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

__________ 

BRIEF FOR THE PETITIONER 

__________ 

SHARON SWINGLE 
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 

QUESTION PRESENTED 

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 intra- 
state waters solely because those waters do or potentially could 
serve as habitat for migratory birds. 

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, Glen- 
view, Hoffman Estates, Inverness, Kenilworth, Lincolnwood, 
Morton Grove, Mt. Prospect, Niles, Palatine, Park Ridge, 
Prospect Heights, Rolling Meadows, Skokie, South Barrington, 
Wheeling, Wilmette, and Winnetka. Petitioner 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 

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

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

CONSTITUTIONAL, STATUTORY, AND 

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

STATEMENT ................................... 1 

A. The Solid Waste Agency’s Balefill Project ....... 2 

B. The Balefill Site ............................ 4 

C. The Cook County Permitting Process ........... 5 

D. The Illinois EPA Permitting Process ............ 6 

E. The Corps Of Engineers’ Assertion Of Jurisdic- 
tion ...................................... 8 

F. The Corps’ Denial Of A Section 404 Permit ...... 8 

G. The Decisions Below ...................... 10 

SUMMARY OF ARGUMENT ..................... 11 

ARGUMENT ................................... 13 

iv 

I. THE CORPS HAS NO AUTHORITY UNDER 
THE CLEAN WATER ACT TO REGULATE 
ISOLATED WATERS MERELY BECAUSE 
THEY PROVIDE HABITAT FOR 
MIGRATORY BIRDS ...................... 13 

A. The Plain Language Of The CWA Refutes 

The Corps’ Assertion Of Jurisdiction Over 
Isolated Waters That Are Migratory Bird 
Habitat ............................... 15 

B. Legislative History Confirms That The 

CWA Does Not Reach Isolated Waters 
That Are Migratory Bird Habitat ........... 21 

C. Settled Rules Of Statutory Construction 

Resolve Any Doubts Against The Migra- 
tory Bird Rule ......................... 26 

D. The Corps’ Expansion Of Its Power To 

Reach Migratory Bird Habitat Is Not Enti- 
tled To Deference ....................... 32 

II. THE CORPS MAY NOT CONSTITUTION- 
ALLY REGULATE ISOLATED WATERS 
MERELY BECAUSE THEY PROVIDE HABI- 
TAT FOR MIGRATORY BIRDS ............. 36 

A. Regulation Of Isolated Waters Used By 

Migratory Birds May Not Be Upheld As 
Regulation Of “Activities That Substan- 
tially Affect Interstate Commerce” ......... 36 

TABLE OF CONTENTS—Continued 

Page 

v 

B. The Commercial Nature Of SWANCC’s 

Landfill Is Not A Proper Basis For The 
Corps’ Jurisdiction ...................... 45 

C. Regulation Of Isolated Waters Used By 

Migratory Birds May Not Be Upheld On 
The Theory That Migratory Birds Travel 
Interstate ............................. 47 

D. The Corps’ Jurisdiction May Not Be Up- 
held Under The Treaty Power ............. 48 

CONCLUSION ................................. 50 

TABLE OF CONTENTS—Continued 

Page 

vi 

TABLE OF AUTHORITIES 

Cases: Page 

Aluminum Co. v. Central Lincoln Peoples’ Util. 

Dist., 467 U.S. 380 (1984) ....................... 36 

Andrus v. Allard, 444 U.S. 51 (1979) ................ 39 

Babbitt v. Sweet Home Chapter of Communities for 
a Greater Oregon, 515 U.S. 687 (1995) ............ 31 

BankAmerica Corp. v. United States, 462 U.S. 122 
(1983) ...................................... 36 

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

Cannon v. University of Chicago, 441 U.S. 677 (1979) .. 16 

Cargill, Inc. v. United States, 516 U.S. 955 (1995) 
. 27, 39, 47 

Central Bank v. First Interstate Bank, 511 U.S. 
164 (1994) .................................... 26 

Chamber of Commerce v. FEC, 69 F.3d 600 
(D.C. Cir. 1995) ............................... 32 

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

Council, Inc., 467 U.S. 837 (1984) .......... 12, 32, 36 

Christensen v. Harris County, 120 S. Ct. 1655 (2000) ... 36 

Consumer Prod. Safety Comm’n v. GTE Sylvania, 

Inc., 447 U.S. 102 (1980) ....................... 24 

Crandon v. United States, 494 U.S. 152 (1990) ..... 14, 31 

vii 

Davis v. Michigan Dept. of Treasury, 489 U.S. 803 
(1989) ...................................... 16 

Dolan v. City of Tigard, 512 U.S. 374 (1994) .......... 29 

Donnelly v. United States, 228 U.S. 243 (1913) ..... 15, 18 

Douglas v. Seacoast Prods., 431 U.S. 265 (1977) 
...... 39 

TABLE OF AUTHORITIES—Continued 

Page 

Edward J. DeBartolo Corp. v. Florida Gulf Coast 

Bldg. & Constr. Trades Council, 485 U.S. 568 
(1988) ................................ 14, 26, 27 

EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) .... 36 

Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976) ...... 33 

FDA v. Brown & Williamson Tobacco Corp., 
120 S.Ct. 1291 (2000) .......................... 18 

Federal Maritime Comm’n v. Seatrain Lines, Inc., 
411 U.S. 726 (1973) ........................... 33 

Federal Power Comm’n v. Union Elec. Co., 381 

U.S. 90 (1965) ................................ 20 

Federal Reserve Bd. v. Dimension Fin. Corp., 
474 U.S. 361 (1986) ........................... 19 

FERC v. Mississippi, 456 U.S. 742 (1982) ......... 29, 41 

FTC v. Bunte Bros., 312 U.S. 349 (1941) ............. 29 

viii 

Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 
528 (1985) ................................... 33 

Gemsco, Inc. v. Walling, 324 U.S. 244 (1945) ......... 24 

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ..... 45, 46 

Granderson v. United States, 511 U.S. 39 (1994) ....... 32 

Greene v. McElroy, 360 U.S. 474 (1959) .......... 46, 48 

Gregory v. Ashcroft, 501 U.S. 452 (1991) .......... 14, 28 

GTE Service Corp. v. FCC, No. 99-1244 (cert. 
granted June 5, 200) ........................... 32 

Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 
583 (1983) 
............................... 33, 46 

Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186 
(1974) ................................ 17, 40, 41 

Hagen v. Utah, 510 U.S. 399 (1994) ................. 24 

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ....... 48 

Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 
(1994) ...................................... 29 

Hoffman Homes, Inc. v. EPA, 961 F.2d 1310 
(7th Cir. 1992), on rh’g, 999 F.2d 256 (7th Cir. 
1993) ....................................... 20 

TABLE OF AUTHORITIES—Continued 

Page 

ix 

International Ass’n of Machinists v. Street, 
367 U.S. 740 (1961) ........................... 26 

Jones v. United States, 120 S. Ct. 1904 (2000) ........ passim 

Jones v. United States, 526 U.S. 227 (1999) ........... 27 

Kent v. Dulles, 357 U.S. 116 (1958) .............. 46, 48 

Lake Country Estates, Inc. v. Tahoe Reg’l Planning 

Agency, 440 U.S. 391 (1979) ..................... 29 

Leovy v. United States, 177 U.S. 621 (1900) ........ 16, 27 

Leslie Salt Co. v. United States, 55 F.3d 1388 (9th Cir.), 
cert. denied, Cargill, Inc. v. United States, 
516 U.S. 955 (1995) ........................... 27 

Loving v. United States, 517 U.S. 748 (1996) .......... 46 

Mandeville Island Farms v. American Crystal Sugar 

Co., 334 U.S. 219 (1948) ........................ 33 

Maryland v. Wirtz, 392 U.S. 183 (1968) ........... 40, 41 

McDermott Int’l, Inc. v. Wilander, 498 U.S. 337 (1991) .. 16 

M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) .. 40 

Mertens v. Hewitt Assocs., 508 U.S. 248 (1993) ........ 19 

Missouri v. Holland, 252 U.S. 416 (1920) 
...... 39, 48, 49 

TABLE OF AUTHORITIES—Continued 

Page 

Mistretta v. United States, 488 U.S. 361 (1989) ........ 34 

x 

Natonal Cable Television Ass’n v. United States, 
415 U.S. 336 (1974) ........................ 46, 48 

Neely v. Henkel, 180 U.S. 109 (1901) ................ 48 

NLRB v. Catholic Bishop, 440 U.S. 490 (1979) ........ 27 

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 
(1937) ...................................... 48 

North Dakota v. United States, 460 U.S. 300 (1983) . 39, 49 

NRDC v. Callaway, 392 F. Supp. 685 (D.D.C. 1975) .... 34 

Palmer v. Massachusetts, 308 U.S. 79 (1939) .......... 28 

Perez v. United States, 402 U.S. 146 (1971) ........... 40 

Perry v. Haines, 191 U.S. 17 (1903) ................. 16 

Printz v. United States, 521 U.S. 898 (1997) ........... 43 

Railroad Co. v. Maryland, 88 U.S. (21 Wall.) 456 
(1874) ...................................... 15 

Regions Hosp. v. Shalala, 522 U.S. 448 (1998) ........ 32 

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ......... 17 

Reno v. Koray, 515 U.S. 50 (1995) .................. 36 

Rewis v. United States, 401 U.S. 808 (1971) ........ 23, 28 

TABLE OF AUTHORITIES—Continued 

Page 

xi 

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) ... 28 

SEC v. Capital Gains Research Bureau, Inc., 
375 U.S. 180 (1963) ........................... 24 

Sullivan v. Everhart, 494 U.S. 83 (1990) 
............. 32 

TABLE OF AUTHORITIES—Continued 

Page 

Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991) 
.... 45 

Tabb Lakes, Ltd. v. United States, 715 F. Supp. 726 
(E.D. Va 1988), aff’d, 885 F.2d 866 (4th Cir. 1989) 
(mem.) ...................................... 35 

The Abbotsford, 98 U.S. (8 Otto) 440 (1878) 
.......... 16 

The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870) .. 15, 16, 22 

The Montello, 78 U.S. (11 Wall.) 411 (1870) .......... 15 

United States v. Appalachian Elec. Power Co., 
311 U.S. 377 (1940) ........................... 15 

United States v. Bass, 404 U.S. 336 (1971) ............ 28 

United States v. Darby, 312 U.S. 100 (1941) .......... 40 

United States v. Five Gambling Devices, 346 U.S. 
441 (1953) ................................ 27, 40 

United States v. George, 228 U.S. 14 (1913) 
.......... 34 

United States v. Jin Fuey Moy, 241 U.S. 394 (1916) . 26, 27 

xii 

United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993), 
aff’d, 514 U.S. 549 (1995) ....................... 46 

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

TABLE OF AUTHORITIES—Continued 

Page 

United States v. Morrison, 120 S. Ct. 1740 (2000) .. 
passim 

United States v. Nordic Village, Inc., 503 U.S. 30 
(1992) ...................................... 17 

United States v. Oregon State Med. Soc., 343 U.S. 326 
(1952) ...................................... 45 

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

United States v. Thompson/Center Arms Co., 
504 U.S. 505 (1992) ........................... 31 

United States v. Wilson, 133 F.3d 251 (4th Cir. 
1997) .................................... 18, 27 

U.S. West, Inc. v. FCC, 182 F.3d 1224 (10th Cir. 
1999) ....................................... 32 

Utah v. United States, 403 U.S. 9 (1971) 
.......... 15, 23 

Village of Euclid v. Ambler Realty Co., 272 U.S. 365 
(1926) ...................................... 29 

Warth v. Seldin, 422 U.S. 490 (1975) ................ 29 

Western Union Tel. Co. v. Lenroot, 323 U.S. 490 
(1945) ...................................... 18 

Yonkers v. United States, 320 U.S. 685 (1944) ......... 40 

xiii 

TABLE OF AUTHORITIES—Continued 

Page 

Constitutions, Statutes, Ordinance, and Regulations: 

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

U.S. CONST. art. I, § 18 ........................ 33, 48 

U.S. CONST. art. II, § 2 ............................ 48 

ILL. CONST. art. XI, § 1 ........................... 30 

Emergency Wetlands Resources Act, 16 U.S.C. 
§ 3901 ................................... 48, 49 

Endangered Species Act, 16 U.S.C. § 1531 ............ 49 

Federal Water Pollution Control Act of 1972: 

33 U.S.C. § 1251 .......................... passim 

33 U.S.C. § 1311 .......................... passim 

33 U.S.C. § 1319 .............................. 31 

33 U.S.C. § 1341 ............................... 7 

33 U.S.C. § 1343 .............................. 19 

33 U.S.C. § 1344 .......................... passim 

33 U.S.C. § 1362 .......................... passim 

Migratory Bird Conservation Act, 16 U.S.C. § 715 ..... 49 

xiv 

Migratory Bird Hunting Stamp Act, 
16 U.S.C. § 718 ............................... 49 

Migratory Bird Treaty Act, 16 U.S.C. § 703 ........ 48, 49 

North American Wetlands Conservation Act, 
16 U.S.C. § 4401 ........................... 48, 49 

Northwest Ordinance art. IV (1787) ................. 15 

Pub. L. No. 95-217 § 67, 91 Stat. 1566 (1977) ......... 26 

16 U.S.C. § 817 .............................. 20, 21 

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

Water Bank Act, 16 U.S.C. § 1301 .................. 49 

Illinois Endangered Species Protection Act, 
520 ILCS 10 (1998) ............................. 7 

Illinois Environmental Protection Act: 

Ill. Stat. Ch. 111 Ω § 1003 (1988). 
............... 6, 7 

TABLE OF AUTHORITIES—Continued 

Page 

Ill. Stat. Ch. 111 Ω § 1011(b) (1988) 
............... 6 

Ill. Stat. Ch. 111 Ω § 1039 (1988) .................. 6 

Illinois Groundwater Protection Act, 
415 ILCS 55 (1998) .......................... 6, 30 

Illinois Interagency Wetlands Policy Act, 
20 ILCS 830 (1998) ............................ 30 

xv 

Illinois Natural Areas Preservation Act, 
525 ILCS 30 (1998) ............................. 7 

Illinois Solid Waste Management Act, 
415 ILCS 20 (1998) .......................... 3, 30 

Illinois Solid Waste Planning and Recycling Act, 
415 ILCS 15 (1998) ........................... 3, 5 

Cook County Zoning Ordinance (1976) ............... 5 

33 C.F.R. § 320 ............................. 7, 9, 29 

33 C.F.R. § 328 .................................. 2 

40 C.F.R. § 230 ................................ 2, 9 

39 Fed. Reg. 12,050 (Apr. 3, 1974) .................. 34 

40 Fed. Reg. 31,319 (July 25,1975) .................. 34 

42 Fed. Reg. 37,122 (July 19,1977) ............ 24, 26, 35 

51 Fed. Reg. 41,206 (Nov. 13, 1986) ............. 
passim 

TABLE OF AUTHORITIES—Continued 

Page 

58 Fed. Reg. 45,008 (Aug. 25, 1993) .............. 38, 45 

61 Fed. Reg. 65,874 (Dec. 13, 1996) ................. 23 

64 Fed. Reg. 47,175 (Aug. 30, 1999) ................. 23 

35 ILL. ADMIN. CODE PART 620 (1997) ................ 6 

35 ILL. ADMIN. CODE PART 870 (1997) ................ 3 

xvi 

35 ILL. ADMIN. CODE § 807.201 (1988) ................ 6 

Miscellaneous: 

