OCTOBER TERM, 2000
Syllabus
SOLID WASTE AGENCY OF NORTHERN COOK COUNTY
v. UNITED
STATES ARMY CORPS OF ENGINEERS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 99-1178. Argued October 31, 2000-Decided January 9, 2001
Petitioner, a consortium of suburban Chicago municipalities,
selected as a solid waste disposal site an abandoned sand and
gravel pit with excavation trenches that had evolved into permanent
and seasonal ponds. Because the operation called for filling in
some of the ponds, petitioner contacted federal respondents,
including the Army Corps of Engineers (Corps), to determine if a
landfill permit was required under § 404(a) of the Clean Water Act
(CWA), which authorizes the Corps to issue permits allowing the
discharge of dredged or fill material into "navigable waters." The
CWA defines "navigable waters" as "the waters of the United
States," 33 U. S. C. § 1362(7), and the Corps' regulations define
such waters to include intrastate waters, "the use, degradation or
destruction of which could affect interstate or foreign commerce,"
33 CFR § 328.3(a)(3). In 1986, the Corps attempted to clarify its
jurisdiction, stating, in what has been dubbed the "Migratory Bird
Rule," that § 404(a) extends to intrastate waters that,
inter
alia, provide habitat for migratory birds. 51 Fed. Reg. 41217.
Asserting jurisdiction over the instant site pursuant to that Rule,
the Corps refused to issue a § 404(a) permit. When petitioner
challenged the Corps' jurisdiction and the merits of the permit
denial, the District Court granted respondents summary judgment on
the jurisdictional issue. The Seventh Circuit held that Congress
has authority under the Commerce Clause to regulate intrastate
waters and that the Migratory Bird Rule is a reasonable
interpretation of the CWA.
Held: Title 33 CFR § 328.3(a)(3), as clarified and
applied to petitioner's site pursuant to the Migratory Bird Rule,
exceeds the authority granted to respondents under §404(a) of the
CWA. Pp.166-174.
(a) In
United States v.
Riverside Bayview Homes,
Inc., 474 U. S.
121, this Court held that the Corps had § 404(a) jurisdiction
over wetlands adjacent to a navigable waterway, noting that the
term "navigable" is of "limited import" and that Congress evidenced
its intent to "regulate at least some waters that would not be
deemed 'navigable' under [that term's] classical understanding,"
id., at 133. But that holding was based in large measure upon
Congress' unequivocal acquiescence to, and
160
160 SOLID WASTE AGENCY OF NORTHERN COOK CTY.
v. ARMY
CORPS OF ENGINEERS
Syllabus
approval of, the Corps' regulations interpreting the CWA to
cover wetlands adjacent to navigable waters. See id., at 135-139.
The Court expressed no opinion on the question of the Corps'
authority to regulate wetlands not adjacent to open water, and the
statute's text will not allow extension of the Corps' jurisdiction
to such wetlands here. Pp. 166-168.
(b) The Corps'
original interpretation of the CWA in its
1974 regulations-which emphasized that a water body's capability of
use by the public for transportation or commerce determines whether
it is navigable-is inconsistent with that which it espouses here,
yet respondents present no persuasive evidence that the Corps
mistook Congress' intent in 1974. Respondents contend that whatever
its original aim, when Congress amended the CWA in 1977, it
approved the more expansive definition of "navigable waters" found
in the Corps' 1977 regulations. Specifically, respondents submit
that Congress' failure to pass legislation that would have
overturned the 1977 regulations and the extension of the
Environmental Protection Agency's jurisdiction in § 404(g) to
include waters "other than" traditional "navigable waters"
indicates that Congress recognized and accepted a broad definition
of "navigable waters" that includes nonnavigable, isolated,
intrastate waters. This Court recognizes congressional acquiescence
to administrative interpretations of a statute with extreme care.
Failed legislative proposals are a particularly dangerous ground on
which to rest an interpretation of a prior statute,
Central Bank
of Denver, N. A. v.
First Interstate Bank of Denver, N.
A., 511 U. S.
164, 187, because a bill can be proposed or rejected for any
number of reasons. Here, respondents have failed to make the
necessary showing that Congress' failure to pass legislation
demonstrates acquiescence to the 1977 regulations or the 1986
Migratory Bird Rule. Section 404(g) is equally unenlightening, for
it does not conclusively determine the construction to be placed on
the use of the term "waters" elsewhere in the CWA.
Riverside
Bayview Homes, supra, at 138, n. 11. Pp. 168-172.
(c) Even if § 404(a) were not clear, this Court would not extend
deference to the Migratory Bird Rule under
Chevron U. S.
A. Inc. v.
Natural Resources Defense Council, Inc.,
467 U. S. 837.
Where an administrative interpretation of a statute would raise
serious constitutional problems, the Court will construe the
statute to avoid such problems unless the construction is plainly
contrary to Congress' intent.
Edward J.
DeBartolo
Corp. v.
Florida Gulf Coast Building &
Constr.
Trades Council, 485 U. S. 568, 575. The
grant of authority to Congress under the Commerce Clause, though
broad, is not unlimited. See,
e. g., United States v.
Morrison, 529
U. S. 598. Respondents' arguments,
e. g., that the
Migratory Bird Rule falls within Congress' power to regulate
intra-
161
state activities that substantially affect interstate commerce,
raise significant constitutional questions, yet there is nothing
approaching a clear statement from Congress that it intended §
404(a) to reach an abandoned sand and gravel pit such as the one at
issue. Permitting respondents to claim federal jurisdiction over
ponds and mudflats falling within the Migratory Bird Rule would
also result in a significant impingement of the States' traditional
and primary power over land and water use. The Court thus reads the
statute as written to avoid such significant constitutional and
federalism questions and rejects the request for administrative
deference. Pp. 172-174.
191 F.3d
845, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J.,
filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER,
JJ., joined,
post, p. 174.
Timothy S. Bishop argued the cause for petitioner. With him on
the briefs were Kaspar J. Stoffelmayr, Sharon Swingle, and George
J. Mannina, Jr.
Deputy Solicitor General Wallace argued the cause for
respondents. With him on the brief for the federal respondents were
Solicitor General Waxman, Assistant Attorney General Schiffer,
Malcolm L. Stewart, and John A. Bryson. Myron M. Cherry filed a
brief for respondents Village of Bartlett et al. *
*Briefs of
amici curiae urging reversal were filed for
the State of Alabama by
Bill Pryor, Attorney General,
Alice Ann Byrne, Assistant Attorney General, and
Jeffrey S.
Sutton; for the American Farm Bureau
Federation et al. by
William G.
Myers III; for Arid
Operations, Inc., by
Charles L. Kaiser; for Cargill, Inc.,
by
Leslie G.
Landau, Edgar B. Washburn, and
David
M. Ivester; for the Cato Institute et al. by
Theodore M.
Cooperstein, William H. Mellor, Clint Bolick, Scott G.
Bullock, Timothy Lynch, Robert A. Levy, and
Ronald D.
Rotunda; for the Center for the Original Intent of the
Constitution by
Michael P. Farris and
Scott W
Somerville; for the Chamber of Commerce of the United States by
Robert R. Gasaway, Jeffrey B. Clark, Daryl Joseffer, and
Robin S.
Conrad; for the Claremont Institute Center
for Constitutional Jurisprudence by
Edwin Meese III; for
Defenders of Property Rights by
Nancie G.
Marzulla;
for the National Association of Home Builders by
Thomas C.
Jackson; for the Nationwide
162
162 SOLID WASTE AGENCY OF NORTHERN COOK CTY.
v. ARMY
CORPS OF ENGINEERS
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Section 404(a) of the Clean Water Act (CWA or Act), 86 Stat.
884, as amended, 33 U. S. C. § 1344(a), regulates the discharge of
dredged or fill material into "navigable waters." The United States
Army Corps of Engineers (Corps) has interpreted § 404(a) to confer
federal authority over an abandoned sand and gravel pit in northern
Illinois which provides habitat for migratory birds. We are asked
to decide whether the provisions of § 404(a) may be fairly extended
to these waters, and, if so, whether Congress could exercise such
authority consistent with the Commerce Clause, U. S. Const., Art.
I, § 8, cl. 3. We answer the first question in the negative and
therefore do not reach the second.
Petitioner, the Solid Waste Agency of Northern Cook County
(SWANCC), is a consortium of 23 suburban Chicago
Public Projects Coalition et al. by
Lawrence R.
Liebesman; for the Pacific Legal Foundation et al. by
Anne
M. Hayes and
M. Reed Hopper; for the Serrano Water
District et al. by
Virginia S.
Albrecht and
Stephen J.
Wenderoth; for the Washington Legal
Foundation et al. by
Mark A. Perry, Daniel J.
Popeo,
and
Paul D. Kamenar; for the U. S. Conference of Mayors et
al. by
Richard Ruda and
James I. Crowley; and for
James J. Wilson by
Steven A. Steinbach and
Gerald A.
Feffer.
Briefs of
amici curiae urging affirmance were filed for
the State of California et al. by
Bill Lockyer, Attorney
General of California,
Richard M. Frank, Chief Assistant
Attorney General, J.
Matthew Rodriguez, Senior Assistant
Attorney General,
Dennis M. Eagan, Supervising Deputy
Attorney General, and
Joseph Barbieri, Deputy Attorney
General, and by the Attorneys General for their respective States
as follows:
Thomas J.
Miller of Iowa,
Andrew
Ketterer of Maine,
John J.
