No. 99-1178

In the Supreme Court of the United States
__________

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,

Petitioner,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,

Respondents.
__________

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

__________

REPLY BRIEF FOR PETITIONER
__________

ELIZABETH A. CLARK
TIMOTHY S. BISHOP
Mayer, Brown & Platt
Counsel of Record
1909 K Street, N. W.
KASPAR J. STOFFELMAYR
Washington, D.C. 20006
Mayer, Brown & Platt
(202) 263-3000
190 South LaSalle Street
Chicago, IL 60603
(312) 782-0600
GEORGE J. MANNINA, JR.
OÕConnor & Hannan, L.L. P.
1666 K Street, N. W.
Suite 500
Washington, D.C. 20006
(202) 887-1400

Counsel for Petitioner
i

TABLE OF CONTENTS
Page

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

1. The decision below conflicts with the Fourth
CircuitÕs ruling in Wilson ............... 1

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

3. The CWA does not authorize the Corps to
regulate SWANCCÕs property ............ 4

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

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

CONCLUSION ......................... 10
ii

TABLE OF AUTHORITIES

Cases: Page

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

Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984)
... 6, 7

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

Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building & Construction Trades
Council, 485 U.S. 568 (1988) .......... 6, 7

FDA v. Brown & Williamson Tobacco Corp.,
No. 98-1152 (Mar. 21, 2000) ............ 6

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

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

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

National Cable Television AssÕn v. United
States, 415 U.S. 336 (1974) ............. 7

NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1 (1937)
.................... 8
Printz v. United States, 521 U.S. 898 (1997) .... 9

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

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

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

Page
............ 6

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

United States v. Appalachian Electric Power
Co., 311 U.S. 377 (1940) ............... 5

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

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

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

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

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

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

TABLE OF AUTHORITIESÑContinued

Page

Statutes and Regulations:

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

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

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

33 CFR ¤ 328.3(a)(3)
................... 2, 3
33 CFR ¤ 331.1-.12 ...................... 3

Miscellaneous:

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

THE FEDERALIST (C. Rossiter ed. 1961) ........ 9
REPLY BRIEF FOR PETITIONER
_______________

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

1. The decision below conflicts with the Fourth
CircuitÕs ruling in Wilson. The Corps ignores the array

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

(1)
2

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

The Fourth CircuitÕs critique of the Òother watersÓ
rule applies with equal force to the migratory bird
rule. First, the court invalidated ¤ 328.3(a)(3)
because it Òrequires neither that the regulated
activity have a substantial effect on interstate
commerce, nor that the covered waters have any
sort of nexus with navigable, or even interstate,
waters.Ó 133 F.3d at 257. The migratory bird rule
likewise does not mention interstate commerce,
requiring only that isolated waters Òare or would be
used as habitat by birds protected by Migratory Bird
TreatiesÓ or Òwhich cross state lines.Ó Pet. App. 40a.
And the Corps made no finding that bird use of
SWANCCÕs property implicated interstate commerce
in any way, nor could it plausibly do so.

Second, Òas a matter of statutory construction,Ó the
3

Fourth Circuit held, ÒÔwaters of the United StatesÕ
when used to define the phrase Ônavigable watersÕ
refers to waters which, if not navigable in fact, are at
least interstate or closely related to navigable or
interstate watersÓ (133 F.3d at 257)Ñsomething that
the Òother watersÓ and migratory bird rules fail to
recognize. Unlike the Corps (at 12), we see no sign
that this interpretation of the CWA Òis merely
dictum.Ó To the contrary, the quoted language
introduces this clear holding: ÒWhen viewed in light
of its statutory authority, 33 C.F.R. ¤ 328.3(a)(3),
which defines Ôwaters of the United StatesÕ to include
intrastate waters that need have nothing to do with
navigable or interstate waters, expands the statutory
phrase Ôwaters of the United StatesÕ beyond its
definitional limit.Ó As one commentator observed,
Òthe Solid Waste Agency court reached the opposite
conclusion regarding congressional intent from the
Wilson court,Ó and it was the ÒFourth Circuit [that
applied] the proper analysis.Ó Challis, Standing Alone
in Murky Waters, 34 WAKE FOREST L. REV. 1179,
1187 n.75, 1204 (1999).

