, their 
“purpose was to clarify the scope of the 404 program by 
defining the terms in accordance with the way the 
program is presently being conducted.” Ibid. In its 
discussion of the regulations, the Corps observed that 
the EPA had “clarified that waters of the United 
States” include waters “[w]hich are or would be used as 
habitat by birds protected by Migratory Bird Treaties,” 
as well as waters “[w]hich are or would be used as 
habitat by other migratory birds which cross state 
lines.” Ibid. 

2. a. Petitioner Solid Waste Agency of Northern 
Cook County is a consortium of Illinois municipalities 
formed for the purpose of locating and developing a 
disposal site for nonhazardous waste. Pet. App. 1a-2a. 
Petitioner owned a 533-acre parcel of land in Cook and 
Kane Counties, Illinois, on which it proposed to locate a 
solid waste landfill. Ibid. The project site was 410 
acres in size, 298 acres of which was an “early succes- 
sional stage forest.” Id. at 2a. Over time, “[w]hat were 
once gravel pits” have evolved into “over 200 perma- 
nent and seasonal ponds * * * rang[ing] from less 
than one-tenth of an acre to several acres in size, and 
from several inches to several feet in depth.” Ibid. 
Approximately 121 species of birds have been ob- 
served on the project site, including species that 
“depend on aquatic environments for a significant 

5 

portion of their life requirements” and “migrate 
through portions of the United States.” C.A. App. 90. 
“Among the species that have been seen nesting, 
feeding, or breeding at the site are mallard ducks, wood 
ducks, Canada geese, sandpipers, kingfishers, water 
thrushes, swamp swallows, redwinged blackbirds, tree 
swallows, and several varieties of herons.” Pet. App. 
3a. Each of the above-listed species is on the list of 
migratory bird species protected under international 
treaties. See 50 C.F.R. 10.13. “[T]he site is a seasonal 
home to the second-largest breeding colony of great 
blue herons in northeastern Illinois, with approximately 
192 nests in 1993.” Pet. App. 3a. 

b. Petitioner’s proposed balefill would involve the 
filling of approximately 17.6 acres of the ponds and 
small lakes on its property. Pet. App. 3a, 15a. The 
Corps ultimately concluded that the ponds are “waters 
of the United States” falling within its regulatory 
jurisdiction under 33 C.F.R. 328.3(a)(3) because (inter 
alia) “the water areas are used as habitat by migratory 
birds[s] which cross state lines.” C.A. App. 90; see also 
Pet. App. 3a-4a, 15a-16a. Petitioner subsequently 
applied to the Corps for a permit under Section 404 of 
the CWA, 33 U.S.C. 1344. C.A. App. 85-86; Pet. App. 
4a, 16a. After an extensive public review process and 
input from numerous local, state, and federal agencies, 
the Corps denied the permit in July 1994. C.A. App. 84- 
171; Pet. App. 4a, 16a. The Corps based the permit 
denial on the agency’s findings that (inter alia) (1) the 
landfill would seriously degrade or eliminate the value 
of the area as habitat for numerous species of birds and 
other wildlife (C.A. App. 155-157); (2) petitioner had 
failed to demonstrate that there were no practicable 
alternatives to the proposed landfill that would be less 
environmentally damaging (id. at 170); and (3) the 

6 

project posed “an unacceptable risk to the public’s 
drinking water supply,” due to the possibility that 
leachate from the landfill could contaminate ground- 
water aquifers (id. at 171). 

3. Petitioner filed suit in federal district court, 
seeking judicial review of the Corps’ decision under the 
Administrative Procedure Act, 5 U.S.C. 701 et seq. Pet. 
App. 14a. Petitioner challenged both the Corps’ asser- 
tion of regulatory jurisdiction over its property and the 
merits of the permit denial. Id. at 1a. The district court 
granted summary judgment for the government on the 
issue of CWA jurisdiction. Id. at 14a-36a. Petitioner 
then consented to the dismissal with prejudice of its 
remaining claims, and the district court entered final 
judgment in favor of the government. Id. at 2a. 