Adler, Wetlands, Waterfowl, and the Menace of 

Mr. Wilson: Commerce Clause Jurisprudence 
and the Limits of Federal Wetland Regulation, 
29 ENVTL. L. 1 (1999) .................... 29, 30, 43 

V. ALBRECHT & B. GOODE, WETLAND REGULATION 

IN THE REAL WORLD (1994) ...................... 38 

THE ATLAS OF BIRD MIGRATION (ed. J. Elphick 1995) ... 42 

Brown, It’s Already Spring, BOSTON GLOBE, Mar. 1, 
1998, at 1 .................................... 44 

Bulkeley, As a Work of Art, Windsor Chair Gets a 

Standing Ovation, WALL ST. J., Aug. 15, 1997, 
at A1 ....................................... 44 

Bullwinkel, Environmental Law—The Uneasy Accom- 
modation Between State and Federal Agencies, 25 
DEPAUL L. REV. 423 (1976) ..................... 30 

Cramer, Note, The Right Results for All the Wrong 

Reasons: An Historical and Functional Analysis 
of the Commerce Clause, 53 VAND. L. REV. 271 
(2000) ...................................... 43 

Engdahl, The Necessary and Proper Clause as an 

Intrinsic Restraint on Federal Lawmaking Power, 
22 HARV. J.L. & PUB. POL’Y 107 (1998) ............ 40 

TABLE OF AUTHORITIES—Continued 

Page 

xvii 

Engdahl, Sense and Nonsense About State Immunity, 
2 CONST. COMM. 93 (1985) ...................... 43 

EPA, GUIDANCE FOR CORPS AND EPA FIELD OFFICES 

REGARDING CLEAN WATER ACT SECTION 404 JURIS- 
DICTION OVER ISOLATED WATERS IN LIGHT OF UNITED 
STATES V. JAMES J. WILSON (May 29, 1998) ......... 35 

EPA, Memorandum from F. Blake to R. Sanderson 
(Sept. 12, 1985) ............................... 35 

Ginsberg & Harsch, The National Pollutant Discharge 
Elimination System in Illinois: The State Assumes 
Direct Authority, 27 DEPAUL L. REV. 739 (1978) ..... 30 

H.R. 3199, 95th Cong. § 16 (1977) .................. 25 

H.R. 11896, 92d Cong. § 502 (1972) ................. 21 

H.R. REP. NO. 92-911 (1972) ....................... 21 

Hobby Indus. Ass’n, 1996-1997 Size of Craft/Hobby 

Industry Study, Executive Summary, <www.hobby. 
org/size.html> ................................ 44 

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

Clean Water Act and the Endangered Species Act 
Survive Commerce Clause Attack?, 15 VA. ENVTL. 
L.J. 139 (1995) ............................. 41, 42 

Illinois Department of Natural Resources, 
<http://dnr.state.il.us/dnrorg.htm> .................. 7 

TABLE OF AUTHORITIES—Continued 

Page 

xviii 

ILLINOIS EPA, AVAILABLE DISPOSAL CAPACITY FOR SOLID 

WASTE IN ILLINOIS (1987) ........................ 3 

Legislative History of the Clean Water Act of 1977 
(Committee Print compiled for the Committee on 
Environment and Public Works by the Library of 
Congress), Ser. 95-14 (1978) ..................... 25 

Legislative History of the Water Pollution Control 
Act Amendments of 1972 (Committee Print 
compiled for the Committee on Public Works 
by the Library of Congress), Ser. No. 93-1 
(1973) ................................... 
22, 23 

TABLE OF AUTHORITIES—Continued 

Page 

Linehan, Note, 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) .... 38, 41 

National Governors’ Association, Policy NR-3, Water 

Resource Management, <http://www.nga.org.pubs/ 
policies/nr/nr03.asp> ........................... 29 

Oversight Hearings on Section 404 of the Clean 

Water Act: Hearings Before the Subcomm. on Envtl. 
Pollution of the Senate Comm. on Env’t and Pub. 
Works, 99th Cong. 168 (1985) ................... 35 

R. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: 

LAW, SCIENCE AND POLICY (1992) 
................ 49 

R. PETERSON, A FIELD GUIDE TO BIRDS (4th ed. 1980) ... 42 

S. 2770, 92d Cong. § 502 (1971) .................... 21 

xix 

TABLE OF AUTHORITIES—Continued 

Page 

S. CONF. REP. NO. 92-1236 (1972) 
.................. 21 

Strand, Federal Wetlands Law: Part III, 23 ENVTL. 

L. REP. 10,354 (1993) .......................... 49 

L. TRIBE, AMERICAN CONSTITUTIONAL LAW 
(3d ed. 2000) ........................... 33, 46, 47 

U.S. Army Corps of Engineers, Report to Congress on 
the Impact of a Proposed Municipal Landfill (Balefill) 
on the Newark Valley Aquifer (Apr. 1990) .......... 10 

United States v. Lopez, No. 93-1260, Brief for the 

United States (June 2, 1994) ..................... 46 

United States v. Riverside Bayview Homes, Inc., 

No. 84-701, Tr. of Oral Argument 
(Oct. 16, 1985) ................................ 47 

BRIEF FOR THE PETITIONER 

_______________________ 

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 extended the time for filing 
the petition for certiorari to January 14, 2000. The petition was 
filed on that date and granted on May 22, 2000. The jurisdiction 
of this Court rests on 28 U.S.C. § 1254(1). 

CONSTITUTIONAL, STATUTORY, AND 
REGULATORY PROVISIONS INVOLVED 

The Commerce Clause provides that “Congress shall have 
the Power * * * [t]o regulate Commerce with foreign nations 
and among the several States.” U.S. CONST. art. I, § 8. 

Relevant provisions of the Federal Water Pollution Control 
Act of 1972 (“Clean Water Act” or “CWA”) are reproduced at 
Pet. App. 37a-38a. The “other waters” regulation and “migra- 
tory bird rule” are set forth at Pet. App. 39a-40a. 

Of particular relevance here, CWA § 101(b) declares that 
“[i]t is the policy of Congress to recognize, preserve, and 
protect the primary responsibilities and rights of States to 
prevent, reduce, and eliminate pollution [and] to plan the 
development and use * * * of land and water resources.” 33 
U.S.C. § 1251(b). 

STATEMENT 

The Clean Water Act prohibits “any person” from discharg- 
ing “any pollutant,” including “dredged or fill material,” into 
“navigable waters” without obtaining a permit from the U.S. 
Army Corps of Engineers. 33 U.S.C. §§ 1311(a), 1344(a), 
1362(12). The Act defines “navigable waters” as “the waters of 
the United States, including the territorial seas.” Id. § 1362(7). 

The Corps has by regulation defined the “waters of the 
United States” to include not only waters that are or could be 
used for navigation, tidal waters, interstate waters, tributaries of 

2 

jurisdictional waters, and wetlands adjacent to jurisdictional 
waters (33 C.F.R. § 328.3(a)), but also 

[a]ll other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, wet- 
lands, sloughs, prairie potholes, wet meadows, playa lakes, 
or natural ponds, the use, degradation or destruction of 
which could affect interstate commerce * * *. 

Id., § 328.3(a)(3) (the “other waters rule”); see also 40 C.F.R. 
§ 230.3(s) (EPA’s essentially identical regulation). 

In the preamble to Clean Water Act regulations promul- 
gated 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 pro- 
tected 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). 

This “migratory bird rule” is at issue here. Petitioner Solid 
Waste Agency of Cook County (SWANCC) contends that the 
Clean Water Act does not, and constitutionally may not, 
authorize federal jurisdiction over isolated, intrastate, water- 
filled trenches and depressions located on SWANCC’s land 
solely because they provide habitat for migratory birds. 

A. The Solid Waste Agency’s Balefill Project 

SWANCC comprises 23 suburban Chicago cities and 
villages located in north and northwest Cook County, Illinois. 
Members of the Northwest Municipal Conference pursuing “a 
comprehensive action plan for regional solid waste disposal” 
formed SWANCC in 1988 as a Municipal Joint Action Agency 
under Illinois law. AR 15-17, 44682-83.1 The Illinois Solid 

1 “AR” refers to the Administrative Record before the Corps. The 
Corps’ July 1994 decision denying SWANCC’s revised Section 404 

3 

Waste Planning and Recycling Act “encourage[s]” such “inter- 
governmental cooperation agreements whereby various units of 
local government within a region determine the best methods 
and locations for disposal of solid waste.” 415 ILCS 15/2(5). 

SWANCC is charged with the cost-effective and environ- 
mentally sound management of non-hazardous solid waste for 
the 700,000 people in its member communities. To that end, 
SWANCC adopted what the Corps called “an admirable plan” 
to manage waste for 20 years, emphasizing waste volume 
reduction, recycling, composting, and other means to divert 40- 
45 per cent of solid waste from disposal in compliance with the 
Solid Waste Planning and Recycling Act (415 ILCS 15) and 
Illinois Environmental Protection Agency rules (35 ILL. ADMIN. 
CODE Part 870). AR 17, 44683-86. 

Nevertheless, in light of diminishing landfill capacity in the 
region, which was “reaching a critical level,” SWANCC also 
needed to develop a new landfill.2 Pet. App. 2a; AR15-17, 
44684-85. Accordingly, SWANCC purchased land to create a 
balefill—a landfill for disposal of baled, non-hazardous waste. 
SWANCC’s proposed balefill would “only accept [municipal] 
waste [from SWANCC communities] that has been compacted 
and baled at [SWANCC-owned] transfer stations to be con- 
structed in northwest Cook County.” AR 18, 725, 747, 15576, 

permit application is set out at AR 1557 2-15847. The Corps’ January 
1991 decision denying SWANCC’s prior application is at AR 44682- 
44743. Copies of both decisions have been lodged with the Clerk. 
SWANCC’s revised permit application is at AR 1-1492, 1751-2113. 

2 Illinois law recog nizes that landfills “continue to be necessary,” that 
“landfill capacity is decreasin g,” and that s iting new la ndfills “is very 
difficult due to the public concern and competition with other land 
uses.” Illinois Solid Waste Management Act, 415 ILCS 20/2(2), (3), 
(10)(b). See ILLINOIS EPA, AVAILABLE DISPOSAL CAPACITY FOR 

SOLID WASTE IN ILLINO IS 14 (1987) (“facility sitin[g] can elicit an 
emotional response * * *. The ‘not in my back yard’ or NIMBY 
syndrome has become a prevalent sentiment”), AR 45. 

4 

44683-84; Pet. App. 2a. SWANCC’s costs for this project 
exceeded $16 million by 1992. AR 5535. 

B. The Balefill Site 

Of the 533-acre parcel it purchased, SWANCC proposed to 
use 410 acres, located in Cook County, for the balefill. Almost 
300 of those acres had been used for sand and gravel strip 
mining from the 1930s to the 1950s, which left alternating 
linear spoil ridges and excavation trenches across the land. An 
“early successional stage forest” developed on this part of the 
property after strip mining ended. The trenches and other 
depressions left by the mining formed permanent and seasonal 
ponds ranging from less than one-tenth of an acre to several 
acres in size and from several inches to several feet in depth. 
SWANCC’s balefill project would require filling 17.6 acres of 
these “semi aquatic” areas. Pet. App. 2a-3a; AR 205. 

“No Federally threatened or endangered species utilize the 
[balefill] site.” AR 44713. The site does contain a large season- 
al rookery of great blue herons —“locally appreciated” wildlife, 
the Corps concluded, that “adds to the aesthetic appeal of the 
region.” AR 15700. Another “100-plus” bird species have been 
observed “nesting, feeding, or breeding at the site,” including 
“water-dependent” and “migratory birds.” Pet. App. 2a-3a.3 
Three species listed by the State of Illinois as threatened or 
endangered, which “use wooded nesting habitats in close 
proximity to water,” have also been observed—the red-shoul- 
dered hawk, Cooper’s hawk, and veery. AR 44709, 44713, 
15578. 

3 The Corps identified at or near the site one or more examples of 13 
migratory bird species “known to depend on aquatic environm ents 
for a significant portion of their life requirements”: “the Great Blue 
Heron, Great Egret, Green-backed Heron, Black-crowned Night 
Heron, Canada Goose, Wood Duck, Mallard, Greater Yellowlegs, 
Belted Kingfisher, Northern Waterthrush, Louisiana Waterthrush, 
Swamp Sparrow, and Red-winged Blackbird.” AR 15578. 

5 

SWANCC proposed to mitigate the impact of the balefill on 
these birds at a cost exceeding $17 million. AR 15710. Its 
original plans called for filling 31 acres of ponds (AR 44706), 
but it modified the project to reduce fill to 17.6 acres. Pet. App. 
3a; AR 15574. It proposed to create 17.6 acres of replacement 
waters on the site (AR 15711); relocate the heron rookery 
elsewhere on the property and, if that failed, to purchase for the 
public or improve another rookery in the region (AR 15697- 

98); phase construction over 15 years to minimize disturbance 
(AR 15704-06); enhance forest and waters that remained on the 
property; and acquire 258 acres of land adjacent to the site to 
create or improve forest habitat. AR 15701-02. 

C. The Cook County Permitting Process 

The Clean Water Act states “the policy of the Congress to 
recognize, preserve, and protect the primary responsibilities and 
rights of States to prevent, reduce, and eliminate pollution [and] 
to plan the development and use * * * of land and water 
resources.” 33 U.S.C. § 1251(b). Cook County and the State of 
Illinois carefully exercised those traditional responsibilities in 
this case. In order to proceed with its balefill project, SWANCC 
had to obtain approvals from both the county and State, through 
two elaborate and laborious permitting procedures. 

The Northwest Municipal Conference optioned the balefill 
site in 1985, before SWANCC came into existence. In accor- 
dance with Illinois law recognizing “the authority of units of 
local government in the siting of solid waste disposal facilities” 
(415 ILCS 15/2), the Conference applied to the Cook County 
Zoning Board of Appeals in 1987 for a special use planned unit 
development (“PUD”) permit for the balefill. Factors consid- 
ered by the Zoning Board in reviewing this application included 
effect on surrounding properties, need for the project, and 
whether the special use would “be detrimental to * * * the 
public health, safety, or general welfare.” Cook County Zoning 
Ord. §§ 13.10-7, 9-4 (1976). After conducting 10 public 
hearings and compiling “by far the largest record of proceed- 
ings in [its] history,” the Zoning Board recommended approval 

6 

of the permit. AR 48. The Cook County Board of Commission- 
ers subsequently approved the PUD by a 75% majority. Ibid. 

