One for the Birds: The Corps of Engineers' "Migratory Bird Rule"

Timothy S. Bishop, Kyle F. Waldinger, and Elizabeth A. Clark

Tim Bishop and Kyle Waldinger are environmental litigators with Mayer. Brown & Platt in Chicago; Elizabeth Clark practices in the Firm's Washington, D.C. office. Mr. Bishop and Ms. Clark are counsel for the petitioner in Solid Waste Agency of N. Cook County v. Corps of Eng'rs (SWANCC). The SWANCC petition for writ of certiorari and reply brief are available on the Mayer, Brown & Platt appellate litigation group's website, www.appellate.net. Petitioner's briefs on the merits will be available on that website as they are filed.

[30 ELR 10633]

Does the use by migratory birds of isolated, intrastate waters establish enough of a connection to "navigable waters" and interstate commerce to permit federal regulation under the Clean Water Act (CWA)¹ and the U.S. Commerce Clause? The U.S. Army Corps of Engineers thinks so, but courts and commentators have not been entirely sympathetic to the Corps' so-called migratory bird rule.² The Fourth Circuit and U.S. Supreme Court Justice Thomas (in a dissent from denial of certiorari) have rejected such a broad jurisdictional reach in no uncertain terms.³ Even the Ninth Circuit, one of two federal courts of appeal to approve the migratory bird rule, has recognized that it "certainly tests the limits of Congress's commerce powers and, some would argue, the bounds of reason."⁴ And many academic commentators question whether the rule is constitutional after United States v. Lopez,⁵ which arguably ushered in an era of more demanding review of federal action under the Commerce Clause.⁶

On May 22, 2000, the Supreme Court agreed to hear a challenge to the rule presented in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC).⁷ In that case, the U.S. Court of Appeals for the Seventh Circuit held that the CWA gives the Corps jurisdiction over isolated waters that are neither navigable nor connected or adjacent to navigable waters, but that provide habitat for birds that cross state lines or are protected by Migratory Bird Treaties. The Seventh Circuit also held that this vast extension of the Corps' jurisdiction does not exceed the federal commerce power.

In this Dialogue, we examine the migratory bird rule through the prism of the SWANCC case and explain why it lacks a sound statutory or constitutional basis. SWANCC is a fine vehicle to strike down the bird rule. The Seventh Circuit's decision has halted the collective (and costly) efforts of 23 Chicago-area municipalities to develop land as a solid waste balefill serving their 700,000 citizens, even though the Corps has not established even the remotest connection between the wet areas on the land and either interstate waters or interstate commerce. SWANCC starkly illustrates how the bird rule impinges on powers of state and local authorities that the Framers of the Constitution intended to preserve as an integral element of our federalist system of government. Of course, private landowners are equally at the mercy of the Corps under the bird rule. Accordingly, representatives of agriculture (American Farm Bureau Federation), residential developers (National Association of Home Builders), and industry (Cargill, Incorporated) all filed amicus briefs urging the Court to review the SWANCC decision, as did the public interest Pacific Legal Foundation. The Court's decision to grant the petition for writ of certiorari is a recognition of the importance of the question presented in SWANCC's case.⁸

[30 ELR 10634]

The Migratory Bird Rule

The CWA prohibits the discharge of "pollutants," including dredged and fill materials, into "navigable waters" without a permit from the Corps.⁹ "Navigable waters" are defined in the CWA only as "the waters of the United States."¹⁰ The Corps has defined the "waters of the United States" in its regulations to include not only navigable waters, tidal waters, and waters adjacent to such waters, but also

all other 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 . . . .¹¹

In the preamble to regulations adopted in 1986, the Corps further defined these "other" waters in what has come to be known as the "migratory bird rule":

EPA has clarified that waters of the United States at [33] CFR 328.3(a)(3) also include the following waters:

a. Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or

b. Which are or would be used as habitat by other migratory birds which cross state lines.¹²

Despite the fact that it looks like, operates like, and is universally referred to as a "rule," the "migratory bird rule" has never been promulgated as such in accordance with § 553 of the Administrative Procedure Act (APA)¹³ and hence has never been tested in the crucible of the notice-and-comment procedure. This prompted the Fourth Circuit in Tabb Lakes, Ltd. v. United States¹⁴ to invalidate the bird rule a decade ago on the ground that the Corps had failed to comply with APA rulemaking requirements.¹⁵ Heedless of Tabb Lakes—and the other serious problems we discuss below—the Corps unapologetically continues to rely on the bird rule, and did so in SWANCC's case to overturn an important public project that had received every necessary state and local approval.