Farmer, Jr., of New
Jersey,
W A. Drew Edmondson of Oklahoma,
Hardy Myers
of Oregon,
William H. Sorrell of Vermont, and
Christine O.
Gregoire of Washington; for the
Anti-Defamation League et al. by
Martin E. Karlinsky, Steven M.
Freeman, Michael Lieberman, and
Elliot M. Mincberg; and
for Environmental Defense et al. by
Louis R. Cohen and
Michael Bean.
Briefs of
amici curiae were filed for the American Forest
& Paper Association et al. by
Russell S.
Frye;
for the Center for Individual Rights by
Michael E. Rosman;
for the National Stone Association by
Kurt E. Blase; and for
Dr. Gene Likens et al. by
Michael Bean.
163
cities and villages that united in an effort to locate and
develop a disposal site for baled nonhazardous solid waste. The
Chicago Gravel Company informed the municipalities of the
availability of a 533-acre parcel, bestriding the Illinois counties
Cook and Kane, which had been the site of a sand and gravel pit
mining operation for three decades up until about 1960. Long since
abandoned, the old mining site eventually gave way to a
successional stage forest, with its remnant excavation trenches
evolving into a scattering of permanent and seasonal ponds of
varying size (from under one-tenth of an acre to several acres) and
depth (from several inches to several feet).
The municipalities decided to purchase the site for disposal of
their baled nonhazardous solid waste. By law, SWANCC was required
to file for various permits from Cook County and the State of
Illinois before it could begin operation of its balefill project.
In addition, because the operation called for the filling of some
of the permanent and seasonal ponds, SWANCC contacted federal
respondents (hereinafter respondents), including the Corps, to
determine if a federal landfill permit was required under § 404(a)
of the CW A, 33 U. S. C. § 1344(a).
Section 404(a) grants the Corps authority to issue permits "for
the discharge of dredged or fill material into the navigable waters
at specified disposal sites."
Ibid. The term "navigable
waters" is defined under the Act as "the waters of the United
States, including the territorial seas." § 1362(7). The Corps has
issued regulations defining the term "waters of the United States"
to include
"waters such as intrastate lakes, rivers, streams (including
intermittent streams), mudflats, sandflats, wetlands, sloughs,
prairie potholes, wet meadows, playa lakes, or natural ponds, the
use, degradation or destruction of which could affect interstate or
foreign commerce .... " 33 CFR § 328.3(a)(3) (1999).
164
In 1986, in an attempt to "clarify" the reach of its
jurisdiction, the Corps stated that § 404(a) extends to instrastate
waters:
"a. Which are or would be used as habitat by birds protected by
Migratory Bird Treaties; or
"b. Which are or would be used as habitat by other migratory
birds which cross state lines; or
"c. Which are or would be used as habitat for endangered
species; or
"d. Used to irrigate crops sold in interstate commerce." 51 Fed.
Reg. 41217.
This last promulgation has been dubbed the "Migratory Bird
Rule." 1
The Corps initially concluded that it had no jurisdiction over
the site because it contained no "wetlands," or areas which support
"vegetation typically adapted for life in saturated soil
conditions," 33 CFR § 328.3(b) (1999). However, after the Illinois
Nature Preserves Commission informed the Corps that a number of
migratory bird species had been observed at the site, the Corps
reconsidered and ultimately asserted jurisdiction over the balefill
site pursuant to subpart (b) of the "Migratory Bird Rule." The
Corps found that approximately 121 bird species had been observed
at the site, including several known to depend upon aquatic
environments for a significant portion of their life requirements.
Thus, on November 16,1987, the Corps formally "determined that the
seasonally ponded, abandoned gravel mining depressions located on
the project site, while not wetlands, did qualify as 'waters of the
United States' ... based upon the following criteria: (1) the
proposed site had been abandoned as a gravel mining operation; (2)
the water areas and spoil piles had developed a natural character;
and (3) the water areas
1 The Corps issued the "Migratory Bird Rule" without following
the notice and comment procedures outlined in the Administrative
Procedure Act, 5 U. S. C. § 553.
165
are used as habitat by migratory bird
[sic] which cross
state lines." U. S. Army Corps of Engineers, Chicago District,
Dept. of Army Permit Evaluation and Decision Document, Lodging of
Petitioner, Tab No.1, p. 6.
During the application process, SWANCC made several proposals to
mitigate the likely displacement of the migratory birds and to
preserve a great blue heron rookery located on the site. Its
balefill project ultimately received the necessary local and state
approval. By 1993, SWANCC had received a special use planned
development permit from the Cook County Board of Appeals, a
landfill development permit from the Illinois Environmental
Protection Agency, and approval from the Illinois Department of
Conservation.
Despite SWANCC's securing the required water quality
certification from the Illinois Environmental Protection Agency,
the Corps refused to issue a § 404(a) permit. The Corps found that
SWANCC had not established that its proposal was the "least
environmentally damaging, most practicable alternative" for
disposal of nonhazardous solid waste; that SWANCC's failure to set
aside sufficient funds to remediate leaks posed an "unacceptable
risk to the public's drinking water supply"; and that the impact of
the project upon area-sensitive species was "unmitigatable since a
landfill surface cannot be redeveloped into a forested habitat."
Id., at 87.
Petitioner filed suit under the Administrative Procedure Act, 5
U. S. C. § 701
et seq., in the Northern District of Illinois
challenging both the Corps' jurisdiction over the site and the
merits of its denial of the § 404(a) permit. The District Court
granted summary judgment to respondents on the jurisdictional
issue, and petitioner abandoned its challenge to the Corps' permit
decision. On appeal to the Court of Appeals for the Seventh
Circuit, petitioner renewed its attack on respondents' use of the
"Migratory Bird Rule" to assert jurisdiction over the site.
Petitioner argued that respondents had exceeded their statutory
authority in interpreting
166
the CW A to cover nonnavigable, isolated, intrastate waters
based upon the presence of migratory birds and, in the alternative,
that Congress lacked the power under the Commerce Clause to grant
such regulatory jurisdiction.
The Court of Appeals began its analysis with the constitutional
question, holding that Congress has the authority to regulate such
waters based upon "the cumulative impact doctrine, under which 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."
191 F.3d
845, 850 (CA7 1999). The aggregate effect of the "destruction
of the natural habitat of migratory birds" on interstate commerce,
the court held, was substantial because each year millions of
Americans cross state lines and spend over a billion dollars to
hunt and observe migratory birds.2
Ibid. The Court of
Appeals then turned to the regulatory question. The court held that
the CW A reaches as many waters as the Commerce Clause allows and,
given its earlier Commerce Clause ruling, it therefore followed
that respondents' "Migratory Bird Rule" was a reasonable
interpretation of the Act. See id., at 851-852.
We granted certiorari, 529 U. S. 1129 (2000), and now
reverse.
Congress passed the CW A for the stated purpose of "restor[ing]
and maintain[ing] the chemical, physical, and biological integrity
of the Nation's waters." 33 U. S. C. § 1251(a). In so doing,
Congress chose to "recognize, preserve, and protect the primary
responsibilities and rights of
2 Relying upon its earlier decision in
Hoffman Homes,
Inc. v.
EPA, 999 F.2d
256 (CA7 1993), and a report from the United States Census
Bureau, the Court of Appeals found that in 1996 approximately 3.1
million Americans spent $1.3 billion to hunt migratory birds (with
11 percent crossing state lines to do so) as another 17.7 million
Americans observed migratory birds (with 9.5 million traveling for
the purpose of observing shorebirds). See 191 F. 3d, at 850.
167
States to prevent, reduce, and eliminate pollution, to plan the
development and use (including restoration, preservation, and
enhancement) of land and water resources, and to consult with the
Administrator in the exercise of his authority under this chapter."
§ 1251(b). Relevant here, § 404(a) authorizes respondents to
regulate the discharge of fill material into "navigable waters," 33
U. S. C. § 1344(a), which the statute defines as "the waters of the
United States, including the territorial seas," § 1362(7).
Respondents have interpreted these words to cover the abandoned
gravel pit at issue here because it is used as habitat for
migratory birds. We conclude that the "Migratory Bird Rule" is not
fairly supported by the CW A.
This is not the first time we have been called upon to evaluate
the meaning of § 404(a). In
United States v.
Riverside
Bayview Homes, Inc., 474 U. S. 121 (1985), we
held that the Corps had § 404(a) jurisdiction over wetlands that
actually abutted on a navigable waterway. In so doing, we noted
that the term "navigable" is of "limited import" and that Congress
evidenced its intent to "regulate at least some waters that would
not be deemed 'navigable' under the classical understanding of that
term."
Id., at 133. But our holding was based in large
measure upon Congress' unequivocal acquiescence to, and approval
of, the Corps' regulations interpreting the CWA to cover wetlands
adjacent to navigable waters. See id., at 135-139. We found that
Congress' concern for the protection of water quality and aquatic
ecosystems indicated its intent to regulate wetlands "inseparably
bound up with the 'waters' of the United States."
Id., at
134.
It was the significant nexus between the wetlands and "navigable
waters" that informed our reading of the CWA in
Riverside
Bayview Homes. Indeed, we did not "express any opinion" on the
"question of the authority of the Corps to regulate discharges of
fill material into wetlands that are not adjacent to bodies of open
water .... "
Id., at 131-132,
168
168 SOLID WASTE AGENCY OF NORTHERN COOK CTY.
v. ARMY
CORPS OF ENGINEERS
n.8. In order to rule for respondents here, we would have to
hold that the jurisdiction of the Corps extends to ponds that are
not adjacent to open water. But we conclude that the text of the
statute will not allow this.
