HomeMy WebLinkAbout153-02 RESOLUTIONRESOLUTION NO. 1.53-02•
e
A RESOLUTION TO ACCEPT THE REPORT OF THE WILSON
SPRINGS BUSINESS PARK ASSESSMENT TASK FORCE
WHEREAS, the City of Fayetteville is very appreciative for the concern
and dedication demonstrated by the volunteers of the Wilson Springs Business
Park Assessment Task Force; and
WHEREAS, the City of Fayetteville for itself and all the citizens of
Fayetteville expresses its sincere gratitude and thanks to every member of the
Task Force and especially its Chairman, Jeff Collins, who volunteered countless
hours to forge a consensus that included both the partial development and the.
careful preservation of the Wilson Springs acreage.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas
hereby gratefully accepts the Report of the Wilson Springs Business Park
Assessment Task Force which is attached as Exhibit A, and adopts its
recommendations for both development and preservation of the Wilson Springs
acreage.
Section 2. That the City Council of the City of Fayetteville, Arkansas
hereby requests that the City Staff proceed with the recommendations of the
Task Force.
PASSED and APPROVED this the 2nd day of October, 2002.
ATTEST:
Bv:
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•Woodruff, City Cle
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APPROVED:
By:
NAME OF FILE:
CROSS REFERENCE:
Item #
Date
Resolution No. 153-02
Document
1
10/02/02 Resolution 153-02
NOTES:
FAYETTEVItLE
THE CITY OF FAYETTEVILLE, ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
I 'A I A
LEGAL DEPARTMENT
TO: Dan Coody, Mayor
THRU: Heather Woodruff, City Clerk
okFROM: Kit Williams, City Attorney
DATE: October 3, 2002
RE: Passed Resolution from Special City Council meeting of October
2, 2002
The following Resolution was passed at the Special City Council
meeting and is ready for the mayor's signature
Enclosed is:
1. Wilson Springs: Resolution to accept report of Wilson Springs
Business Park Assessment Task Force
THE WILSON SPRING BUSINESS AND TECHNOLOGY PARK TASK FORCE
The Wilson Spring Business and Technology Park Task Force (TF) was formed to provide
independent analysis and to make a recommendation to the City Council and Mayor's office of
the City of Fayetteville as to the "highest and best" use of the approximately 289 acres owned by
the city and located on Interstate 540. In the course of our examination, three subcommittees
focused on the economic/development, biological, and hydrological issues associated with the
site, gathered information and studied important attributes and/or impacts of various uses of the
property. The TF held two pubic forums for to gamer input from citizens, as well as allowing
statements and questions from various representatives of constituent groups during regularly held
meetings, which began June 20th'
The results of this work, found below, accomplish the following purposes:
1. The formation of a Business and Technology Park sufficient in size to create critical mass
for business development and located to take maximum advantage of potential synergies
with Fayetteville's most unique resource, the University of Arkansas.
2. The increase and enhancement of Fayetteville's tax base and further insurance of the
financial viability of the City of Fayetteville. Developing these lands produces financial
advantages for the City in three ways:
a. It retums acreage to the property tax base critical to the support our schools and
other city and county services.
b. It produces "profit" for the City, with which to fund and support such things as the
development of trails, green space, parks, and parks improvements.
c. It fosters the development of high wage jobs by improving the climate for the
creation of knowledge-based industry.
3 The preservation of at roughly 180 acres of wetlands, floodplain, and floodway, creating a
valuable environmental resource, in perpetuity, for the citizens of Fayetteville.
RECOMMENDATIONS
Note: These acreages referenced in this recommendation are taken from the Development Area plat, as
drawn by McClelland Engineers, showing a wetland impact of 17 acres.
1. Recommendation: Immediately apply for and receive the permit from the Corps of
Engineers for the 17 -acre wetlands impact, with mitigation, as necessary.
2. Recommendation: Approximately 70 acres at the south end of the property be platted
and planned for the Wilson Spring Business and Technology Park Development
3. Recommendation: The 38 acres at the southeast comer (and a part of the above
referenced 70 acres) be developed immediately (Phase 1).
a. Development of these lands would require some or all mitigation be done on the
front end, since some of the 38 acres is in the wetlands impact area. Monies for
the mitigation would provide initial funding for immediate restoration, etc.
(However, per the U.S. Army Corps of Engineers, due to the substantial amount of
land being preserved in the recommendations of the Task Force, possible
mitigation acreages could be significantly reduced.)