SWANCC's Balefill Project and the Corps' Exercise of Jurisdiction

SWANCC is a municipal corporation formed by 23 northern Cook County, Illinois, towns and villages to develop a system for the safe and efficient disposal of nonhazardous municipal waste for the residents of its member communities.¹⁶ With that goal in mind, SWANCC purchased a 533-acre parcel of land to create a balefill—a landfill where baled, rather than loose, waste is dumped—on 410 acres of the site. Part of the balefill site was agricultural land and part, 298 acres, an "early successional stage forest" that had grown up on land previously used as a strip mine for gravel. The forested portion of the site contained "a labyrinth of trenches and other depressions" left by the strip mining. These collect rainwater during some or all of the year, forming "permanent or seasonal ponds" ranging from one-tenth of an acre to several acres in size, and from a few inches to several feet in depth.¹⁷

In 1987, after 10 public hearings and 2,500 pages of testimony, the local zoning board and the Cook County Board of Commissioners approved SWANCC's balefill project. In 1989, SWANCC obtained a permit for the project from the Illinois Environmental Protection Agency, which had reviewed SWANCC's 1,700 page application and conducted four days of hearings. Because SWANCC needed to fill 17.6 acres of trenches and depressions within the forested area to construct the balefill, it also requested rulings from the Corps as to whether it needed a permit under § 404. The Corps informed SWANCC twice, in 1986 and again in 1987, that those 17.6 acres were not subject to the Corps' regulatory authority and that a § 404 permit was not required.¹⁸

The Corps changed its position after the Illinois Nature Preserves Commission informed the Corps in July 1987 that its staff had observed migratory bird species on the property during a brief site visit.¹⁹ Based on that assessment, and invoking its "migratory bird rule," the Corps concluded that the isolated, intrastate strip-miningdepressions on the balefill site were "navigable" "waters of the United States" within its jurisdiction under the CWA solely because they "are or could be used as habitat by migratory birds which cross state lines."²⁰ SWANCC submitted an application for a § 404 permit, which the Corps denied in 1991, just as it denied SWANCC's revised application in 1994.

SWANCC's Challenge to the Migratory Bird Rule

SWANCC promptly brought suit against the Corps in the District Court for the Northern District of Illinois challenging the Corps' jurisdiction. It contended that the Corps lacks authority under the CWA to regulate isolated waters that are in no way connected or related to navigable waters of the United States. Alternatively, it argued, the regulation of isolated waters not connected with interstate commerce, on the sole basis that they were used as habitat by migratory birds, exceeded the scope of federal power under the Commerce Clause. In an argument that combines these two points, SWANCC contended that constitutional doubt about whether the bird rule comports with the Commerce Clause mandated rejection of the Corps' broad interpretation of its CWA powers, because an agency's interpretation is not entitled to Chevron, U.S.A., Inc. v. Natural Resources Defense Council²¹ deference when it raises "serious constitutional concerns" and "there is another interpretation that may fairly be ascribed" to the statute.²² The district court rejected [30 ELR 10635] SWANCC's arguments, granting summary judgment to the Corps.²³

On SWANCC's appeal, the Seventh Circuit affirmed. It rejected SWANCC's argument that the migratory bird rule violates the Commerce Clause, or at least raises enough constitutional problems to mandate a narrower interpretation of "navigable" "waters of the United States."²⁴ The court acknowledged that the migratory bird rule can be justified, if at all, only under the third prong of federal regulatory power set forth in United States v. Lopez²⁵ "regulation of activities that 'substantially affect' interstate commerce."²⁶ It then held that although the Corps had made no showing that the use of SWANCC's balefill site by migratory birds had any effect on interstate commerce, "a single activity that itself has no discernible effect on interstate commerce may still be regulated if the aggregate effect of that class of activity has a substantial impact on interstate commerce"²⁷—the "aggregation principle" most famously applied in Wickard v. Filburn²⁸ to justify federal jurisdiction over wheat grown for a farmer's own domestic consumption. Finally, the court held that "destruction of the natural habitat of migratory birds in the aggregate 'substantially affects' interstate commerce" because "millions of people annually spend more than a billion dollars on hunting, trapping, and observing migratory birds," including by "travel across state lines."²⁹