4. The court of appeals affirmed. Pet. App. 1a-13a. 
The court observed that petitioner had “abandoned its 
challenge to the merits of the Corps’ decisions and ha[d] 
instead focused exclusively on its challenge to” the 
Corps’ assertion of regulatory jurisdiction over the 
property based on the presence of migratory birds. Id. 
at 4a. The court therefore “accept[ed] as true the 
Corps’ factual findings with regard to [petitioner’s] 
permit application, including the crucial finding that the 
waters of this site were a habitat for migratory birds.” 
Id. at 5a. 

a. The court of appeals rejected petitioner’s conten- 
tion that “Congress lacked the power to grant the 
Corps regulatory jurisdiction over isolated, intrastate 
waters based on the presence of migratory birds alone.” 
Pet. App. 5a. Prior to this Court’s decision in United 
States v. Lopez, 514 U.S. 549 (1995), the court ex- 
plained, “it had been established that Congress’ powers 
under the Commerce Clause were broad enough to 
permit regulation of waters based on the presence of 

7 

migratory birds.” Pet. App. 5a (citing cases). The court 
found that Lopez had not undermined that rule. It 
observed that “Lopez expressly recognized, and in no 
way disapproved, the cumulative impact doctrine, 
under which a single activity that itself has no dis- 
cernible effect on interstate commerce may still be 
regulated if the aggregate effect of that class of activity 
has a substantial impact on interstate commerce.” Id. 
at 6a. The court summarized statistical evidence 
showing that Americans engage in frequent interstate 
travel and spend substantial sums of money in order to 
hunt and observe migratory birds. Id. at 7a. It con- 
cluded that 

the destruction of migratory bird habitat and the 
attendant decrease in the populations of these birds 
“substantially affects” interstate commerce. The 
effect may not be observable as each isolated pond 
used by the birds for feeding, nesting, and breeding 
is filled, but the aggregate effect is clear, and that is 
all the Commerce Clause requires. 

Ibid. The court also stated that “the numerous inter- 
national treaties and conventions designed to protect 
migratory birds, * * * as well as the case law 
recognizing the ‘national interest of very nearly the 
first magnitude’ in protecting such birds,” refuted 
petitioner’s contention that the protection of migratory 
bird habitat is a matter of purely local concern. Id. at 
8a (quoting North Dakota v. United States, 460 U.S. 
300, 309 (1983)). 

b. The court of appeals rejected petitioner’s argu- 
ment that the Corps’ exercise of regulatory jurisdiction 
over the ponds in question exceeded its authority under 
the CWA. The court observed that the construction of 
the statutory term “waters of the United States” 

8 

utilized by the Corps and EPA is entitled to deference 
under the principles set forth in Chevron U.S.A. Inc. v. 
Natural Resources Defense Council, Inc., 467 U.S. 837 
(1984). Pet. App. 9a. The court found it “well estab- 
lished that the geographical scope of the Act reaches as 
many waters as the Commerce Clause allows.” Ibid. 
(citing cases). It concluded that, “because Congress’ 
power under the Commerce Clause is broad enough to 
permit regulation of waters based on the presence of 
migratory birds, it is certainly reasonable for the EPA 
and the Corps to interpret the Act in such a manner.” 
Id. at 10a. 

c. The court of appeals rejected petitioner’s con- 
tention that the Corps’ exercise of regulatory jurisdic- 
tion in this case was inconsistent with United States v. 
Wilson, 133 F.3d 251 (4th Cir. 1997). Wilson involved a 
challenge to 33 C.F.R. 328.3(a)(3), which defines 
“waters of the United States” to include all waters “the 
use, degradation or destruction of which could affect 
interstate or foreign commerce.” The court of appeals 
in the instant case explained that the Wilson court 
“found the regulation to be an unreasonable interpre- 
tation of the [CWA] based on its suspicion that Con- 
gress lacks the power to regulate waters that ‘could’ 
affect interstate or foreign commerce.” Pet. App. 10a. 
The court of appeals stated that in the present case, 

the question whether Congress may regulate waters 
based on their potential to affect interstate com- 
merce is not presented, because the unchallenged 
facts show that the filling of the 17.6 acres would 
have an immediate effect on migratory birds that 
actually use the area as a habitat. Thus, we need 
not, and do not, reach the question of the Corps’ 

9 

jurisdiction over areas that are only potential 
habitats. 

Ibid. 

ARGUMENT 

The court of appeals’ decision is correct and does not 
conflict with any decision of this Court or any other 
court of appeals. Further review is not warranted. 