Indeed, the Corps'
original interpretation of the CW A,
promulgated two years after its enactment, is inconsistent with
that which it espouses here. Its 1974 regulations defined §
404(a)'s "navigable waters" to mean "those waters of the United
States which are subject to the ebb and flow of the tide, and/or
are presently, or have been in the past, or may be in the future
susceptible for use for purposes of interstate or foreign
commerce." 33 CFR § 209.120(d)(1). The Corps emphasized that "[i]t
is the water body's capability of use by the public for purposes of
transportation or commerce which is the determinative factor." §
209.260(e)(1). Respondents put forward no persuasive evidence that
the Corps mistook Congress' intent in 1974.3
Respondents next contend that whatever its original aim in 1972,
Congress charted a new course five years later when it approved the
more expansive definition of "navigable waters" found in the Corps'
1977 regulations. In July 1977, the Corps formally adopted 33 CFR §
323.2(a)(5) (1978), which defined "waters of the United States" to
include "isolated wetlands and lakes, intermittent streams, prairie
potholes, and other waters that are not part of a tributary system
to interstate waters or to navigable waters of the United States,
the degradation or destruction of which could affect
3 Respondents refer us to portions of the legislative history
that they believe indicate Congress' intent to expand the
definition of "navigable waters." Although the Conference Report
includes the statement that the conferees "intend that the term
'navigable waters' be given the broadest possible constitutional
interpretation," S. Conf. Rep. No. 92-1236, p. 144 (1972), neither
this, nor anything else in the legislative history to which
respondents point, signifies that Congress intended to exert
anything more than its commerce power over navigation. Indeed,
respondents admit that the legislative history is somewhat
ambiguous. See Brief for Federal Respondents 24.
169
interstate commerce." Respondents argue that Congress was aware
of this more expansive interpretation during its 1977 amendments to
the CW A. Specifically, respondents point to a failed House bill,
H. R. 3199, that would have defined "navigable waters" as "all
waters which are presently used, or are susceptible to use in their
natural condition or by reasonable improvement as a means to
transport interstate or foreign commerce." 123 Congo Rec. 10420,
10434 (1977).4 They also point to the passage in § 404(g)(1) that
authorizes a State to apply to the Environmental Protection Agency
for permission "to administer its own individual and general permit
program for the discharge of dredged or fill material into the
navigable waters (other than those waters which are presently used,
or are susceptible to use in their natural condition or by
reasonable improvement as a means to transport interstate or
foreign commerce ... , including wetlands adjacent thereto) within
its jurisdiction .... " 33 U. S. C. § 1344(g)(1). The failure to
pass legislation that would have overturned the Corps' 1977
regulations and the extension of jurisdiction in § 404(g) to waters
"other than" traditional "navigable waters," respondents submit,
indicate that Congress recognized and accepted a broad definition
of "navigable waters" that includes nonnavigable, isolated,
intrastate waters.
Although we have recognized congressional acquiescence to
administrative interpretations of a statute in some situations, we
have done so with extreme care.5 "[F]ailed legis-
4 While this bill passed in the House, a similarly worded
amendment to a bill originating in the Senate, S. 1952, failed. See
123 Congo Rec. 26710, 26728 (1977).
5 In
Bob Jones Univ. V.
United States, 461 U. S. 574,595,
600-601 (1983), for example, we upheld an Internal Revenue Service
(IRS) Revenue Ruling that revoked the tax-exempt status of private
schools practicing racial discrimination because the IRS'
interpretation of the relevant statutes was "correct"; because
Congress had held "hearings on this precise issue," making it
"hardly conceivable that Congress-and in this setting, any Member
of Congress-was not abundantly aware of what was going on";
170
170 SOLID WASTE AGENCY OF NORTHERN COOK CTY.
v. ARMY
CORPS OF ENGINEERS
lative proposals are 'a particularly dangerous ground on which
to rest an interpretation of a prior statute.'"
Central Bank of
Denver, N.
A. v.
First Interstate Bank of Denver,
N.
A., 511 U.
S. 164, 187 (1994) (quoting
Pension Benefit Guaranty
Corporation v.
LTV Corp., 496 U. S. 633, 650
(1990)). A bill can be proposed for any number of reasons, and it
can be rejected for just as many others. The relationship between
the actions and inactions of the 95th Congress and the intent of
the 92d Congress in passing § 404(a) is also considerably
attenuated. Because "subsequent history is less illuminating than
the contemporaneous evidence,"
Hagen v.
Utah,
510 U. S. 399,
420 (1994), respondents face a difficult task in overcoming the
plain text and import of § 404(a).
We conclude that respondents have failed to make the necessary
showing that the failure of the 1977 House bill demonstrates
Congress' acquiescence to the Corps' regulations or the "Migratory
Bird Rule," which, of course, did not first appear until 1986.
Although respondents cite some legislative history showing
Congress' recognition of the Corps' assertion of jurisdiction over
"isolated waters,"6 as we explained in
Riverside Bayview
Homes, "[i]n both Chambers, debate on the proposals to narrow
the definition of navigable waters centered largely on the issue of
wetlands preservation." 474 U. S., at 136. Beyond Congress' desire
to regu-
and because "no fewer than 13 bills introduced to overturn the
IRS interpretation" had failed. Absent such overwhelming evidence
of acquiescence, we are loath to replace the plain text and
original understanding of a statute with an amended agency
interpretation. See
Consumer Product Safety Comm'n v.
GTE
Sylvania, Inc., 447 U. S. 102, 118, n. 13
(1980) ("[E]ven when it would otherwise be useful, subsequent
legislative history will rarely override a reasonable
interpretation of a statute that can be gleaned from its language
and legislative history prior to its enactment").
6 Respondents cite, for example, the Senate Report on S. 1952,
which referred to the Corps' "isolated waters" regulation. See S.
Rep. No. 95370, p. 75 (1977). However, the same report reiterated
that "[t]he committee amendment does not redefine navigable
waters."
Ibid.
171
late wetlands adjacent to "navigable waters," respondents point
us to no persuasive evidence that the House bill was proposed in
response to the Corps' claim of jurisdiction over nonnavigable,
isolated, intrastate waters or that its failure indicated
congressional acquiescence to such jurisdiction.
Section 404(g) is equally unenlightening. In
Riverside
Bayview Homes we recognized that Congress intended the phrase
"navigable waters" to include "at least some waters that would not
be deemed 'navigable' under the classical understanding of that
term."
Id., at 133. But § 404(g) gives no intimation of what
those waters might be; it simply refers to them as "other ...
waters." Respondents conjecture that "other ... waters" must
incorporate the Corps' 1977 regulations, but it is also plausible,
as petitioner contends, that Congress simply wanted to include all
waters adjacent to "navigable waters," such as nonnavigable
tributaries and streams. The exact meaning of § 404(g) is not
before us and we express no opinion on it, but for present purposes
it is sufficient to say, as we did in
Riverside Bayview
Homes, that "§ 404(g)(1) does not conclusively determine the
construction to be placed on the use of the term 'waters' elsewhere
in the Act (particularly in § 502(7), which contains the relevant
definition of 'navigable waters') .... "
Id., at 138, n.
11.7
We thus decline respondents' invitation to take what they see as
the next ineluctable step after
Riverside Bayview Homes:
holding that isolated ponds, some only seasonal, wholly located
within two Illinois counties, fall under § 404(a)'s definition of
"navigable waters" because they serve
7 Respondents also make a passing reference to Congress'
decision in 1977 to exempt certain types of discharges from §
404(a), including, for example, "discharge of dredged or fill
material ... for the purpose of construction or maintenance of farm
or stock ponds or irrigation ditches, or the maintenance of
drainage ditches." § 67, 91 Stat. 1600, 33 U. S. C. § 1344(f)(C).
As § 404(a) only regulates dredged or fill material that is
discharged "into navigable waters," Congress' decision to exempt
certain types of these discharges does not affect, much less
address, the definition of "navigable waters."
172
as habitat for migratory birds. As counsel for respondents
conceded at oral argument, such a ruling would assume that "the use
of the word navigable in the statute ... does not have any
independent significance." Tr. of Oral Arg. 28. We cannot agree
that Congress' separate definitional use of the phrase "waters of
the United States" constitutes a basis for reading the term
"navigable waters" out of the statute. We said in
Riverside
Bayview Homes that the word "navigable" in the statute was of
"limited import," 474 U. S., at 133, and went on to hold that §
404(a) extended to nonnavigable wetlands adjacent to open waters.
But it is one thing to give a word limited effect and quite another
to give it no effect whatever. The term "navigable" has at least
the import of showing us what Congress had in mind as its authority
for enacting the CW A: its traditional jurisdiction over waters
that were or had been navigable in fact or which could reasonably
be so made. See,
e. g., United States v.
Appalachian
Elec. Power Co., 311 U. S. 377, 407-408
(1940).
Respondents-relying upon all of the arguments addressed
above-contend that, at the very least, it must be said that
Congress did not address the precise question of § 404(a)'s scope
with regard to nonnavigable, isolated, intrastate waters, and that,
therefore, we should give deference to the "Migratory Bird Rule."
See,
e. g., Chevron U. S.
A. Inc. v.
Natural
Resources Defense Council, Inc., 467 U. S. 837 (1984). We
find § 404(a) to be clear, but even were we to agree with
respondents, we would not extend
Chevron deference here.
