Solid Waste Agency v. Army Corps of Engineers - Oral Argument

Argument of Timothy S. Bishop

Chief Justice Rehnquist: We'll hear argument now on number 99-1178, Solid Waste Agency of Northern Cook County versus United States Army Corps of Engineers.

Mr. Bishop.

Mr. Bishop: Mr. Chief Justice, and may it please the Court, by 1972 the terms navigable waters and waters of the United States had a settled meaning after a century during which congresses and this Court's conception of what those terms meant had expanded significantly from an initial strict view that the navigable waters were those navigable, in fact, to a recognition that they included in addition waters navigable with improvements and tributaries of those waters, to this Court's statement in the Union Electric case in 1965 that the only things excluded were intrastate non-navigable waters that did not flow into the navigable waters.

By 1972, when the act was passed, the broadest conception of the navigable waters of the United States included all waters that form part of a single aquatic system with navigable waters in the traditional sense, that flow into and so can affect the quality of those waters.

Justice Scalia: Mr. Bishop, the government says that the... while you may be correct about the perception of what the navigable waters of the United States consist of, that there was no practice of referring to that conception as waters of the United States.

Do you have instances...

Mr. Bishop: We do, Your Honor.

Justice Scalia: in the statutory text or in our opinions where that precise phrase that's used in the definition here, waters of the United States, is used?

Mr. Bishop: Well, the traditional phrase that appears over and over again in the statutes and in the Court's opinions is navigable waters of the United States, but there are instances where those are broken up, and in effect the terms are used interchangeably.

In Section 10 of the Rivers and Harbors Act of 1899, for example, the statute begins by talking about protecting the navigable capacity of the waters of the United States, and immediately switches to talk about preventing obstructions to the navigable waters.

In a much more recent statute, 1990, the Aquatic Nuisance Prevention Act, which I did not cite in my brief, but which I have alerted the Solicitor General to, it's at 16 USC 4702.

That is a statute in which the jurisdictional term is waters of the United States.

What's the definition in the statute?

Navigable waters.

The phrases have been used interchangeably in statutes and in this Court's opinions, and in our reply brief in a footnote towards the end we cited a number of opinions.

Justice Kennedy: Have we ever used the term waters of the states or has Congress ever used the term waters of the states?

It would seem there might be a dichotomy there; I'm not sure that it necessarily follows.

Mr. Bishop: Yes, I think in that same footnote we cite a number of cases where the waters of the United States is used in contradistinction to the waters of the states.

One of the problems with the government's interpretation is that there is no longer any such thing as the waters of the states.

Justice Breyer: I can understand.

I don't think... I can understand the position that says waters of the United States means the navigable waters, but that's not your position.

You're saying it includes anything that flows into navigable waters.

I could understand the position that says waters of the United States means whatever Congress can legislate on under the commerce clause, but that's not your position.

That's their position.

What I don't understand is the position which, I take it is yours, which says that all non-navigable waters which flow into a navigable water is within the statute, and that apparently according to the amici brief, is about 80 percent of every backyard pond.

But those which flow into waters under the ground rather than over the ground which I guess are excluded on your theory, just because they go under the ground.

That isn't the small ones; that includes Crater Lake, the Great Salt Lake, huge bodies of water.

It isn't the big ones.

It's some small ones, some big ones, 80 percent, the only difference being that they happen to flow into the stream that's navigable under the ground rather than over the ground.

So what conceivably could Congress have had in mind on your interpretation?

Mr. Bishop: Just one question.

We're not taking a position on groundwaters.

The circuits are in conflict on that.

Justice Breyer: Maybe you're even saying that some of the ones that go under the ground are within the statute, but others aren't.

Mr. Bishop: Some courts have held that groundwaters that are connected to the... that is, flow into the navigable waters of the United States, serve as a source.

Justice Breyer: Or into the Fox River, isn't that right?

Mr. Bishop: There is no evidence of that.

Justice Breyer: My question you see, is I can understand their interpretation, I can understand a narrow interpretation, but I don't understand what any human being would want to accomplish by writing your interpretation that would in fact exclude somewhere between 5 and 20 percent of the bodies of water in people's backyards.

Mr. Bishop: I think what the Congress had in mind in borrowing the common law and prior statutory meanings of these terms was that it did want to protect water, but it was also very cognizant of states' rights and retained rights under the 10th Amendment to regulate, and wanted to maintain limits on the scope of the jurisdiction.

Chief Justice Rehnquist: Mr. Bishop, is your position on this issue influenced in any respect by our decision in Riverside versus Bayview Homes?

Mr. Bishop: Clearly I have to accommodate that position, and that is one that Congress addressed specifically as the Court noted in Riverside Bayview.

It pointed out that the adjacent wetland abutted and drained into the navigable waters.

I think what Congress had in mind, when you read the legislative history, in the context of the statutory language and the history of these terms is not, as the government says, the commerce... the effects of commerce jurisdiction, but the channels jurisdiction.

It was interested in expanding Federal jurisdiction over the water as a protective matter as far as it thought it could.

Justice Ginsburg: Mr. Bishop, if that's so, then how do you explain Section 404(g) of the statute, which allows the states' governments to submit to the EPA a description of a program involving discharging into waters that are other than navigable or adjacent to navigable waters?