1. Petitioner contends that the decision of the court 
of appeals conflicts with the ruling of the Fourth Circuit 
in United States v. Wilson, 133 F.3d 251 (1997). That 
claim is incorrect. 

a. Wilson was a criminal case in which the defen- 
dants were convicted of knowingly discharging dredged 
or fill material into waters of the United States without 
a permit, in violation of 33 U.S.C. 1311(a) and 
1319(c)(2)(A). See 133 F.3d at 254. With respect to the 
jurisdictional element of the CWA, the jury was in- 
structed that “[t]he government must prove that these 
waters have some potential connection with interstate 
commerce.” Id. at 256.4 The district court based that 
instruction on the regulatory definition of “waters of 
the United States” contained in 33 C.F.R. 328.3(a)(3), 
which encompasses “[a]ll other waters such as intra- 
state * * * wetlands * * * or natural ponds, the use, 

4 The jury instructions further explained that the wetlands at 
issue would be considered “waters of the United States” if the jury 
found “that these waters were or could be used by visitors from 
other states for recreational or other purposes”; “that fish or 
shellfish are or could be taken from these waters and sold in 
interstate or foreign commerce”; “that these waters were used or 
could have been used for industrial purposes by industries in 
interstate commerce”; or “that the use, degradation or [destruc- 
tion] of such waters could affect interstate commerce.” 133 F.3d at 
256 (emphasis added). 

10 

degradation or destruction of which could affect inter- 
state or foreign commerce.” The defendants argued 
that “the regulation and jury instructions [we]re fatally 
flawed * * * because of their invocation of ‘potential’ 
uses and effects on commerce.” 133 F.3d at 256. 

The Wilson court reversed the convictions and re- 
manded for a new trial. It stated that 33 C.F.R. 
328.3(a)(3) permits the exercise of CWA jurisdiction 
over waters “solely on the basis that the use, degrada- 
tion, or destruction of such waters could affect inter- 
state commerce. The regulation requires neither that 
the regulated activity have a substantial effect on 
interstate commerce, nor that the covered waters have 
any sort of nexus with navigable, or even interstate, 
waters.” 133 F.3d at 257. The court concluded that the 
Corps had exceeded its authority under the CWA by 
defining the term “waters of the United States” in that 
manner, and that the jury instructions based upon the 
regulation were therefore erroneous. Ibid.5 

b. Although the decision in Wilson is in some tension 
with the court of appeals’ ruling in this case, no square 
conflict exists. The Wilson court held that the Corps 
had exceeded its authority by asserting jurisdiction 
over all waters the use, degradation, or destruction of 
which could potentially affect interstate commerce. 
The court did not attempt to describe the sorts of 
connections to interstate commerce that would suffice 
to bring a particular body of water within the CWA’s 
coverage. See 133 F.3d at 256 (“we need not resolve 
these difficult questions about the extent and limits of 

5 The Wilson court reversed the defendants’ convictions on an 
additional, independent ground, holding that the district court had 
erroneously instructed the jury on the mental state requirements 
of the offense. 133 F.3d at 260-265. 

11 

congressional power to regulate nonnavigable waters to 
resolve the issue before us”). The Wilson court did not, 
in particular, address the question “whether the de- 
struction of the natural habitat of migratory birds in 
the aggregate ‘substantially affects’ interstate com- 
merce.” Pet. App. 7a.6 Thus, nothing in Wilson 
purports to resolve the question whether use of a 

6 The Wilson court stated that 33 C.F.R. 328.3(a)(3) was defec- 
tive, in part, because it does not require “that the regulated 
activity have a substantial effect on interstate commerce.” 133 
F.3d at 257. The court did not say, however, that each individual 
instance of the regulated activity must substantially affect inter- 
state commerce. The Fourth Circuit has since clarified its views 
on this point in Brzonkala v. Virginia Polytechnic Institute & 
State University, 169 F.3d 820 (4th Cir. 1999) (en banc), cert. 
granted, Nos. 99-5 & 99-29 (argued Jan. 11, 2000). There the court 
recognized that Congress may regulate “activities that arise out of 
or are connected with a commercial transaction, which viewed in 
the aggregate, substantially affects interstate commerce.” Id. at 
831 (quoting United States v. Lopez, 514 U.S. 549, 561 (1995)) 
(emphasis added). See also 169 F.3d at 831 (acknowledging that 
federal regulations may “include a jurisdictional element to ensure, 
‘through case-by-case inquiry,’ that each specific application of the 
regulation involves activity that in fact affects interstate com- 
merce”) (quoting Lopez, 514 U.S. at 561); 169 F.3d at 836. Cf. 
United States v. Nathan, 202 F.3d 230 (4th Cir. 2000) (rejecting 
argument that government must prove a “substantial effect” on 
interstate commerce in every prosecution of a felon for possession 
of a firearm under 18 U.S.C. 922(g) (1994 & Supp. IV 1998)). 