In January 1990, the County Board enacted an ordinance 
approving SWANCC’s plans. AR 48, 724-727. The ordinance 
recited that SWANCC had filed satisfactory Domestic Water 
Protection and Home Value Guaranty Plans, had added more 
“environmental protections,” and would “provide for perpetual 
post closure monitoring of the balefill.” AR 742-725. It 
required SWANCC to contribute $1 million to a trust for each 
year the balefill accepts waste, to guarantee post-closure main- 
tenance and remedial action. AR 726. 

D. The Illinois EPA Permitting Process 

SWANCC also had to obtain a landfill development permit 
from the Illinois EPA, required by the Illinois Environmental 
Protection Act (Ill. Stat. Ch. 111 Ω § 1039 (1988)) and Pollu- 
tion Control Board Solid and Special Waste Management 
Regulations. 35 ILL. ADMIN. CODE § 807.201 (1988). 

The Illinois EPA has a mandate “to restore, maintain and 
enhance” the “waters of the State” and “to assure that no 
contaminants are discharged” into those waters. Ill. Stat. Ch. 
111 Ω § 1011(b) (1988).4 It rejected SWANCC’s first, 1988 
permit application. In 1989, SWANCC submitted a revised, 
1,700-page application. After additional public hearings, the 
Illinois EPA approved a development permit in November 
1989, subject to 51 conditions relating to the construction, 
operation, and monitoring of the balefill. AR 50-51, 747-754.5 

4 “[W]aters of the State” include those on SWANCC’s property. See 
Ill. Stat. Ch. 111 Ω § 1003.56 (1988) (waters of the State are “all 
accumulations of water, surface and underground, natural, and 
artificial, public and private, or parts thereof, which are wholly or 
partially within * * * this State”). A “contam inant” includes “any 
solid * * * matter * * * from whatever source.” Id. § 1003.06. 

5 Many conditions were to protect groundwater, over which the 
Illinois EPA has express statutory authority. Groundwater Protection 
Act, 415 ILCS 55 (1998); 35 ILL. ADMIN. CODE Part 620 (1997). 

7 

The agency specifically approved SWANCC’s “closure and 
post-closure care plans.” AR 750. 

The Illinois EPA’s “engineering judgment,” certified to the 
Corps of Engineers under CWA § 401, 33 U.S.C. § 1341(1), 
was that SWANCC’s project would not “caus[e] water pollu- 
tion as defined in the Illinois Environmental Protection Act” if 
it was “carefully planned and supervised.” AR 772, 6163. The 
Illinois EPA thus concluded that the balefill would not cause 

such alteration of the physical, thermal, chemical, biologi- 
cal or radioactive properties of any waters of the State, or 
such discharge of any contaminant into any waters of the 
State, as will or is likely to create a nuisance or render such 
waters harmful or detrimental or injurious to public health, 
safety or welfare, or to domestic, commercial, industrial, 
agricultural, recreational, or other legitimate uses, or to 
livestock, wild animals, birds, fish, or other aquatic life. 

Ill. Stat. Ch. 111 Ω § 1003.55 (1988). 

Subsequently, the Illinois Department of Conservation 
reviewed SWANCC’s plans, including its plans to mitigate the 
impact of the balefill on wildlife. The Department reported to 
the Corps of Engineers that “adverse impacts on state listed 
species would be mitigated through the implementation of the 
mitigation plan” provided certain recommendations were 
followed, and that it was “satisfied” with SWANCC’s “heron 
mitigation plan” in light of “the increasing number of rookeries 
statewide in recent years.” AR 15586.6 

6 The Illinois Nature Preserves Commission and Endangered Species 
Protection Board, which expressed some concerns about SWANCC’s 
balefill to the Corps (AR 15587-89), are subdivisions of the Depart- 
ment of Conservation (now Department of Natural Resources), which 
approved the plan. Endangered Species Protection Act, 520 ILCS 
10/6, 10/10 (1998); Natural Areas Preservation Act, 525 ILCS 30 
(1998); Illinois Department of Natural Resources, <http://dnr.state. 
il. us/ dnrorg. htm> (visited July 18, 2000); see 33 C.F.R. § 320.4(j)(3) 
(requiring the Corps to determine “the official state po sition”). 

8 

E. The Corps Of Engineers’ Assertion Of Jurisdiction 

Because the balefill project called for filling trenches and 
depressions within the forested area of the site, the Northwest 
Municipal Conference twice requested rulings from the Corps 
as to whether it required a CWA Section 404 permit to dis- 
charge fill material into navigable waters. 33 U.S.C. § 1344(a). 
Responding to a “letter requesting a determination of [the 
Corps’] jurisdiction over the proposed balefill site,” the Corps 
informed the Conference in April 1986 that “the proposed 
balefill site is not subject to our regulatory authority.” AR 777, 
34594. The Conference’s second request for a determination of 
Corps’ jurisdiction met with the same disclaimer of jurisdiction 
in March 1987. AR 779, 34598; Pet. App. 3a-4a, 16a. 

The Corps changed its position after the Illinois Nature 
Preserves Commission informed the Corps in July 1987 that a 
brief site visit resulted in the observation of migratory birds. 
AR 34611-13. In November 1987, the Corps “determined that 
the water areas of the abandoned gravel pit do qualify as 
‘waters of the United States,’” and were therefore within its 
“regulatory authority,” based on “three criteria: (1) that the 
proposed balefill site has been abandoned as a gravel pit; 
(2) that the water areas and spoil piles have developed a natural 
character; and (3) that the water areas are used or could be used 
as habitat for migratory birds which cross state lines.” AR 780. 
The first two criteria reflect the fact that the Corps does not 
claim authority over “pits excavated in dry land for the purpose 
of obtaining fill, sand, or gravel” unless the “excavation 
operation is abandoned and the resulting body of water meets 
the definition of waters of the United States.” 51 Fed. Reg. 
41,206, 41,217 (1986). The Corps’ third criterion, applying its 
bird rule, was its sole basis for concluding that SWANCC’s 
property includes waters of the United States. 

F. The Corps’ Denial Of A Section 404 Permit 

Once the Corps claimed jurisdiction over the semi-aquatic 
areas of the balefill site based on the presence of migratory 

9 

birds, SWANCC could not proceed with its plans until it 
obtained a permit from the Corps under CWA Section 404. 

Obtaining such a permit is a two stage process. First, 
pursuant to CWA Section 401 the Corps requires an applicant 
to provide a “State [certification] that the proposed discharge 
will comply with applicable provisions of State law,” including 
“water quality standards.” AR 781. That certification is 
generally “conclusive with respect to water quality consider- 
ations.” 33 C.F.R. § 320.4(d). The Illinois EPA issued water 
quality certifications to SWANCC in November 1989 (AR 772- 
774) and again in December 1992. AR 6163-6164; supra, pp. 
6-7. 

Second, the Corps makes “an environmental assessment, 
and a determination of the project’s impact on the public 
interest” (AR 782), weighing in its “public interest” determina- 
tion such factors as “economics, aesthetics, general environ- 
mental concerns, * * * fish and wildlife values, * * * land use, 

* * * and, in general, the needs and welfare of the people.” 33 
C.F.R. § 320.4(a); see id. § 320.4(b)-(r). Though the Corps 
purports to recognize that “primary responsibility for determin- 
ing zoning and land use matters rests with state [and] local 

* * * governments,” it declines to “accept decisions by such 
governments” where “there are significant issues” it deems “of 
overriding national importance” given “the degree of impact in 
[the] individual case.” Id. § 320.4(j)(2). 

SWANCC submitted a Section 404 permit application in 
February 1990 seeking to fill 31 acres of trenches and depres- 
sions. The Corps concluded that SWANCC’s project “is not 
contrary to the public interest because [its communities] need 
a solid waste disposal facility” and “the project’s reasonably 
foreseeable benefits outweigh its foreseeable detriments.” The 
Corps nevertheless denied the permit on the grounds that the 
project did not satisfy guidelines set out at 40 C.F.R. Part 230 
because the “site may not be the least damaging practicable 
alternative site” and the project “would contribute to significant 
degradation of the aquatic ecosystem.” AR 44742. 

10 

SWANCC reapplied after significantly amending its propo- 
sal, reducing the fill to 17.6 acres and increasing mitigation. 
Supra, p. 5. In July 1994, the Corps denied the permit, now 
finding the balefill contrary to the public interest and Corps 
guidelines because (1) breaking up “a large contiguous forest” 
would cause “unmitigable” impacts to “area sensitive” birds, 
(2) SWANCC had “not conclusively demonstrated that this is 
the least environmentally damaging, most practicable alterna- 
tive,” and (3) SWANCC had not “conclusively demonstrated” 
that it and its member municipalities had “capacity to finance 
in perpetuity * * * long term maintenance responsibilities,” 
which created an “unacceptable” risk of groundwater contami- 
nation. AR 15658-59.7 The sole basis for jurisdiction stated in 
the decision was that “the water areas are used as habitat by 
migratory bird[s] which cross state lines.” AR 15578. 

G. The Decisions Below 

Unable to proceed with its balefill, SWANCC brought this 
Administrative Procedure Act suit challenging the Corps’ 
decision and the theory under which it asserted jurisdiction. The 
district court granted summary judgment to the Corps on the 
issue of jurisdiction. SWANCC dismissed its remaining claims 
and the court entered final judgment. Pet. App. 2a, 14a. 

The Seventh Circuit affirmed. It first rejected SWANCC’s 
argument that basing federal regulatory jurisdiction on migra- 
tory birds violates the Commerce Clause, or at least raises 
enough constitutional problems to mandate a narrower interpre- 
tation of “navigable” “waters of the United States.” Pet. App. 
5a-9a. The court acknowledged that the migratory bird rule can 
be justified, if at all, only as “regulation of activities that 
‘substantially affect’ interstate commerce.” Id. at 5a. It then 

7 The Corps previously had reported to Congress that the balefill 
would pose “virtually no risk” to groundwater. U.S. Army Corps of 
Engineers, Report to Congress on the Impact of a Proposed Munici- 
pal Landfill (Balefill) on the Newark Valley Aquifer 2 (Apr. 1990), 
AR 38316-38337, 41401 (lodged with the C lerk). 

11 

held that although the Corps had made no showing that the use 
of SWANCC’s land 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.” Id. at 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 
held that “the Act reaches as many waters as the Commerce 
Clause allows.” Accordingly, “because Congress’ power under 
the Commerce Clause is broad enough to permit regulation of 
waters based on the presence of migratory birds,” the Corps’ 
interpretation of the Act was “reasonable.” Pet. App. 9a-10a. 

SUMMARY OF ARGUMENT 

The question in this case is whether the U.S. Army Corps 
of Engineers exceeded the bounds of its authority under the 
Clean Water Act or the Commerce Clause when it asserted 
jurisdiction over isolated, intrastate, water-filled trenches and 
depressions on SWANCC’s land solely because those waters 
were habitat for migratory birds. Under the Corps’ interpreta- 
tion of the CWA, its regulatory authority stretches to virtually 
every body of water in the country—including seasonally wet 
areas in homeowners’ backyards—because virtually any water 
body is or could be used as a feeding or resting place by some 
of the five billion birds that migrate over the continental United 
States each year. Under the Corps’ view of the commerce 
power, its jurisdiction could permissibly extend to any activity 
that might ultimately decrease interstate travel or commercial 
spending. This outcome cannot be reconciled with the text and 
history of the CWA or with our constitutional system of 
enumerated federal powers. 

12 

I. The Corps’ assertion of jurisdiction over isolated waters 
on SWANCC’s property is not authorized by the CWA. By 
using the legal terms “navigable waters” and “waters of the 
United States” in the CWA, Congress invoked their established 
meanings as waters that are navigable in fact, that could be 
made navigable with reasonable improvements, or that are 
connected to such waters and so could affect their quality. This 
Court has never suggested that those statutory terms encompass 
waters with no physical connection tonavigable waters, like the 
waters regulated under the migratory bird rule. Legislative 
history confirms that Congress did not intend the Corps to have 
authority over waters lacking any connection to navigable 
waters. 

The Corps’ migratory bird rule is also flatly at odds with 
three well-settled principles of statutory construction. First, 
there is serious constitutional doubt about the propriety of the 
Corps’ assertion of jurisdiction over isolated, intrastate waters 
used by migratory birds. This Court’s precedents require that 
such doubt be avoided by giving the CWA the narrower 
interpretation supported by its text and history. Second, severe 
federal intrusion into areas of traditional state and local control, 
like the Corps’ usurpation of local land use and waste manage- 
ment planning here, can only be justified by a clear statement 
of congressional intent. Not only is such a statement lacking in 
the CWA, but Congress made explicit in the Act its intention to 
preserve state and local land use regulation. Third, the rule of 
lenity weighs in favor of a narrower interpretation of the CWA, 
which provides for heavy criminal penalties for violations. 
These familiar interpretative principles—as well as the princi- 
ple that Congress may not delegate core lawmaking authority 
to an agency, and thecontradictory administrative history ofthe 
migratory bird rule—leave no room for Chevron deference to 
the Corps’ aggrandizement of its own authority. 

II. The Corps’ assertion of jurisdiction violates the Com- 
merce Clause. Migratory bird use of isolated intrastate waters 
has far too attenuated a connection to interstate commerce for 
jurisdiction to be upheld as regulation of activities that substan- 

13 

tially affect interstate commerce. The migratory bird rule is not 
directed at inherently economic or commercial activity; it does 
not contain a jurisdictional requirement that limits its applica- 
tion to activities with a real connection to interstate commerce; 
there are no congressional findings linking waters used by 
migratory birds to interstate commerce; and the Corps’ ration- 
ale would justify federal regulation not just of all waters but of 
virtually all human activity. There is no intelligible principle 
behind the Corps’ bird rule that would not destroy the distinc- 
tion, crucial to our constitutional order, between what is truly 
national and what is truly local. 

No alternative constitutional basis for the Corps’ assertion 
of Clean Water Act jurisdiction over SWANCC’s property 
exists. But there are ample constitutional bases in the spending, 
treaty, and property powers for a myriad of federal statutes pro- 
tecting waters, wetlands, migratory birds, and a host of other 
environmental values, which would be wholly unaffected by a 
decision in SWANCC’s favor in this case. 

ARGUMENT 

I. THE CORPS HAS NO AUTHORITY UNDER THE 
CLEAN WATER ACT TO REGULATE ISOLATED 
WATERS MERELY BECAUSE THEY PROVIDE 
HABITAT FOR MIGRATORY BIRDS 

The Clean Water Act gives the Corps jurisdiction over 
“navigable waters,” defined as “waters of the United States, 
including the territorial seas.” 33 U.S.C. §§ 1344, 1362(7). 
According to the Corps, this language has virtually no meaning 
and imposes no limits on the Corps’ power. The Corps believes 
that the CWA extends its regulatory authority—and Section 
404’s mandatory permit requirements—to any water over 
which Congress could conceivably exercise jurisdiction under 
the Commerce Clause. That sweeping claim, which the court of 
appeals uncritically approved,is the only justificationthe Corps 
has ever advanced for its migratory bird rule. That rule draws 
within the Corps’ jurisdiction any water at all, no matter how 

14 

small or remote, used by any of the five billion birds that 
migrate across North America every year. 

