US Supreme Court Briefs

No. 99-1178


In the Supreme Court of the United States

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY, PETITIONER

v.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.

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

BRIEF FOR THE RESPONDENTS IN OPPOSITION

SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
JOHN A. BRYSON
ETHAN G. SHENKMAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217






QUESTION PRESENTED

Whether the United States Army Corps of Engineers may, consistent with theClean Water Act and the Commerce Clause, exercise regulatory jurisdictionover a series of permanent and seasonal ponds and small lakes that are usedas habitat for numerous species of migratory birds.







In the Supreme Court of the United States

No. 99-1178
SOLID WASTE AGENCY OF NORTHERN COOK COUNTY, PETITIONER

v.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.

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

BRIEF FOR THE RESPONDENTS IN OPPOSITION







OPINIONS BELOW

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




JURISDICTION

The judgment of the court of appeals was entered on October 7, 1999. JusticeStevens granted an extension of time to and including January 14, 2000,for filing a petition for a writ of certiorari, and the petition was filedon that date. The jurisdiction of this Court is invoked under 28 U.S.C.1254(1).




STATEMENT

1. Congress enacted the Federal Water Pollution Control Act (Clean WaterAct or CWA) in 1972 "to restore and maintain the chemical, physical,and biological integrity of the Nation's waters." 33 U.S.C. 1251(a).One of the chief goals of the CWA is to attain "water quality whichprovides for the protection and propagation of fish, shellfish, and wildlife."33 U.S.C. 1251(a)(2). A major tool in achieving that purpose is a prohibitionon the discharge of any pollutants, including dredged or fill material,into "navigable waters" except in accordance with the Act. 33U.S.C. 1311(a), 1362(12)(A). The CWA provides that "[t]he term 'navigablewaters' means the waters of the United States, including the territorialseas." 33 U.S.C. 1362(7). The Conference Report accompanying the CWAexplained that "[t]he conferees fully intend that the term 'navigablewaters' be given the broadest possible constitutional interpretation unencumberedby agency determinations which have been made or may be made for administrativepurposes." S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972).
Discharges of dredged or fill material into "waters of the United States"may be authorized by a permit issued by the Army Corps of Engineers (Corps)pursuant to Section 404 of the CWA, 33 U.S.C. 1344. The Corps' originalregulations limited the geographic scope of the Corps' authority to watersthat were navigable-in-fact. After that narrow interpretation was rejectedby the courts,1 the Corps issued interim final regulations in 1975, see40 Fed. Reg. 31,320, and final regulations in 1977, see 42 Fed. Reg. 37,122.The final regulations defined the term "waters of the United States"to include, inter alia, "isolated wetlands and lakes, intermittentstreams, prairie potholes, and other waters that are not part of a tributarysystem to interstate waters or to navigable waters of the United States,the degradation or destruction of which could affect interstate commerce."33 C.F.R. 323.2(a)(5) (1978).2 The regulation in its current form containssimilar language. See 33 C.F.R. 328.3(a)(3).3 Regulations promulgated bythe Environmental Protection Agency (EPA) include a substantially identicaldefinition of the term "waters of the United States." See 40 C.F.R.230.3(s)(3).
In 1986, the Corps consolidated and recodified its regulatory provisionsdefining "waters of the United States" for purposes of the Section404 program. See 51 Fed. Reg. 41,216-41,217 (1986). The Corps explainedthat the new regulations neither reduced nor expanded the scope of its jurisdiction.Id. at 41,217. Rather, their "purpose was to clarify the scope of the404 program by defining the terms in accordance with the way the programis presently being conducted." Ibid. In its discussion of the regulations,the Corps observed that the EPA had "clarified that waters of the UnitedStates" include waters "[w]hich are or would be used as habitatby birds protected by Migratory Bird Treaties," as well as waters "[w]hichare or would be used as habitat by other migratory birds which cross statelines." Ibid.