Turning to SWANCC's argument that the migratory bird rule is not a permissible interpretation of the CWA, the court of appeals held that the "scope of the Act reaches as many waters as the Commerce Clause allows."³⁰ Accordingly, it concluded, "because Congress' power under the Commerce Clause is broad enough to permit regulation of waters based on the presence of migratory birds, it is certainly reasonable for the EPA and the Corps to interpret the Act in such a manner."³¹

Finally, the Seventh Circuit rejected SWANCC's argument that an interpretation of the CWA must be tied to water quality. Brushing aside concerns that jurisdiction under the CWA is now tied to the interstate movement of birds instead of to any real effect on interstate waters, the court focused on the CWA's stated purpose "to restore and maintain the . . . biological integrity of the Nation's waters."³² According to the Seventh Circuit, "SWANCC's suggestion that the Corps' jurisdiction must be defined solely by reference to water quality is itself inconsistent with the Act and must be rejected."³³

Although it builds on circuit precedent,³⁴ we think the SWANCC court got just about everything wrong. It upheld agency action that is lawless and an affront to our federalism. Taking the language and history of the CWA seriously, and having due regard to the post-Lopez scope of federal commerce power, the Corps should not have jurisdiction over isolated waters solely because they are habitat to migratory birds. This important issue has generated significant judicial and academic controversy, and it is therefore not surprising that the Court has decided to address it.

The Seventh Circuit's Statutory Misinterpretation

"An administrative agency's power to regulate . . . must always be grounded in a valid grant of authority from Congress."³⁵ But one searches the CWA in vain for any grant of authority to regulate isolated ponds and puddles solely because migratory birds use them. The Seventh Circuit's conclusion that the bird rule is a reasonable interpretation of the CWA cannot be reconciled with the language and history of the Act.

The CWA limits the Corps' jurisdiction to "navigable waters," which are defined in the Act only as "waters of the United States."³⁶ Traditionally, "navigable waters" meant "waters navigable in fact."³⁷ Over time, however, courts extended the concept of the navigable waters to include waters capable of navigation through reasonable improvement.³⁸ The legislative history of the CWA indicates that by using the phrase "navigable waters" but defining it as "waters of the United States," Congress intended to reject the traditional approach adopted in The Daniel Ball³⁹ and embrace the slightly broader view of federal jurisdiction set forth in United States v. Appalachian Electric Power Co.⁴⁰ and similar cases. The CWA's floor manager in the House, Representative Dingell, was explicit in this regard. He said that the bill sought to avoid the most "limited" or "technical" definition of navigable waters "derived from The Daniel Ball" in favor of a definition "in line with more recent judicial opinions" that "expanded that limited view of navigability . . . to include waterways which would be 'susceptible of being used . . . with reasonable improvement,' as well as those waterways which include sections presently obstructed by falls, rapids, sand bars, currents, floating debris, et cetera."⁴¹ It is in that context that the statement in the House and Senate conference reports on the bill that "the conferees fully intend that the term 'navigable waters' be given the broadest possible constitutional interpretation" must be understood.⁴² Congress was well aware that the reach of the federal commerce power over waters was limited by the concept of navigability, but meant to give the broadest possible interpretation to that concept.

The Supreme Court too has insisted that there be some real connection with navigable waters before federal power [30 ELR 10636] is triggered. In Federal Power Comm'n v. Union Electric Co.,⁴³ for example, the Court interpreted the jurisdictional provision of the Federal Power Act giving an agency authority over "navigable waters" and "other . . . waters . . . over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States."⁴⁴ The Court held that federal authority under this broad language did not reach "intrastate nonnavigable waters which do not flow into any navigable streams."⁴⁵ And in United States v. Riverside Bayview Homes,⁴⁶ though the Court recognized that the CWA applies to "at least some waters that would not be deemed 'navigable' under the classical understanding," its limited holding was that wetlands "adjacent" to navigable waters are covered by the CWA only because pollution in wetlands could affect water quality in the navigable waters next door.⁴⁷

What is missing from all this is any sign that the federal government can regulate intrastate, isolated waters that have no hydrologic connection to navigable waters. Yet the migratory bird rule grabs jurisdiction for the Corps in just those circumstances—where there is absolutely no hydrologic connection, only use of the isolated water "by birds protected by Migratory Bird Treaties" or "which cross state lines."⁴⁸ That, we submit, as a matter of the CWA's plain language and history, is not a permissible interpretation and ought to be struck down.

