(Slip Opinion) OCTOBER TERM, 2000 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

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
2 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

Syllabus

granted to respondents under §404(a) of the CWA. Pp. 5–14.

(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 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. 5–7.

(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. 7–11.

(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
Cite as: 531 U. S. ____ (2001) 3

Syllabus

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 intrastate 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. 11–14.

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.
Cite as: 531 U. S. ____ (2001) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 99–1178

_________________

SOLID WASTE AGENCY OF NORTHERN COOK

COUNTY, PETITIONER v. UNITED STATES

ARMY CORPS OF ENGINEERS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[January 9, 2001]

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 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, be-
2 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

Opinion of the Court

striding 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 CWA, 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).

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
Cite as: 531 U. S. ____ (2001) 3

Opinion of the Court

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 are used

as habitat by migratory bird [sic] which cross state lines.”

U. S. Army Corps of Engineers, Chicago District, Dept. of

——————

1The Corps issued the “Migratory Bird Rule” without following the

notice and comment procedures outlined in the Administrative Procedure Act, 5 U. S. C. §553.
4 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

Opinion of the Court

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 the CWA to cover nonnavigable,
Cite as: 531 U. S. ____ (2001) 5

Opinion of the Court

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 CWA

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 CWA 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, pre-

——————

2Relying 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.
6 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

Opinion of the Court

serve, and protect the primary responsibilities and rights

of 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 CWA.

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
Cite as: 531 U. S. ____ (2001) 7

Opinion of the Court

are not adjacent to bodies of open water . . . .” Id., at 131–

132, 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 CWA,

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, intermit-

——————

3Respondents 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.
8 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

Opinion of the Court

tent 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.”

Respondents argue that Congress was aware of this more

expansive interpretation during its 1977 amendments to

the CWA. 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 Cong. 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

——————

4While this bill passed in the House, a similarly worded amendment

to a bill originating in the Senate, S. 1952, failed. See 123 Cong. Rec.

26710, 26728 (1977).

5 In Bob Jones Univ. v. United States, 461 U. S. 574, 595, 600–601
Cite as: 531 U. S. ____ (2001) 9

Opinion of the Court

“[F]ailed 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 (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

——————

(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”; 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”).

6Respondents cite, for example, the Senate Report on S. 1952, which
10 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

Opinion of the Court

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 regulate 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

——————

referred to the Corps’ “isolated waters” regulation. See S. Rep. No. 95–

370, p. 75 (1977). However, the same report reiterated that “[t]he

committee amendment does not redefine navigable waters.” Ibid.

7Respondents 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
Cite as: 531 U. S. ____ (2001) 11

Opinion of the Court

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 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 effect” 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 CWA: 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

——————

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.”
12 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

Opinion of the Court

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 statute to push the limit of congressional authority. See ibid. This concern is heightened

where the administrative interpretation alters the federalstate 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
Cite as: 531 U. S. ____ (2001) 13

Opinion of the Court

(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.

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 Trans-Hudson 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’ interpre-
14 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

Opinion of the Court

tation, 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

CWA. The judgment of the Court of Appeals for the Seventh Circuit is therefore

Reversed.

——————

8Because violations of the CWA carry criminal penalties, see 33

U. S. C. §1319(c)(2), petitioner invokes the rule of lenity 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).
Cite as: 531 U. S. ____ (2001) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 99–1178

_________________

SOLID WASTE AGENCY OF NORTHERN COOK

COUNTY, PETITIONER v. UNITED STATES

ARMY CORPS OF ENGINEERS ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[January 9, 2001]

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

responded 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).1 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

——————

1See R. Adler, J. Landman, & D. Cameron, The Clean Water Act: 20

Years Later 5–10 (1993).
2 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

STEVENS, J., dissenting

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 CWA properly included an 80-

acre 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

——————

2See 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
Cite as: 531 U. S. ____ (2001) 3

STEVENS, J., dissenting

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 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 CWA, it did not intend “to exert

anything more than its commerce power over navigation,”

ante, at 7, 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 socalled “isolated” waters. Indeed, simple common sense

cuts against the particular definition of the Corps’ juris-

——————

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 11; 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.
4 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

STEVENS, J., dissenting

diction 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.