We explain in Part II that even if the CWA could be read to 
extend the Corps’ jurisdiction to the limits of Congress’ 
commerce power, the migratory bird rule is impermissible 
because it lacks sufficient connection with interstate commerce. 
It is unnecessary to reach this constitutional question, however, 
because the CWA does not give the Corps anything like the all- 
encompassing authority it claims. In asserting jurisdiction over 
isolated waters because they are used by migratory birds, the 
Corps has written the term “navigable waters” out of the Act 
and wrenched Congress’ definition of “navigable waters” as 
“waters of the United States” from those terms’ settled mean- 
ing. As the legislative history confirms, no plausible reading of 
the CWA allows the Corps’ practically limitless expansion of 
its own reach through the bird rule. 

If there were any doubt that the CWA does not authorize the 
migratory bird rule, three well-settled principles of statutory 
construction resolve it. First, whether or not the Corps’ inter- 
pretation of its jurisdiction violates the Commerce Clause (and 
it does), it at least raises serious constitutional questions. When 
there is another permissible reading of a statute, it must be 
construed to avoid such constitutional doubts. Edward J. 
DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades 
Council, 485 U.S. 568, 574-575 (1988). Second, the migratory 
bird rule infringes on atraditional area ofstate regulation—land 
use planning and permitting. An explicit statement of congres- 
sional intent is required before a statute will be interpreted to 
effect such a drastic intrusion on traditional state powers. 
Gregory v. Ashcroft, 501 U.S. 452, 460-461 (1991). Here, far 
from making such a statement,Congress expressed its intention 
to “protect the primary responsibilities and rights of States” 
over land use. 33 U.S.C. § 1251(b). Finally, the CWA and 
Section 404 must be construed narrowly in light of the serious 
criminal penalties for violations of the statute. Crandon v. 
United States, 494 U.S. 152, 168 (1990). Absent evidence of 
congressional intent to apply Section 404 to isolated intrastate 

15 

waters based on their use by migratory birds, the Corps’ claim 
of jurisdiction over SWANCC’s balefill site must be rejected. 

A. The Plain Language Of The CWA Refutes The Corps’ 

Assertion Of Jurisdiction Over Isolated Waters That 
Are Migratory Bird Habitat 

The CWA’s jurisdiction-defining terms “navigable waters” 
and “waters of the United States” do not authorize federal 
regulation of isolated waters simply because they are habitat for 
migratory birds. 

1. Congress’ regulation of navigable waters has a long 
history. The Northwest Ordinance provided that “[t]he naviga- 
ble waters leading into the Mississippi and Saint Lawrance 

* * * shall be common highways.” Northwest Ordinance art. IV 
(1787); see also Railroad Co. v. Maryland, 88 U.S. (21 Wall.) 
456, 470 (1874). Consistent with this understanding of naviga- 
ble waters as “common highways” of commerce, this Court’s 
early cases held that “navigable waters” are waters “which are 
navigable in fact,” meaning “susceptible of being used, in their 
ordinary condition, as highways for commerce.” The Daniel 
Ball, 77 U.S. (10 Wall.) 557, 563 (1870). That standard 
“applie[d] to all water courses.” Utah v. United States, 403 U.S. 
9, 11 (1971). Later decisions expanded the concept of “naviga- 
ble waters” to include waters that had previously been used in 
navigation or that could be made navigable in the future 
through reasonable improvements. See United States v. 
Appalachian Elec. Power Co., 311 U.S. 377, 407 (1940). 

Congress’ definition of “navigablewaters” as “waters of the 
United States” (33 U.S.C. § 1362(7)) does not sever, but rather 
strengthens, the link between the Corps’ jurisdiction and the 
concept of navigability. The phrase “navigable waters of the 
United States,” as distinguished from “waters of the States,” 
has long been used to mean waters over which interstate 
commerce may pass. Donnelly v. United States, 228 U.S. 243, 
262 (1913) (“what are navigable waters of the United States” 
depends on whether the water “affords a channel for useful 
commerce”); The Montello, 78 U.S. (11 Wall.) 411, 415 (1870) 

16 

(a river that “is not of itself a highway for commerce with other 
States or foreign countries, or does not form such a highway by 
its connection with other waters * * * is not a navigable water 
of the United States”); The Daniel Ball, 77 U.S. at 563; Leovy 

v. United States, 177 U.S. 621, 632 (1900); Perry v. Haines, 
191 U.S. 17, 28 (1903). Though the Act uses the phrase “waters 
of the United States” rather than “navigable waters of the 
United States,” that phrase is used to define the term “navigable 
waters.” In the Act as in this Court’s cases, “navigable waters” 
and “waters of the United States” remain closely intertwined. 

The statutory terms “navigable waters” and “waters of the 
United States” must be understood against this legal backdrop. 
This Court “assume[s] that when a statute uses” a legal term of 
art, Congress’ choice is not haphazard or insignificant; rather, 
“Congress intended [the term] to have its established meaning” 
(McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342 (1991)) 
and to “adopt the interpretation placed on that concept by the 
courts.” Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 
813 (1989); see also Cannon v. University of Chicago, 441 U.S. 
677, 696-697 (1979); The Abbotsford, 98 U.S. (8 Otto) 440, 444 
(1878). The jurisdictional terms Congress used in the CWA 
carry at their core the meaning established by this Court’s 
decisions: waters that are navigable in fact, have been naviga- 
ble, or could be made navigable with reasonable improvements. 

2. United States v. Riverside Bayview Homes, Inc., 474 U.S. 
121 (1985), casts no doubt on this plain meaning of the CWA’s 
jurisdictional terms. This Court did state in Riverside Bayview 
that “the term ‘navigable’ as used in the Act is of limited 
import”—but only in the sense that Congress meant to “regu- 
late at least some waters that would not be deemed ‘navigable’ 
under the classical understanding of that term.” Id. at 133. The 
Court merely recognized that Congress did not use the terms 
“navigable waters” and “waters of the United States” in the 
classic Daniel Ball sense requiring navigability in fact. 

In Riverside Bayview, the Court upheld a limited extension 
of federal regulatory jurisdiction to reach wetlands that, 

17 

because of their proximity and function, “are inseparably bound 
up with the ‘waters’ of the United States” to which they are 
“adjacent.” 474 U.S. at 134; see ibid. (“wetlands may affect the 
water quality of adjacent lakes, rivers, and streams”). This 
Court’s holding that “a wetland that actually abuts on a 
navigable waterway” (id. at 135) is within the scope of the 
CWA does not mean that an isolated pond with no connection 
to any navigable waterway is covered. The Court expressly 
declined to hold that the Corps may exercise jurisdiction over 
“wetlands that are not adjacent to bodies of open water.” Id. at 
131 n.8, 135. 

3. The Corps defends its migratory bird rule as consistent 
with the CWA by arguing that the statute defines the term 
“navigable waters” “without qualification” as “the waters of the 
United States.” Thus, “[b]ecause the CWA does not further 
define the term ‘waters of the United States,’” the Corps 
believes that its interpretation of that term to reach all waters 
within Congress’ commerce power is entitled to deference. Br. 
in Opp. 13-15 & n.9. That argument is without merit, and not 
just because, as we show in Part II, the bird rule lies outside the 
commerce power. See Gulf Oil Corp. v. Copp Paving Co., 419 
U.S. 186, 199 (1974) (rejecting argument that “facially narrow” 
statutory language was intended “to manifest the full degree of 
[Congress’] commerce power”). 

It is not permissible for the Corps to read the term “naviga- 
ble waters” out of CWA Section 404 by looking only to that 
term’s statutory definition as “the waters of the United States.” 
The Corps’ interpretation violates the cardinal principle that 
statutes “must, if possible, be construed in such fashion that 
every word”—including “navigable” in the CWA—has 
“operative effect.” United States v. Nordic Village, Inc., 503 
U.S. 30, 36 (1992); see Reiter v. Sonotone Corp., 442 U.S. 330, 
339 (1979); Jones v. United States, 120 S. Ct. 1904, 1911 
(2000) (rejecting reading under which the statute’s “limiting 
language * * * would have no office”). 

18 

It is also unreasonable to suppose that a defined term and 
defining term bear no relationship and that the former loses all 
meaning, totally subsumed in the latter. See Western Union Tel. 
Co. v. Lenroot, 323 U.S. 490, 503-504 (1945) (rejecting 
contention that a statutory definition of the term “produced” to 
mean “handled, or in any other manner worked on” encom- 
passed “not only handling or working on in relation to produc- 
ing,” but also other “handling or working on”). It would be 
particularly surprising if the concept of navigability disap- 
peared altogether when Congress defined “navigable waters” as 
“the waters of the United States,” given that navigability is a 
traditional jurisdictional concept with a settled meaning in this 
Court’s jurisprudence. See FDA v. Brown & Williamson Tob- 
acco Corp., 120 S.Ct. 1291, 1301 (2000) (“‘Ambiguity is a 
creature not of definitional possibilities but of statutory con- 
text’”). As the Fourth Circuit held in United States v. Wilson, 
133 F.3d 251, 257 (4th Cir. 1997), “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.” 

The Corps’ contention that it is free to interpret the term 
“waters of the United States” to reach all waters within the 
commerce power also cannot be squared with the principle that 
Congress is presumed to intend the established legal meaning 
of terms it uses. Supra, p. 16. Congress did not say “waters in 
the United States subject to the commerce power” but “waters 
of the United States,” which have always been those waters that 
“affor[d] a channel for useful commerce” between the States. 
Donnelly, 228 U.S. at 262. Even if that traditional meaning may 
be stretched, in combination with a broad understanding of 
“navigable waters,” to reach most rivers, streams, and lakes, 
and waters and wetlands closely related to them, it cannot 

19 

conceivably apply to the completely isolated, water-filled 
mining trenches on SWANCC’s land.8 

4. The Corps erroneously contends that its migratory bird 
rule is permissible in light of the CWA’s purposes to “restore 
and maintain the * * * biological integrity of the Nation’s 
waters” and provide “for the protection and propagation of 

* * * wildlife.” 33 U.S.C. 1251(a). A statute’s general purpose 
cannot override jurisdictional terms like “navigable waters” and 
“waters of the United States” that had a settled legal meaning 
when Congress used them. See Mertens v. Hewitt Assocs., 508 
U.S. 248, 261 (1993) (“vague notions of a statute’s ‘basic 
purpose’” are “inadequate to overcome the words of its text 
regarding the specific issue under consideration”); Federal 
Reserve Bd. v. Dimension Fin. Corp., 474 U.S. 361, 373-374 
(1986). Nor can the Corps’ vast extension of its jurisdiction to 
cover countless millions of isolated intrastate waters be 
reconciled with Congress’ express policy in the CWA “to 
recognize, preserve, and protect the primary responsibilities and 
rights of States” to “plan the development and use * * * of land 
and water resources.” 33 U.S.C. § 1251(b); see infra, Part I.C.2. 

The Corps attaches misplaced significance to this Court’s 
reference in Riverside Bayview to the agency’s view that 
“adjacent wetlands may ‘serve significant natural biological 
functions’” and are “integral parts of the aquatic environment.” 
474 U.S. at 134-135 (emphasis added). That was but one (and 
the least direct) of the connections the Corps said existed 
between wetlands and adjacent navigable waters. Of greater 
importance was the fact “that wetlands may serve to filter and 
purify water draining into adjacent bodies of water” and “slow 

8 The structure of the CWA also demonstrates the error of the Corps’ 
interpretation. The Act forbids discharge of pollutants into three 
categories of water: “navigable waters,” “waters of the contiguous 
zone,” and “th e ocean.” 33 U .S.C. §§ 1311, 1362(12). If the term 
“navigable waters” encompasses all waters subject to federal 
jurisdiction, there would have been no need separately to prohibit 
discharges into these other wa ters. See also 33 U.S.C. § 1343. 

20 

the flow of surface runoff into lakes, rivers, and streams,” 
thereby affecting the quality of navigable waters. Id. at 134. 

Thus, Riverside Bayview did not endorse the Corps’ inter- 
pretation of the CWA to reach isolated waters that have no 
connection to navigable waters except that they are habitat for 
migratory birds (which could at some point alight, feed, or live 
on virtually any body of water, however insubstantial or 
evanescent). As Judge Manion has pointed out, the CWA “is 
not a comprehensive wildlife protection statute. Although the 
Act mentions wildlife as an important result of controlling 
pollution, the purpose of the Act is to restore and maintain 
clean water.” Hoffman Homes, Inc. v. EPA, 961 F.2d 1310, 
1322 (7th Cir. 1992), vacated, 975 F.2d 1554, adopted, 999 
F.2d 256, 262 (7th Cir. 1993) (Manion, J., concurring). Nothing 
in Riverside Bayview suggests that a potential wildlife connec- 
tion with navigable waters is enough to bring isolated ponds 
within the CWA. If such a connection were sufficient, any 
minuscule body of water capable of attracting a migrating duck 
or other visiting wildfowl would be subject to federal powers 
that supersede state environmental regulation. Riverside 
Bayview did not suggest that this limitless basis for federal 
jurisdiction could be reconciled with the interpretative princi- 
ples we discuss in Part I.C or with the Constitution. 

This Court’s opinion in Federal Power Comm’n v. Union 
Elec. Co., 381 U.S. 90 (1965), is instructive. The Federal Power 
Act imposes requirements on water projects on “navigable 
waters of the United States” and other waters “over which 
Congress has jurisdiction under its authority to regulate com- 
merce.” 16 U.S.C. § 817. In Union Electric, the Court noted 
that this language does not apply to “projects located on intra- 
state nonnavigable waters which do not flow into any navigable 
streams.” 381 U.S. at 96-97 & n.9. The CWA’s statutory 
language is more limited and so must at least exempt “intrastate 
nonnavigable waters,” like those on SWANCC’s property, that 
are neither connected nor closely related to navigable water. 

21 

B. Legislative History Confirms That The CWA Does Not 

Reach Isolated Waters That Are Migratory Bird Habi- 
tat 

Legislative history confirms that the CWA does not 
authorize the migratory bird rule. 

1. The original Senate bill defined “navigable waters” as 
“the navigable waters of the United States, portions thereof, 
and the tributaries thereof, including the territorial seas and the 
Great Lakes.” S. 2770, 92d Cong. § 502(h) (1971) (emphasis 
added). The House bill defined “navigable waters” as the 
“navigable waters of the United States, including the territorial 
seas.” H.R. 11896, 92d Cong. § 502(8) (1972) (emphasis 
added). Reconciling these differences, the ConferenceCommit- 
tee adopted the current language defining “navigable waters” 
as “waters of the United States, including the territorial seas.” 
The Conference Report does not explain the effect of this 
change. It merely states that “[t]he conferees fully intend that 
the term ‘navigable waters’ be given the broadest possible 
constitutional interpretation unencumbered by agency determi- 
nations which have been made or may be made for administra- 
tive purposes.” S. CONF. REP. NO. 92-1236, at 144 (1972) 
(emphasis added); see also H.R.REP. NO. 92-911, at 131 (1972) 
(similar commentary on original House bill). 