We are not alone in this view. In United States v. Wilson,⁴⁹ the Fourth Circuit struck down the "other waters" rule⁵⁰—of which the bird rule purports to be a "clarification"⁵¹—"as a matter of statutory construction."⁵² "'Waters of the United States,'" the Fourth Circuit reasoned, "when used to define the phrase 'navigable waters' refers to waters which, if not navigable in fact, are at least interstate or closely related to navigable or interstate waters."⁵³ Because 33 C.F.R. § 328.3(a)(3) defined "'waters of the United States' to include intrastate waters that need have nothing to do with navigable or interstate waters," the court held that it illegitimately "expands the statutory phrase 'waters of the United States' beyond its definitional limit."⁵⁴ The same goes for the bird rule, in spades. It does not require any connection with navigable or interstate waters as the foundation for the exercise of federal power—only a connection with migratory birds. Under the CWA, that is not enough.⁵⁵

The Corps contends that its bird rule is nevertheless authorized because the CWA regulates waters in part to protect wildlife.⁵⁶ But Congress meant its goal to protect wildlife to be pursued within the jurisdictional limits imposed elsewhere in the statute: the reference to wildlife was not a separate jurisdictional grant, as the government now contends. To regard it as such a grant (impossible anyway as a matter of plain statutory language) 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 Corps' power, because another goal of the CWA is to protect waters for their recreational use!⁵⁷ "We must be guided to a degree by common sense" in interpreting a statute,⁵⁸ and common sense dictates that theagency may not stray so far from waters with some real connection to the navigable waters of the United States.

What Have Birds Got to Do With Interstate Commerce?

Even if there were any doubt, using traditional tools of statutory construction, that the bird rule is far beyond the pale (and we do not think there is), the rule could not survive the settled principles that statutes are to be interpreted to avoid constitutional problems and that Chevron deference is not owed to constitutionally suspect agency interpretations.⁵⁹ As the Fifth Circuit recently explained, a court is to "reject an agency interpretation of a statute that would ordinarily receive deference under Chevron step-two if it believes the agency's reading raises serious constitutional doubts."⁶⁰

Can there be any question that these established principles ought to be the end of the bird rule? Even defenders of the rule, after all, acknowledge that it "tests the limits of Congress's commerce powers."⁶¹ In SWANCC's case, the Seventh Circuit recognized that migratory birds on SWANCC's property themselves had "no discernible effect on interstate commerce."⁶² And the Corps made no finding beyond that required by the bird rule itself—that SWANCC's wet depressions and ponds were used by migratory birds and birds that cross state lines. It made no finding of any connection to interstate commerce (nor could it). The bird rule's lack of any connection to commerce, reflected in the lack of any agency finding of such a connection in SWANCC's case, makes the basis for federal jurisdiction "even more farfetched than that offered, and rejected, in Lopez" and raises, at minimum, "serious doubts" about the "propriety of the Corps' assertion of jurisdiction."⁶³ [30 ELR 10637] The Fourth Circuit in Wilson held the Corps' "other waters" rule invalid for precisely the same reason.⁶⁴

The Corps' defense against Commerce Clause challenge is the aggregation rule. The Corps contends, and the Seventh Circuit agreed, that "commerce associated with migratory birds has a measurable impact on the national economy" in the form of expenditures by birdwatchers and hunters, and that the "aggregate effects" of filling "isolated waters that are actually used as habitat for migratory birds" have a "substantial impact" on this commerce.⁶⁵

There are deep flaws in this theory. First, the Corps and court aggregated the wrong thing: "the destruction of the natural habitat of migratory birds."⁶⁶ All the Seventh Circuit's⁶⁷ and the government's figures⁶⁸ on migratory bird-related commerce are gross figures that in no way attribute economic effects to the loss of particular types of habitat. Yet the appropriate question to test whether the bird rule is sufficiently tied to interstate commerce is what is the impact on commerce of the filling of isolated, intrastate waters used by migratory birds. The Corps has never made a showing that there is any such impact. To be sure, the Court has not yet provided much guidance on the proper application of the aggregation principle. But Professor Nagle is surely correct that "available clues counsel against overly broad aggregations" like that relied on by the Corps and the Seventh Circuit.⁶⁹ The Court's "frequently stated concern about federalism pushes towards less sweeping aggregations. And lower courts have rejected the contention that Congress can satisfy the Commerce Clause simply by choosing a broad category of activities whose aggregate effect on interstate commerce is substantial."⁷⁰