Why would Congress give the governors permission to do that if those waters are excluded?

Mr. Bishop: It's clear that what that refers to are tributaries.

The only thing excluded from the state program are traditional navigable waters narrowly defined as waters navigable in fact, navigable with improvement, and wetlands adjacent thereto.

That leaves a vast array of navigable waters of the United States as set forth in prior statues in this Court's understanding of those terms.

Which are tributaries, primary, secondary, tertiary tributaries.

As Justice Breyer pointed out, what is excluded, we believe, are the small proportion of waters that are totally isolated, that do not flow into the tributaries.

Justice Ginsburg: 404(g) would not cover such...

Mr. Bishop: It would not cover isolated waters.

It clearly does allow states to regulate tributaries, that is, traditional navigable waters of the United States, under for example, the Rivers and Harbors Act or the 1948 version of the Clean Water Act.

Justice O'Connor: And presumably, states can regulate, under your theory, these isolated waters that don't flow into navigable waters.

It's within the states' jurisdiction.

Mr. Bishop: That's right, Justice O'Connor, and the State of Alabama in its amicus brief set out a long appendix with state statutes.

It's clear that virtually all states, if not all states, regulate isolated waters and protect them.

Here the State of Illinois and Cook County carefully investigated our project over many public hearings, over many months, and concluded the project would not impact the waters involved here in any way.

Justice O'Connor: What about lakes or ponds, intrastate, that don't flow into navigable waters but which can support rowboats or small sailboats or something like that?

Mr. Bishop: This Court's definition in Appalachian Electric of a navigable water included one that could be used by small noncommercial vessels on the theory that that indicated the potential of the water body to be used for commerce, and we are not objecting here to the Court's claim of jurisdiction over waters that are navigable in fact, even by small vessels.

We are objecting solely to the taking of jurisdiction over isolated water bodies that do not support commerce or boating and that do not flow into and therefore affect the quality of navigable waters over which the Corps has always had jurisdiction.

Justice Stevens: I don't quite understand your position as to why if it's a small lake entirely within the boundaries of the state that you don't object to Federal jurisdiction there.

Even if it's navigable, that's not interstate commerce, it's local commerce.

Mr. Bishop: Right, but we're not objecting... I mean, that is not our case, Justice Stevens, so I can't claim to... you know, I don't want to state a definitive position on this.

It's not unreasonable in our view for the Corps to have regarded small lakes that support intrastate commerce as part of the flow of commerce around the nation.

Justice Stevens: Would this case be different if the United States could prove that people used rowboats to go fishing in the pond that we're talking about here?

It's several acres in size, I think, isn't it?

Mr. Bishop: These ponds are very tiny and shallow.

There is nothing in the record.

It's private land.

They have never been used.

Justice Stevens: How big is the pond we're talking about?

Mr. Bishop: Well, there are a number of ponds.

When I was out three weeks ago there was no water on the land.

Justice Stevens: How big is the biggest one?

Mr. Bishop: I think in the record they say several acres.

Justice Stevens: Several acres.

So you could row back and forth across that one.

Justice Breyer: Two feet deep, I'm told.

Mr. Bishop: They're very shallow.

Justice Stevens: If you could, would that make a difference to you?

Say it was ten feet deep instead of two feet deep, and people regularly went out in rowboats in it?

Mr. Bishop: The position that the Corps has taken, which we do not object to...

Justice Stevens: I'm asking your position.

Mr. Bishop: Yes, anything that supports... our position essentially is anything that supports, could support commerce, and that would include the intrastate portion...

Justice Stevens: I'm just asking specifically, if it can support people going out in a rowboat and rowing back and forth across the lake, that would be sufficient in your view?

Mr. Bishop: I find that implausible, but that is what the Court said in...

Justice Stevens: But I would like to get an answer to my question, if you could please.

What is your view on that hypothetical?

Mr. Bishop: Yes, I think you have intrastate waters if they are navigable, that is, if a boat can go on them and move.

Justice Stevens: This would be a different case if the government could prove that rowboats could go back and forth across the water?

Mr. Bishop: Or if they could prove that... yes, that's right.

Justice Scalia: Well, I don't see why you keep referring to, you know, supporting interstate commerce.

I thought the whole core of your case is that when you referred to navigable waters, you're not talking about interstate commerce, that there is one basis of jurisdiction which is the commerce clause, and there is another basis of jurisdiction which is navigable waters, and if you interpret navigable waters to mean waters that are navigable, whether they are navigable interstate or not, it would necessarily include lakes big enough to float a rowboat.

Mr. Bishop: That's right, Justice Scalia, but...

Justice Scalia: Why do you keep referring to interstate commerce?

Mr. Bishop: Because I believe there is a connection.

Justice Scalia: That's part of the navigable waters clause?

Mr. Bishop: No.

I believe that when Congress talks about navigable waters, particularly in the expanded sense that grew up over the hundred years after the Daniel Ball, they had in mind the channels power, and that that's how it reaches tributaries and things that affect the navigable waters.

Clearly many of the waters that are covered under the tributaries language of the statutes are not navigable in fact and could not support even a small rowboat.