The court of appeals in Brzonkala went on (incorrectly, in our 
view) to hold that the aggregate effects principle is generally 
limited to regulation of activities that are “economic” or “commer- 
cial” in nature (169 F.3d at 834-836) or at least have some “mean- 
ingful connection with a[] particular, identifiable economic enter- 
prise or transaction” (id. at 834). Petitioner’s proposal to construct 
and operate a municipal solid waste landfill, however, is clearly an 
economic activity. Cf. C & A Carbone, Inc. v. Town of Clarkstown, 
511 U.S. 383, 389 (1994). 

12 

particular body of water as habitat for migratory birds 
is sufficient to bring the water within the Corps’ juris- 
diction under the CWA.7 

Finally, petitioner argues (Pet. 11) that its ponds 
cannot be “waters of the United States” under the 
Fourth Circuit’s view of the CWA because they have 
“no connection to navigable or interstate waters or 
waters closely related thereto.” Petitioner refers (Pet. 

10) to the suggestion in Wilson that, “[e]ven as a matter 
of statutory construction, one would expect that the 
phrase ‘waters of the United States’ when used to 
define the phrase ‘navigable waters’ refers to waters 
which, if not navigable in fact, are at least interstate or 
closely related to navigable or interstate waters.” 133 
F.3d at 257. That statement, however, is merely 
dictum and does not constitute an “alternative” holding 
(Pet. 11). 

7 Petitioner contends (Pet. 10) that because the so-called 
“migratory bird rule” is an “interpretation or clarification” of Sec- 
tion 328.3(a)(3), the Wilson court’s determination that the regula- 
tion is invalid necessarily implies that the “migratory bird rule” is 
invalid as well. That is a non sequitur. The 1986 Federal Register 
notice (see p. 4, supra) identified waters “[w]hich are or would be 
used as habitat by” migratory birds as an example of waters that 
would fall within the Corps’ conception of “waters of the United 
States.” The Wilson court’s holding that the regulatory definition 
sweeps too broadly does not logically suggest that this (or any) 
particular category of waters falls outside the Corps’ statutory 
jurisdiction. As the court of appeals in the instant case observed, 
moreover, “the unchallenged facts show that the filling of the 17.6 
acres would have an immediate effect on migratory birds that 
actually use the area as a habitat.” Pet. App. 10a. The question 
whether the Corps may properly assert “jurisdiction over areas 
that are only potential habitats” therefore is not presented in this 
case. Ibid. 

13 

c. The lower courts that have specifically considered 
the question have uniformly upheld the Corps’ author- 
ity to regulate isolated waters that serve as habitat for 
migratory birds. See Leslie Salt Co. v. United States, 
896 F.2d 354, 360 (9th Cir. 1990) (Leslie Salt I) (“The 
commerce clause power, and thus the Clean Water Act, 
is broad enough to extend the Corps’ jurisdiction to 
local waters which may provide habitat to migratory 
birds and endangered species”), cert. denied, 498 U.S. 
1126 (1991); Leslie Salt Co. v. United States, 55 F.3d 
1388, 1394-1396 (9th Cir.) (Leslie Salt II) (adhering to 
Leslie Salt I in a post-Lopez decision, under law of the 
case doctrine), cert. denied, 516 U.S. 955 (1995); see also 
Utah v. Marsh, 740 F.2d 799, 804 (10th Cir. 1984) 
(evidence that “lake is on the flyway of several species 
of migratory waterfowl” supports jurisdiction over iso- 
lated lake under CWA and Commerce Clause); United 
States v. Hallmark Constr. Co., 14 F. Supp. 2d 1069, 
1075 (N.D. Ill. 1998); United States v. Sargent County 
Water Resource Dist., 876 F. Supp. 1081, 1087 (D.N.D. 
1992). 