The Corps places enormous weight on this single sentence. 
But the conferees did not mean that the CWA gives the Corps 
the maximum constitutional authority over waters. If Congress 
had intended to regulate all waters within its commerce power 
it knew how to say so. See 33 U.S.C. § 817(1) (reaching 
nonnavigable waters “over which Congress has jurisdiction 
under its authority to regulate commerce with foreign nations 
and among the several States”); see also Jones, 120 S. Ct. at 
1909 (the unqualified “statutory term ‘affecting * * * com- 
merce’ * * * signal[s] Congress’ intent to invoke its full 
authority under the Commerce Clause”). 

Rather, the Conference Report reflects Congress’ intent to 
enact a broad definition of the term “navigable waters.” 

22 

Nothing suggests that Congress intended the CWA’s jurisdic- 
tional language to be interpreted so that “waters of the United 
States” no longer acts, in any meaningful sense, as a definition 
of “navigable waters.” To the contrary, the legislative history 
demonstrates that Congress understood that the Corps’ jurisdic- 
tion would be limited to waters bearing a significant relation- 
ship to navigable waters and the carriage of interstate com- 
merce. Thus, Senator Muskie, Senate floor manager for the 
conference bill, gave this explanation in terms very like those 
used by this Court in its prior cases: 

It is intended that the term “navigable waters” include all 
water bodies, such as lakes, streams, and rivers, regarded as 
public navigable waters in law which are navigable in fact. 
It is further intended that such waters shall be considered to 
be navigable in fact when they form, in their ordinary 
condition by themselves or by uniting with other waters or 
other systems of transportation, such as highways or 
railroads, a continuing highway over which commerce is or 
may be carried on with other States or with foreign coun- 
tries in the customary means of trade and travel in which 
commerce is conducted today. In such cases the commerce 
on such waters would have a substantial economic effect on 
interstate commerce. 

1 Legislative History of the Water Pollution Control Act 
Amendments of 1972 (Committee Print compiled for the 
Committee on Public Works by the Library of Congress), Ser. 
No. 93-1, at 178 (1973) (“Leg. Hist.”); see id. at 163-164. 

In the House, Representative Dingell explained that the new 
definition was broader than “‘navigable waters of the United 
States’ in the technical sense as we sometimes see in some 
laws.” 1 Leg. Hist. at 250. The statute is “in line with more 
recent judicial opinions which have substantially expanded that 
limited view of navigability—derived from the Daniel Ball 
[navigable-in-fact test]— to include waterways which would be 
‘susceptible of being used * * * with reasonable improvement,’ 
as well as those waterways which include sections presently 

23 

obstructed by falls, rapids, sand bars, currents, floating debris.” 
Ibid. Under the new definition, “it is enough that the waterway 
serves as a link in the chain of commerce among the States as 
it flows in the various channels of transportation—highways, 
railroads, air traffic, radio and postal communication, water- 
ways.” Ibid., citing Utah, 403 U.S. at 11 (“The lake was used 
as a highway and that is the gist of the federal test”). 

As Senator Muskie and Representative Dingell spelled out, 
while “[n]avigable waters” means more than waters navigable 
in fact, it still requires that waters be part of or closely related 
to “waters of the United States” as this Court has always 
understood that term to mean a link in the “highways” of 
interstate commerce. The congressional understanding of the 
statute is inconsistent with the Corps’ migratory bird rule. 

Just as telling is what the legislative history does not say. If 
the CWA had the sweep that the Corps contends, it would 
require citizens (including ordinary homeowners whose back- 
yards are visited by ducks after heavy rains) to seek Section 
404 permits before altering almost any small, isolated pond or 
wetland.9 Yet there is not one word of this in the legislative 
history. One is “struck by what Congress did not say. * * * 
Congress would certainly recognize” the consequences of 
extending Section 404 to so many areas of American life—not 
the least of which is a dramatic “alter[ation of] sensitive 
federal-state relationships”; “the fact that they are not even 
discussed in the legislative history * * * strongly suggests that 
Congress did not intend” “navigable waters” to be read so 
broadly. Rewis v. United States, 401 U.S. 808, 811 (1971). 

2. The Corps relies on legislative history of 1977 amend- 
ments to the CWA, in particular, Congress’ failure to enact a 

9 The Corps claims jurisdiction over filling “waters of the United 
States” for “construction or expansion of a single-family home” used 
as “a pers onal res idence,” or for “attendant features” like a “garage, 
driveway, storage shed,” or “yard”). 64 Fed. Reg. 47,175, 47,178 
(Aug. 30, 1999); 61 Fed. Reg. 65,874, 65,898 (Dec. 13, 1996). 

24 

proposal to limit the Corps’ jurisdiction to waters navigable in 
fact or capable of being made navigable. Even if this history 
helped the Corps—which it does not—it is of little relevance. 
“[T]he intent of Congress must be culled from the events 
surrounding passage” of disputed provisions in 1972; “[o]pin- 
ions attributed to a Congress [five] years after the event cannot 
be considered evidence of the intent of the Congress in [1972].” 
SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 200 
(1963); see also Gemsco, Inc. v. Walling, 324 U.S. 244, 265 
(1945) (Congress’ “failure in 1939 and 1940 to adopt an 
amendment * * * cannot operate retroactively * * * to give the 
statute enacted in 1938 a different meaning”); Consumer Prod. 
Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13 
(1980). Because “textual and contemporaneous evidence” is 
“clear,” “the subsequent legislative record” cannot alter the 
natural reading of the CWA, which forbids the bird rule. Hagen 

v. Utah, 510 U.S. 399, 420 (1994). 

Upholding the Corps’ interpretation of “navigable waters” 
to reach wetlands adjacent to navigable waters in Riverside 
Bayview, this Court did deem it relevant that “the scope of the 
Corps’ asserted jurisdiction over wetlands was specifically 
brought to Congress’ attention, and Congress [in 1977] rejected 
measures designed to curb the Corps’ jurisdiction.” 474 U.S. at 
137. No analogous argument supports the bird rule, which was 
not announced until 1986 and was based on a 1985 EPA 
memorandum. See infra, Part I.D.3. 

The Corps issued regulations in the middle of Congress’ 
consideration of the CWA amendments that purported to cover 
isolated waters that are “part of a chain or connection to the 
production, movement, and/or use of interstate commerce.” 42 
Fed. Reg. 37,122, 37,127 (July 19, 1977); id. at 37,144. The 
notion that migratory bird use could draw a pond into that 
category would have astounded Congress. No one in 1977 so 
much as mentioned migratory birds as a basis for Corps 
jurisdiction. Nor did Congress defeat any proposal “designed to 
supplant” that basis for jurisdiction. Riverside Bayview, 474 
U.S. at 137. 

25 

In fact, it cannot be inferred that Congress in 1977 
acquiesced in any Corps jurisdiction over isolated, non-adjacent 
waters. There was agreement among legislators that the Corps 
exceeded its jurisdiction when it issued a press release in 1975 
(later repudiated) claiming that Section 404 permits might be 
required to enlarge stock ponds, deepen irrigation ditches, and 
fight stream erosion. 

10 The debate in Congress was not about 
whether, but how, to curb this overreaching. Many in Congress 
supported a House bill confirming that “navigable waters” are 
navigable in fact or that could be made so by improvement. 
H.R. 3199, 95th Cong. § 16 (1977). 

11 Others, however, were 
concerned that the House bill went too far. In light of Congress’ 
desire to ensure that the Corps retained authority over “small 
streams, marshes, wetlands, and swamps which will make their 
way into the bigger waterways of the this country,” even though 
these waters were not and could not reasonably be made 
navigable in fact, Congress adopted a compromise that ex- 
empted activities such as “normal farming [and] ranching 
activities” from Section 404 and authorized the Corps to issue 
general permits for categories of activities. 4 Leg. Hist. 1977 at 

10 E.g., 4 Legislative History of the Clean Water Act of 1977 
(Committee Print compiled for the Committee on Environment and 
Public Works by the Library of Congress), Ser. 95-14, at 1248-1249 
(1978) (“Leg. Hist. 1977”) (Reps. Edgar and M yers) (press release 
“made very dubious analyses of the sec tion 404 program”); id. at 
1350 (Rep. Cleveland) (complaining of “all the idiocies that came 
out the early Corps of E ngineers announcements”); id. at 948 (Sen. 
Muskie) (“The Corps proceeded to take [Section 4 04] and, by its 
interpretation, expand it far beyond any intent of the Congress so that 
it found itself threatening regulation in areas of the country which the 
corps had never im agined it had any jurisdiction over”). 

11 E.g, 4 Leg. Hist. 1977 at 905 (Sen. Bentsen), 924 (Sen. Domen- 
ici), 933 (Sen. Dole), 940 (Sen. Hansen), 1290 (Rep. Hagedorn), 
1323-24 (Rep. Alexander), 1344 (Rep. Hammerschmidt), 1345 (Rep. 
Breaux), 1346 (Rep. Smith), 1396-1397 (Rep. McKay). 

26 

908 (Sen. Hart) (emphasis added); see Pub. L. No. 95-217 § 67, 
91 Stat. 1566, 1600-1606 (1977). 

Nothing in this history suggests that Congress acquiesced 
in the Corps’ regulation of isolated water bodies that could in 
no way affect the quality of navigable waters. No bill stating 
that such waters were outside the Corps’ authority came before 
Congress and none was defeated. That Congress did not adopt 
the much more aggressive House bill tells us nothing about 
Congress’ views regarding federal authority over wholly 
isolated waters. “It is impossible to assert with any degree of 
assurance that congressional failure” to adopt the House bill 
“represents congressional approval of” the Corps’ 1977 
interpretation of the CWA to reach isolated waters (42 Fed. 
Reg. at 37,127), much less the bird rule that was not published 
until nine years later. Central Bank v. First Interstate Bank, 511 
U.S. 164, 186 (1994). 

C. Settled Rules Of Statutory Construction Resolve Any 

Doubts Against The Migratory Bird Rule 

Even if the text and legislative history of the CWA did not 
so clearly forbid the Corps’ extravagant assertion of jurisdiction 
over SWANCC’s isolated, water-filled mining trenches based 
on their use by migratory birds, well established canons of 
statutory interpretation resolve any doubt againstthat expansion 
of federal power. 

1. “‘[W]here a statute is susceptible of two constructions, 
by one of which grave and doubtful constitutional questions 
arise and by the other of which such questions are avoided, [this 
Court’s] duty is to adopt the latter.’” Jones, 120 S. Ct. at 1911. 
This is a “cardinal principle,” “beyond debate.”DeBartolo, 485 
U.S. at 575. Because it reflects the “prudential concern that 
constitutional issues not be needlessly confronted” (ibid.), it 
applies not only where an interpretation clearly would be 
unconstitutional, but also where an interpretation would raise 
serious questions about a statute’s validity. Jones, 120 S. Ct. at 
1911-1912; International Ass’n of Machinists v. Street, 367 
U.S. 740, 749 (1961); United States v. Jin Fuey Moy, 241 U.S. 

27 

394, 401 (1916); see also Jones v. United States, 526 U.S. 227, 
251 n.11 (1999) (in rejecting a constitutionally doubtful 
interpretation this Court does “not announce any new principle 
of constitutional law, but merely interprets a particular federal 
statute in light of a set of constitutional concerns”). 

The principle that constitutional doubts must be avoided 
applies with full force when the challenged interpretation is 
embodied in an administrative regulation. See DeBartolo, 485 
U.S. at 575; NLRB v. Catholic Bishop, 440 U.S. 490, 507 
(1979). Only the “‘clearest indication’” of Congressional intent 
overcomes the presumption against an administrative interpre- 
tation of questionable constitutionality. DeBartolo, 485 U.S. at 
577; see also United States v. Five Gambling Devices, 346 U.S. 
441, 450 (1953) (plurality) (requiring “unmistakable intention 
of Congress to raise the constitutional questions” implicated by 
a broad construction). 

We show in Part II that predicating jurisdiction over 
isolated waters on their use by migratory birds violates the 
Commerce Clause. But whether or not the migratory bird rule 
is actually unconstitutional, it at least “raises serious and 
important constitutional questions.” Cargill, Inc. v. United 
States, 516 U.S. 955, 959 (1995) (Thomas, J., dissenting from 
denial of certiorari). Even defenders of the rule concede that it 
“certainly tests the limits of Congress’s commerce powers and, 
some would argue, the bounds of reason.” Leslie Salt Co. v. 
United States, 55 F.3d 1388, 1396 (9th Cir. 1995). Given the 
absence of clear evidence that Congress intended the Corps to 
regulate isolated waters simply because migratory birds use 
them, the “serious [constitutional]doubts about the propriety of 
the Corps’ assertion of jurisdiction” require rejection of this 
interpretation. Cargill, 516 U.S. at 958 (Thomas, J.); see Leovy, 
177 U.S. at 633 (if the term “navigable water of United States” 
swept so broadly that “scarcely a creek or stream in the entire 
country” would be excluded, then the statute’s “validity might 
well be questioned”); Wilson, 133 F.3d at 257 (“Absent a clear 
indication to the contrary, we should not lightly presume” that 

28 

“Congress authorized the [Corps] to assert its jurisdiction in 
such a sweeping and constitutionally troubling manner”). 

2. A second, equally fundamental, rule of statutory con- 
struction is that “unless Congress conveys its purpose clearly, 
it will not be deemed to have significantly changed the federal- 
state balance.” United States v. Bass, 404 U.S. 336, 349 (1971); 
see Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) 
(“the historic police powers of the States were not to be 
superseded by the Federal Act unless that was the clear and 
manifest purpose of Congress”); BFP v. Resolution Trust 
Corp., 511 U.S. 531, 544 (1994) (a statute will not be read to 
“displace traditional state regulation” unless “the federal 
statutory purpose [is] ‘clear and manifest’”); Gregory, 501 U.S. 
at 460-461; Palmer v. Massachusetts, 308 U.S. 79, 84 (1939); 
Rewis, 401 U.S. at 811-812. That principle precludes reading 
the CWA to displace state and local authority over isolated 
waters merely because migratory birds alight on them. 

a. The CWA reflects traditional views of the division of 
regulatory authority over waters. “Navigable” “waters of the 
United States,” which are part of or connected to water high- 
ways of interstate commerce, are regulated by the federal 
government. At the same time, Congress “recognize[d]” and 
sought to “preserve, and protect the primary responsibilities and 
rights of States to prevent, reduce, and eliminate pollution, 
[and] to plan the development and use * * * of land and water 
resources.” 33 U.S.C. § 1251(b). The Corps’ bird rule, by 
extending “waters of the United States” to wholly isolated, 
intrastate waters just because they are used by migratory birds, 
readjusts this balance between state and federal authority 
without any warrant in the text or history of the CWA—let 
alone the “clear and manifest” statement that this Court 
requires—and in plain contradiction of 33 U.S.C. 1251(b). 