Justice Scalia: But they affect navigable waters, and so Congress' authority over the navigable waters, presumably gives the Congress the authority to protect navigable waters, from pollution for example.

Mr. Bishop: Absolutely right.

Justice Stevens: So what is the source of the Congress' authority over navigable waters?

Is it the commerce clause?

Mr. Bishop: Yes, I believe it's the channels power under the commerce clause, but it is not what the government has taken here which is the effects of commerce.

Congress by 1972 knew very well how to invoke the effects commerce power.

It did so, for example, in 844(a) of the criminal code, which this Court considered in Lopez, where it specifically invoked that power.

It did not do so in the Clean Water Act.

It used these traditional terms, navigable waters of the United States, and under any plausible understanding of those terms, historical or just common sense, and certainly reading the legislative history, there is absolutely no indication that Congress meant to reach isolated ponds that can have no affect on the quality of navigable waters.

Justice Ginsburg: Mr. Bishop, I don't mean to belabor this but I'm looking at the text of 404(g), and it seems that this provision addresses permits on the application of the governor of any state to things that are not navigable waters, not tributaries, not adjacent wetlands.

They seem, this section seems to fit the category that you say is outside the statute.

Perhaps you can look at the text of 404(g) and show me where I am wrong.

Mr. Bishop: No, you are right, but the statute does not define the limits of what is being allotted to the states.

The Corps... Congress is only allotting to the states that which is left over from the 404 permit program once traditional navigable waters have been taken out.

It is our position that there is nothing else in the statute that gives the Federal government power over isolated waters with no impact on the navigable waters of the United States, and therefore the only thing that 404(g)(1) reaches are the tributaries which are part of the navigable waters but which are not part of the traditional Corps meaning of navigable waters in the Daniel Ball, Appalachian Electric sense.

That seems like... I mean, the statute does not say isolated waters; there is nothing in there that even hints that isolated waters are part of what is left over.

Justice Ginsburg: Adjacent wetlands are not left over because that's specifically mentioned...

Mr. Bishop: Wetlands adjacent to waters that are navigable in fact or navigable with improvements, not waters that are... wetlands that are adjacent to tributaries, which are left to the states.

That leaves an enormous amount of regulatory power to the states over tributaries and their adjacent wetlands, but nothing in there suggests in the least that isolated waters are included in that package, and isolated waters are traditionally regulated by the states anyway.

There are principles of statutory interpretation here that even if there were any ambiguity in the statutory language, which we don't believe there is, there are principles of statutory interpretation which require, we believe, our reading as opposed to the government's.

The first of those is the DeBartolo principle that a statute or in this case a regulation, the bird rule should not be read so as to create constitutional problems.

Whatever one's conclusion about the constitutionality of the bird rule, it seems beyond question that it does raise serious questions.

Justice O'Connor: Well, are you asking us, counsel, to just focus on the bird habitat final rule or to focus on the regulation in 33 Code of Federal Regulations, section 3328.3, defining waters of the United States?

Mr. Bishop: I believe that that regulation, Justice O'Connor, does not satisfy our view of the statutory language and therefore should be set aside.

Justice O'Connor: Is the one 3328.3, the one defining waters of the United States?

Mr. Bishop: Right, the one defining waters of the United States.

Justice O'Connor: You want us to focus on that and in your view it is too broad and covers things the statute didn't authorize?

Mr. Bishop: That is true, it does not.

Justice O'Connor: Isolated, intrastate pond?

Mr. Bishop: What it does is to extend the government's jurisdiction to the limits of the effects commerce power.

We don't believe that that's what the Clean Water Act says.

Now, having said that I would like to add, however, that the only...

Justice O'Connor: So the bird habitat regulation doesn't have anything to do with it, or it does?

Mr. Bishop: Well, the government has... the sole basis on which the government has claimed jurisdiction in this case during the past... since 1987 when all this started is the bird rule.

They have never mentioned another rule.

In their brief...

Chief Justice Rehnquist: I didn't quite understand.

The sole basis is what, Mr. Bishop?

Mr. Bishop: The sole basis is the migratory bird rule.

That is what they stated when they took jurisdiction in the first place.

It is the only basis of jurisdiction that is stated in the 404 permit denials.

Having said that, we obviously don't want to go back down and find ourselves caught on some other provision of the other waters regulation.

It seems to us that the other waters regulation is wholly inconsistent insofar as it reaches any water, any isolated water that has any conceivable effect on interstate commerce.

That is incompatible with the plain language of the statute and the legislative history, and so although we... the migratory bird rule is the only basis on which jurisdiction has been asserted in their briefs to this Court, the government does retreat from that and rely on the activity itself, which I think is an intent to rely on the other waters regulation.

And so we would like the Court to address that to save another $30 million in public money which is what we spent dealing with the Corps for the last 13 years.

I was talking about the principles of statutory regulation which we think support our interpretation.

One is the DeBartolo principle, but a second one and one the Congress had very much in mind as Section 101(b) of the statute makes clear is that it was concerned not to trample state powers over land use and over the environment, and there is no doubt that that trampling occurred here.