Where an administrative interpretation of a statute invokes the
outer limits of Congress' power, we expect a clear indication that
Congress intended that result. See
Edward J.
DeBartolo
Corp. v.
Florida Gulf Coast Building &
Constr.
Trades Council, 485 U. S. 568, 575
(1988). This requirement stems from our prudential desire not to
needlessly reach constitutional issues and our assumption that
Congress does not casually authorize administrative agencies to
interpret a
173
statute to push the limit of congressional authority. See
ibid. This concern is heightened where the administrative
interpretation alters the federal-state framework by permitting
federal encroachment upon a traditional state power. See
United
States v.
Bass, 404 U. S. 336, 349 (1971)
("[U]nless Congress conveys its purpose clearly, it will not be
deemed to have significantly changed the federal-state balance").
Thus, "where an otherwise acceptable construction of a statute
would raise serious constitutional problems, the Court will
construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress."
DeBartolo, supra, at 575.
Twice in the past six years we have reaffirmed the proposition
that the grant of authority to Congress under the Commerce Clause,
though broad, is not unlimited. See
United States v.
Morrison, 529
U. S. 598 (2000);
United States v.
Lopez,
514 U. S. 549
(1995). Respondents argue that the "Migratory Bird Rule" falls
within Congress' power to regulate intrastate activities that
"substantially affect" interstate commerce. They note that the
protection of migratory birds is a "national interest of very
nearly the first magnitude,"
Missouri v.
Holland,
252 U. S. 416,
435 (1920), and that, as the Court of Appeals found, millions of
people spend over a billion dollars annually on recreational
pursuits relating to migratory birds. These arguments raise
significant constitutional questions. For example, we would have to
evaluate the precise object or activity that, in the aggregate,
substantially affects interstate commerce. This is not clear, for
although the Corps has claimed jurisdiction over petitioner's land
because it contains water areas used as habitat by migratory birds,
respondents now,
post litem motam, focus upon the fact that
the regulated activity is petitioner's municipal landfill, which is
"plainly of a commercial nature." Brief for Federal Respondents 43.
But this is a far cry, indeed, from the "navigable waters" and
"waters of the United States" to which the statute by its terms
extends.
174
174 SOLID WASTE AGENCY OF NORTHERN COOK CTY.
v. ARMY
CORPS OF ENGINEERS
STEVENS, J., dissenting
These are significant constitutional questions raised by
respondents' application of their regulations, and yet we find
nothing approaching a clear statement from Congress that it
intended § 404(a) to reach an abandoned sand and gravel pit such as
we have here. Permitting respondents to claim federal jurisdiction
over ponds and mudflats falling within the "Migratory Bird Rule"
would result in a significant impingement of the States'
traditional and primary power over land and water use. See,
e.
g., Hess v.
Port Authority TransHudson Corporation,
513 U. S. 30, 44
(1994) ("[R]egulation of land use [is] a function traditionally
performed by local governments"). Rather than expressing a desire
to readjust the federal-state balance in this manner, Congress
chose 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). We thus read the statute as written to avoid the
significant constitutional and federalism questions raised by
respondents' interpretation, and therefore reject the request for
administrative deference.8
We hold that 33 CFR § 328.3(a)(3) (1999), as clarified and
applied to petitioner's balefill site pursuant to the "Migratory
Bird Rule," 51 Fed. Reg. 41217 (1986), exceeds the authority
granted to respondents under § 404(a) of the CW A. The judgment of
the Court of Appeals for the Seventh Circuit is therefore
Reversed.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
In 1969, the Cuyahoga River in Cleveland, Ohio, coated with a
slick of industrial waste, caught fire. Congress re-
8 Because violations of the CWA carry criminal penalties, see 33
U. S. C. § 1319(c)(2), petitioner invokes the rule oflenity as
another basis for rejecting the Corps' interpretation of the CWA.
Brief for Petitioner 31-32. We need not address this alternative
argument. See
United States v.
Shabani, 513 U. S. 10, 17
(1994).
175
sponded to that dramatic event, and to others like it, by
enacting the Federal Water Pollution Control Act (FWPCA) Amendments
of 1972, 86 Stat. 817, as amended, 33 U. S. C. § 1251
et
seq., commonly known as the Clean Water Act (Clean Water Act,
CWA, or Act).l The Act proclaimed the ambitious goal of ending
water pollution by 1985. § 1251(a). The Court's past
interpretations of the CWA have been fully consistent with that
goal. Although Congress' vision of zero pollution remains
unfulfilled, its pursuit has unquestionably retarded the
destruction of the aquatic environment. Our Nation's waters no
longer burn. Today, however, the Court takes an unfortunate step
that needlessly weakens our principal safeguard against toxic
water.
It is fair to characterize the Clean Water Act as "watershed"
legislation. The statute endorsed fundamental changes in both the
purpose and the scope of federal regulation of the Nation's waters.
In § 13 of the Rivers and Harbors Appropriation Act of 1899 (RHA),
30 Stat. 1152, as amended, 33 U. S. C. § 407, Congress had assigned
to the Army Corps of Engineers (Corps) the mission of regulating
discharges into certain waters in order to protect their use as
highways for the transportation of interstate and foreign commerce;
the scope of the Corps' jurisdiction under the RHA accordingly
extended only to waters that were "navigable." In the CWA, however,
Congress broadened the Corps' mission to include the purpose of
protecting the quality of our Nation's waters for esthetic, health,
recreational, and environmental uses. The scope of its jurisdiction
was therefore redefined to encompass all of "the waters of the
United States, including the territorial seas." § 1362(7). That
definition requires neither actual nor potential navigability.
The Court has previously held that the Corps' broadened
jurisdiction under the CW A properly included an 80-acre
1 See R. Adler, J. Landman, & D. Cameron, The Clean Water
Act: 20 Years Later 5-10 (1993).
176
176 SOLID WASTE AGENCY OF NORTHERN COOK CTY.
v. ARMY
CORPS OF ENGINEERS
STEVENS, J., dissenting
parcel of low-lying marshy land that was not itself navigable,
directly adjacent to navigable water, or even hydrologically
connected to navigable water, but which was part of a larger area,
characterized by poor drainage, that ultimately abutted a navigable
creek.
United States v.
Riverside Bayview Homes,
Inc.,
474 U. S.
121 (1985).2 Our broad finding in
Riverside Bayview that
the 1977 Congress had acquiesced in the Corps' understanding of its
jurisdiction applies equally to the 410-acre parcel at issue here.
Moreover, once Congress crossed the legal watershed that separates
navigable streams of commerce from marshes and inland lakes, there
is no principled reason for limiting the statute's protection to
those waters or wetlands that happen to lie near a navigable
stream.
In its decision today, the Court draws a new jurisdictional
line, one that invalidates the 1986 migratory bird regulation as
well as the Corps' assertion of jurisdiction over all waters
2 See also App. to Pet. for Cert. 25a, and Brief for United
States 8, n. 7, in
Riverside Bayview, O. T. 1984, No.
84-701. The District Court in
Riverside Bayview found that
there was no direct "hydrological" connection between the parcel at
issue and any nearby navigable waters. App. to Pet. for Cert. in
Riverside Bayview 25a. The wetlands characteristics of the
parcel were due, not to a surface or groundwater connection to any
actually navigable water, but to "poor drainage" resulting from
"the Lamson soil that underlay the property." Brief for Respondent
in
Riverside Bayview 7. Nevertheless, this Court found
occasional surface runoff from the property into nearby waters to
constitute a meaningful connection.
Riverside Bayview, 474
U. S., at 134; Brief for United States in
Riverside Bayview
8, n. 7. Of course, the
ecological connection between the
wetlands and the nearby waters also played a central role in this
Court's decision.
Riverside Bayview, 474 U. S., at 134-135.
Both types of connection are also present in many, and possibly
most, "isolated" waters. Brief for Dr. Gene Likens et al. as
Amici Curiae 6-22. Indeed, although the majority and
petitioner both refer to the waters on petitioner's site as
"isolated,"
ante, at 172; Brief for Petitioner 11, their
role as habitat for migratory birds, birds that serve important
functions in the ecosystems of other waters throughout North
America, suggests that-ecologically speaking-the waters at issue in
this case are anything but isolated.
177
except for actually navigable waters, their tributaries, and
wetlands adjacent to each. Its holding rests on two equally
untenable premises: (1) that when Congress passed the 1972 CW A, it
did not intend "to exert anything more than its commerce power over
navigation,"
ante, at 168, n. 3; and (2) that in 1972
Congress drew the boundary defining the Corps' jurisdiction at the
odd line on which the Court today settles.
As I shall explain, the text of the 1972 amendments affords no
support for the Court's holding, and amendments Congress adopted in
1977 do support the Corps' present interpretation of its mission as
extending to so-called "isolated" waters. Indeed, simple common
sense cuts against the particular definition of the Corps'
jurisdiction favored by the majority.
I
The significance of the FWPCA Amendments of 1972 is illuminated
by a reference to the history of federal water regulation, a
history that the majority largely ignores. Federal regulation of
the Nation's waters began in the 19th century with efforts targeted
exclusively at "promot[ing] water transportation and commerce."
Kalen, Commerce to Conservation: The Call for a National Water
Policy and the Evolution of Federal Jurisdiction Over Wetlands, 69
N. D. L. Rev. 873, 877 (1993). This goal was pursued through the
various Rivers and Harbors Acts, the most comprehensive of which
was the RHA of 1899.3 Section 13 of the 1899 RHA, commonly known as
the Refuse Act, prohibited the discharge of "refuse" into any
"navigable water" or its tributaries, as well as the deposit of
"refuse" on the bank of a navigable water "whereby navigation shall
or may be impeded or obstructed" without first obtaining a permit
from the Secretary of the Army. 30 Stat. 1152.