Given its “particular duty to ensure that the federal-state 
balance is not destroyed” with respect to “traditional concern[s] 
of the States” (United States v. Lopez, 514 U.S. 549, 580-581 
(1995) (Kennedy, J., concurring)), this Court should not 

29 

countenance the Corps’ assault on local jurisdiction over tens 
of millions of acres. This Court has long recognized “the 
authority of state and local governments to engage in land use 
planning.” Dolan v. City of Tigard, 512 U.S. 374, 384 (1994) 
(citing Village of Euclid v. Ambler Realty Co., 272 U.S. 365 
(1926)). Indeed, regulation of land use and zoning “is perhaps 
the quintessential state activity” (FERC v. Mississippi, 456 U.S. 
742, 768 n.30 (1982)), and has been “traditionally performed by 
local governments.” Hess v. Port Auth. Trans-Hudson Corp., 
513 U.S. 30, 44 (1994); see also Lake Country Estates, Inc. v. 
Tahoe Reg’l Planning Agency, 440 U.S. 391, 402 (1979) (“The 
regulation of land use is traditionally a function performed by 
local governments”); Warth v. Seldin, 422 U.S. 490, 508 n.18 
(1975) (“zoning laws and their provisions * * * are peculiarly 
within the province of state and local legislative authorities”). 
Under the migratory bird rule, the Corps acts as a sort of super 
zoning board or land use authority over vast amounts of land 
containing isolated ponds used by migratory birds—able to bar 
projects that have been approved by state and local authorities 
(like SWANCC’s balefill) based on the Corps’ view that they 
do not comport with the “public interest.” 33 C.F.R. § 320.4(a). 
“An inroad upon [matters heretofore traditionally left to local 
custom or local law] of such far-reaching import as is involved 
here, ought to await a clearer mandate from Congress.” FTC v. 
Bunte Bros., 312 U.S. 349, 354 (1941). 

b. Not only do States and their subdivisions have general 
authority over land use, but they have also paid considerable 
attention to water resources and wetlands conservation. 
Disproving predictions of a “race to the bottom,” state govern- 
ments have acted as leaders in environmental regulation and 
would doubtless be more activestill had the federal government 
not asserted authority in this area. See Adler, Wetlands, Water- 
fowl, and the Menace of Mr. Wilson: Commerce Clause 
Jurisprudence and the Limits of Federal Wetland Regulation, 
29 ENVTL. L. 1, 47-48 (1999); National Governors’ Associa- 
tion, Policy NR-3, Water Resource Management, <http://www. 
nga.org.pubs/policies/nr/nr03.asp> (visited July 18, 2000). 

30 

Illinois has had a long-standing commitment to protecting 
water resources. Since 1970, the Illinois Constitution has 
required the state “to provide and maintain a healthful environ- 
ment.” ILL. CONST. art. XI, § 1. Illinois “was one of the first 
states to enact a comprehensive system of environmental 
statutes and regulations” (Bullwinkel, Environmental Law—The 
Uneasy Accommodation Between State and Federal Agencies, 
25 DEPAUL L. REV. 423, 423 (1976)), and has been recognized 
as being “in the forefront of water pollution control.” Ginsberg 
& Harsch, The National Pollutant Discharge Elimination 
System in Illinois: The State Assumes Direct Authority, 27 
DEPAUL L. REV. 739, 745 (1978). By the time Congress passed 
the CWA, Illinois “already had sophisticated water pollution 
control programs” (id. at 746) and had established state 
institutions tasked with pollution control. Bullwinkel, 25 
DEPAUL L. REV. at 423. Illinois has since enacted laws charg- 
ing state agencies with protection of wetlands and groundwater, 
and with overseeing solid waste management projects like 
SWANCC’s. E.g., Interagency Wetland Policy Act, 20 ILCS 
830/1; Illinois Groundwater Protection Act, 415 ILCS 55/1; 
Illinois Solid Waste Management Act, 415 ILCS 20/1. 

“State officials,” moreover, “have better knowledge of local 
environmental concerns than federal officials ever could.” 
Adler, 29 ENVTL. L. at 52. Because Illinois, like other states, 
has in place a comprehensive scheme for protecting local water 
resources, the Corps’ oversight over the isolated waters on 
SWANCC’s property is unnecessary from a conservation 
standpoint and objectionably intrusive into a well-functioning 
state regulatory scheme. Worse, solid waste disposal planning 
requires that state and local agencies overcome substantial 
“NIMBY” obstacles. See supra, p. 3 n.2; Adler, 29 ENVTL. L. 
at 67 n.346. In this politically sensitive area—where it is very 
difficult to secure approval for any project—imposing an 
additional federal level of regulation is especially burdensome 
and harmful. SWANCC’s state-approved balefill plan is the 
product of a long and costly search for a solution to a local 
problem. If Congress intends to authorize the Corps to use 

31 

Section 404 to effect virtual federal occupation of this field, 
which is the practical effect of the bird rule, it must say so. 

3. The CWA is a criminal as well as civil statute. A viola- 
tion carries fines up to $100,000 per day and six years 
imprisonment. 33 U.S.C. § 1319(c)(2). Even a negligent violat- 
ion can bring heavy fines and two years in prison. Id. 
§ 1319(c)(1). Under the Corps’ interpretation, anyone—includ- 
ing a homeowner—who discharges fill material into an 
isolated, intrastate pond, negligently failing to realize that it is 
(or could be) a migratory bird habitat, commits a criminal 
offense. 

Criminal statutes are subject to a rule of strict construction 
and the rule of lenity, which require resolving doubts about a 
statute’s meaning against the government. These rules apply in 
civil cases to statutory provisions, like Section 404, that have 
both criminal and civil consequences. As this Court explained 
in a civil case concerning “a tax statute [with] criminal applica- 
tions,” the rule of lenity “is a rule of statutory construction 
whose purpose is to help give authoritative meaning to statutory 
language. It is not a rule of administration calling for courts to 
refrain in criminal cases from applying statutory language that 
would have been held to apply if challenged in civil litigation.” 
United States v. Thompson/Center Arms Co., 504 U.S. 505, 518 

n.10 (1992) (plurality); id. at 519 (Scalia and Thomas, JJ., 
concurring); see also Crandon, 494 U.S. at 158. 

12 

12 Babbitt v. Sweet Home Chapter of Communities for a Greater 
Oregon, 515 U.S. 687, 704 n.18 (1995), where this Court dec lined to 
apply the rule of lenity to a “facial challeng[e] to administrative 
regulations” on the ground that principles of fair warning were not 
implicated when a clear regulation had “existed for two decades,” is 
easily distinguished. This case involves an as-applied, not a facial 
challenge. The basis on which the Corps asserted juris diction over 
SWANCC’s property was a brief statement that appeared in the 
Federal Register as a preamble to a regu lation, never in the Code of 
Federal Regulations. And the bird ru le was app lied to SW ANCC only 
one year after it was first formulated by the Corps. 

32 

“[T]ext, structure, and history” do not establish that the 
migratory bird rule is an “unambiguously correct” interpreta- 
tion of the CWA. Granderson v. United States, 511 U.S. 39, 54 
(1994). The rules of lenity and strict construction therefore 
require that this basis for federal jurisdiction be rejected. See 
Jones, 120 S. Ct. at 1912. 

D. The Corps’ Expansion Of Its Power To Reach Migra- 
tory Bird Habitat Is Not Entitled To Deference 

The Corps’ interpretation of Section 404 to cover isolated 
water-filled depressions used by migratory birds is not entitled 
to the judicial deference accorded reasonable agency interpreta- 
tions of ambiguous statutory language. Chevron, U.S.A., Inc. v. 
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 

1. The CWA’s jurisdictional terms “navigable waters” and 
“waters of the United States” are not ambiguous when read in 
light of settled meanings established in this Court’s decisions 
and do not authorize the migratory bird rule. Supra, Part I.A. 
The CWA’s legislative history confirms that Congress adopted 
those judicial definitions. Supra, Part I.B. And three established 
principles of statutory interpretation condemn the Corps’ 
reliance on migratory birds to establish jurisdiction over 
isolated waters. Supra, Part I.C. A court will “defer to [an 
agency’s] interpretation of a statute only after ‘employing 
traditional tools of statutory construction.’” Sullivan v. 
Everhart, 494 U.S. 83, 103 (1990); see also Regions Hosp. v. 
Shalala, 522 U.S. 448, 457 (1998). Applicable rules of con- 
struction eliminate any ambiguity in this case and leave nothing 
to be resolved through application of Chevron principles. 

13 

13 Courts routinely ho ld that Chevron deference is inappropriate 
when an agency’s statutory interp retation raises serious constitutional 
doubt. E.g., U.S. West, Inc. v. FCC, 182 F.3d 1224, 1231 (10th Cir. 
1999); Chamber of Commerce v. FEC, 69 F.3d 600, 605 (D.C. Cir. 
1995); see GTE Service Corp. v. FCC, No. 99-1244 (cert. granted 
June 5, 2000) (presenting question whether deference is owed to an 
agency interpretation that raises questions under the Takings Clause). 

33 

2. The Corps’ claim to deference raises serious problems of 
delegation of lawmaking authority. Whether or not Congress 
constitutionally could have enacted the migratory bird rule, it 
did not do so. Congress chose instead to regulate pollution of 
“navigable” “waters of the United States” based on the view 
that polluting those waters had a sufficient effect on interstate 
commerce to support federal jurisdiction. In so doing, Congress 
defined the type of connection to interstate commerce that 
would justify application of the CWA. 

The Corps ignores that congressional determination in its 
bird rule, which relies on a different alleged connection to 
interstate commerce as its constitutional basis. In essence, the 
Corps claims authority to determine whether it is “necessary 
and proper” to regulate intrastate ponds used by migratory birds 
in order to protect interstate commerce. See Mandeville Island 
Farms v. American Crystal Sugar Co., 334 U.S. 219, 231-232 
& n.11 (1948); Garcia v. San Antonio Metro. Transit Auth., 
469 U.S. 528, 584-585 (1985) (O’Connor, J., dissenting); 1 L. 
TRIBE, AMERICAN CONSTITUTIONAL LAW 812-814 & n.23 (3d 
ed. 2000). But Congress focused on human navigation, not the 
episodic migration of waterfowl. 

“The rulemaking power granted to an administrative agency 
charged with the administration of a federal statute is not the 
power to make law. Rather, it is ‘the power to adopt regulations 
to carry into effect the will of Congress.’” Ernst & Ernst v. 
Hochfelder, 425 U.S. 185, 213-214 (1976); see Guardians 
Ass’n v. Civil Serv. Comm’n, 463 U.S. 583, 613-614 (1983) 
(O’Connor, J., concurring). There is no evidence that Congress 
delegated to the Corps its full constitutional authority, under the 
Commerce and Necessary and Proper Clauses, to determine 

There is also substantial doubt whether deference is due to an 
agency’s interpretation of the scope of its own jurisdiction. See 
Federal Maritime Comm’n v. Seatrain Lines, Inc., 411 U.S. 726, 745 
(1973) (agency m ay not invo ke discretion to “bootstrap itself into an 
area in which it has no jurisdiction”). 

34 

whether a class of intrastate waters is sufficiently related to 
interstate commerce to fall withinfederal control. See Mistretta 

v. United States, 488 U.S. 361, 372 (1989) (“Congress gener- 
ally cannot delegate its legislative power to another Branch”). 
This Court should not presume that Congress intended such a 
sweeping and constitutionally questionable delegation. See 
United States v. George, 228 U.S. 14, 21 (1913) (refusing to 
interpret statute to “confer unbounded legislative powers”). 

3. Finally, the strange and contradictory history of the 
migratory bird rule should give pause before deferring to this 
limitless extension of the Corps’ jurisdiction. Following 
passage of the CWA in 1972, the Corps’ took the position that 
the Act preserved its jurisdiction under the River and Harbor 
Act of 1899 over waters that are tidal or that are “presently, or 
have been in the past, or may be in the future susceptible for 
use for purposes of interstate or foreign commerce.” 39 Fed. 
Reg. 12,050, 12,119 (Apr. 3, 1974). In 1975 a district court 
issued a one-page opinion holding that the CWA “asserted 
federal jurisdiction over the nation’s waters to the maximum 
extent permissible under the Commerce Clause” and was “not 
limited [by] traditional tests of navigability.” NRDC v. Calla- 
way, 392 F. Supp. 685, 686 (D.D.C. 1975). 

Rather than appeal, the Corps issued interim regulations 
expanding Section 404 permit requirements to “[i]ntrastate 
lakes [larger than 5 acres], rivers and streams” if they were used 
in specified ways relating to interstate commerce. 40 Fed. Reg. 
31,319, 31,324-25 (July 25,1975). The Corps never suggested 
that this provision, or a catch-all provision applying to “other 
waters which the District Engineer determines necessitate 
regulation” (ibid.), made it necessary to secure a permit to fill 
isolated waters that serve as migratory bird habitat. 

The Corps issued new regulations in 1977 that redefined 
“waters of the United States” to include “[a]ll other waters of 
the United States * * *, such as 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 

35 

which could affect interstate commerce.” 42 Fed. Reg. at 
37,144. The Corps asserted in a footnote that this rule encom- 
passed all “waters of United States that could be regulated 
under the Federal government’s Constitutional powers to 
regulate and protect interstate commerce, including those for 
which the connection to interstate commerce may not be readily 
obvious.” Id. at 37,144 n.2. Nowhere did the 1977 regulations 
even hint that migratory birds were a basis for jurisdiction. 

Years later, in 1985, Corps personnel testified to a Senate 
Committee that the Corps “does accept the notion that migra- 
tory waterfowl does constitute a nexus with interstate com- 
merce.” Oversight Hearings on Section 404 of the Clean Water 
Act: Hearings Before the Subcomm. on Envtl. Pollution of the 
Senate Comm. on Env’t and Pub. Works, 99th Cong. 168 
(1985); id. at 190. In response to a Senator’s inquiry, EPA 
prepared a memorandum claiming jurisdiction over all waters 
that “‘are used or would be used’ by migratory birds.” Memo- 
randum from F. Blake to R. Sanderson (Sept. 12, 1985). 
Relying on this, the Corps included its bird rule in the preamble 
to a 1986 revision of its regulations—14 years after passage of 
the CWA. 51 Fed. Reg. 41,206, 41,207 (Nov. 13, 1986). 