The Corps put together a 47,000-page record over the course of seven years of permitting, and in doing so overrode the considered determinations of the State of Illinois and Cook County.

When it does a 404 determination, once it has taken jurisdiction, it doesn't just keep its eyes on the isolated waters.

It roams far and wide, using a public interest standard.

The elements of that public interest standard include, for example, whether the project meets the needs and welfare, the general needs and welfare of the people.

It includes review of economics, aesthetics, an array of other things.

It is general land use regulation at that point, and we believe that that is both inconsistent to stretch the jurisdiction as the Corps has through its rules, to stretch the jurisdiction to impinge on state regulation in the face of a clear statement in the preamble of the statute that Congress intended, had a policy to preserve the primary jurisdiction of state and local government over these matters, and that it is inconsistent with the clear statement principle that this Court has applied which requires that if Congress is going to impinge on the reserved rights of the states that it should say so clearly.

Far from saying so clearly in this case, it said that it wished to preserve to the extent possible the rights of the states.

Justice Ginsburg: And where are the words that say that?

Mr. Bishop: 101(b), Your Honor, section 101(b), 1251(b), which is probably quoted on the first page of our blue brief.

Justice O'Connor: First page of the blue brief?

Mr. Bishop: Yes, Your Honor.

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.

Justice Breyer: Could Congress regulate these ponds to prevent them from serving as nesting places, say for mosquitos that carry West Nile disease from state to state?

Mr. Bishop: I don't believe that the Federal government may regulate these ponds under the interstate...

Justice Breyer: So instead of... if they discovered that mosquitos are flying all over the place, infect birds, and people are dying in different states because of a pond that is not appropriately sprayed, Congress lacks the power in your view to tell the states or to tell individuals to spray their ponds or not to use certain pesticides that are killing people in other states.

Do they have that power?

Mr. Bishop: Not under the commerce clause, but they clearly can use treaty power.

You have to understand that birds are...

Justice Breyer: No.

I'm talking about under my hypothetical; there is no treaty, as I know, on West Nile disease mosquitos?

Mr. Bishop: West Nile disease is spread by birds and kills birds, and under the migratory bird treaty act Congress can clearly take birds by...

Justice Breyer: What I'm trying to ask with my question, if you can just... suppose that it's discovered that birds are causing diseases or suppose that pesticides are dangerous to people.

Can Congress tell you that you cannot use a certain pesticide in your backyard pond or your backyard tree because the effect of that is to spread disease from state to state?

Do they have that power?

Mr. Bishop: Congress can certainly regulate anything that is commercial, including...

Chief Justice Rehnquist: So if the pesticide is shipped in interstate commerce, they could regulate it on that basis?

Mr. Bishop: Exactly, Mr. Chief Justice.

Justice Scalia: Could it affect only people in Indiana and not people in Illinois, so that Illinois doesn't care about it?

I mean, is this a real problem?

If it's a national problem, are these mosquitos just going to bite Indianans and not people from Illinois, so that Illinois would have as much interest in preventing that as the Federal government?

You would think they would have more interest.

Mr. Bishop: Yes, Justice Scalia.

There is no...

Justice Breyer: My question is whether or not Congress has the power to regulate local products in local ponds on local trees that would spread diseases from one state to another.

Mr. Bishop: And if you can find a commerce connection, for example, because the product...

Justice Breyer: I said what the hypothetical is.

Mr. Bishop: If there is no commerce connection, the answer is no.

And the framers of the Constitution did not intend that the Federal government have power over every problem just because it was national in scope.

It intended that the states have reserve powers to deal with problems as well, and...

Justice Souter: But why isn't there going to be a commerce connection?

I mean apart from the Chief Justice's suggestion, it seems to me that the hypothetical that Justice Breyer throws out is a pretty good predicate to substantial effects on commerce.

Mr. Bishop: Well, but I don't think that substantial effects on an end user... here the claim is that the birds, because they fly interstate and at some point may get shot by or watched by people who are crossing state lines and spending money, that is a sufficient interstate commerce connection.

If that connection...

Justice Souter: I don't think that was the hypothetical, was it?

Mr. Bishop: That doesn't seem very different to me.

Justice Souter: That wasn't the hypothetical.

Mr. Bishop: That doesn't seem very different to me from the hypothetical.

But some end user commerce connection is not enough.

If you get there then there are no reserve powers left to the states, everything is within the enumerated powers.

If I could, I would like to reserve the remainder of my time.

Argument of Lawrence G. Wallace

Chief Justice Rehnquist: Very well, Mr. Bishop.

Mr. Wallace, we will hear from you.

Mr. Wallace: Thank you, Mr. Chief Justice, and may it please the Court:

The Clean Water Act states its goals as to restore and maintain the chemical, physical, and biological integrity of the nation's waters and to attain water quality which provides for the protection and propagation of fish, shellfish, and wildlife.

The operative provisions at issue here prohibit discharges of pollutants into certain waters... we'll get into what those are in just a moment... without a permit.

Those provisions regulate human conduct, usually commercial in nature, and certainly commercial in this instance, in order to avert harm to natural resources, wildlife, or the environment, and in common with similar antipollution provisions in other Federal environmental statutes, these prohibitions on conduct do not purport to assert any special Federal domain over the place where the conduct occurs.