3 See also Rivers and Harbors Appropriations Act of 1896, 29
Stat. 234; River and Harbor Act of 1894, 28 Stat. 363; River and
Harbor Appropriations Act of 1890, 26 Stat. 426; The River and
Harbor Appropriations Act of 1886, 24 Stat. 329.
178
STEVENS, J., dissenting
During the middle of the 20th century, the goals of federal
water regulation began to shift away from an exclusive focus on
protecting navigability and toward a concern for preventing
environmental degradation. Kalen, 69 N. D. L. Rev., at 877-879, and
n. 30. This awakening of interest in the use of federal power to
protect the aquatic environment was helped along by efforts to
reinterpret § 13 of the RHA in order to apply its permit
requirement to industrial discharges into navigable waters, even
when such discharges did nothing to impede navigability. See,
e.
g., United States v.
Republic Steel Corp., 362 U. S. 482, 490-491
(1960) (noting that the term "refuse" in § 13 was broad enough to
include industrial waste).4 Seeds of this nascent concern with
pollution control can also be found in the FWPCA, which was first
enacted in 1948 and then incrementally expanded in the following
years.5
4 In 1970, the House Committee on Government Operations followed
the Court's lead and advocated the use of § 13 as a pollution
control provision. H. R. Rep. No. 91-917, pp. 14-18 (1970).
President Nixon responded by issuing Executive Order No. 11574,35
Fed. Reg. 19627 (1970) (revoked by Exec. Order No. 12553,51 Fed.
Reg. 7237 (1986)), which created the Refuse Act Permit Program.
Power, The Fox in the Chicken Coop: The Regulatory Program of the
U. S. Army Corps of Engineers, 63 Va. L. Rev. 503, 512 (1977)
(hereinafter Power). The program ended soon after it started,
however, when a District Court, reading the language of § 13
literally, held the permit program invalid.
Ibid.; see
Kalur v.
Resor, 335 F. Supp. 1, 9 (DC 1971).
5The FWPCA of 1948 applied only to "interstate waters." § 1O(e),
62 Stat. 1161. Subsequently, it was harmonized with the Rivers and
Harbors Act such that-like the earlier statute-the FWPCA defined
its jurisdiction with reference to "navigable waters." Pub. L.
89-753, §211, 80 Stat. 1252. None of these early versions of the
FWPCA could fairly be described as establishing a comprehensive
approach to the problem, but they did contain within themselves
several of the elements that would later be employed in the CWA.
Milwaukee v.
Illinois, 451 U. S. 304, 318, n. 10
(1981) (REHNQUIST, J.) (Congress intended to do something "quite
different" in the 1972 Act); 2 W. Rodgers, Environmental Law: Air
and Water § 4.1, pp. 10-11 (1986) (describing the early versions of
the FWPCA).
179
The shift in the focus of federal water regulation from
protecting navigability toward environmental protection reached a
dramatic climax in 1972, with the passage of the CW A. The Act,
which was passed as an amendment to the existing FWPCA, was
universally described by its supporters as the first truly
comprehensive federal water pollution legislation. The "major
purpose" of the CW A was "to establish a
comprehensive
long-range policy for the elimination of water pollution." S. Rep.
No. 92-414, p. 95 (1971),2 Legislative History of the Water
Pollution Control Act Amendments of 1972 (Committee Print compiled
for the Senate Committee on Public Works by the Library of
Congress), Ser. No. 93-1, p. 1511 (1971) (hereinafter Leg. Hist.)
(emphasis added). And "[n]o Congressman's remarks on the
legislation were complete without reference to [its]
'comprehensive' nature .... "
Milwaukee v.
Illinois,
451 U. S. 304,
318 (1981) (REHNQUIST, J.). A House sponsor described the bill as
"the most comprehensive and far-reaching water pollution bill we
have ever drafted," 1 Leg. Hist. 369 (Rep. Mizell), and Senator
Randolph, Chairman of the Committee on Public Works, stated: "It is
perhaps the most comprehensive legislation that the Congress of the
United States has ever developed in this particular field of the
environment." 2 id., at 1269. This Court was therefore undoubtedly
correct when it described the 1972 amendments as establishing "a
comprehensive program for controlling and abating water pollution."
Train v.
City of New York, 420 U. S. 35, 37
(1975).
Section 404 of the CW A resembles § 13 of the RHA, but, unlike
the earlier statute, the primary purpose of which is the
maintenance of navigability, § 404 was principally intended as a
pollution control measure. A comparison of the contents of the RHA
and the 1972 Act vividly illustrates the fundamental difference
between the purposes of the two provisions. The earlier statute
contains pages of detailed appropriations for improvements in
specific navigation facilities, 30 Stat. 1121-1149, for studies
concerning the feasibility
180
STEVENS, J., dissenting
of a canal across the Isthmus of Panama, id., at 1150, and for
surveys of the advisability of harbor improvements at numerous
other locations, id., at 1155-1161. Tellingly, § 13, which broadly
prohibits the discharge of refuse into navigable waters, contains
an exception for refuse "flowing from streets and sewers ... in a
liquid state."
Id., at 1152.
The 1972 Act, in contrast, appropriated large sums of money for
research and related programs for water pollution control, 86 Stat.
816-833, and for the construction of water treatment works, id., at
833-844. Strikingly absent from its declaration of "goals and
policy" is
any reference to avoiding or removing
obstructions to navigation. Instead, the principal objective of the
Act, as stated by Congress in § 101, was "to restore and maintain
the chemical, physical, and biological integrity of the Nation's
waters." 33 U. S. C. § 1251. Congress therefore directed federal
agencies in § 102 to "develop comprehensive programs for
preventing, reducing, or eliminating the pollution of the navigable
waters and ground waters and improving the sanitary condition of
surface and underground waters." 33 U. S. C. § 1252. The CWA
commands federal agencies to give "due regard," not to the interest
of unobstructed navigation, but rather to "improvements which are
necessary to conserve such waters for the protection and
propagation of fish and aquatic life and wildlife [and]
recreational purposes."
Ibid.
Because of the statute's ambitious and comprehensive goals, it
was, of course, necessary to expand its jurisdictional scope. Thus,
although Congress opted to carryover the traditional jurisdictional
term "navigable waters" from the RHA and prior versions of the
FWPCA, it broadened the definition of that term to encompass all
"waters of the United States." § 1362(7).6 Indeed, the 1972
conferees arrived at the final formulation by specifically deleting
the
6 The definition of "navigable water" in earlier versions of the
FWPCA had made express reference to navigability. § 211, 80 Stat.
1253.
181
word "navigable" from the definition that had originally
appeared in the House version of the Act.7 The majority today
undoes that deletion.
The Conference Report explained that the definition in § 502(7)
was intended to "be given the broadest possible constitutional
interpretation." S. Conf. Rep. No. 92-1236, p. 144 (1972),
reprinted in 1 Leg. Hist. 327. The Court dismisses this clear
assertion of legislative intent with the back of its hand.
Ante, at 168, n. 3. The statement, it claims, "signifies
that Congress intended to exert [nothing] more than its commerce
power over navigation."
Ibid.
The majority's reading drains all meaning from the conference
amendment. By 1972, Congress' Commerce Clause power over
"navigation" had long since been established.
The Daniel
Ball, 10 Wall. 557 (1871);
Gilman v.
Philadelphia, 3 Wall. 713 (1866);
Gibbons v.
Ogden, 9 Wheat. 1 (1824). Why should Congress intend that
its assertion of federal jurisdiction be given the "broadest
possible constitutional interpretation" if it did not intend to
reach beyond the very heartland of its commerce power? The
activities regulated by the CWA have nothing to do with Congress'
"commerce power over navigation." Indeed, the goals of the 1972
statute have nothing to do with
navigation at all.
As we recognized in
Riverside Bayview, the interests
served by the statute embrace the protection of " 'significant
natural biological functions, including food chain production,
general habitat, and nesting, spawning, rearing and resting sites'"
for various species of aquatic wildlife. 474 U. S., at 134-135. For
wetlands and "isolated" inland lakes, that in-
7 The version adopted by the House of Representatives defined
"navigable waters" as "the navigable waters of the United States,
including the territorial seas." H. R. 11896, 92d Cong., 2d Sess.,
§ 502(8) (1971), reprinted in 1 Leg. Hist. 1069. The CWA ultimately
defined "navigable waters" simply as "the waters of the United
States, including the territorial seas." 33 U. S. C. § 1362(7).
182
STEVENS, J., dissenting
terest is equally powerful, regardless of the proximity of the
swamp or the water to a navigable stream. Nothing in the text, the
stated purposes, or the legislative history of the CW A supports
the conclusion that in 1972 Congress contemplated-much less
commanded-the odd jurisdictional line that the Court has drawn
today.
The majority accuses respondents of reading the term "navigable"
out of the statute.
Ante, at 172. But that was accomplished
by Congress when it deleted the word from the § 502(7) definition.
After all, it is the
definition that is the appropriate
focus of our attention.
Babbitt v.
Sweet Home Chapter,
Communities for Great Ore., 515 U. S. 687, 697-698,
n. 10 (1995) (refusing to be guided by the common-law definition of
the term "take" when construing that term within the Endangered
Species Act of 1973 and looking instead to the meaning of the terms
contained in the definition of "take" supplied by the statute).