The second problem with trying to use the aggregation principle to save the bird rule is the glaring disconnect between the class covered by the CWA—"navigable" "waters of the United States"—and the asserted basis of federal jurisdiction—expenditures by birdwatchers and hunters related to migratory birds. If this sleight of hand can pass constitutional muster, what area of Americans' lives will be beyond federal control?

Finally, and most simply, the bird rule is outside the commerce power because the self-propelled flight of birds across state lines is just not commercial in character. Like "any conduct in this interdependent world of ours," such flight may have "an ultimate commercial [] consequence."⁷¹ But any "commercial nexus" here is too strained: "Absent a stronger connection or identification with commercial concerns that are central to the Commerce Clause, that interference [with local control] contradicts the federal balance the Framers designed."⁷² If the federal government can justify regulating every place and thing used by migratory birds merely by pointing in a generalized way to expenditures by hunters and birdwatchers, then we have truly "obliterated the distinction between what is national and what is local and created a completely centralized government."⁷³

The Migratory Bird Rule Offends Our Federalism

The final reason why the Seventh Circuit erred in upholding the bird rule is a more specific complaint about the rule's anti-federalist effects. A court will not assume that Congress intended to substantially "alter sensitive federal-state relationships" by regulating conduct "traditionally subject to state regulation" unless Congress said so clearly.⁷⁴ Congress in the CWA didn't say anything about regulating isolated waters, still less about doing so based on the presence of migratory birds. So the Corps should not be permitted to use the bird rule, which "radically readjusts the balance of state and national authority."⁷⁵

Since at least Village of Euclid v. Ambler Realty Co.,⁷⁶ the Court has recognized "the authority of state and local governments to engage in land use planning."⁷⁷ Yet the bird rule imposes a federal agency on top of the local land use planning process, allowing the Corps to sit in final judgment on whether a project that involves filling isolated waters is in the "public interest."⁷⁸ It does so when, as in SWANCC's case, the project had already been approved, after exhaustive inquiry, by all state and local authorities, and even when, as in SWANCC's case, the project is an important public project serving critical local needs. And if the bird rule is permissible, there is no logical stopping point to this federal infringement on local powers. Migratory birds may settle anywhere, and land that is migratory bird-free one year may be habitat the next. Virtually no land, building, or tree will be beyond the potential scope of federal powers to overrule local land use determinations. Given the Court's renewed interest in federalist limits on centralized power, on display in a host of decisions over the past few terms, federal regulation for which no limits can be identified is highly suspect.

In our view, the resolution of SWANCC is simple. First, the bird rule is clearly beyond the scope of the Corps' authority under the CWA to regulate "navigable" "waters of the United States" because it regulates waters that are wholly unconnected to waters navigable-in-fact and that are purely intrastate. Second, the bird rule is outside the commerce power because it regulates activities that have no connection to interstate commerce, either in isolation or in the aggregate. Finally, the bird rule is an affront to our federalism [30 ELR 10638] because it shifts control over decisions traditionally local in nature, i.e., land use planning, to the federal government. If the federal government has the power to regulate the use of isolated, intrastate waters, there is no area of local land use planning over which the federal government could not assert control.

The Corps' migratory bird rule misinterprets the CWA and undermines the Constitution's protection of a sphere for local action. We hope the Court reverses the Seventh Circuit's decision in SWANCC, strikes down the bird rule, and shifts the balance between federal and local authority toward equilibrium.

1. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

2. 51 Fed. Reg. 41206, 41217 (1986).

3. Cargill, Inc. v. United States, 516 U.S. 955, 26 ELR 20001 (1995) (Thomas, J., dissenting from denial of certiorari); United States v. Wilson, 133 F.3d 251, 28 ELR 20299 (4th Cir. 1997).