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

7. Yet, as the Pacific Legal Foundation explains in its
amicus submission (at 9-14), the rule has rarely
been challenged in court because the Corps
routinely denies landowners Òfinal decisionsÓ on
their permit applications and thereby precludes
litigation. The CorpsÕ recent institution of new
administrative exhaustion requirements makes it
even less likely that a challenge like this will be
4

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

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

3. The CWA does not authorize the Corps to regulate
SWANCCÕs property. We have already refuted (at Pet.
16-22) the CorpsÕ argument, repeated in its brief in
opposition, that the CWA authorizes it to regulate
waters that are not navigable, potentially navigable,
or in any way connected or related to navigable
waters. The language and legislative history of the
CWA demonstrate that the CorpsÕ interpretation is
untenable. The Corps misreads Riverside Bayview
Homes (see Pet. 17-18, 21), and it does not even
deign to cite Federal Power Commission or discuss
the Federal Power Act provisions interpreted in that
case, though these are directly at odds with the
CorpsÕ position. See Pet. 19 & n.6.
5

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

21.
2

2 Oddly, at the same time the Corps insists that
navigability is irrelevant to its powers, it relies (at 15-16)
on the statement in the Conference Report that Ò[t]he
conferees fully intend that the term Ônavigable watersÕ be
given the broadest possible constitutional
interpretation.Ó S. Conf. Rep. No. 92-1236, at 144. The
6

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

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

Corps does not respond to our explanation that
Congress thereby meant merely to choose the Utah and
Appalachian Electric approach over that of The Daniel
Ball. Nor does the Corps provide any reasoned way to get
from the Conference Report statement about navigable
waters to the Seventh CircuitÕs broad holding that the
CWA Òreaches as many waters as the Commerce Clause
allows.Ó Pet. App. 9a.
7

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

The Corps pretends (at 17-18) that exercising juris-
diction over SWANCCÕs property based on the bird
rule Òfits comfortablyÓ within federal commerce
power because Ò[c]ommerce associated with
migratory birds has a measurable impact on the
national economy,Ó and because the Òaggregate
effectsÓ of filling Òisolated waters that are actually
used as habitat for migratory birdsÓ have a
Òsubstantial impactÓ on this commerce. That
argument is wrong.
8

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

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

Any impact that isolated waters have on interstate
commerce, even in the national aggregate, is
Òrelatively trivialÓ and cannot serve Òas an excuse for
9

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

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

* * * involved economic activity in a way that [filling
isolated depressions and trenches] does notÓ).3

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

Ò[T]he local or municipal authorities form distinct
and independent portions of the supremacy, no
more subject, within their respective spheres, to the
general authority than the general authority is
subject to them, within its own sphere.Ó THE
FEDERALIST NO. 39, at 245 (C. Rossiter ed. 1961)

3 The CorpsÕ frequent references to migratory bird
treaties are unavailing. Of course, the treaty power
authorizes the United States to agree with other nations
to afford protection to migratory birds. But the Corps
does not identify any treaty that requires the federal
government to prevent the filling of isolated waters. Nor
does it contend that the United States would be unable
to fulfil its treaty obligations while also respecting the
limits of its commerce power.
10

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

CONCLUSION

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

Respectfully submitted.
ELIZABETH A. CLARK
TIMOTHY S. BISHOP
Mayer, Brown & Platt
Counsel of Record
1909 K Street, N.W.
KASPAR J. STOFFELMAYR
Washington, D.C. 20006
Mayer, Brown & Platt
(202) 263-3000
190 South LaSalle Street

Chicago, IL 60603
(312) 782-0600

GEORGE J. MANNINA, JR.

OÕConnor & Hannan, L.L.P.
1666 K Street, N.W.
Suite 500
Washington, D.C. 20006
(202) 887-1400

Counsel for Petitioner

MARCH 2000