Moreover, a proper understanding of the history of federal water
pollution regulation makes clear that-even on respondents' broad
reading-the presence of the word "navigable" in the statute is not
inexplicable. The term was initially used in the various Rivers and
Harbors Acts because (1) at the time those statutes were first
enacted, Congress' power over the Nation's waters was viewed as
extending only to "water bodies that were deemed 'navigable' and
therefore suitable for moving goods to or from markets," Power 513;
and (2) those statutes had the primary purpose of protecting
navigation. Congress' choice to employ the term "navigable waters"
in the 1972 Clean Water Act simply continued nearly a century of
usage. Viewed in light of the history of federal water regulation,
the broad § 502(7) definition, and Congress' unambiguous
instructions in the Conference Report, it is clear that the term
"navigable waters" operates in the statute as a shorthand for
"waters over which federal authority may properly be asserted."
183
II
As the majority correctly notes,
ante, at 168, when the
Corps first promulgated regulations pursuant to § 404 of the 1972
Act, it construed its authority as being essentially the same as it
had been under the 1899 RHA.8 The reaction to those regulations in
the federal courts,9 in the Environmental Protection Agency
(EPA),l0 and in Congress 11 convinced
8The Corps later acknowledged that the 1974 regulations "limited
the Section 404 permit program to the same waters that were being
regulated under the River and Harbor Act of 1899." 42 Fed. Reg.
37123 (1977). Although refusing to defer to the Corps'
present interpretation of the statute,
ante, at 172,
the majority strangely attributes some significance to the Corps'
initial reluctance to read the 1972 Act as expanding its
jurisdiction,
ante, at 168 ("Respondents put forward no
persuasive evidence that the Corps mistook Congress' intent in
1974"). But, stranger still, by construing the statute as extending
to nonnavigable tributaries and adjacent wetlands, the majority
reads the statute more broadly than the 1974 regulations that it
seems willing to accept as a correct construction of the Corps'
jurisdiction. As I make clear in the text, there is abundant
evidence that the Corps was wrong in 1974 and that the Court is
wrong today.
9 See, e. g., Natural Resources Defense Council v. Callaway, 392
F. Supp. 685, 686 (DC 1975); United States v. Holland, 373 F. Supp.
665 (MD Fla. 1974).
10 In a 1974 letter to the head of the Corps, the EPA
Administrator expressed his disagreement with the Corps'
parsimonious view of its own jurisdiction under the CWA. Section
404 of the Federal Water Pollution Control Act Amendments of 1972:
Hearings before the Senate Committee on Public Works, 94th Cong.,
2d Sess., 349 (1976) (letter dated June 19, 1974, from Russell E.
Train, Administrator of EPA, to Lt. Gen. W. C. Gribble, Jr., Chief
of Corps of Engineers). The EPA is the agency that generally
administers the CWA, except as otherwise provided. 33 U. S. C. §
1251(d); see also 43 Op. Atty. Gen. 197 (1979) ("Congress intended
to confer upon the administrator of the [EPA] the final
administrative authority" to determine the reach of the term
"navigable waters").
11 The House Committee on Government Operations noted the
disagreement between the EPA and the Corps over the meaning of
"navigable waters" and ultimately expressed its agreement with the
EPA's broader reading of the statute. H. R. Rep. No. 93-1396, pp.
23-27 (1974).
184
184 SOLID WASTE AGENCY OF NORTHERN COOK CTY.
v. ARMY
CORPS OF ENGINEERS
STEVENS, J., dissenting
the Corps that the statute required it "to protect water quality
to the full extent of the [C]ommerce [C]lause" and to extend
federal regulation over discharges "to many areas that have never
before been subject to Federal permits or to this form of water
quality protection." 40 Fed. Reg. 31320 (1975).
In 1975, the Corps therefore adopted the interim regulations
that we upheld in
Riverside Bayview. As we noted in that
case, the new regulations understood "the waters of the United
States" to include, not only navigable waters and their
tributaries, but also "nonnavigable intrastate waters whose use or
misuse could affect interstate commerce." 474 U. S., at 123. The
1975 regulations provided that the new program would become
effective in three phases: phase 1, which became effective
immediately, encompassed the navigable waters covered by the 1974
regulation and the RHA; phase 2, effective after July 1, 1976,
extended Corps jurisdiction to nonnavigable tributaries, freshwater
wetlands adjacent to primary navigable waters, and lakes; and phase
3, effective after July 1, 1977, extended Corps jurisdiction to all
other waters covered under the statute, including any waters not
covered by phases 1 and 2 (such as "intermittent rivers, streams,
tributaries, and perched wetlands that are not contiguous or
adjacent to navigable waters") that "the District Engineer
determines necessitate regulation for the protection of water
quality." 40 Fed. Reg. 31325-31326 (1975). The final version of
these regulations, adopted in 1977, made clear that the covered
waters included "isolated lakes and wetlands, intermittent streams,
prairie potholes, and other waters that are not part of a tributary
system to interstate waters or to navigable waters of the United
States, the degradation or destruction of which could affect
interstate commerce." 12
1242 Fed. Reg. 37127 (1977), as amended, 33 CFR § 328.3(a)(3)
(1977).
The so-called "migratory bird" rule, upon which the Corps based
its assertion of jurisdiction in this case, is merely a specific
application of the more general jurisdictional definition first
adopted in the 1975 and 1977
185
The Corps' broadened reading of its jurisdiction provoked
opposition among some Members of Congress. As a result, in 1977,
Congress considered a proposal that would have limited the Corps'
jurisdiction under § 404 to waters that are used, or by reasonable
improvement could be used, as a means to transport interstate or
foreign commerce and their adjacent wetlands. H. R. 3199, 95th
Cong., 1st Sess., § 16(f) (1977). A bill embodying that proposal
passed the House but was defeated in the Senate. The debates
demonstrate that Congress was fully aware of the Corps'
understanding of the scope of its jurisdiction under the 1972 Act.
We summarized these debates in our opinion in
Riverside
Bayview:
"In both Chambers, debate on the proposals to narrow the
definition of navigable waters centered largely on the issue of
wetlands preservation. See [123 Congo Rec.], at 10426-10432 (House
debate); id., at 26710-26729 (Senate debate). Proponents of a more
limited § 404 jurisdiction contended that the Corps' assertion of
jurisdiction over wetlands and other nonnavigable 'waters' had far
exceeded what Congress had intended in enacting § 404. Opponents of
the proposed changes argued that a narrower definition of
'navigable waters' for purposes of § 404 would exclude vast
stretches of crucial wetlands from the Corps' jurisdiction, with
detrimental effects on wetlands ecosystems, water quality, and the
aquatic environment generally. The debate, particularly in the
Senate, was lengthy. In the House, the debate ended with the
adoption of a narrowed definition of
rules. The "rule," which operates as a rule of thumb for
identifying the waters that fall within the Corps' jurisdiction
over phase 3 waters, first appeared in the preamble to a 1986
repromulgation of the Corps' definition of "navigable waters." 51
Fed. Reg. 41217 (1986). As the Corps stated in the preamble, this
repromulgation was not intended to alter its jurisdiction in any
way.
Ibid. Instead, the Corps indicated, the migratory bird
rule was enacted simply to "clarif[y]" the scope of existing
jurisdictional regulations.
Ibid.
186
STEVENS, J., dissenting
'waters'; but in the Senate the limiting amendment was defeated
and the old definition retained. The Conference Committee adopted
the Senate's approach: efforts to narrow the definition of 'waters'
were abandoned; the legislation as ultimately passed, in the words
of Senator Baker, 'retain[ed] the comprehensive jurisdiction over
the Nation's waters exercised in the 1972 Federal Water Pollution
Control Act.'" 474 U. S., at 136-137.
The net result of that extensive debate was a congressional
endorsement of the position that the Corps maintains today. We
explained in
Riverside Bayview:
"[T]he scope of the Corps' asserted jurisdiction over wetlands
was specifically brought to Congress' attention, and Congress
rejected measures designed to curb the Corps' jurisdiction in large
part because of its concern that protection of wetlands would be
unduly hampered by a narrowed definition of 'navigable waters.'
Although we are chary of attributing significance to Congress'
failure to act, a refusal by Congress to overrule an agency's
construction of legislation is at least some evidence of the
reasonableness of that construction, particularly where the
administrative construction has been brought to Congress' attention
through legislation specifically designed to supplant it."
Id., at 137.
Even if the majority were correct that Congress did not extend
the Corps' jurisdiction in the 1972 CW A to reach beyond navigable
waters and their nonnavigable tributaries, Congress' rejection of
the House's efforts in 1977 to cut back on the Corps' 1975
assertion of jurisdiction clearly indicates congressional
acquiescence in that assertion. Indeed, our broad determination in
Riverside Bayview that the 1977 Congress acquiesced in the
very regulations at issue in this case should foreclose
petitioner's present urgings to the contrary. The majority's
refusal in today's decision to acknowledge the scope of our prior
decision is troubling. Compare
187
id., at 136 ("Congress acquiesced in the [1975] administrative
construction [of the Corps' jurisdiction]"), with
ante, at
170 ("We conclude that respondents have failed to make the
necessary showing that the failure of the 1977 House bill
demonstrates Congress' acquiescence to the Corps' regulations ...
").13 Having already concluded that Congress acquiesced in the
Corps' regulatory definition of its jurisdiction, the Court is
wrong to reverse course today. See
Dickerson v.