2. a. Petitioner Solid Waste Agency of Northern Cook County is a consortiumof Illinois municipalities formed for the purpose of locating and developinga disposal site for nonhazardous waste. Pet. App. 1a-2a. Petitioner owneda 533-acre parcel of land in Cook and Kane Counties, Illinois, on whichit proposed to locate a solid waste landfill. Ibid. The project site was410 acres in size, 298 acres of which was an "early successional stageforest." Id. at 2a. Over time, "[w]hat were once gravel pits"have evolved into "over 200 permanent and seasonal ponds * * * rang[ing]from less than one-tenth of an acre to several acres in size, and from severalinches to several feet in depth." Ibid.
Approximately 121 species of birds have been observed on the project site,including species that "depend on aquatic environments for a significant

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

b. Petitioner's proposed balefill would involve the filling of approximately17.6 acres of the ponds and small lakes on its property. Pet. App. 3a, 15a.The Corps ultimately concluded that the ponds are "waters of the UnitedStates" falling within its regulatory jurisdiction under 33 C.F.R.328.3(a)(3) because (inter alia) "the water areas are used as habitatby migratory birds[s] which cross state lines." C.A. App. 90; see alsoPet. App. 3a-4a, 15a-16a. Petitioner subsequently applied to the Corps fora permit under Section 404 of the CWA, 33 U.S.C. 1344. C.A. App. 85-86;Pet. App. 4a, 16a. After an extensive public review process and input fromnumerous local, state, and federal agencies, the Corps denied the permitin July 1994. C.A. App. 84-171; Pet. App. 4a, 16a. The Corps based the permitdenial on the agency's findings that (inter alia) (1) the landfill wouldseriously degrade or eliminate the value of the area as habitat for numerousspecies of birds and other wildlife (C.A. App. 155-157); (2) petitionerhad failed to demonstrate that there were no practicable alternatives tothe proposed landfill that would be less environmentally damaging (id. at170); and (3) the project posed "an unacceptable risk to the public'sdrinking water supply," due to the possibility that leachate from thelandfill could contaminate groundwater aquifers (id. at 171).

3. Petitioner filed suit in federal district court, seeking judicial reviewof the Corps' decision under the Administrative Procedure Act, 5 U.S.C.701 et seq. Pet. App. 14a. Petitioner challenged both the Corps' assertionof regulatory jurisdiction over its property and the merits of the permitdenial. Id. at 1a. The district court granted summary judgment for the governmenton the issue of CWA jurisdiction. Id. at 14a-36a. Petitioner then consentedto the dismissal with prejudice of its remaining claims, and the districtcourt entered final judgment in favor of the government. Id. at 2a.

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

a. The court of appeals rejected petitioner's contention that "Congresslacked the power to grant the Corps regulatory jurisdiction over isolated,intrastate waters based on the presence of migratory birds alone."Pet. App. 5a. Prior to this Court's decision in United States v. Lopez,514 U.S. 549 (1995), the court explained, "it had been establishedthat Congress' powers under the Commerce Clause were broad enough to permitregulation of waters based on the presence of migratory birds." Pet.App. 5a (citing cases). The court found that Lopez had not undermined thatrule. It observed that "Lopez expressly recognized, and in no way disapproved,the cumulative impact doctrine, under which a single activity that itselfhas no discernible effect on interstate commerce may still be regulatedif the aggregate effect of that class of activity has a substantial impacton interstate commerce." Id. at 6a. The court summarized statisticalevidence showing that Americans engage in frequent interstate travel andspend substantial sums of money in order to hunt and observe migratory birds.Id. at 7a. It concluded that
the destruction of migratory bird habitat and the attendant decrease inthe populations of these birds "substantially affects" interstatecommerce. The effect may not be observable as each isolated pond used bythe birds for feeding, nesting, and breeding is filled, but the aggregateeffect is clear, and that is all the Commerce Clause requires.
Ibid. The court also stated that "the numerous international treatiesand conventions designed to protect migratory birds, * * * as well as thecase law recognizing the 'national interest of very nearly the first magnitude'in protecting such birds," refuted petitioner's contention that theprotection of migratory bird habitat is a matter of purely local concern.Id. at 8a (quoting North Dakota v. United States, 460 U.S. 300, 309 (1983)).

b. The court of appeals rejected petitioner's argument that the Corps' exerciseof regulatory jurisdiction over the ponds in question exceeded its authorityunder the CWA. The court observed that the construction of the statutoryterm "waters of the United States" utilized by the Corps and EPAis entitled to deference under the principles set forth in Chevron U.S.A.Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Pet.App. 9a. The court found it "well established that the geographicalscope of the Act reaches as many waters as the Commerce Clause allows."Ibid. (citing cases). It concluded that, "because Congress' power underthe Commerce Clause is broad enough to permit regulation of waters basedon the presence of migratory birds, it is certainly reasonable for the EPAand the Corps to interpret the Act in such a manner." Id. at 10a.

