Our appeal brief in the Balefill case was filed with the Supreme Court on July 27. It forcefully states our position that the Clean Water Act does not, and constitutionally may not, authorize federal jurisdiction over the isolated, intrastate, water filled trenches and depressions located on SWANCC’s land solely because they provide habitat for migratory birds.

The Corps of Engineers has 30 days to respond, which could be extended at the government’s request. The case will likely be set for oral argument before the Supreme Court in its November session. Nineteen amicus briefs have been filed in support of SWANCC’s position by 45 public bodies, organizations, corporations, and individuals, including the State of Alabama, U.S. Conference of Mayors, National League of Cities, National Association of Counties, National Association of Home Builders, U.S. Chamber of Commerce, and American Farm Bureau Federation.

At issue is whether the U.S. Army Corps of Engineers, consistent with the Clean Water Act and the Commerce Clause of the Constitution, may claim jurisdiction over isolated intrastate waters--including backyard ponds and wet areas--solely because those waters do or potentially could serve a habitat for migratory birds.

THE CORPS HAS NO SUCH BROAD AUTHORITY UNDER THE CLEAN WATER ACT

1. Congress clearly did not intend to give the Corps such overreaching authority. The Clean Water Act (CWA) specifically states that "it is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution (and) to plan the development and use***of land and water resources."

2. The Clean Water Act prohibits the discharge of "any pollutant," including "dredged or fill material," into "navigable waters" without a permit from the Corps of Engineers. The Act defines "navigable waters" as "the waters of the United States, including the territorial seas." The text of the Act and its legislative history show that Congress intended the Act to cover the waters that are or could be used for navigation, and waters connected or adjacent to such navigable waters.

The Corps, improperly and without congressional authority, has greatly broadened the definition to include waters "which are or would be used as habitat by birds protected by Migratory Bird Treaties; or which are or would be used by other migratory birds which cross state lines." Under this interpretation of CWA, the Corps’ regulatory authority stretches to virtually every body of water in the country, including seasonally wet areas in homeowners’ backyards. Almost any water body is or could be used as a feeding or resting place by some of the five billion birds that migrate over the entire continental United States each year. Under this interpretation, the Corps would become a super zoning board with land use authority over vast amounts of land containing isolated ponds used by migratory birds, with the power to block any projects approved by local or state authorities. Clearly, Congress did not intend that result in passing the Clean Water Act.

3. Beyond the plain language and legislative history, three well-settled principles of statutory interpretation require that the CWA not be read expansively to reach isolated ponds used by migratory birds. First, there is serious doubt under the commerce clause about the propriety of the Corps’ assertion of jurisdiction, and the Supreme Court interprets statutes to avoid such doubts. Second, statutes are interpreted to minimize the intrusion of federal regulators into traditional local matters like land-use planning. Third, statutes that establish criminal penalties, like the CWA are read narrowly. Under each of these principles, the Corps’ bird rule is impermissible.

IF THE COURT HOLDS THAT CWA PERMITS THE CORPS TO REGULATE ANY WATERS USED AS HABITAT BY MIGRATORY BIRDS, THE ACT IS UNCONSTITUTIONAL

If the CWA did reach so far as to authorize the bird rule, it would be unconstitutional. We point our that in two recent cases--the Gun Free Zones (GFZA) and the Violence Against Women Act (VAWA) cases--the Supreme Court ruled the federal laws unconstitutional. The Court held that while the prohibited activities–carrying guns into schools or doing violence to women–are deplorable and of national concern, they are not inherently economic or commercial, and thus may not be regulated under the Commerce Clause which gives Congress the power to protect things in interstate commerce. It is likewise clear in this case that the Corps has failed to show a sufficient relation between interstate commerce and migratory bird use of isolated waters to support federal regulation.

As a practical matter, permitting the Corps to regulate any place migratory birds use, or might use, for their habitat would mean plenary federal authority over land use. Some five billion birds migrate across North America each year, and migratory flyways cover the entire continental United States. Land-use planning and landfill siting are long-standing functions of state and local government and SWANCC’s proposed balefill was subject to local and state approval which was only granted after exhaustive consideration and thousands of pages of submissions and multiple public hearings. Environmental concerns were carefully considered at both levels.

The Corps regulation in this area of traditional State sovereignty, overruling the considered judgments of state and local governments, threatens the basis distinction between what is truly national and what is truly local, which is at the heart of our federalist system of government.

REVERSAL WOULD NOT WEAKEN FEDERAL ENVIRONMENTAL AUTHORITY

SWANCC seeks a narrow ruling in this case: that the Corps exceeded its authority under CWA and Commerce Clause in asserting jurisdiction over isolated, intrastate, water-filled trenches and depressions on SWANCC’s land solely because those waters were habitat for migratory birds. A victory for SWANCC would not undermine the regulation of water pollution under the CWA, nor would it in any way threaten the federal government’s ability to protect the environment or throw into doubt existing environmental laws. Many such laws regulate activity that is commercial. As such, they are clearly permissible under the Commerce Clause. But beyond that, Congress has passed numerous environmental statutes, including many that protect birds and wetlands, under its constitutional spending, property and treaty powers, which are not at issue in this case.

Thus, the vast scheme of federal environmental regulation would be essentially untouched by a reversal in this case.