14 

The Corps’ lengthy delay in “realizing” that Section 404’s 
mandatory requirements apply to isolated ponds used by migra- 
tory birds—as well as its about-face from its contemporaneous 

14 The Corps did not promulgate the bird rule in accordance with 
Section 553 of the Administrative Procedure Act, so it has never been 
subject to notice and comment. In Tabb Lakes, Ltd. v. United States, 
715 F. Supp. 726, 729 (E.D. Va. 1988), aff’d, 885 F.2d 866 (4th Cir. 
1989) (mem.), the rule was invalidated for that reason. Nevertheless, 
the Corps and EPA take the position that “notwithstanding * * * 
Tabb Lakes, Corps and EPA field offices should continue to assert 
CWA jurisdiction over all isolated, intrastate water bodies that serve 
as habitat for migratory birds.” GUIDANCE FOR CORPS AND EPA 
FIELD OFFICES REGARDING CLEAN WATER ACT SECTION 404 
JURISDICTION OVER ISOLATED WATERS IN LIGHT OF UNITED STATES 

V. JAMES J. WILSON, at 6 n.3 (May 29, 1998). 

36 

interpretation—undercut its claim to deference. BankAmerica 
Corp. v. United States, 462 U.S. 122, 130 (1983); Aluminum 
Co. v. Central Lincoln Peoples’ Util. Dist., 467 U.S. 380, 389- 
390 (1984). In addition, agency interpretations promulgated 
without notice and comment or other formal procedures, like 
the bird rule, “do not warrant Chevron-style deference,” but are 
only entitled to any respect commanded by their “‘power to 
persuade.’” Christensen v. Harris County, 120 S. Ct. 1655, 
1662-1663 (2000); see Reno v. Koray, 515 U.S. 50, 61 (1995); 
EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 256-258 (1991). 
Given the Corps’ failure to come to grips with statutory 
language, interpretative principles requiring a narrow construc- 
tion, or constitutional limitations, no such respect is due here. 

II. THE CORPS MAY NOT CONSTITUTIONALLY 
REGULATE ISOLATED WATERS MERELY 
BECAUSE THEY PROVIDE HABITAT FOR MIGR- 
ATORY BIRDS 

If this Court concludes that the CWA permits the Corps to 
regulate any waters used as habitat by migratory birds, then it 
must consider whether the Corps’ migratory bird rule is 
constitutional. It is not. 

A. Regulation Of Isolated Waters UsedBy Migratory Birds 

May Not Be Upheld As Regulation Of “Activities That 
Substantially Affect Interstate Commerce” 

Congress’ power under the Commerce Clause extends to 
“‘three broad categories of activity’” (United States v. Morri- 
son, 120 S. Ct. 1740, 1749 (2000)): (1) “the use of the channels 
of interstate commerce,” which permits Congress to exclude 
harmful uses and products from those channels; (2) “the 
instrumentalities of interstate commerce, or persons or things 
in interstate commerce,” which “Congress is empowered to 
regulate and protect”; and (3) “those activities having a 
substantial relation to interstate commerce, * * * i.e., those 
activities that substantially affect interstate commerce.” Lopez, 
514 U.S. at 558-559. 

37 

As the court below recognized, and the Corps apparently 
concedes (Br. in Opp. 17), the migratory bird rule “could only 
have been sustained as an exercise of the third variety of 
regulatory power,” over activities that substantially affect inter- 
state commerce. Pet. App. 6a. But the Corps has not shown any 
discernible effect on interstate commerce, much less a substan- 
tial one, caused by filling isolated ponds on SWANCC’s 
property. See Pet. App. 6a, 20a. The sole basis for federal 
authority that the Corps relies on—which was also the sole 
basis relied on by the court below (Pet. App. 7a)—is the 
cumulative effect of “[t]he filling of wetlands and similar 
aquatic areas that serve as migratory bird habitat [on] the ability 
of people to pursue recreational and commercial activities 
associated with migratory birds.” Br. in Opp. 19. Applying the 
four factors considered by this Court in finding the Gun-Free 
School Zones Act (“GFSZA”) and Violence Against Women 
Act (“VAWA”) to be outside the commerce power, it is clear 
that the Corps has failed to show a sufficient relation between 
interstate commerce and migratory bird use of isolated waters 
to support federal regulation. 

1. As this Court emphasized in Lopez and Morrison, 
Congress’ power under the Commerce Clause is centered on 
just that—commerce. “[T]hus far in our Nation’s history,” the 
Court stressed, “our cases have upheld Commerce Clause 
regulation of intrastate activity only where that activity is 
economic in nature.” Morrison, 120 S. Ct. at 1751. 

Like GFSZA and VAWA, the migratory bird rule prohibits 
activities that are not inherently economic or commercial: 
adding any “pollutant” (including fill material) into any “navig- 
able water” that is an actual or potential habitat for migratory 
birds, without a permit. It applies equally to a private home- 
owner who landscapes the backyard, fills a damp patch to 
prevent mosquitos, or builds a storage shed (see supra, p. 23 

n.9), and to a commercial developer who bulldozes a marsh. 
The Corps has even taken the position that the migratory bird 
rule regulates “[a]ctivities such as walking, bicycling ordriving 
a vehicle through a wetland,” all of which might “‘degrade’ the 

38 

wetland within the meaning of this rule.” 58 Fed. Reg. 45,008, 
45,020 (Aug. 25, 1993). 

15 Permit applications have involved 
wetlands as small as 26 square feet, or about half the size of a 
ping-pong table. V. ALBRECHT & B. GOODE, WETLAND REGU- 
LATION IN THE REAL WORLD 21 (1994). Obviously, many of the 
activities covered by the rule are not “commerce in the ordinary 
and usual sense of that term.” Lopez, 514 U.S. at 583 (Kennedy, 
J., concurring); see Linehan, Note, 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, 417-418 (1998) (the bird rule is “indefensi- 
ble” as regulation of commerce “under any untortured defini- 
tion of the word”). The aggregation theory may not, therefore, 
be used to find a substantial effect on interstate commerce 
warranting federal power. Morrison, 120 S. Ct. at 1749-1750; 
Lopez, 514 U.S. at 559-561. 

The Corps contends that the migratory bird rule is nonethe- 
less permissible because prevention of harm to migratory birds 
“has long been recognized to be a matter of national concern.” 
Br. in Opp. 18. But characterizing something as of “national 
concern” does not make it a proper subject for federal regula- 
tion despite its noncommercial character. Few would doubt that 
spousal abuse and the impact of gun-related violence on 
education are of “national concern,” as are the high divorce 
rate, urban crime, and early childhood education. Nonetheless, 
the commerce power does not encompass VAWA or GFSZA, 
any more than it permits plenary regulation of divorce, crime, 
or public elementary schools. Morrison, 120 S. Ct. at 1752- 

15 Applying a “de minimis exception,” the Corps has sometimes 
exercised its discretion n ot to regulate this type of activity so long as 
its adverse effect s are m inimal. 58 Fed . Reg. at 4 5,020. The Corps 
and EPA have emphasized, however, that “the threshold of adverse 
effects for the de minimis exception is a very low one” and that 
activities need not cause significant impairment or degradation of a 
wetland in ord er to fall u nder the migratory b ird rule. Ibid. 

39 

1753; Lopez, 514 U.S. at 564. The last time we checked, there 
was no “national concern” clause in the Constitution. 

None of the cases the government has relied on supports its 
argument that the Commerce Clause permits regulation of non- 
commercial conduct that might, in the aggregate, indirectly 
affect commerce related to migratory birds. Two of those cases 
involve Congress’ authority to protect migratory birds under 
different provisions of the Constitution—the Treaty Clause and 
the Spending Clause. North Dakota v. United States, 460 U.S. 
300, 309-310 (1983) (spending power); Missouri v. Holland, 
252 U.S. 416, 431-432 (1920) (treaty power). The third 
involved a ban on commercial transactions in wildlife. Andrus 

v. Allard, 444 U.S. 51, 54 (1979). We do not dispute that the 
Commerce Clause permits Congress to regulate commercial 
transactions in animals. See Lopez, 514 U.S. at 573-574 
(Kennedy, J., concurring); Douglas v. Seacoast Prods., 431 
U.S. 265, 281-282 (1977). That principle does nothing, how- 
ever, to further the Corp’s claim of authority over waters just 
because they are used by migratory birds. See Cargill, 516 U.S. 
at 958 (Thomas, J., dissenting from denial of certiorari). 

2. The second factor emphasized by this Court in holding 
GFSZA and VAWA outside the scope of the commerce power 
was the absence of an “express jurisdictional element” limiting 
the statute’s reach to conduct having “an explicit connection 
with or effect on interstate commerce.” Lopez, 514 U.S. at 562; 
Morrison, 120 S. Ct. at 1750-1751. The migratory bird rule 
likewise lacks any jurisdictional element that narrows its 
application to constitutional limits. 

3. The third factor relied on in Lopez was the lack of any 
congressional findings regarding the effects on interstate 
commerce of the regulated conduct. 514 U.S. at 562; see also 
Morrison, 120 S. Ct. at 1751. It is readily apparent from the 
CWA’s legislative history that Congress never even considered 
the possibility of regulating small ponds that are habitat for 
migratory birds. Unsurprisingly, therefore, Congress made no 
findings that discharge of pollutants into the habitat of migra- 
tory birds has a substantial effect on interstate commerce. 

40 

The principle that the government may regulate activity 
with only a de minimis connection to interstate commerce rests 
on the assumption that Congress has declared that the “entire 
class of activities affects commerce.” Maryland v. Wirtz, 392 
U.S. 183, 192 (1968); see Perez v. United States, 402 U.S. 146, 
154 (1971); United States v. Darby, 312 U.S. 100, 120-121 
(1941). Deference is appropriate because it is Congress’ role, 
under the Constitution, to select the means necessary and 
appropriate to protect interstate commerce. Five Gambling 
Devices, 346 U.S. at 449 (plurality); M’Culloch v. Maryland, 
17 U.S. (4 Wheat.) 316, 419-420, 423-424 (1819); see Engdahl, 
The Necessary and Proper Clause as an Intrinsic Restraint on 
Federal Lawmaking Power, 22 HARV. J.L. & PUB. POL’Y 107, 
118 (1998). Where there are no congressional findings, the 
Court must scrutinize carefully the constitutional sufficiency of 
the nexus to interstate commerce (Copp Paving, 419 U.S. at 
197 n.12; Wirtz, 392 U.S. at 192; Darby, 312 U.S. at 120-121), 
in order to “safeguar[d]” local interests against undue agency 
intrusion. Yonkers v. United States, 320 U.S. 685, 690-692 
(1944). Absent a congressional finding to the contrary, the 
occasional landing of birds on an isolated pond is plainly 
insufficient to invoke federal jurisdiction over “interstate 
commerce.” 

4. Finally, this Court held in Lopez and Morrison that the 
asserted connection to interstate commerce must not be so 
attenuated as to threaten the constitutional principle of enumer- 
ated powers. In Lopez, for example, the Court emphasized that 
the government’s reasoning would permit Congress to “regulate 
not only all violent crime, but also all activities that might lead 
to violent crime,” as well as any activity “related to the eco- 
nomic productivity of individual citizens.” 514 U.S. at 564. In 
Morrison, the Court noted that the rationale supporting VAWA 
would justify federal regulation of “any crime as long as the 
nationwide, aggregated impact of that crime has substantial 
effects on employment, production, transit, or consumption,” 
along with other areas of traditional state regulation whose 
“aggregate effect * * * on the national economy is undoubtedly 

41 

significant.” 120 S. Ct. at 1752-1753. These results, the Court 
held, were irreconcilable with Our Federalism. Lopez, 514 U.S. 
at 564-568; Morrison, 120 S. Ct. at 1754. 

The rationale relied on below involves a causal chain even 
longer and more speculative than those rejected in Lopez and 
Morrison. The Seventh Circuit reasoned that individual 
instances of filling isolated ponds might lead to an aggregate 
loss of waters, which could in turn reduce the population of 
migratory birds, which could in turn impede the hunting, 
trapping, and observation of migratory birds. Pet. App. 7a. 
Because people spend money and cross state lines to hunt, trap, 
and observe migratory birds, the potential adverse impact on 
interstate commerce resulting from filling isolated wetlands 
was said to be substantial. Ibid. The Corps relies on a similar 
theory. Br. in Opp. 19 (“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”). 

“If this elaborate chain of contingencies does not stretch the 
limits of reason, it is hard to imagine a chain that would.” 
Linehan, 2 TEX. REV. L. & POLICY at 419. The consequences of 
accepting this link to interstate commerce as constitutionally 
sufficient demonstrate that the migratory bird rule is a “limiter- 
manque—a limiting rule with no limits.” Holman, Note, After 
United States v. Lopez: Can the Clean Water Act and the 
Endangered Species Act Survive Commerce Clause Attack?, 15 
VA. ENVTL. L.J. 139, 197 (1995). It is a clear example of what 
this Court cautioned against in Maryland v. Wirtz: the use of “a 
relatively trivial impact on commerce as an excuse for broad 
general regulation of state or private activities.” 392 U.S. at 196 

n.27; see Copp Paving, 419 U.S. at 198 (a “chain of connec- 
tion” that “ha[d] no logical endpoint” resulted in “nebulous” 
jurisdictional limits and did not provide an acceptable “‘nexus’ 
to commerce”); FERC v. Mississippi, 456 U.S. at 758 n.23 
(Congress may not “regulate in an area that is only tangentially 
related to interstate commerce”). 

42 

As a practical matter, permitting the Corps to regulate any 
place migratory birds use—or might use—for “their life 
requirements” (AR 15578) would mean plenary federal author- 
ity over land use. Some five billion land birds migrate across 
North America each year, and migratory flyways cover the 
entire continental United States. THE ATLAS OF BIRD MIGRA- 
TION 54-83 (ed. J. Elphick 1995); R. PETERSON, A FIELD GUIDE 

TO BIRDS 305-370 (4th ed. 1980). “[A]s birdwatchers will 
attest, migratory birds will alight almost anywhere.” Holman, 
15 VA. ENVTL. L.J. at 197. The development of any part of a 
migratory bird flyway could adversely affect birds dependent 
upon it, and the cumulative effect of development could be 
substantial. Under this theory, therefore, the Corps would have 
general land use power. 

16 

Land-use planning and landfill siting, we have already 
explained, are long-standing functions of state and local 
government. Supra, Part I.C.2. SWANCC’s proposed balefill 
was subject to local and state approval, which was granted only 
after exhaustive consideration of thousands of pages of submis- 
sions and multiple public hearings. Supra, pp. 5-7. Despite 
these approvals, SWANCC’s project was stopped dead by the 

16 The court of appeals reasoned that the Corps’ constitutional 
argument does not give it authority over “every puddle” because the 
bird rule permits regulation only of migratory bird “habitat,” which 
the court defined as sites at which m igratory bird s “‘naturally liv[e] 
or gro[w].’” Pet. App. 7a-8a. Given that billions of migratory birds 
move freely and continuou sly from one place to another, it is diffic ult 
to imagine how they would “live and grow” except by stopping for 
food, water, and rest. They do so regularly, as most homeowners 
know, in backyards that collect water in the spring and fall. Thus, the 
court’s supposed limitation w as no limitation at all. Besides, the 
“habitat” requirement is not part of the Corps’ rationale, under which 
federal regulation is permitted because it protects migratory birds 
from harm. Migratory birds are presumably affected by the loss of 
ponds used for resting or feeding, just as they are affected by 
elimination of waters used as seasonal homes; the same logic wou ld 
permit federal regulation of both. 

43 

Corps’ permit denial. The Corps’ regulation in this area of 
traditional state sovereignty, overruling considered judgments 
of state and local governments, threatens the basic “distinction 
between what is truly national and what is truly local.” 
Morrison, 120 S. Ct. at 1754; see Lopez, 514 U.S. at 564, 568. 