Chief Justice Rehnquist: I don't understand exactly what that means, Mr. Wallace.

Mr. Wallace: Well, for example, in the act commonly known as RCRA, another environmental statute, the Resource Conservation and Recovery Act, a permit situation, a permit system is set up for the treatment, storage or disposal of hazardous waste, which occurs in privately owned land ordinarily, without any reference to waters whatsoever.

The Endangered Species Act prohibits harm to the protected species, whether that occurs on land or water.

Chief Justice Rehnquist: You're saying there are a lot of laws like this one?

Mr. Wallace: Well, I am saying there are many prohibitions on conduct that pollutes or endangers the natural resources of this country or the wildlife of this country that are enacted under the commerce power and that are not commonly thought of or thought of in the law as asserting a special Federal domain over the place where the conduct occurs.

Justice Scalia: That's true, but unlike those other statutes, this one is limited to the navigable waters of the United States.

Mr. Wallace: As defined in the statute, that's...

Justice Scalia: As defined in the statute.

Mr. Wallace: That's exactly what I'm going to turn to now, but I have to speak first, as I tried to do, to the argument that there would be a constitutional problem if the conduct prohibited occurred in one place rather than another.

The conduct...

Justice Scalia: The assertion was that if there was no commerce clause connection, it would be unconstitutional, and that's what the discussion was about, a sufficient commerce clause connection.

Mr. Wallace: I guess...

Chief Justice Rehnquist: Mr. Wallace, when a justice is asking you a question, I suggest you remain quiet until he finishes, if that isn't too much trouble.

Justice Kennedy: Thank you.

Mr. Wallace: Sorry.

I'm just trying to help with the inquiry.

I'm sorry.

In any event, let's turn now to the question of what waters the statute addresses.

The first thing to be said about this question, before turning to the statute, is that this Court has already spoken to this issue, not in detail, but quite clearly in an opinion in which it was an important part of the Court's reasoning, and I'm speaking of a carefully crafted opinion of the Court in International Paper Company against Ouellette which dealt with a very difficult issue.

This is in 479 U.S., which dealt with a very difficult issue of implied preemption under the act in light of the meaning of two savings clauses.

And an important part of the reasoning of the Court in concluding the scope of preemption of escape-based causes of action, it happened to be a challenge to a discharge that caused harm in an adjoining state, but an important part of the Court's reasoning was consideration of the comprehensive scope of the Clean Water Act.

And the Court stated at page 486 of 479 U.S. in describing the case first that the act applies to virtually all surface water in the country, and it had a footnote at that point citing its decision from the previous term in Riverside Bayview Homes which had described the Corps' regulations that extended to isolated waters so-called.

And then in the legal discussion in its opinion several pages later at 479 U.S. page 493, the Court reasoned, As we noted in Milwaukee 2, Congress intended the 1972 act amendments to establish, quote, an all encompassing program of water pollution regulation, unquote.

The act applies to all point sources and virtually all bodies of water, and it sets forth the procedures for obtaining a permit in great detail.

Justice Ginsburg: Mr. Wallace, if you would turn to the language in Riverside Bayview that you cited in passing, that does say that the word navigable in this statute has a, quote, limited office.

As I understand what you're telling us now, which you put forward in your brief, it has no office at all, that the statute would mean what you say it means if the term navigable were not in there so that you give no effect whatever to that term.

Am I correct in so understanding?

Mr. Wallace: Well, the term is defined in the statute, so it has effect as a reference to the definition, but it's a term of art in the statute, and it's defined as waters...

Justice Ginsburg: What does it have to do?

In other words, would the statute do anything more or less in your view if the word navigable were not there and there were just the words waters of the United States?

In other words, does navigable have any function whatever, not has it been defined away?

Mr. Wallace: I believe the answer is that the use of the word navigable in the statute, as a reference to the definition of what navigable means for purposes of the statute, does not have any independent significance.

Justice Scalia: May I suggest why it could have some independent significance?

Now, Congress has many authorities under the commerce clause.

It seems to me clear that this statute was appealing to one aspect of Congress' commerce clause powers, that aspect which has to do with the control of navigable waters.

And to leap from that and simply ignore the navigable waters appeal and just say all Congress is doing is exerting its broad commerce power in all its aspects simply... just seems to me to ignore a very precise appeal to one aspect of the commerce clause power.

Mr. Wallace: The word navigable appears in the statute in that spot but not elsewhere.

The statute does not deal with navigability problems.

The statute deals with a water pollution crisis that was...

Justice Scalia: I understand, but Congress was limiting its control over that problem to navigable waters, and even the definition which means waters of the United States, that can be explained without making the word navigable totally useless in the statute, by simply saying that was meant to make it clear that when Congress said navigable waters, it meant the broad definition of navigability, which had been apparent in our cases, so that it includes wetlands adjacent to navigable waters and includes even tributaries that go into navigable waters.

But it seems to me to blink reality and to say that Congress was relying upon a general commerce clause power, which is what the government's position is.

Mr. Wallace: Well, this is the main law governing conduct that pollutes surface waters in this country, and it's comparable to the Safe Drinking Water Act which protects aquifers and underground waters more directly.