4. Leslie Salt Co. v. United States, 55 F.3d 1388, 1396, 25 ELR 21046, 21050 (9th Cir. 1995) (Leslie Salt II).

5. 514 U.S. 549 (1995).

6. See, e.g., Christopher N. Challis, Standing Alone in Murky Waters, 34 WAKE FOREST L. REV. 1179 (1999); John C. Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 MICH. L. REV. 174 (1998); The Migratory Bird Rule After Lopez: Questioning the Value of State Sovereignty in the Context of Wetland Regulation, 39 WM. & MARY L. REV. 1695 (1998); Endangered Regulation: Why the Commerce Clause May No Longer Be Suitable Habitat for Endangered Species and Wetlands Regulation, 2 TEX. REV. L. & POL'Y 365 (1998); Elaine Bueschen, Do Isolated Wetlands Substantially Affect Interstate Commerce?, 46 AM. U. L. REV. 931 (1997); Lori J. Warner, The Potential Impact of United States v. Lopez on Environmental Regulation, 7 DUKE ENVTL. L. & POL'Y F. 321 (1997); The Birds: Regulation of Isolated Wetlands and the Limits of the Commerce Clause, 28 U.C. DAVIS L. REV. 1237 (1995); Leslie Salt Co. v. United States: Does the Recent Supreme Court Decision in United States v. Lopez Dictate the Abrogation of the "Migratory Bird Rule"?, 14 TEMP. ENVTL. L. & TECH. J. 277 (1995); Keep the Birds Out of Your Birdbath: It May Be Considered the Jurisdiction of the Army Corps of Engineers as a "Water of the United States," 2 VILL. ENVTL. L.J. 463 (1991).

7. 191 F.3d 845, 30 ELR 20161 (7th Cir. 1999), petition for cert. granted, No. 99-1178 (U.S. May 22, 2000).

8. As the Pacific Legal Foundation pointed out in its amicus brief, SWANCC's petition was a rare case presenting the legality of the bird rule. That is because the costs of pursuing final agency action on a § 404 (33 U.S.C. § 1344, ELR STAT. FWPCA § 404) permit, followed by a petition for review to the federal courts, is prohibitive for most landowners. And it is because the Corps appears deliberately to avoid "ripening" a court challenge by refusing to make a final agency determination on a permit application. See Amicus Brief of Pacific Legal Foundation, at 9-14. Given that ripening a case will become more difficult in the future with the institution of a new administrative appeals process that has to be completed before a landowner can go to court, see 33 C.F.R. §§ 320.1(a)(2), 331.1-.12(1999), it is significant that the Court will hear SWANCC's case now.

9. 33 U.S.C. §§ 1311(a), 1344(a), 1362(12), ELR STAT. FWPCA §§ 301(a), 404(a), 502(12).

10. Id. § 1362(7), ELR STAT. FWPCA § 502(7).

11. 33 C.F.R. § 328.3(a)(3). The U.S. Environmental Protection Agency has issued an identical definition, 40 C.F.R. § 230.3(s) (1999).

12. 51 Fed. Reg. at 41217.

13. 5 U.S.C. § 563, available in ELR STAT. ADMIN. PROC.

14. 885 F.2d 866, 20 ELR 20008 (4th Cir. 1989).

15. Id. (affirming decision at 715 F. Supp. 726, 19 ELR 20672 (E.D. Va. 1988) (the migratory bird rule is invalid as a substantive rule promulgated without notice and comment)). The Seventh Circuit in SWANCC rejected a similar APA challenge to the bird rule.

16. SWANCC, 191 F.3d at 847, 30 ELR at 20161.

17. Id. at 848, 30 ELR at 20161.

18. Id.

19. Id. at 848-49, 30 ELR at 20162.

20. Id. at 849, 30 ELR at 20162.

21. 467 U.S. 837. 14 ELR 20507 (1984).

22. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 577 (1988).

23. Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 998 F. Supp. 946, 948 (N.D. Ill. 1998).

24. SWANCC, 191 F.3d at 849-51, 30 ELR 20162-63.

25. 514 U.S. 549 (1995).

26. SWANCC, 191 F.3d at 849, 30 ELR at 20162 (citing Lopez, 514 U.S. at 558-59).

27. Id. at 850, 30 ELR at 20162.

28. 317 U.S. 111 (1942).