c. The court of appeals rejected petitioner's contention that the Corps'exercise of regulatory jurisdiction in this case was inconsistent with UnitedStates v. Wilson, 133 F.3d 251 (4th Cir. 1997). Wilson involved a challengeto 33 C.F.R. 328.3(a)(3), which defines "waters of the United States"to include all waters "the use, degradation or destruction of whichcould affect interstate or foreign commerce." The court of appealsin the instant case explained that the Wilson court "found the regulationto be an unreasonable interpretation of the [CWA] based on its suspicionthat Congress lacks the power to regulate waters that 'could' affect interstateor foreign commerce." Pet. App. 10a. The court of appeals stated thatin the present case,
the question whether Congress may regulate waters based on their potentialto affect interstate commerce is not presented, because the unchallengedfacts show that the filling of the 17.6 acres would have an immediate effecton migratory birds that actually use the area as a habitat. Thus, we neednot, and do not, reach the question of the Corps' jurisdiction over areasthat are only potential habitats.
Ibid.





ARGUMENT

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

1. Petitioner contends that the decision of the court of appeals conflictswith the ruling of the Fourth Circuit in United States v. Wilson, 133 F.3d251 (1997). That claim is incorrect.

a. Wilson was a criminal case in which the defendants were convicted ofknowingly discharging dredged or fill material into waters of the UnitedStates without a permit, in violation of 33 U.S.C. 1311(a) and 1319(c)(2)(A).See 133 F.3d at 254. With respect to the jurisdictional element of the CWA,the jury was instructed that "[t]he government must prove that thesewaters have some potential connection with interstate commerce." Id.at 256.4 The district court based that instruction on the regulatory definitionof "waters of the United States" contained in 33 C.F.R. 328.3(a)(3),which encompasses "[a]ll other waters such as intrastate * * * wetlands* * * or natural ponds, the use, degradation or destruction of which couldaffect interstate or foreign commerce." The defendants argued that"the regulation and jury instructions [we]re fatally flawed * * * becauseof their invocation of 'potential' uses and effects on commerce." 133F.3d at 256.
The Wilson court reversed the convictions and remanded for a new trial.It stated that 33 C.F.R. 328.3(a)(3) permits the exercise of CWA jurisdictionover waters "solely on the basis that the use, degradation, or destructionof such waters could affect interstate commerce. The regulation requiresneither that the regulated activity have a substantial effect on interstatecommerce, nor that the covered waters have any sort of nexus with navigable,or even interstate, waters." 133 F.3d at 257. The court concluded thatthe Corps had exceeded its authority under the CWA by defining the term"waters of the United States" in that manner, and that the juryinstructions based upon the regulation were therefore erroneous. Ibid.5

b. Although the decision in Wilson is in some tension with the court ofappeals' ruling in this case, no square conflict exists. The Wilson courtheld that the Corps had exceeded its authority by asserting jurisdictionover all waters the use, degradation, or destruction of which could potentiallyaffect interstate commerce. The court did not attempt to describe the sortsof connections to interstate commerce that would suffice to bring a particularbody of water within the CWA's coverage. See 133 F.3d at 256 ("we neednot resolve these difficult questions about the extent and limits of congressionalpower to regulate nonnavigable waters to resolve the issue before us").The Wilson court did not, in particular, address the question "whetherthe destruction of the natural habitat of migratory birds in the aggregate'substantially affects' interstate commerce." Pet. App. 7a.6 Thus,nothing in Wilson purports to resolve the question whether use of a particularbody of water as habitat for migratory birds is sufficient to bring thewater within the Corps' jurisdiction under the CWA.7
Finally, petitioner argues (Pet. 11) that its ponds cannot be "watersof the United States" under the Fourth Circuit's view of the CWA becausethey have "no connection to navigable or interstate waters or watersclosely related thereto." Petitioner refers (Pet. 10) to the suggestionin Wilson that, "[e]ven as a matter of statutory construction, onewould expect that the phrase 'waters of the United States' when used todefine the phrase 'navigable waters' refers to waters which, if not navigablein fact, are at least interstate or closely related to navigable or interstatewaters." 133 F.3d at 257. That statement, however, is merely dictumand does not constitute an "alternative" holding (Pet. 11).