United
States, 530 U. S.
428, 443 (2000) (REHNQUIST, C. J.) (" '[T]he doctrine [of
stare decisis] carries such persuasive force that we have
always required a departure from precedent to be supported by some
"special justification'" ").
More important than the 1977 bill that did not become law are
the provisions that actually were included in the 1977 revisions.
Instead of agreeing with those who sought to withdraw the Corps'
jurisdiction over "isolated" waters,
13 The majority appears to believe that its position is
consistent with
Riverside Bayview because of that case's
reservation of the question whether the Corps' jurisdiction extends
to "certain wetlands not necessarily adjacent to other waters," 474
U. S., at 124, n. 2. But it is clear from the context that the
question reserved by
Riverside Bayview did not concern
"isolated"
waters, such as those at issue in this case, but
rather "isolated"
wetlands. See
id., at 131-132, n.8
("We are not called upon to address the question of the authority
of the Corps to regulate discharges of fill material into wetlands
that are not adjacent to bodies of open water ... "). Unlike the
open waters present on petitioner's site, wetlands are
lands
"that are inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically
adapted for life in saturated soil conditions. Wetlands generally
include swamps, marshes, bogs, and similar areas." 33 CFR §
328.3(b) (2000). If, as I believe, actually navigable waters lie at
the very heart of Congress' commerce power and "isolated,"
nonnavigable waters lie closer to (but well within) the margin,
"isolated wetlands," which are themselves only marginally "waters,"
are the most marginal category of "waters of the United States"
potentially covered by the statute. It was the question of the
extension of federal jurisdiction to
that category of
"waters" that the
Riverside Bayview Court reserved. That
question is not presented in this case.
188
STEVENS, J., dissenting
Congress opted to exempt several classes of such waters from
federal control. § 67, 91 Stat. 1601, 33 U. S. C. § 1344(f). For
example, the 1977 amendments expressly exclude from the Corps'
regulatory power the discharge of fill material "for the purpose of
construction or maintenance of farm or stock ponds or irrigation
ditches, or the maintenance of drainage ditches," and "for the
purpose of construction of temporary sedimentation basins on a
construction site which does not include placement of fill material
into the navigable waters."
Ibid. The specific exemption of
these waters from the Corps' jurisdiction indicates that the 1977
Congress recognized that similarly "isolated" waters not covered by
the exceptions would fall within the statute's outer limits.
In addition to the enumerated exceptions, the 1977 amendments
included a new section, § 404(g), which authorized the States to
administer their own permit programs over certain nonnavigable
waters. Section 404(g)(1) provides, in relevant part:
"The Governor of any State desiring to administer its own
individual and general permit program for the discharge of dredged
or fill material into the navigable waters (other than those waters
which are presently used, or are susceptible to use in their
natural condition or by reasonable improvement as a means to
transport interstate or foreign commerce ... , including wetlands
adjacent thereto) within its jurisdiction may submit to the
Administrator a full and complete description of the program it
proposes to establish and administer under State law or under an
interstate compact." 33 U. S. C. § 1344(g)(1).
Section 404(g)(1)'s reference to navigable waters "other than
those waters which are presently used, or are susceptible to use,"
for transporting commerce and their adjacent wetlands appears to
suggest that Congress viewed (and accepted) the Act's regulations
as covering more than naviga-
189
ble waters in the traditional sense. The majority correctly
points out that § 404(g)(1) is itself ambiguous because it does not
indicate precisely how far Congress considered federal jurisdiction
to extend.
Ante, at 171. But the Court ignores the
provision's legislative history, which makes clear that Congress
understood § 404(g)(1)-and therefore federal jurisdiction-to
extend, not only to navigable waters and nonnavigable tributaries,
but also to "isolated" waters, such as those at issue in this
case.
The Conference Report discussing the 1977 amendments, for
example, states that § 404(g) "establish[es] a process to allow the
Governor of any State to administer an individual and general
permit program for the discharge of dredged or fill material into
phase ;12
and 3
waters after the approval of a
program by the Administrator." H. R. Conf. Rep. No. 95830, p. 101
(1977), reprinted in 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. No. 95-14, p.
285 (emphasis added) (hereinafter Leg. Hist. of CW A). Similarly, a
Senate Report discussing the 1977 amendments explains that, under §
404(g), "the [C]orps will
continue to administer the section
404 permit program in all navigable waters for a discharge of
dredge or fill material until the approval of a State program
for phase ;12
and 3
waters." S. Rep. No.
95-370, p. 75 (1977), reprinted in 4 Leg. Hist. of CW A 708
(emphases added).
Of course, as I have already discussed, "phase 1" waters are
navigable waters and their contiguous wetlands, "phase 2" waters
are the "primary tributaries" of navigable waters and their
adjacent wetlands, and "phase 3" waters are all other waters
covered by the statute, and can include such "isolated" waters as
"intermittent rivers, streams, tributaries, and perched wetlands
that are not contiguous or adjacent to navigable waters." The
legislative history of the 1977 amendments therefore plainly
establishes that,
190
190 SOLID WASTE AGENCY OF NORTHERN COOK CTY.
v. ARMY
CORPS OF ENGINEERS
STEVENS, J., dissenting
when it enacted § 404(g), Congress believed-and desiredthe
Corps' jurisdiction to extend beyond just navigable waters, their
tributaries, and the wetlands adjacent to each.
In dismissing the significance of § 404(g)(1), the majority
quotes out of context language in the very same 1977 Senate Report
that I have quoted above.
Ante, at 170, n. 6. It is true
that the Report states that "[t]he committee amendment does not
redefine navigable waters." S. Rep. No. 95370, at 75,
reprinted in 4 Leg. Hist. of CWA 708 (emphasis added). But the
majority fails to point out that the quoted language appears in the
course of an explanation of the Senate's refusal to go along with
House efforts to
narrow the scope of the Corps' CW A
jurisdiction to traditionally navigable waters. Thus, the
immediately preceding sentence warns that "[t]o limit the
jurisdiction of the [FWPCA] with reference to discharges of the
pollutants of dredged or fill material would cripple efforts to
achieve the act's objectives." 14
Ibid. The Court would do
well to heed that warning.
The majority also places great weight,
ante, at 171, on
our statement in
Riverside Bayview that § 404(g) "does not
con-
14 In any event, to attach significance to the Report's
statement that the committee amendments do not "redefine navigable
waters," one must first accept the majority's erroneous
interpretation of the 1972 Act. But the very Report upon which the
majority relies states that "[t]he 1972 [FWPCA] exercised
comprehensive jurisdiction over the
Nation's waters
to control pollution to the
fullest constitutional extent."
S. Rep. No. 95370, at 75, reprinted in 4 Leg. Hist. of CWA 708
(emphases added). Even if the Court's flawed reading of the earlier
statute were correct, however, the language to which the Court
points does not counsel against finding congressional acquiescence
in the Corps' 1975 regulations. Quite the contrary. From the
perspective of the 1977 Congress, those regulations constituted the
status quo that the proposed amendments sought to alter.
Considering the Report's favorable references to the Corps'
"continu[ing]" jurisdiction over phase 2 and 3 waters, the language
concerning the failure of the amendments to "redefine navigable
waters" cuts strongly against the majority's position, which
instead completely excises phase 3 waters from the scope of the
Act.
Ibid.
191
elusively determine the construction to be placed on the
use of the term 'waters' elsewhere in the Act," 474 U. S., at 138,
n. 11 (emphasis added). This is simply more selective reading. In
that case, we also went on to say with respect to the significance
of § 404(g) that "the various provisions of the Act should be read
in pari materia." Ibid. Moreover, our ultimate conclusion in
Riverside Bayview was that § 404(g) "suggest[s] strongly
that the term 'waters' as used in the Act" supports the Corps'
reading.
Ibid.
III
Although it might have appeared problematic on a "linguistic"
level for the Corps to classify "lands" as "waters" in
Riverside
Bayview, 474 U. S., at 131-132, we squarely held that the
agency's construction of the statute that it was charged with
enforcing was entitled to deference under
Chevron U. S.
A. Inc. v.
Natural Resources Defense Council, Inc.,
467 U. S. 837
(1984). Today, however, the majority refuses to extend such
deference to the same agency's construction of the same statute,
see
ante, at 172-174. This refusal is unfaithful to both
Riverside Bayview and
Chevron. For it is the
majority's reading, not the agency's, that does violence to the
scheme Congress chose to put into place.
Contrary to the Court's suggestion, the Corps' interpretation of
the statute does not "encroac[h]" upon "traditional state power"
over land use.
Ante, at 173. "Land use planning in essence
chooses particular uses for the land; environmental regulation, at
its core, does not mandate particular uses of the land but requires
only that, however the land is used, damage to the environment is
kept within prescribed limits."
California Coastal Comm'n v.
Granite Rock Co., 480 U. S. 572, 587
(1987). The CWA is not a land-use code; it is a paradigm of
environmental regulation. Such regulation is an accepted exercise
of federal power.
Hodel v.
Virginia Surface Mining
&
Reclamation Assn., Inc., 452 U. S. 264, 282
(1981).