4. Recommendation: The City of Fayetteville to construct Covenants and Restrictions for
the Business Park:
a. To insure that the Business Park will not include heavy industrial or be dominated
with retail business and will encourage "knowledge based", technology oriented
businesses.
b. To insure that the resulting development will have a campus style environment
with a maximum amount of area in green space.
c. To insure that the wetlands are "developed" to provide the maximum benefit to the
entire surrounding property
d. To insure that all storm water collection systems from development be constructed
to protect the sensitive wetlands
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5. Recommendation: Commence as soon as possible a formal inventory assessment and
evaluation of the lands lying north of Clabber Creek, currently not designated as wetlands
or mitigation areas for wetlands impact, for development potential. These lands to include
the approximately 11 acres lying west of Deane Soloman Road. Such evaluation should
include a thorough needs assessment, potential environmental impact of development,
biological assessment, further wetlands delineation assessment, dispersed recreational
study, storm water runoff assessment and economic impact of development. If such an
evaluation of such lands yields the possibility of development of some kind, the
TF recommends the inclusion of a significant buffer of "not -to -be -disturbed lands" of at
least 600' wide lying north of and parallel to Clabber Creek.
6. Recommendation: That all of the lands lying south of Clabber Creek and north of the
aforementioned 70 acres of commercial development be preserved, in perpetuity, as
delineated wetlands and/or an extension of said delineated wetlands.
•
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• • • •
SUPPORTING DOCUMENTATION
PROVIDED BY INTERESTED
CITIZENS
•
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• Task Force, September 12, 2002
The only reason I'm here is due to the fact that our City administration has forgotten about
the 'public interest,' which is, I realize, an outmoded concept.
But for this proposal to make any sense at all, in addition to the 'public interest,' there is a
great deal more that one has to forget about, to ignore. In its zeal as lobbyist for the idea of
development at all costs, which is really what we're talking about, the City has made ordinary
citizens into guarantors of a risky and massive expenditure of public funds. The current estimate for
the full development stands at $8m, which represents 10% of the City's annual budget.
Over the past six months, the City administration and now the Task Force have made
presentations, and not once has the word 'risk' been spoken. This despite the fact that there is ample
public information available which shows that the risks to the City's investment are considerable,
leaving aside the 12 years of fiscal mismanagement by the City and the Chamber of Commerce.
And what about the 'free market? This is another thing we should forget about. If the
demand was so great for what the City proposes, would it not exist already? The problem is, I'm
• afraid that it *does*.
In talking about building an office park, we are supposed to 'forget' that Fayetteville already
has an oversupply problem in the commercial real estate market (I refer you to pp. 56 & 57 of the
City's most recent Appraisal). In this Appraisal, one can read such phrases as " less than ideal
demand situation," "increasing supply of competing tracts,"`speculative office buildings ... are
being absorbed slowly," "a good amount of competing locations should be anticipated in the
coming years...' These are not the utterances of an Alan Greenspan, requiring the hiring of a
psychic to interpret. And yet, one feels they continue to be ignored. In fact, since this Appraisal was
done, another Office Park is slated to be built across from the new Washington Regional Hospital.
But how did we get to talking about an Office Park in the first place? The City had a
proposal for a "Research & Technology" park for a number of years. Based on this concept letters
were sought and received from mayors of nearby municipalities and a grant application was made
to the Economic Development Fund of AR. This grant money was received and it now appears that
these funds will be used to build anything which comes under 'C-2' zoning -which is what the
Appraisal was based upon. I ask you: would this money have been given to the City to fund an
• Office Park?
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• • • •
•
The City should have to rigorously justify putting itself in direct competition with the
private sector by adding to our local oversupply problem. To date, the City has failed to do so
Apparently, the `build it and they will come' belief system requires no justification.
And then there is the idea of jobs.' If I were an outside company looking to relocate here,
what would I be looking for? I'd be looking for an ample supply of well-educated workers, which
we do not have (witness our low unemployment rate). I'd be looking for tax credits, which the City
cannot provide.
In any event, jobs are not 'created' by employers. Demand for workers is itself an
expression of the demand for the goods or services the company is providing to the community.
Constructing buildings does not, by itself, create more demand for goods and services.
What the City does have is the unique ability, unlike a private developer, to give away the
land. This precedent will be set when the deal with Arkansas Game & Fish Commission is settled.
Combined with holding this property for over 12 years, this deal puts the City in a less than ideal
bargaining position m the marketplace.
Under normal conditions, there would be a conversation between the
developer/entrepreneur and the bank. They would analyze the market situation. Citizens now
represent the bank's shareholders, but the 'bank' is not representing our interests. Unlike
shareholders, we do not have the right to force the City to take their scheme down the road to
another bank. As a reluctant 'investor,' I say this is a bad deal (with apologies to Mr. McGuire).
One would like to believe that part of the Mayor's mtent in setting up this Task Force, was
for it not only to appear to be independent, but also to function independently. This means taking a
very sober look at the City's record of ownership as well as the scientific and economic facts. I
hope that you will conclude that the time for forgetting certain facts is long past.