But to answer your question more directly, as we explained in discussing the '72 act and then the 1977 amendments, the act started off and was called the Federal Water Pollution Control amendments of 1972, and it used the definition navigable waters, which was left over from prior legislation, including the Rivers and Harbors Act, but in the course of the development of the '72 act, dissatisfaction was expressed with the idea that the act would apply too narrowly and the definition of navigable waters was changed from navigable waters of the United States to just the words waters of the United States, and the committee report reporting it out at that time said it was meant to exert the full constitutional authority of the Congress under the commerce power.

Justice Scalia: What it didn't say, Mr. Wallace, is what, for example, 16 USC Section 817 says, a different statute.

That imposes requirements on water projects on, quote, navigable waters of the United States and other waters, quote, over which Congress has jurisdiction under its authority to regulate commerce.

Now, you're essentially saying that's what this statute says.

But if it says it, it says it in such a roundabout way.

I mean, this is a very easy way to say it.

Mr. Wallace: Well, it...

Justice Scalia: Water projects are navigable waters of the United States and other waters over which Congress has jurisdiction under its authority to regulate commerce.

Mr. Wallace: It can be said quite plainly, I mean, Congress could have spoken with greater clarity than it did.

Justice Souter: Well, isn't that a serious problem then under any clear statement analysis?

I understand, I think I understand your argument, and I can see that it is possible to construe the language as broadly as you do, but when literally any farm pond in the United States is going to be subject to Corps jurisdiction on your analysis and Congress has not spoken any more clearly than it has here, isn't that a reason for construing the statute more narrowly rather than as broadly as you are here?

Mr. Wallace: It arguably is a reason, although the Court in Riverside Bayview...

Justice Souter: A good reason.

Mr. Wallace: said the deference to the Corps' interpretation was appropriate, because Congress had not directly spoken to the issue.

Justice Souter: We do here seem to have... and maybe we did there for that matter, but we seem at least to have a conflict in principle because we have the deference principle and then we have some clear statement notion when the results get to the, sort of to the bizarre point.

So which principle do we choose?

Mr. Wallace: Well, I have to take issue with whether the result here gets to a bizarre point that implicates a clear statement rule, but I do think that we're talking precisely on the issue on which Congress focused in the 1977 amendments to the act.

Justice Scalia: Mr. Wallace, it's at least unclear enough that the Corps of Engineers didn't come to this interpretation until quite late on.

They didn't interpret it this way originally themselves, did they?

That's how at least unclear it is, not to say clear in the other direction.

Mr. Wallace: They did not interpret it this way originally but were reprimanded by several court decisions for misinterpreting the act.

EPA, which has the primary authority to interpret the act, did interpret it this way originally, and the Corps came around after conducting another rulemaking proceeding as it was ordered to do by a court that had said its view of the authority was too narrow to accomplish the purposes of the act that Congress had in mind, and the two agencies reached the same conclusion by the time Congress was considering the 1977 amendments which focused very specifically on the question of whether the jurisdiction over so-called isolated waters had gone too far.

The House of Representatives...

Justice Stevens: Mr. Wallace, had the EPA taken this position before 1977?

Mr. Wallace: Yes.

Justice Stevens: And so that position was in a regulation at the time Congress acted in 1977?

Mr. Wallace: That is correct.

And it was also in the interim rule that the Corps had come to, and indeed the Corps adopted its final rule during the course of consideration after the House had passed its bill but before the Senate had voted.

Justice O'Connor: Mr. Wallace, this comes to us as a sort of as-applied challenge, I guess, and in the context of provisions imposing criminal penalties.

Does that influence our interpretation at all?

Is there any rule of lenity concerns or anything of the sort because we are dealing with statutes imposing criminal penalty?

Mr. Wallace: Well, that was an issue that the Court addressed in its opinion in Babbitt versus Sweet Home in footnote 18 of that opinion, where in a civil proceeding a similar concern was raised.

And I think the answer given in that footnote that in a civil context of litigation where the agency interpretation has been made clear, that there's no occasion to invoke the rule of lenity.

Justice Scalia: So the statute can mean one thing if it's prosecuted criminally, and something different if it's prosecuted civilly?

That's extraordinary.

Mr. Wallace: We don't take that position.

Justice Scalia: But that's what the footnote you appeal to would seem to suggest.

Mr. Wallace: It's a footnote by this Court.

Justice Scalia: Well, even so.

Mr. Wallace: We do have mens rea questions that we and the courts have been struggling with.

Justice Stevens: The point of the footnote, as I remember it was, if the matter is cleared up in the civil proceedings, then the rule of lenity doesn't apply subsequently because there is no longer the ambiguity that gives rise to the rule of lenity problem.

Mr. Wallace: Very well restated.

Justice Scalia: Which raises the different problem of what the statute means depends upon whether the first case prosecuted is a criminal or a civil case, is that the government's position?

Mr. Wallace: Well, we're very cautious about not bringing what we think would be an unfair criminal prosecution.

We're mostly... we mostly try to confine those initiatives to scofflaw situations where we think that we could prevail and where that kind of sanction is appropriate.