192
STEVENS, J., dissenting
It is particularly ironic for the Court to raise the specter of
federalism while construing a statute that makes explicit efforts
to foster local control over water regulation. Faced with calls to
cut back on federal jurisdiction over water pollution, Congress
rejected attempts to narrow the scope of that jurisdiction and, by
incorporating § 404(g), opted instead for a scheme that encouraged
States to supplant federal control with their own regulatory
programs. S. Rep. No. 95-370, at 75, reprinted in 4 Leg. Hist. of
CWA 708 ("The committee amendment does not redefine navigable
waters. Instead, the committee amendment intends to assure
continued protection of
all the Nation's waters, but allows
States to assume the primary responsibility for protecting those
lakes, rivers, streams, swamps, marshes, and other portions of the
navigable waters outside the [C]orps program in the so-called phase
I waters" (emphasis added)). Because Illinois could have taken
advantage of the opportunities offered to it through § 404(g), the
federalism concerns to which the majority adverts are misplaced.
The Corps' interpretation of the statute as extending beyond
navigable waters, tributaries of navigable waters, and wetlands
adjacent to each is manifestly reasonable and therefore entitled to
deference.
IV
Because I am convinced that the Court's miserly construction of
the statute is incorrect, I shall comment briefly on petitioner's
argument that Congress is without power to prohibit it from filling
any part of the 31 acres of ponds on its property in Cook County,
Illinois. The Corps' exercise of its § 404 permitting power over
"isolated" waters that serve as habitat for migratory birds falls
well within the boundaries set by this Court's Commerce Clause
jurisprudence.
In
United States v.
Lopez, 514 U. S. 549, 558-559
(1995), this Court identified "three broad categories of activity
that Congress may regulate under its commerce power": (1) channels
of interstate commerce; (2) instrumentalities of inter-
193
state commerce, or persons and things in interstate commerce;
and (3) activities that "substantially affect" interstate commerce.
Ibid. The migratory bird rule at issue here is properly
analyzed under the third category. In order to constitute a proper
exercise of Congress' power over intrastate activities that
"substantially affect" interstate commerce, it is not necessary
that each individual instance of the activity substantially affect
commerce; it is enough that, taken in the aggregate, the
class
of activities in question has such an effect.
Perez v.
United States, 402 U. S. 146 (1971)
(noting that it is the "class" of regulated activities, not the
individual instance, that is to be considered in the "affects"
commerce analysis); see also
Hodel, 452 U. S., at
277;
Wickard v.
Filburn, 317 U. S. 111, 127-128
(1942).
The activity being regulated in this case (and by the Corps' §
404 regulations in general) is the discharge of fill material into
water. The Corps did not assert jurisdiction over petitioner's land
simply because the waters were "used as habitat by migratory
birds." It asserted jurisdiction because petitioner planned to
discharge fill into waters "used as habitat by migratory
birds." Had petitioner intended to engage in some other activity
besides discharging fill (i.
e., had there been no activity
to regulate), or, conversely, had the waters not been habitat for
migratory birds (i.
e., had there been no basis for federal
jurisdiction), the Corps would never have become involved in
petitioner's use of its land. There can be no doubt that, unlike
the class of activities Congress was attempting to regulate in
United States v.
Morrison, 529 U. S. 598, 613 (2000)
("[g]endermotivated crimes"), and
Lopez, 514 U. S., at 561
(possession of guns near school property), the discharge of fill
material into the Nation's waters is almost always undertaken for
economic reasons. See V. Albrecht & B. Goode, Wetland
Regulation in the Real World, Exh. 3 (Feb. 1994) (demonstrating
that the overwhelming majority of acreage for which § 404
194
194 SOLID WASTE AGENCY OF NORTHERN COOK CTY.
v. ARMY
CORPS OF ENGINEERS
STEVENS, J., dissenting
permits are sought is intended for commercial, industrial, or
other economic use).15
Moreover, no one disputes that the discharge of fill into
"isolated" waters that serve as migratory bird habitat will, in the
aggregate, adversely affect migratory bird populations. See,
e. g., 1 Secretary of the Interior, Report to Congress, The
Impact of Federal Programs on Wetlands: The Lower Mississippi
Alluvial Plain and the Prairie Pothole Region 79-80 (Oct. 1988)
(noting that "isolated," phase 3 waters "are among the most
important and also [the] most threatened ecosystems in the United
States" because "[t]hey are prime nesting grounds for many species
of North American waterfowl ... " and provide "[u]p to 50 percent
of the [D. S.] production of migratory waterfowl"). Nor does
petitioner dispute that the particular waters it seeks to fill are
home to many important species of migratory birds, including the
second-largest breeding colony of Great Blue Herons in northeastern
Illinois, App. to Pet. for Cert. 3a, and several species of
waterfowl protected by international treaty and Illinois endangered
species laws, Brief for Federal Respondents 7.16
In addition to the intrinsic value of migratory birds, see
Missouri v.
Holland, 252 D. S. 416, 435 (1920)
(noting the importance of migratory birds as "protectors of our
forests and our crops" and as "a food supply"), it is undisputed
that
15 The fact that petitioner can conceive of some people who may
discharge fill for noneconomic reasons does not weaken the
legitimacy of the Corps' jurisdictional claims. As we observed in
Perez v.
United States, 402 U. S. 146 (1971),
"[w]here the
class of activities is regulated and that
class is within the reach of federal power, the courts have
no power to excise, as trivial, individual instances of the class."
Id., at 154 (internal quotation marks omitted).
16 Other bird species using petitioner's site as habitat include
the" '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.' " Brief for Petitioner 4, n.
3.
195
literally millions of people regularly participate in
birdwatching and hunting and that those activities generate a host
of commercial activities of great valueP The causal connection
between the filling of wetlands and the decline of commercial
activities associated with migratory birds is not "attenuated,"
Morrison, 529 U. S., at 612; it is direct and concrete. Cf.
Gibbs v.
Babbitt, 214 F.3d
483, 492-493 (CA4 2000) ("The relationship between red wolf
takings and interstate commerce is quite direct-with no red wolves,
there will be no red wolf related tourism ... ").
Finally, the migratory bird rule does not blur the "distinction
between what is truly national and what is truly local."
Morrison, 529 U. S., at 617-618. Justice Holmes cogently
observed in
Missouri v.
Holland that the protection
of migratory birds is a textbook example of a
national
problem. 252 U. S., at 435 ("It is not sufficient to rely upon the
States [to protect migratory birds]. The reliance is vain ... ").
The destruction of aquatic migratory bird habitat, like so many
other environmental problems, is an action in which the benefits
(e. g., a new landfill) are disproportionately local, while many of
the costs (e. g., fewer migratory birds) are widely dispersed and
often borne by citizens living in other States. In such situations,
described by economists as involving "externalities," federal
regulation is both appropriate and necessary. Revesz,
Rehabilitating Interstate
17 In 1984, the U. S. Congress Office of Technology Assessment
found that, in 1980, 5.3 million Americans hunted migratory birds,
spending $638 million. U. S. Congress, Office of Technology
Assessment, Wetlands:
Their Use and Regulation 54 (OTA-O-206, Mar. 1984). More than
100 million Americans spent almost $14.8 billion in 1980 to watch
and photograph fish and wildlife.
Ibid. Of 17.7 million
birdwatchers, 14.3 million took trips in order to observe, feed, or
photograph waterfowl, and 9.5 million took trips specifically to
view other water-associated birds, such as herons like those
residing at petitioner's site. U. S. Dept. of Interior, U. S. Fish
and Wildlife Service and U. S. Dept. of Commerce, Bureau of Census,
1996 National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation 45, 90 (issued Nov. 1997).
196
STEVENS, J., dissenting
Competition: Rethinking the "Race-to-the-Bottom" Rationale for
Federal Environmental Regulation, 67 N. Y. U. L. Rev. 1210, 1222
(1992) ("The presence of interstate externalities is a powerful
reason for intervention at the federal level"); cf.
Hodel,
452 U. S., at 281-282 (deferring to Congress' finding that
nationwide standards were "essential" in order to avoid
"destructive interstate competition" that might undermine
environmental standards). Identifying the Corps' jurisdiction by
reference to waters that serve as habitat for birds that migrate
over state lines also satisfies this Court's expressed desire for
some "jurisdictional element" that limits federal activity to its
proper scope.
Morrison, 529 U. S., at 612.
The power to regulate commerce among the several States
necessarily and properly includes the power to preserve the natural
resources that generate such commerce. Cf.
Sporhase v.
Nebraska ex rel. Douglas, 458 U. S. 941, 953 (1982)
(holding water to be an "article of commerce"). Migratory birds,
and the waters on which they rely, are such resources. Moreover,
the protection of migratory birds is a wellestablished federal
responsibility. As Justice Holmes noted in
Missouri v.
Holland, the federal interest in protecting these birds is
of "the first magnitude." 252 U. S., at 435. Because of their
transitory nature, they "can be protected only by national action."
Ibid.
Whether it is necessary or appropriate to refuse to allow
petitioner to fill those ponds is a question on which we have no
voice. Whether the Federal Government has the power to require such
permission, however, is a question that is easily answered. If, as
it does, the Commerce Clause empowers Congress to regulate
particular "activities causing air or water pollution, or other
environmental hazards that may have effects in more than one
State,"
Hodel, 452 U. S., at 282, it also empowers Congress
to control individual actions that, in the aggregate, would have
the same effect.
197
Perez, 402 U. S., at 154;
Wickard, 317 U. S., at
127-128.18 There is no merit in petitioner's constitutional
argument.
Because I would affirm the judgment of the Court of Appeals, I
respectfully dissent.
18 JUSTICE THOMAS is the only Member of the Court who has
expressed disagreement with the "aggregation principle."
United
States v.
Lopez, 514 U. S. 549, 600 (1995)
(concurring opinion).
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