29. SWANNC, 191 F.3d at 850, 30 ELR at 20162.

30. Id. at 851, 30 ELR at 20163.

31. Id.

32. Id. at 852, 30 ELR at 20163 (quoting 33 U.S.C. § 1251(a), ELR STAT. FWPCA § 101(a).

33. Id.

34. See Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 23 ELR 21139 (7th Cir. 1993).

35. Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 120 S. Ct. 1291, 1315 (2000).

36. 33 U.S.C. §§ 1344(a), 1362(7), ELR STAT. FWPCA §§ 404(a), 502(7).

37. The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870).

38. See, e.g., United States v. Appalachian Elec. Power Co., 311 U.S. 377, 398-399 (1940).

39. 77 U.S. (10 Wall.) 557 (1870).

40. 311 U.S. 377 (1940).

41. 118 CONG. REC. 33756 (1972) (citing United States v. Utah, 283 U.S. 64 (1931)). Accord 118 CONG. REC. at 33699.

42. S. CONF. REP. No. 92-1236, at 144 (1972); H.R. REP. No. 92-911, at 131 (1972).

43. 381 U.S. 90 (1965).

44. 16 U.S.C. § 817.

45. 381 U.S. at 97 & n.9.

46. 474 U.S. 121, 133, 16 ELR 20086, 20088 (1985).

47. Id. at 133-34, 16 ELR at 20088-89 (emphasis added); see id. ("wetlands may serve to filter and purify water draining into adjacent bodies of water . . . and to slow the flow of surface runoff into" navigable waters).

48. 51 Fed. Reg. at 41217.

49. 133 F.3d 251, 28 ELR 20299 (4th Cir. 1997).

50. 33 C.F.R. § 328.3(a)(3).

51. 51 Fed. Reg. at 41216.

52. 133 F.3d at 257, 28 ELR at 20301.

53. Id.

54. Id.

55. See also Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 262-63, 23 ELR 21139, 21142 (7th Cir. 1993) (Manion, J., concurring in the judgment) (the CWA gives no federal jurisdiction over "isolated wetlands" that "have no effect on the waters of the United States").

56. E.g., Brief of United States in Opposition to Certiorari in SWANCC, at 14-15 (relying on 33 U.S.C. § 1251(a), ELR STAT. FWPCA § 101(a)).

57. 33 U.S.C. § 1251(a)(2), ELR STAT. FWPCA § 101(a)(2).

58. Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 120 S. Ct. 1291, 1301 (2000).

59. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 574-577 (1988).

60. Texas Office of Pub. Util. Counsel v. Federal Communications Comm'n, 183 F.3d 393, 443 n.95 (5th Cir. 1999), cert. petitions pending. See also, e.g., Chamber of Commerce v. Federal Elec. Comm'n, 69 F.3d 600, 605 (D.C. Cir. 1995).

61. Leslie Salt II, 55 F.3d 1388, 1396, 25 ELR 21046, 21050 (9th Cir. 1995).

62. SWANCC, 191 F.3d at 850, 30 ELR at 20162.

63. Cargill, Inc. v. United States, 516 U.S. 955, 958, 26 ELR 20001, 20002 (1995) (Thomas, J., dissenting from denial of certiorari). The migratory bird rule contains no "jurisdictional element which would ensure, through case-by-case inquiry" that particular waters "affect interstate commerce." United States v. Lopez, 514 U.S. 549, 561 (1995).

64. See 133 F.3d at 257, 28 ELR at 20301.

65. Brief of United States in Opposition to Certiorari in SWANCC, at 17-18.

66. SWANCC, 191 F.3d 845, 850, 30 ELR 20161, 20162 (7th Cir. 1999).

67. Id.

68. Brief of United States in Opposition to Certiorari in SWANCC, at 18-19.

69. Nagle, supra note 6, at 197-98.

70. Id. See also 1 L. TRIBE, AMERICAN CONSTITUTIONAL LAW 825 n.68 (3d ed. 2000).

71. United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy and O'Connor, JJ., concurring).

72. Id. at 583.

73. National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937).

74. Rewis v. United States, 401 U.S. 808, 811-812 (1971).

75. BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994).

76. 272 U.S. 365 (1926).

77. Dolan v. City of Tigard, 512 U.S. 374, 384, 24 ELR 21083, 21085 (1994).

78. 33 C.F.R. § 320.4(a) (1999).