But to get back to the 1977 controversy, the House did pass a bill, and a similar bill was sponsored by Senator Bentsen in the Senate, but both bills made clear that they were not repudiating the broader scope of authority for EPA in regulating toxic discharges into all waters of the United States as they had been interpreted in the regulations, but only addressed the Corps' permitting activities with respect to dredge and fill activities.

The Congress indicated in detail that it was very familiar with the agency interpretations by both agencies, and even then the Senate refused to pass the House version or the Bentsen amendment, and it decided instead to retain the existing scope of the geographic authority stated in the regulations that had been adopted, but to counterbalance that with this new provision that Justice Ginsburg has been averting to, 404(g), which provided authority for the states to adopt their own programs over what were called in the Corps' new regulation and the Senate report, very specifically referred to this as Phase II and Phase III of the expansion of the Corps' permit program, and we have quoted the Senate report that uses precisely those terms on page 25 of our brief.

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 the waters outside of the so-called Phase I waters, which are the navigable waters and those adjacent and then the wetlands adjacent thereto.

Under the committee amendment the Corps will continue to administer the entire Section 404 program in all navigable waters until the approval of a state program for Phase II and Phase III waters, and the Phase III waters which the Corps was planning to get to in a couple of years time are the waters at issue here.

So the whole premise of the Senate bill, which is what the conference committee adopted, was that the extension of jurisdiction to these Phase III waters would be retained, but the states would be given the option of administering the program.

Two states have chosen to do that, New Jersey and Michigan.

New Jersey was one of eight states that have filed a brief in our support in this case.

Only one has filed a brief on the other side, I hasten to point out.

And the Senate also counterbalanced the retention of the broad jurisdiction by providing for certain exemptions, including an exemption of certain agricultural activities because of precisely the concern that Justice Souter suggested might raise a question of bizarre authority and also have...

Chief Justice Rehnquist: That is in the statute, Mr. Wallace?

Mr. Wallace: That is in the statute.

That was part of the 1977 amendments that certain exemptions were added.

Chief Justice Rehnquist: Could you give us... is it in your brief somewhere?

Mr. Wallace: Yes.

Yes, it is.

Chief Justice Rehnquist: Could you tell us where?

Mr. Wallace: It's Section 1344(f) of Title 33.

Chief Justice Rehnquist: Thank you.

Justice Breyer: Mr. Wallace, how... I'm trying to get a quantitative idea from what one of the amici briefs suggested.

Your view is that all the water that affects interstate commerce, maybe the word is substantially affects or significantly affects, whatever the constitutional test, but think of that set of water, all the water that significantly affects interstate commerce is included.

I take it that they agree that all the water that affects interstate commerce is included provided it also is either navigable or if not navigable, it flows into navigable water, and I thought they were talking about flows on the surface.

There is an amicus brief that says well, there is only about 20 percent left over.

Is that right?

Now, I think maybe today... I'm not sure.

I think maybe they said it also includes the water affecting interstate commerce that isn't navigable but flows underground, in which case I would think that takes care of everything else.

Maybe there is a tiny little bit that actually doesn't flow underground, and I take think it this particular place, the Army Corps of Engineers and the EPA think it does flow into the Fox River underground, and they think it doesn't flow into the Fox River underground, so I'm not sure what we're supposed to do.

I'm trying to get an idea of what the... what we're talking about.

Mr. Wallace: Well, one of the rules specified by the Corps in its elaboration of its regulations as to what waters can affect interstate commerce are those that are used as habitat by migratory birds protected under bird treaty acts or that migrate between the states, which happened to be the basis on which jurisdiction was asserted here, on the basis of the factual showing that was made to the Corps by an Illinois state agency dealing with birds.

And perhaps if we get away from this particular cite for a moment, much of the battle would be about the so-called prairie potholes in the Dakotas and adjoining states where about 50 percent of the waterfowl in this country breed.

Under petitioner's position, as I understand it, the commerce power would enable Congress to protect the winter habitat of duck species and other waterfowl in the Chesapeake Bay area with all of its tidal waters and navigable rivers and et cetera, but not to protect the summer breeding habitat of these same waterfowl.

Justice Scalia: I don't think that's his position.

I think his position is not that the commerce power doesn't allow you to protect them.

It's that the navigable waters aspect of the commerce power doesn't allow you to protect them, and if Congress wants to come back and exert its commerce power generally, it would be a different issue.

Mr. Wallace: That is a statutory argument, but he also is making the argument that that interpretation is one that should be adopted because otherwise there would be constitutional doubt about the authority of Congress to protect this bird habitat, and of course any scientist would look at this question and say, well, it's futile, it's ineffectual to be able to protect the habitat that they use in one season but not to be able to protect the habitat that they use in another season, the breeding season.

Justice Stevens: Mr. Wallace, just to be clear on one thing, it is the Corps' position, is it not, that the Phase III water, their power to regulate the Phase III water applies whether or not the isolated ponds have an underground connection to navigable waters?

Mr. Wallace: That is correct, and the so-called prairie potholes are perhaps the prime example of that.

The waters here, that's a more difficult inquiry.

Certainly they serve as storage for what would otherwise be flood waters during periods of heavy rain that would cause overflow.