c. The lower courts that have specifically considered the question haveuniformly upheld the Corps' authority to regulate isolated waters that serveas habitat for migratory birds. See Leslie Salt Co. v. United States, 896F.2d 354, 360 (9th Cir. 1990) (Leslie Salt I) ("The commerce clausepower, and thus the Clean Water Act, is broad enough to extend the Corps'jurisdiction to local waters which may provide habitat to migratory birdsand endangered species"), cert. denied, 498 U.S. 1126 (1991); LeslieSalt Co. v. United States, 55 F.3d 1388, 1394-1396 (9th Cir.) (Leslie SaltII) (adhering to Leslie Salt I in a post-Lopez decision, under law of thecase doctrine), cert. denied, 516 U.S. 955 (1995); see also Utah v. Marsh,740 F.2d 799, 804 (10th Cir. 1984) (evidence that "lake is on the flywayof several species of migratory waterfowl" supports jurisdiction overisolated lake under CWA and Commerce Clause); United States v. HallmarkConstr. Co., 14 F. Supp. 2d 1069, 1075 (N.D. Ill. 1998); United States v.Sargent County Water Resource Dist., 876 F. Supp. 1081, 1087 (D.N.D. 1992).

2. The court of appeals' decision is correct.

a. Petitioner contends (Pet. 17) that because Section 404 of the CWA usesthe term "navigable waters," 33 U.S.C. 1344(a), the Corps' jurisdictionmust be strictly limited to those waters that are "navigable in fact,""interstate," or "closely related to navigable or interstatewaters." That argument is without merit. Congress defined the term"navigable waters" broadly to include, without qualification,"the waters of the United States." 33 U.S.C. 1362(7). Becausethe CWA does not further define the term "waters of the United States,"the administrative construction given that term by the Corps and EPA is"entitled to deference if it is reasonable and not in conflict withthe expressed intent of Congress." United States v. Riverside BayviewHomes, Inc., 474 U.S. 121, 131 (1985).
In Riverside Bayview, this Court upheld as reasonable the Corps' interpretationof "waters of the United States" to encompass "wetlands adjacentto navigable bodies of water and their tributaries." 474 U.S. at 123.8The Court explained that "the Act's definition of 'navigable waters'as 'the waters of the United States' makes it clear that the term 'navigable'as used in the Act is of limited import." Id. at 133; see also ibid.("Congress evidently intended to repudiate limits that had been placedon federal regulation by earlier water pollution control statutes and toexercise its powers under the Commerce Clause to regulate at least somewaters that would not be deemed 'navigable' under the classical understandingof that term.").
Petitioner's view is not only unsupported by the text, it is also antitheticalto the purposes of the statute. The focus of the CWA is not on navigation,but on "maintaining and improving water quality" and "[p]rotect[ing]aquatic ecosystems." Riverside Bayview, 474 U.S. at 132; see also id.at 133 (noting "the evident breadth of congressional concern for protectionof water quality and aquatic ecosystems"); 33 U.S.C. 1251(a) and (a)(2)(goals of the CWA include "restor[ing] and maintain[ing] the * * *biological integrity of the Nation's waters" and "provid[ing]for the protection and propagation of fish, shellfish, and wildlife").Isolated waters, such as those on petitioner's property, may "functionas integral parts of the aquatic environment," and may "servesignificant natural biological functions," including "food chainproduction" and the provision of "general habitat[] and nesting,spawning, rearing and resting sites," even though they are intrastateand nonnavigable. Riverside Bayview, 474 U.S. at 134-135 (quoting 33 C.F.R.320.4(b)(2)(i)).9