2. The court of appeals’ decision is correct. 

a. Petitioner contends (Pet. 17) that because Section 
404 of the CWA uses the term “navigable waters,” 33 
U.S.C. 1344(a), the Corps’ jurisdiction must be strictly 
limited to those waters that are “navigable in fact,” 
“interstate,” or “closely related to navigable or inter- 
state waters.” That argument is without merit. Con- 
gress defined the term “navigable waters” broadly to 
include, without qualification, “the waters of the United 
States.” 33 U.S.C. 1362(7). Because the CWA does not 
further define the term “waters of the United States,” 
the administrative construction given that term by the 
Corps and EPA is “entitled to deference if it is rea- 
sonable and not in conflict with the expressed intent of 

14 

Congress.” United States v. Riverside Bayview Homes, 
Inc., 474 U.S. 121, 131 (1985). 

In Riverside Bayview, this Court upheld as reason- 
able the Corps’ interpretation of “waters of the United 
States” to encompass “wetlands adjacent to navigable 
bodies of water and their tributaries.” 474 U.S. at 123.8 
The Court explained that “the Act’s definition of 
‘navigable waters’ as ‘the waters of the United States’ 
makes it clear that the term ‘navigable’ as used in the 
Act is of limited import.” Id. at 133; see also ibid. 
(“Congress evidently intended to repudiate limits that 
had been placed on federal regulation by earlier water 
pollution control statutes and to exercise its powers 
under the Commerce Clause to regulate at least some 
waters that would not be deemed ‘navigable’ under the 
classical understanding of that term.”). 

Petitioner’s view is not only unsupported by the text, 
it is also antithetical to the purposes of the statute. The 
focus of the CWA is not on navigation, but on “main- 
taining and improving water quality” and “[p]ro- 
tect[ing] aquatic ecosystems.” Riverside Bayview, 474 
U.S. at 132; see also id. at 133 (noting “the evident 
breadth of congressional concern for protection of 
water quality and aquatic ecosystems”); 33 U.S.C. 
1251(a) and (a)(2) (goals of the CWA include “restor- 
[ing] and maintain[ing] the * * * biological integrity of 
the Nation’s waters” and “provid[ing] for the protection 
and propagation of fish, shellfish, and wildlife”). 
Isolated waters, such as those on petitioner’s property, 
may “function as integral parts of the aquatic environ- 
ment,” and may “serve significant natural biological 

8 The Court noted that regulatory jurisdiction over non- 
adjacent wetlands was not at issue in that case. Riverside 
Bayview, 474 U.S. at 124 n.2. 

15 

functions,” including “food chain production” and the 
provision of “general habitat[] and nesting, spawning, 
rearing and resting sites,” even though they are intra- 
state and nonnavigable. Riverside Bayview, 474 U.S. at 
134-135 (quoting 33 C.F.R. 320.4(b)(2)(i)).9 

b. Contrary to petitioner’s assertions (Pet. 19-22), 
the Corps’ interpretation of the CWA is supported 
rather than undermined by the Act’s legislative history. 
The Conference Report accompanying the CWA ex- 
plained that “[t]he conferees fully intend that the term 
‘navigable waters’ be given the broadest possible 
constitutional interpretation unencumbered by agency 

9 The courts of appeals (including the Fourth Circuit) have 
uniformly recognized that Congress intended the geographical 
scope of the CWA to extend to the maximum extent permissible 
under the Commerce Clause. See, e.g., United States v. Tull, 769 
F.2d 182, 184 (4th Cir. 1985), rev’d on other grounds, 481 U.S. 412 
(1987); United States v. Hartsell, 127 F.3d 343, 348 & n.1 (4th Cir. 
1997), cert. denied, 523 U.S. 1030 (1998); United States v. Pozsgai, 
999 F.2d 719, 731 (3d Cir. 1993), cert. denied, 510 U.S. 1110 (1994); 
Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 914- 
915 (5th Cir. 1983); Leslie Salt I, 896 F.2d at 357; Quivira Mining 
Co. v. EPA, 765 F.2d 126, 129-130 (10th Cir. 1985), cert. denied, 474 
U.S. 1055 (1986); United States v. Eidson, 108 F.3d 1336, 1341 
(11th Cir.), cert. denied, 522 U.S. 899 and 1004 (1997). But cf. 
Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 
962, 965-966 (7th Cir.) (“waters of the United States” does not 
cover groundwater), cert. denied, 513 U.S. 930 (1994). Petitioner 
cites no case holding that the term “waters of the United States” is 
limited to waters that are “closely related” to navigable or inter- 
state waters. Petitioner’s reliance (Pet. 17) on The Daniel Ball, 77 
U.S. (10 Wall.) 557 (1870), and The Montello, 87 U.S. (20 Wall.) 
430 (1874), is misplaced. Those cases, which significantly predate 
the CWA, construed the term “navigable waters of the United 
States.” The Daniel Ball, 77 U.S. (10 Wall.) at 562 (emphasis 
added); The Montello, 87 U.S. (20 Wall.) at 436, 439 (emphasis 
added). 