That was part of what the Corps had to deal with in dealing with this application.

Justice Scalia: Do the states exercise any regulation over the prairie potholes?

Mr. Wallace: They do.

This whole area is one of concurrent and overlapping authority between the states and the Federal government, as the states that have filed amicus in our support have pointed out.

Justice Scalia: Maybe the Federal government was content to protect the navigable waters from pollution and to leave the problem of the pollution of waters that don't affect the navigable waters to the states.

It's a perfectly rational approach.

Mr. Wallace: Well, that is exactly contrary to what the Senate committee said in adopting the 1977 amendments.

Justice Kennedy: But I mean, this case, it seems to me, does point up the problem that petitioner's counsel raised quoting from page 1 of the blue brief, it is the primary responsibility of the states to eliminate pollution and to plan development and use of land.

Here you have a 47,000-page report, did I hear that correctly, that the Corps of Engineers issued?

Mr. Wallace: This was a very...

Justice Kennedy: It seems to me that this illustrates that the way in which the Corps has promulgated its regulation departs from the design of the statute.

Mr. Wallace: Well, the Corps grants all but less than one percent of applications each year, and about 85 percent of the permits that it issues are issued under general permit programs which are streamlined and do not require individual inquiries into the categories that they fall, if certain conditions are met in the application.

Justice O'Connor: I don't see how that should affect our determination.

Mr. Wallace: Well, what we had in this case was what turned out to be a very complex inquiry, although petitioner characterizes that it's trenching on local land use planning functions, but local land use boards seldom have to deal with a project of this magnitude, and its potential and long-range effects on the people who will be affected by it in their posterity, which is why the states supporting us say that the special expertise of the Corps and of the other agencies, state and Federal, that weighed in in this process, and of course responses were received from petitioner and its supporters, were so important, because what was implicated here was not only dangers to migratory birds but a question of possible contamination of an aquifer used by thousands of people for their drinking water.

Justice O'Connor: Has Illinois showed no interest at all or concern about this particular site?

Is this a situation where the state has just turned its back and said, we don't care?

Mr. Wallace: The state agencies participated in the Corps proceeding.

It's true that they initially licensed a plan to which many mitigation measures were added by the state so that the plan would have been a much better one if the Corps had approved it than what petitioner started with.

Rebuttal of Timothy S. Bishop

Chief Justice Rehnquist: Thank you, Mr. Wallace.

Mr. Bishop, you have four minutes remaining.

Mr. Bishop: Justice O'Connor, the State of Illinois rejected our first permit application, made us reapply.

We filed a 1700-page application, there were an additional set of public hearings.

They subjected the project to 51 conditions before they would let us proceed.

Cook County engaged in the largest, longest permit proceeding it had ever engaged in over this project.

Let me say that the act is not open ended.

It's not that any connection will do.

The Corps... and one of the amicus briefs on the other side from the wetland scientists claims that isolated ponds are in fact somehow connected on the surface or through groundwater to the navigable waters, but the fact is any change made in the landscape will make some... have some effect on the flow of water.

I just switched the gutter on my garage so that it drains onto an impermeable surface where the water evaporates rather than onto the garden where it goes down into our water table and ends up in Lake Michigan.

The Corps cannot use this language which requires some physical connection to the navigable waters to extend its jurisdiction in the same way that it's now extending it endlessly through the effects commerce strand of the commerce power, so... and as to groundwater, I did not and certainly do not mean to suggest that the Corps can regulate any water that flows into groundwater.

The law is clear in the 7th Circuit that the Corps does not have jurisdiction over groundwater.

Other courts, the 5th Circuit, for example, has held that if the groundwater recharges surface water, there's jurisdiction.

That's simply an issue that is not in this case, and I do not concede that if there is any connection to the groundwater here that that would be jurisdictional.

And the record in this case which is 47,000 pages long contains no basis of jurisdiction, no sourcible authority at all other than presence of migratory birds on these waters.

The parade of horrors that Mr. Wallace has trotted out should also not be believed.

The Clean Water Act is not out there by itself protecting clean water, or birds.

The Migratory Bird Treaty Act which is authorized under the treaty power gives Congress the authority to protect birds and their habitats.

The spending power has been used to great effect in the prairie potholes region whereas this Court considered in the South Dakota case, the Federal government has either acquired outright or bought easements over more than a million acres, and this is 20 years ago, more than a million acres of prairie potholes.

So taking out this strand, the bird rule and the other waters rule, this strand from the Corps' jurisdiction will have and should have no impact on what Congress can do under the other statutes.

If you address this case as a statutory rather than a constitutional case, it would also want to address the question whether Congress can come back with a different plan to protect clean waters.

What we don't believe the government can plausibly assert is that the terms navigable waters defined as waters of the United States, given the history, given the legislative history, given the historical usage of those terms, in this Court and other statutes, extends to isolated ponds regulated by the states.

And finally on the... as to the rule of lenity, I would recommend that the Court follow the...

Chief Justice Rehnquist: Thank you, Mr. Bishop.

Mr. Bishop: Thank you, Chief Justice.

Chief Justice Rehnquist: The case is submitted.