b. Contrary to petitioner's assertions (Pet. 19-22), the Corps' interpretationof the CWA is supported rather than undermined by the Act's legislativehistory. The Conference Report accompanying the CWA explained that "[t]heconferees fully intend that the term 'navigable waters' be given the broadestpossible constitutional interpretation unencumbered by agency determinationswhich have been made or may be made for administrative purposes." S.Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972). That understandingwas confirmed in the Senate Report accompanying the 1977 amendments to theCWA. See S. Rep. No. 370, 95th Cong., 1st Sess. 75 (1977) (noting that "[t]he1972 Federal Water Pollution Control Act exercised comprehensive jurisdictionover the Nation's waters to control pollution to the fullest constitutionalextent").
The debates preceding the 1977 amendments to the CWA further support theCorps' interpretation of the Act. Congress was well aware that the Corps'regulations, promulgated July 19, 1977, asserted jurisdiction over all waters,including isolated waters, to the maximum extent constitutionally permissible.See, e.g., 123 Cong. Rec. 26,711 (Sen. Bentsen) (warning that if the CWAwere not amended, "[t]he [Section 404] program would still cover allwaters of the United States, including small streams, ponds, [and] isolatedmarshes"); id. at 34,852 (Rep. Abdnor) (explaining that the Corps wasasserting jurisdiction over "all waters- from the smallest to the largest,including isolated wetlands and lakes, intermittent streams, and prairiepotholes"). Congress considered, but ultimately rejected, several proposalsto modify the Corps' geographic jurisdiction, instead opting to exempt certaintypes of activities from the Section 404 permit requirement. See 33 U.S.C.1344(f). In the words of Senator Baker, the 1977 amendments "retain[ed]the comprehensive jurisdiction over the Nation's waters exercised in the[CWA] to control pollution to the fullest constitutional extent." 123Cong. Rec. at 39,209. In sum, Congress "acquiesced in the administrativeconstruction." Riverside Bayview, 474 U.S. at 136. Congress's refusalto divest the Corps of jurisdiction over isolated waters is evidence ofthe reasonableness of the Corps' approach, "particularly where theadministrative construction [was] brought to Congress' attention throughlegislation specifically designed to supplant it." Id. at 137; seegenerally id. at 135-137 (recounting history of 1977 amendments).10

c. Petitioner contends (Pet. 22) that "no deference" is owed tothe migratory bird rule "because it raises serious constitutional concerns"under the Commerce Clause. To the contrary, the application of the migratorybird rule in this case fits comfortably within Congress's commerce power.
i. "Congress' commerce authority includes the power to regulate those[intrastate] activities having a substantial relation to interstate commerce."Lopez, 514 U.S. at 558-559. The requirement of a "substantial"effect on interstate commerce, however, does not mean that each individualinstance of the regulated activity must have a substantial impact. Rather,"where a general regulatory statute bears a substantial relation tocommerce, the de minimis character of individual instances arising underthat statute is of no consequence." Id. at 558 (emphasis omitted) (quotingMaryland v. Wirtz, 392 U.S. 183, 197 n.27 (1968)). The aggregate effectsof the regulated activity as a class- here, the filling of isolated watersthat are actually used as habitat for migratory birds-may therefore be consideredin determining whether the statute falls within the reach of Congress'scommerce power. 514 U.S. at 561.
The permit denial in the instant case was based in part on the Corps' extensivefactual findings (unchallenged by petitioners on appeal, see Pet. App. 5a)regarding the adverse impacts that petitioner's proposed balefill wouldhave on the quantity and quality of migratory bird habitat on the site (C.A.App. 155-157, C.A. Supp. App. 32-40). Those impacts included, inter alia,the "displace[ment of] the [Great Blue Heron] rookery in its entirety."C.A. Supp. App. 37. Prevention of such threats has long been recognizedto be a matter of national concern. See, e.g., North Dakota v. United States,460 U.S. 300, 309 (1983) ("The protection of migratory birds has longbeen recognized as 'a national interest of very nearly the first magnitude.'")(quoting Missouri v. Holland, 252 U.S. 416, 435 (1920)); Andrus v. Allard,444 U.S. 51, 63 n.19 (1979) (the "assumption that the national commercepower does not reach migratory wildlife is clearly flawed"); Cochranev. United States, 92 F.2d 623, 626-627 (7th Cir. 1937), cert. denied, 303U.S. 636 (1938); Cerritos Gun Club v. Hall, 96 F.2d 620 (9th Cir. 1938).
Commerce associated with migratory birds has a measurable impact on thenational economy. See Hoffman Homes, Inc. v. United States EnvironmentalProtection Agency, 999 F.2d 256, 261 (7th Cir. 1993) ("Throughout NorthAmerica, millions of people annually spend more than a billion dollars onhunting, trapping, and observing migratory birds."). As the court ofappeals observed,
[s]tatistics produced by the U.S. Census Bureau reveal that approximately3.1 million Americans spent $1.3 billion to hunt migratory birds in 1996,and that about 11 percent of them traveled across state lines to do so.Another 17.7 million people spent time observing birds in states other thantheir states of residence; 14.3 million of these took trips specificallyfor this purpose; and approximately 9.5 million traveled for the purposeof observing shorebirds, such as herons.
Pet. App. 7a (citation omitted). The filling of wetlands and similar aquaticareas that serve as migratory bird habitat directly affects the abilityof people to pursue recreational and commercial activities associated withmigratory birds. See Hoffman Homes, 999 F.2d at 261 (noting that "cumulativeloss of wetlands has reduced populations of many bird species and consequentlythe ability of people to hunt, trap, and observe those birds"); seealso C.A. Supp. App. 33 (Corps finding in this case that "[m]uch ofthe current severe drop in area sensitive bird populations is blamed onhabitat destruction").11
ii. Petitioner argues (Pet. 26) that the statutory term "waters ofthe United States" should be construed narrowly under the canon ofconstruction that, "where an otherwise acceptable construction of astatute would raise serious constitutional problems, the Court will construethe statute to avoid such problems unless such construction is plainly contraryto the intent of Congress." DeBartolo Corp. v. Florida Gulf Coast Bldg.& Constr. Trades Council, 485 U.S. 568, 575 (1988). This Court has recognized,however, that Congress may authorize "an administrative board or agencyto determine whether the activities sought to be regulated or prohibitedhave" such an effect on interstate commerce as to justify federal regulation.United States v. Darby, 312 U.S. 100, 120 (1941). By broadly extending theCWA to "the waters of the United States," Congress expressed itsintent that the Corps and EPA would exercise their regulatory jurisdictionover the nation's waters to the maximum extent permissible under the CommerceClause. See pp. 2-4, supra. Petitioner's interpretive approach-which wouldlimit the Act's coverage to categories of waters having the "'clearestindication' of congressional support" (Pet. 26)-would substantiallyconstrain the agencies' discretion in a manner "plainly contrary tothe intent of Congress." DeBartolo, 485 U.S. at 575.