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,

——————

3See 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.
Cite as: 531 U. S. ____ (2001) 5

STEVENS, J., dissenting

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

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

CWA. 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 CWA was

“to establish a comprehensive long-range policy for the

elimination of water pollution.” S. Rep. No. 92–414, p. 95

——————

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.” §10(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).
6 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

STEVENS, J., dissenting

(1971), reprinted in 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 CWA 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 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.
Cite as: 531 U. S. ____ (2001) 7

STEVENS, J., dissenting

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 carry over

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

word “navigable” from the definition that had originally

appeared in the House version of the Act.7 The majority

——————

6The definition of “navigable water” in earlier versions of the FWPCA

had made express reference to navigability. §211, 80 Stat. 1253.

7The 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),
8 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

STEVENS, J., dissenting

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 7, 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 interest is equally powerful,

regardless of the proximity of the swamp or the water to a

navigable stream. Nothing in the text, the stated pur-

——————

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).
Cite as: 531 U. S. ____ (2001) 9

STEVENS, J., dissenting

poses, or the legislative history of the CWA 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 11. 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 commonlaw 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.”

II

As the majority correctly notes, ante, at 7, when the
10 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

STEVENS, J., dissenting

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),10 and in Congress,11 convinced the Corps that the statute required it

——————

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 11–12, the majority strangely attributes some

significance to the Corps’ initial reluctance to read the 1972 Act as

expanding its jurisdiction, ante, at 7 (“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.

9See, 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 Army Corps of Engineers, 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”). 

11The 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).
Cite as: 531 U. S. ____ (2001) 11

STEVENS, J., dissenting

“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

——————

12 42 Fed. Reg. 37127 (1977), as amended, 33 CFR §328.3(a)(3) (1977).
12 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

STEVENS, J., dissenting

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 Cong. 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

——————

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 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.
Cite as: 531 U. S. ____ (2001) 13

STEVENS, J., dissenting

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 ‘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 CWA to reach

beyond navigable waters and their nonnavigable tributaries, Congress’ rejection of the House’s efforts in 1977 to
14 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

STEVENS, J., dissenting

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 id., at 136 (“Congress

acquiesced in the [1975] administrative construction [of

the Corps’ jurisdiction]”), with ante, at 9 (“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,

——————

13The 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.
Cite as: 531 U. S. ____ (2001) 15

STEVENS, J., dissenting

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,

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
16 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

STEVENS, J., dissenting

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

navigable 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 10. 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 2 and 3 waters after the approval of a program by the Administrator.”

H. R. Conf. Rep. No. 95–830, 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

CWA). 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
Cite as: 531 U. S. ____ (2001) 17

STEVENS, J., dissenting

phase 2 and 3 waters.” S. Rep. No. 95–370, p. 75 (1977),

reprinted in 4 Leg. Hist. of CWA 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, when it enacted §404(g), Congress believed— and desired— the 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 10, n. 6.

It is true that the Report states that “[t]he committee

amendment does not redefine navigable waters.” S. Rep.

No. 95–370, 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’ CWA 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

——————

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
18 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

STEVENS, J., dissenting

well to heed that warning.

The majority also places great weight, ante, at 10, on

our statement in Riverside Bayview that §404(g) “does not

conclusively 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 11–13. This refusal is unfaithful to both Riverside

——————

Nation’s waters to control pollution to the fullest constitutional extent.”

S. Rep. No. 95–370, 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.
Cite as: 531 U. S. ____ (2001) 19

STEVENS, J., dissenting

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 12. “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).

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
20 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

STEVENS, J., dissenting

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 interstate 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
Cite as: 531 U. S. ____ (2001) 21

STEVENS, J., dissenting

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]ender-motivated 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 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,”

——————

15The 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).
22 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

STEVENS, J., dissenting

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 [U. 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 U. 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 literally millions of people regularly participate in

birdwatching and hunting and that those activities generate a host of commercial activities of great value.17 The

causal connection between the filling of wetlands and the

——————

16Other 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.

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 waterassociated 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).
Cite as: 531 U. S. ____ (2001) 23

STEVENS, J., dissenting

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 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
24 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v.

ARMY CORPS OF ENGINEERS

STEVENS, J., dissenting

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 well-established 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. 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).