By adopting a sweeping uniform approach, the migratory 
bird rule thwarts local regulatory schemes and keeps states 
from performing their role as “laboratories for experimentation 
to devise various solutions where the best solution is far from 
clear.” Lopez, 514 U.S. at 581 (Kennedy, J., concurring). 
“[S]tunting local policy experimentation” by imposing top- 
down federal regulation of isolated ponds “can leave in place 
a dysfunctional national policy, with states unwilling—or 
unable, thanks to preemption—to solve the problem.” 

17 

Cramer, Note, The Right Results for All the Wrong Reasons: An 
Historical and Functional Analysis of the Commerce Clause, 
53 VAND. L. REV. 271, 308 (2000). This intrusion in an area of 
traditional local control weighs heavily against a finding that 
migratory bird-based jurisdiction over isolated waters is 
necessary and proper to protect interstate commerce. See Printz 

v. United States, 521 U.S. 898, 923-924 (1997); Engdahl, Sense 
and Nonsense About State Immunity, 2 CONST. COMM. 93, 100- 
101 (1985). 

If the Corps’ argument for regulatory authority is constitu- 
tionally sufficient, it is difficult to envision an arena of human 
life immune from federal control. The Corps relies on the nexus 
between migratory birds and bird-related hobbies that impact 
interstate commerce to justify regulation of the birds’ environ- 
ments. The hobbies themselves, however, are engaged in by 
people. It seems safe to assume that, whatever effect migratory 

17 There is good reason to believe that regulation of isolated w aters 
under the migratory bird rule is a “dysfunctional policy.” See Adler, 
29 ENVTL. L. at 63-66 (discussing trends in wetlands losses and 
incentives to destroy wetlands created by the current federal regula- 
tory system, and finding “little evidence” that Section 404 regulation 
has prevented wetlands loss). 

44 

birds might have on interstate commerce, the effect of hunters, 
trappers, and birdwatchers is even greater. Why would the 
Corps not be permitted, therefore, to regulate every aspect of 
the environment of people who hunt, trap, and watch migratory 
birds? And of course, bird-related hobbies are just a subset of 
the many leisure activities that impact interstate commerce. 

18 

The Corps’ rationale would permit not only regulation of all 
those who engaged in those hobbies, but regulation of all of the 
hobbies’ “component parts.” The consequences of accepting 
federal regulation based on a highly attenuated and remote 
nexus to interstate commerce are clear, and clearly impermissi- 
ble: federal authority would completely eclipse the authority of 
the States over local affairs. 

Although the commerce power gives Congress broad 
power, it “is not without effective bounds” (Morrison, 120 S. 
Ct. at 1748), and enforcement of those bounds is “‘essential to 
the maintenance of our constitutional system.’” Lopez, 514 U.S. 
at 555. The Corps has not identified a single factor—regulation 
of commercial activities, an express nexus to interstate com- 
merce, congressional findings that the regulated activities 
substantially affect interstate commerce, or a constitutional 
rationale that justifies the Corps’ action yet would not lead to 
unlimited federal power—to justify the migratory bird rule. 
Under Lopez and Morrison, the Corps’ asserted jurisdiction in 
this case is outside the scope of the Commerce Clause. 

18 For example, hobbyists annually spend $4 .3 billion on needlework 
and sewing supplies (Ho bby Industry Ass’n, 1996-1997 Size of 
Craft/Hobby Industry Study, Executive Summary, <www.hobby. 
org/size.htm l> (vistited July 19, 2000)); $7.3 billion on woodworking 
supplies (Bulke ley, As a Work of Art, Windsor Chair Gets a Standing 
Ovation, WALL ST. J., Aug. 15, 1997, at A1); and $22 billion on the ir 
gardens (Brow n, It’s Already Spring, BOSTON GLOBE, Mar. 1, 1998, 
at 1). They travel interstate to attend shows and events, bid at 
auctions, study, v iew exhibits, vi sit garde ns, and for a myriad of other 
reasons tied to their hobbies, spending billions of dollars in the 
process. 

45 

B. The Commercial Nature Of SWANCC’s Landfill Is Not 

A Proper Basis For The Corps’ Jurisdiction 

The Corps implies that applying the migratory bird rule in 
this case is constitutional because SWANCC’s balefill “is 
clearly an economic activity.” Br. in Opp. 11 n.6. Of course, 
nothing in the migratory bird rule even hints that jurisdiction 
over isolated waters depends on their being threatened by an 
interstate commercial activity. To the contrary, the bird rule is 
a blanket rule purporting to declare that “degradation or 
destruction” of isolated waters that are or could be migratory 
bird habitat—which the Corps says may occur by the quintes- 
sentially noncommercial acts of walking or bicycling through— 
automatically “affect[s] interstate commerce.” Pet. App. 39a, 
40a; 58 Fed. Reg. at 45,020. 

19 

The Corps has not explained why it is appropriate to focus 
on the commercial nature of the local fill activity, when that 
nexus to interstate commerce is wholly unrelated to the 
migratory bird rule under which the Corps purports to regulate 
or to the constitutional nexus identified by Congress as the 
basis for the Clean Water Act. This Court has never previously 
upheld the application of a statute or regulation based on a 
nexus between the regulated conduct in that case and interstate 
commerce, where the statute or regulation itself lacked a 
substantial relationship to interstate commerce. To the contrary, 

19 Though SWANCC’s landfill would be commercial, it would not 
be interstate. The balefill would accept only municipal waste from 
SWANCC communities, processed at SWANCC’s transfer station. 
Supra, p. 3. The local transport of local refuse to the local dump, 
under the auspice s of local go vernment, does not substantially affect 
interstate commerce. It is “completely internal.” Gibbons v. Ogden, 
22 U.S. (9 Wheat.) 1, 194 (1824); see United States v. Oregon State 
Med. Soc., 343 U.S. 326, 338-339 (1952) (“wholly intrastate” 
activities of medical plans were outside the commerce power, though 
plans made “sporadic and incidental” out-of-state payments); Summit 
Health, Ltd. v. Pinhas, 500 U.S. 322, 341-342 (1991) (Scalia, 
O’Connor, Kennedy, and Souter, JJ., dissenting). 

46 

the Lopez Court disregarded the fact that the challenged 
conduct there was indisputably commercial—the defendant had 
been paid $40 to deliver the gun to another student—when it 
held that GFSZA was outside the scope of the commerce 
power. See United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 
1993); United States v. Lopez, No. 93-1260, Brief for the 
United States at 7 (June 2, 1994). Similarly, the Corps’ post hoc 
rationalization for applying the migratory bird rule in this case, 
and this case alone, should be rejected, given the total discon- 
nect between the statutory and regulatory basis for asserting 
jurisdiction and the tie now asserted to commercial activity. 
The Corps, after all, is not regulating business; it is regulating 
waters that provide habitat for birds—a far cry from “that 
commerce which concerns more states than one.” Gibbons, 22 
U.S. (1 Wheat.) at 194. 

20 

20 This Court sho uld also reject the Corps’ claim that it has unbridled 
discretion to expand its own reach under the CWA by deciding for 
itself that a water or activity is w ithin the comm erce power. A 
delegation of this magnitude would not withstand constitutional 
review. See supra, Part I.D.2; Loving v. United States, 517 U.S. 748, 
758 (1996) (Congress may not convey “the lawmaking function” to 
an administrative agen cy); Guardians Ass’n, 463 U.S. at 613-614 & 

n.2 (O’Connor, J., concurring). As Professor Tribe has noted, “[a]n 
agency exercising delegated power is not free, as is Congress itself, 
to exercise the full sweep of its authority to pursue any and all ends 
within the affirmative reach of federal legislative authority.” 1 L. 
TRIBE, supra, at 982. This Court need not decide that constitutional 
question, however, for there is no evidence—much less the clear 
evidence required (National Cable Television Ass’n v. United States, 
415 U.S. 336, 342 (1974); Greene v. McElroy, 360 U.S. 474, 507 
(1959); Kent v. Dulles, 357 U.S. 11 6, 129 (1958))—that Congress 
meant the Corps to have sweeping quasi-legislative authority over 
waters unrelated to navigable waters. 

47 

C. Regulation Of IsolatedWaters Used By Migratory Birds 

May Not Be Upheld On The Theory That Migratory 
Birds Travel Interstate 

Several members of this Court have observed that the 
migratory bird rule appears to be based on an assumption that 
“the self-propelled flight of birds across state lines” is sufficient 
for federal regulation of their habitat. Cargill, 516 U.S. at 958 
(Thomas, J.); United States v. Riverside Bayview Homes, Inc., 
No. 84-701, Tr. of Oral Argument 18-20 (Oct. 16, 1985). This 
argument presumably turns on Congress’ power to “protect the 
instrumentalities of interstate commerce, or persons or things 
in interstate commerce.” Lopez, 514 U.S. at 558; Morrison, 120 
S. Ct. at 1749; see Riverside Bayview, Tr. of Oral Argument 18- 
19 (Assistant Solicitor General K. Oberly) (arguing that “the 
migration of birds is interstate commerce”). 

Congress, however, has no authority to regulate the 
environment of every person or thing that crosses a state line. 
Like migratory birds, people cross state lines frequently, yet 
this Court struck down VAWA, which was intended to protect 
against gender-based violence. Morrison, 120 S. Ct. at 1754. 
And in Lopez, this Court easily concluded that GFSZA was not 
a regulation of things in interstate commerce, though guns or 
their component parts frequently are transported interstate. 514 
U.S. at 558. Similarly, regulation of the environment of 
migratory birds is not within Congress’ power to protect things 
in interstate commerce. 

To hold otherwise would allow the second Lopez category 
to swallow the other two categories and eliminate enforceable 
limits on federal power. Congress could “enact a federal law of 
torts covering any wrong done while wearing apparel any part 
of which had traveled interstate,” or punish any crime that 
results in a loss of currency that has traveled interstate. 1 L. 
TRIBE, supra, at 831 n.29. Virtually any activity could be 
regulated under the guise of “protecting” a person, thing, or 
animal that travels interstate. These unthinkable results demon- 
strate the fallacy of relying on the interstate travel of birds as a 
sufficient constitutional basis for the migratory bird rule. See 

48 

Lopez, 514 U.S. at 567-568 (rejecting a conception of the 
Commerce Clause that eliminates the “distinction between what 
is truly national and what is truly local”); NLRB v. Jones & 
Laughlin Steel Corp., 301 U.S. 1, 37 (1937) (same). 

D. The Corps’ Jurisdiction May Not Be Upheld Under The 

Treaty Power 

The Corps and the court of appeals have identified interna- 
tional treaties and conventions, to which the United States is a 
signatory, that protect migratory birds. Br. in Opp. 21; Pet. 
App. 8a. These treaties are not a basis for upholding the 
migratory bird rule. 

Article II, Section 2 of the Constitution provides that the 
President has “Power, by and with the Advice and Consent of 
the Senate to make Treaties, provided two thirds of the Senators 
present concur.” Under the Necessary and Proper Clause, 
Congress may enact legislation to carry out the Nation’s 
obligations under its treaties. Missouri v. Holland, 252 U.S. at 
432; Neely v. Henkel, 180 U.S. 109, 121 (1901). The govern- 
ment has not suggested, nor could it, that Section 404 of the 
Clean Water Act was enacted pursuant to a treaty. Cf. 16 U.S.C. 
§ 703; id. § 3901(b); id. § 4401(b). 

In order to uphold the migratory bird rule under the treaty 
power, this Court would have to find that the treaty power gives 
the Executive authority to enforce by regulation the Nation’s 
treaty obligations even when Congress had not passed legisla- 
tion to do so. Under our constitutional system of separated 
powers, Congress, not an administrative agency, is given the 
authority to determine whether and how to legislate. See 
Hampton v. Mow Sun Wong, 426 U.S. 88, 114 (1976); Greene, 
360 U.S. at 507; Kent, 357 U.S. at 129; National Cable 
Television Ass’n, 415 U.S. at 341-342. The Corps may not 
invoke the treaty power to uphold a regulation where Congress 
has not legislated to enforce that treaty, and the challenged 
regulation is not promulgated pursuant to such a statute. 

* * * * * 

49 

None of the rationales offered by the Corps provides a 
constitutional basis for asserting jurisdiction over isolated, 
water-filled mining trenches because they are (or could be) 
habitat for migratory birds. This result in no way threatens the 
federal government’s ability to protect the environment, nor 
does it throw into doubt existing environmental laws. 

Many environmental laws regulate commercial activity. 
See R. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, 
SCIENCE AND POLICY 143-146 (1992). As such, they are clearly 
permissible under the commerce power. Furthermore, Congress 
has passed a plethora of environmental statutes, including 
numerous laws that protect birds and wetlands, under its 
spending, property, and treaty powers. See Missouri, 252 U.S. 
at 431-432; Strand, Federal Wetlands Law: Part III, 23 ENVTL. 
L. REP. 10,354 (1993). For example, this Court observed in 
North Dakota, 460 U.S. at 301-305, 309-310, that the United 
States, acting pursuant to the Migratory Bird Conservation Act, 
16 U.S.C. § 715 et seq., and the Migratory Bird Hunting Stamp 
Act, 16 U.S.C. § 718 et seq., had by 1977 purchased “more than 
276,000 acres of North Dakota land for use as migratory bird 
refuges” and bought easements over another 750,000 acres to 
preserve “‘small wetland and pothole areas’” for “waterfowl 
habitats.” The North American Wetlands Conservation Act, 16 
U.S.C. § 4401 et seq., authorizes the use of federal funds to 
acquire, restore, and manage federal and private land for 
conservation purposes, including conservation of migratory 
bird habitat. The Water Bank Act, 16 U.S.C. § 1301, authorizes 
federal payments to private landowners to implement conserva- 
tion plans “to preserve and improve habitat for migratory 
wildfowl.” See also, e.g., Emergency Wetlands Resources Act, 
16 U.S.C. § 3901 et seq. (creating sources of revenue for the 
migratory bird conservation fund and authorizing acquisition of 
additional wetlands to “fulfill international obligations con- 
tained in various migratory bird treaties” (id. § 3901(b)); 
Endangered Species Act, 16 U.S.C. § 1531(a)(4), (5); Migra- 
tory Bird Treaty Act, 16 U.S.C. § 703 et seq. In addition, some 
federal regulation of noncommercial activity with environmen- 

50 

tal consequences may be permitted if Congress determines that 
the regulated activities have a substantial relation to interstate 
commerce and makes findings to support its conclusion. 

The vast scheme of federal environmental regulation would 
therefore be essentially untouched by a decision in this case 
invalidating asserted federal authority over completely isolated 
interstate waters used by migratory birds. In the end, the most 
significant effects of such a ruling may be to destroy the Corps’ 
illusion that it has plenary land use planning authority, and to 
restore state environmental and land use regulation to the 
“primary” position that Congress manifestly intended. 

CONCLUSION 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

SHARON SWINGLE 
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 

JULY 2000