d. Contrary to petitioner's contention (Pet. 27-28), the Corps' assertionof regulatory jurisdiction over isolated waters that serve as habitat formigratory birds does not disrupt the federal-state balance or impermissiblyimpinge on the authority of state and local governments. Petitioner's argumentassumes that the protection of migratory bird habitat is a matter of purelylocal concern. As the court of appeals explained, that proposition is inconsistentwith "the numerous international treaties and conventions designedto protect migratory birds," Pet. App. 8a (citing examples), as wellas with prior decisions of this Court, ibid.; see p. 18, supra. Congresshas repeatedly recognized that wetlands and similar aquatic areas are anational resource and that wetlands loss is a problem national in scope.See, e.g., 16 U.S.C. 3901(a) and (b) (declaring national goal to conserveremaining wetland resources for benefit of "all our citizens of theNation" and to "help fulfill international obligations containedin various migratory bird treaties and conventions").

3. This Court recently granted certiorari in three other cases that presentquestions concerning the scope of congressional authority under the CommerceClause. United States v. Morrison, No. 99-5 (argued Jan. 11, 2000), andBrzonkala v. Morrison, No. 99-29 (argued Jan. 11, 2000), present the questionwhether 42 U.S.C. 13981, which creates a private right of action for victimsof gender motivated violence, is a permissible exercise of Congress's powerunder the Commerce Clause. Jones v. United States, No. 99-5739 (to be arguedMar. 21, 2000), presents the question whether 18 U.S.C. 844(i) (1994 &Supp. IV 1998), which prohibits the destruction by fire or explosives ofany building, vehicle, or other property "used in interstate or foreigncommerce or in any activity affecting interstate or foreign commerce,"was properly applied to a residence mortgaged to an out-of-state lender,insured by an out-of-state insurer, and supplied with natural gas in interstatecommerce. In our view, those statutory schemes are sufficiently differentfrom the CWA that the Court's decisions in those cases are unlikely to affectthe proper disposition of the instant case. However, the Court may wishto hold the petition for a writ of certiorari in the instant case pendingits decisions in the above-listed cases, and then dispose of the petitionaccordingly.