16 

determinations which have been made or may be made 
for administrative purposes.” S. Conf. Rep. No. 1236, 
92d Cong., 2d Sess. 144 (1972). That understanding was 
confirmed in the Senate Report accompanying the 1977 
amendments to the CWA. See S. Rep. No. 370, 95th 
Cong., 1st Sess. 75 (1977) (noting that “[t]he 1972 
Federal Water Pollution Control Act exercised 
comprehensive jurisdiction over the Nation’s waters to 
control pollution to the fullest constitutional extent”). 

The debates preceding the 1977 amendments to the 
CWA further support the Corps’ interpretation of the 
Act. Congress was well aware that the Corps’ regula- 
tions, promulgated July 19, 1977, asserted jurisdiction 
over all waters, including isolated waters, to the 
maximum extent constitutionally permissible. See, e.g., 
123 Cong. Rec. 26,711 (Sen. Bentsen) (warning that 
if the CWA were not amended, “[t]he [Section 404] 
program would still cover all waters of the United 
States, including small streams, ponds, [and] isolated 
marshes”); id. at 34,852 (Rep. Abdnor) (explaining that 
the Corps was asserting jurisdiction over “all waters— 
from the smallest to the largest, including isolated 
wetlands and lakes, intermittent streams, and prairie 
potholes”). Congress considered, but ultimately 
rejected, several proposals to modify the Corps’ geo- 
graphic jurisdiction, instead opting to exempt certain 
types of activities from the Section 404 permit re- 
quirement. See 33 U.S.C. 1344(f ). In the words of 
Senator Baker, the 1977 amendments “retain[ed] the 
comprehensive jurisdiction over the Nation’s waters 
exercised in the [CWA] to control pollution to the 
fullest constitutional extent.” 123 Cong. Rec. at 39,209. 
In sum, Congress “acquiesced in the administrative 
construction.” Riverside Bayview, 474 U.S. at 136. 
Congress’s refusal to divest the Corps of jurisdiction 

17 

over isolated waters is evidence of the reasonableness 
of the Corps’ approach, “particularly where the admin- 
istrative construction [was] brought to Congress’ 
attention through legislation specifically designed to 
supplant it.” Id. at 137; see generally id. at 135-137 
(recounting history of 1977 amendments). 

10 

c. Petitioner contends (Pet. 22) that “no deference” 
is owed to the migratory bird rule “because it raises 
serious constitutional concerns” under the Commerce 
Clause. To the contrary, the application of the migra- 
tory bird rule in this case fits comfortably within 
Congress’s commerce power. 

i. “Congress’ commerce authority includes the 
power to regulate those [intrastate] activities having a 
substantial relation to interstate commerce.” Lopez, 
514 U.S. at 558-559. The requirement of a “substantial” 
effect on interstate commerce, however, does not mean 
that each individual instance of the regulated activity 
must have a substantial impact. Rather, “where a 
general regulatory statute bears a substantial relation 
to commerce, the de minimis character of individual 
instances arising under that statute is of no con- 
sequence.” Id. at 558 (emphasis omitted) (quoting 

10 Petitioner argues (Pet. 21) that the legislative history of the 
1977 CWA amendments is irrelevant because the Corps’ 1977 
regulations did not specifically cite waters that are used by 
migratory birds as an example of waters that possess the requisite 
connection with interstate commerce. The Corps’ 1977 regulations 
referred, however, to “all” “isolated * * * waters that are not 
part of a tributary system to interstate waters or to navigable 
waters * * *, the degradation or destruction of which could affect 
interstate commerce.” 42 Fed. Reg. at 37,144. Thus, Congress 
clearly understood that the Corps would assert CWA jurisdiction 
over isolated waters for which any legitimate commerce nexus 
could be established. 