CONCLUSION

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

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
JOHN A. BRYSON
ETHAN G. SHENKMAN
Attorneys
MARCH 2000





1 See, e.g., Natural Resources Defense Council, Inc. v. Callaway, 392 F.Supp. 685, 686 (D.D.C. 1975); United States v. Holland, 373 F. Supp. 665,670-676 (M.D. Fla. 1974). Shortly after the decision in Holland, the HouseCommittee on Government Operations expressed the view that the Corps' regulatorydefinition of "waters of the United States" was unduly narrow.See H.R. Rep. No. 1396, 93d Cong., 2d Sess. 23-27 (1974). The Committeeurged the Corps to adopt a new definition that "complies with the congressionalmandate that the term be given the broadest possible constitutional interpretation."Id. at 27.

2 An explanatory footnote published in the Code of Federal Regulations statedthat "[p]aragraph (a)(5) incorporates all other waters of the UnitedStates that could be regulated under the Federal government's Constitutionalpowers to regulate and protect interstate commerce." 33 C.F.R. 323.2(a)(5),at 616 n.2 (1978).

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

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

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

6 The Wilson court stated that 33 C.F.R. 328.3(a)(3) was defective, in part,because it does not require "that the regulated activity have a substantialeffect on interstate commerce." 133 F.3d at 257. The court did notsay, however, that each individual instance of the regulated activity mustsubstantially affect interstate commerce. The Fourth Circuit has since clarifiedits views on this point in Brzonkala v. Virginia Polytechnic Institute &State University, 169 F.3d 820 (4th Cir. 1999) (en banc), cert. granted,Nos. 99-5 & 99-29 (argued Jan. 11, 2000). There the court recognizedthat Congress may regulate "activities that arise out of or are connectedwith a commercial transaction, which viewed in the aggregate, substantiallyaffects interstate commerce." Id. at 831 (quoting United States v.Lopez, 514 U.S. 549, 561 (1995)) (emphasis added). See also 169 F.3d at831 (acknowledging that federal regulations may "include a jurisdictionalelement to ensure, 'through case-by-case inquiry,' that each specific applicationof the regulation involves activity that in fact affects interstate commerce")(quoting Lopez, 514 U.S. at 561); 169 F.3d at 836. Cf. United States v.Nathan, 202 F.3d 230 (4th Cir. 2000) (rejecting argument that governmentmust prove a "substantial effect" on interstate commerce in everyprosecution of a felon for possession of a firearm under 18 U.S.C. 922(g)(1994 & Supp. IV 1998)).
The court of appeals in Brzonkala went on (incorrectly, in our view) tohold that the aggregate effects principle is generally limited to regulationof activities that are "economic" or "commercial" innature (169 F.3d at 834-836) or at least have some "meaningful connectionwith a[] particular, identifiable economic enterprise or transaction"(id. at 834). Petitioner's proposal to construct and operate a municipalsolid waste landfill, however, is clearly an economic activity. Cf. C &A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 389 (1994).

7 Petitioner contends (Pet. 10) that because the so-called "migratorybird rule" is an "interpretation or clarification" of Section328.3(a)(3), the Wilson court's determination that the regulation is invalidnecessarily implies that the "migratory bird rule" is invalidas well. That is a non sequitur. The 1986 Federal Register notice (see p.4, supra) identified waters "[w]hich are or would be used as habitatby" migratory birds as an example of waters that would fall withinthe Corps' conception of "waters of the United States." The Wilsoncourt's holding that the regulatory definition sweeps too broadly does notlogically suggest that this (or any) particular category of waters fallsoutside the Corps' statutory jurisdiction. As the court of appeals in theinstant case observed, moreover, "the unchallenged facts show thatthe filling of the 17.6 acres would have an immediate effect on migratorybirds that actually use the area as a habitat." Pet. App. 10a. Thequestion whether the Corps may properly assert "jurisdiction over areasthat are only potential habitats" therefore is not presented in thiscase. Ibid.

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

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

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

11 Congress has repeatedly recognized the importance of preserving migratorybird habitat to the viability of migratory bird populations. See, e.g.,North American Wetlands Conservation Act, 16 U.S.C. 4401(a)(8) (findingthat nationwide loss of wetlands has "contributed to long-term downwardtrends in populations of migratory bird species"); Water Bank Act,16 U.S.C. 1301 (declaring it "in the public interest to preserve, restore,and improve the wetlands of the Nation * * * to preserve and improve habitatfor migratory waterfowl"); Emergency Wetlands Resources Act of 1986,16 U.S.C. 3901(a)(2) (finding that "wetlands provide habitat essentialfor the breeding, spawning, nesting, migration, wintering and ultimate survivalof * * * migratory birds").

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