18 

Maryland v. Wirtz, 392 U.S. 183, 197 n.27 (1968)). The 
aggregate effects of the regulated activity as a class— 
here, the filling of isolated waters that are actually used 
as habitat for migratory birds—may therefore be 
considered in determining whether the statute falls 
within the reach of Congress’s commerce power. 514 
U.S. at 561. 

The permit denial in the instant case was based in 
part on the Corps’ extensive factual findings (unchal- 
lenged by petitioners on appeal, see Pet. App. 5a) 
regarding the adverse impacts that petitioner’s pro- 
posed balefill would have on the quantity and quality of 
migratory bird habitat on the site (C.A. App. 155-157, 
C.A. Supp. App. 32-40). Those impacts included, inter 
alia, the “displace[ment of] the [Great Blue Heron] 
rookery in its entirety.” C.A. Supp. App. 37. Preven- 
tion of such threats has long been recognized to be a 
matter of national concern. See, e.g., North Dakota v. 
United States, 460 U.S. 300, 309 (1983) (“The protection 
of migratory birds has long been recognized as ‘a 
national interest of very nearly the first magnitude.’ ”) 
(quoting Missouri v. Holland, 252 U.S. 416, 435 (1920)); 
Andrus v. Allard, 444 U.S. 51, 63 n.19 (1979) (the 
“assumption that the national commerce power does 
not reach migratory wildlife is clearly flawed”); Coch- 
rane v. United States, 92 F.2d 623, 626-627 (7th Cir. 
1937), cert. denied, 303 U.S. 636 (1938); Cerritos Gun 
Club v. Hall, 96 F.2d 620 (9th Cir. 1938). 

Commerce associated with migratory birds has a 
measurable impact on the national economy. See 
Hoffman Homes, Inc. v. United States Environmental 
Protection Agency, 999 F.2d 256, 261 (7th Cir. 1993) 
(“Throughout North America, millions of people annu- 
ally spend more than a billion dollars on hunting, 

19 

trapping, and observing migratory birds.”). As the 
court of appeals observed, 

[s]tatistics produced by the U.S. Census Bureau 
reveal that approximately 3.1 million Americans 
spent $1.3 billion to hunt migratory birds in 1996, 
and that about 11 percent of them traveled across 
state lines to do so. Another 17.7 million people 
spent time observing birds in states other than their 
states of residence; 14.3 million of these took trips 
specifically for this purpose; and approximately 9.5 
million traveled for the purpose of observing 
shorebirds, such as herons. 

Pet. App. 7a (citation omitted). The filling of wetlands 
and similar aquatic areas that serve as migratory bird 
habitat directly affects the ability of people to pursue 
recreational and commercial activities associated with 
migratory birds. See Hoffman Homes, 999 F.2d at 261 
(noting that “cumulative loss of wetlands has reduced 
populations of many bird species and consequently the 
ability of people to hunt, trap, and observe those 
birds”); see also C.A. Supp. App. 33 (Corps finding in 
this case that “[m]uch of the current severe drop in area 
sensitive bird populations is blamed on habitat 
destruction”). 

11 

11 Congress has repeatedly recognized the importance of pre- 
serving migratory bird habitat to the viability of migratory bird 
populations. See, e.g., North American Wetlands Conservation 
Act, 16 U.S.C. 4401(a)(8) (finding that nationwide loss of wetlands 
has “contributed to long-term downward trends in populations of 
migratory bird species”); Water Bank Act, 16 U.S.C. 1301 (declar- 
ing it “in the public interest to preserve, restore, and improve the 
wetlands of the Nation * * * to preserve and improve habitat for 
migratory waterfowl”); Emergency Wetlands Resources Act of 
1986, 16 U.S.C. 3901(a)(2) (finding that “wetlands provide habitat 

20 

ii. Petitioner argues (Pet. 26) that the statutory 
term “waters of the United States” should be construed 
narrowly under the canon of construction that, “where 
an otherwise acceptable construction of a statute would 
raise serious constitutional problems, the Court will 
construe the statute to avoid such problems unless such 
construction is plainly contrary to the intent of Con- 
gress.” DeBartolo Corp. v. Florida Gulf Coast Bldg. & 
Constr. Trades Council, 485 U.S. 568, 575 (1988). This 
Court has recognized, however, that Congress may 
authorize “an administrative board or agency to deter- 
mine whether the activities sought to be regulated or 
prohibited have” such an effect on interstate commerce 
as to justify federal regulation. United States v. Darby, 
312 U.S. 100, 120 (1941). By broadly extending the 
CWA to “the waters of the United States,” Congress 
expressed its intent that the Corps and EPA would 
exercise their regulatory jurisdiction over the nation’s 
waters to the maximum extent permissible under the 
Commerce Clause. See pp. 2-4, supra. Petitioner’s 
interpretive approach—which would limit the Act’s 
coverage to categories of waters having the “ ‘clearest 
indication’ of congressional support” (Pet. 26)—would 
substantially constrain the agencies’ discretion in a 
manner “plainly contrary to the intent of Congress.” 
DeBartolo, 485 U.S. at 575. 

d. Contrary to petitioner’s contention (Pet. 27-28), 
the Corps’ assertion of regulatory jurisdiction over 
isolated waters that serve as habitat for migratory 
birds does not disrupt the federal-state balance or 
impermissibly impinge on the authority of state and 
local governments. Petitioner’s argument assumes that 

essential for the breeding, spawning, nesting, migration, wintering 
and ultimate survival of * * * migratory birds”). 

21 

the protection of migratory bird habitat is a matter of 
purely local concern. As the court of appeals explained, 
that proposition is inconsistent with “the numerous 
international treaties and conventions designed to 
protect migratory birds,” Pet. App. 8a (citing 
examples), as well as with prior decisions of this Court, 
ibid.; see p. 18, supra. Congress has repeatedly recog- 
nized that wetlands and similar aquatic areas are a 
national resource and that wetlands loss is a problem 
national in scope. See, e.g., 16 U.S.C. 3901(a) and (b) 
(declaring national goal to conserve remaining wetland 
resources for benefit of “all our citizens of the Nation” 
and to “help fulfill international obligations contained in 
various migratory bird treaties and conventions”). 

3. This Court recently granted certiorari in three 
other cases that present questions concerning the scope 
of congressional authority under the Commerce Clause. 
United States v. Morrison, No. 99-5 (argued Jan. 11, 
2000), and Brzonkala v. Morrison, No. 99-29 (argued 
Jan. 11, 2000), present the question whether 42 U.S.C. 
13981, which creates a private right of action for victims 
of gender motivated violence, is a permissible exercise 
of Congress’s power under the Commerce Clause. 
Jones v. United States, No. 99-5739 (to be argued Mar. 
21, 2000), presents the question whether 18 U.S.C. 
844(i) (1994 & Supp. IV 1998), which prohibits the 
destruction by fire or explosives of any building, vehi- 
cle, or other property “used in interstate or foreign 
commerce or in any activity affecting interstate or 
foreign commerce,” was properly applied to a residence 
mortgaged to an out-of-state lender, insured by an out- 
of-state insurer, and supplied with natural gas in inter- 
state commerce. In our view, those statutory schemes 
are sufficiently different from the CWA that the 
Court’s decisions in those cases are unlikely to affect 

22 

the proper disposition of the instant case. However, the 
Court may wish to hold the petition for a writ of 
certiorari in the instant case pending its decisions in the 
above-listed cases, and then dispose of the petition 
accordingly. 

CONCLUSION 

The petition for a writ of certiorari should be denied. 
In the alternative, the petition should be held pending 
this Court’s decisions in United States v. Morrison, No. 
99-5 (argued Jan. 11, 2000); Brzonkala v. Morrison, No. 
99-29 (argued Jan. 11, 2000); and Jones v. United States, 
No. 99-5739 (to be argued Mar. 21, 2000), and then 
disposed of as appropriate in light of the decisions in 
those cases. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

LOIS J. SCHIFFER 

Assistant Attorney General 

JOHN A. BRYSON 
ETHAN G. SHENKMAN 

Attorneys 

MARCH 2000