Respectfully submitted,
Stephen Vallus
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•ECONOMIC IMPACT OF TENNIS ON OVR CO
J�Y
Ertfmated turban re Did of town Owen and spectators that will b. baryht to Columbus In 2002
*Rough tarots tovr.wnisra
•
•
•
Senior Clip
Maybe Plwyar+/.3peaeRMar6
Eearamda Thean per Dar
• TOTAL ECONOIATC IMPACT/DAY
At �1DTALTIAPACTITCM IMENT
Junior Clusopionships
Nunbar Player ononstotent 500
Eamon* boat pon Doi • . LAW
rcra. ECONOAUCTMPACT/DAY $63,000
�, a
TOTAL E�IMPACY/TOURNAMBIT $666P00
+oo
t$ThL
MOD
$300,600
•
to Senior District Championships .oD
Nunn Pw nne/Spee/ataro•
awn* Ilapeet per OpsLAW
TOTAL ECONOMICXMPACT/DAY 1 $1.=6.60D
a as
TOTAL ecoraze IMPACT/TOANrN4Ae1T . $04,400
Junior Deslynafied •
Number MeyarsA eetatars
town Dnpmet per oar
TOTAL ECONOMTCXMPACY/DAY
rr Day tiburnmen t
TOTAL ECOIJOP ATe ntPACTITOUPNAMI NT
Junior Clay Court Championship
Ninnies PlaypraSpanatw
foam* Menet pr bay
TOTAL rtowah=vaACT/DAY
M
TOTAL ECONOAILC IMPACT/TOURNAMENT
Senior Sou1thern Championship
Number Playerallspeetw►eraf
Ewwmle I vsnot Por Dug
TOTAL ECONOMIC IMPACT/DAY
• Derzfrouragnat
TOTAL ECONOMIC SMRIMCTl7OUANAMB'T •
AL IMPACT' OF THE ABOVE (4) TOVANAMENTS
YOM. SMS PLAYlge;/i tTATON1 100201111 114100
TMTrAL =PAO e. TT ti 6001
•
do0
ASIE
$!33.600
a!
$034,400
no
$41.700
ALA
$1674000
3'!a
• alai
SNAG
: SL
San .0OD
i
a
• •
PO. " ;. • ..•LLkO'ZZS 105 i
•
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E
1
3NOW B 118HS?NU 11d £E:ZI 31U. ZOOZ-Ll-d3S
121 °S.0 . 675
• 148 L.Fd.2d 576, 69 USLW, 51' 1833, 31 EnvtL L. Rep. 20:382,.
2001 Daily Journal D.A.R. 267, 20010 C.A.R. 346, 14 Fla. L. Weekly Fed. S 48
(Cite as: 531 ILS. 159, 121 S.Ct. 675)
Supreme Court of the United States
SOLID WASTE AGENCY OF NORTHERN
COOK COUNTY, Petitioner,
v.
UNITED STATES ARMY CORPS OF
ENGINEERS, et al.
No. 99-1178.
Argued Oct 31, 2000.
Decided Jam 9, 2001.
of wamictpalities sued the United States
AIM Corps of Engi ts, challenging CM(
exercise of jurisdiction over abandoned sand and
gravel pit on which consortium planned to develop
disposal she for nonhazardous solid waste and denial
of a Clean Water Act (CWA) permit for that
purpose. The United States District Court for the
Northern District of Mots. George W. Lindberg,
J., 998 F.Supp. 946, granted summary judgment for
Corps oa jmisdicdonal issue, and consortium
voluntarily dismissed remainder of its claims.
Consortium appealed. The Court of Appeals for the
Seventh Circuit, 191 F.3d 845. affirmed. Certiorari
was granted. The Supreme Court,
Chief Justice
Rehnquist, held that Corps' rule extending timid=
of 'navigable waters' under CWA to include
intrastate waters used as habitat by migratory birds
exceeded authority granted to Corps under CWA.
Reversed.
Justice Stevens fled dissenting opinion in which
Jushces Souter. Ginsburg. and Breyer
West Headnotes
(1] Statutes �'+i 217.4
361k217.4
Failed legislative proposals are a particularly
dangerous ground on which to rest an interpretation
of a prier statute.
[2] Statutes €:=
3611220
Serv. 269,
Page 17
For purposes of statutory ioaerpretaeam, subsequent
legislative history is less illuminating than
contemporaneous evidence.
[3] Environmental Law X525
149Ek525
(Formerly 18713.5)
[3) Em3mnmenial Law G'a173
149Ek173
(Formerly 270708)
[3] Environmental Law e 127
149Ek127
(Formerly 270.138)
Army Coxps of Engineers' rule extending definition
of -navigable waters- under Clean Water Act
(CWA) to irecbide intrastate waters used as habitat
by migratory birds exceeded authority gamed to
Corps under CWA, and therefore, abandoned sand
and gravel pit corms ponds used by nig'
birds was not subject to Corps' jurisdiction corder
CWA. Federal Water Pollution Control Act
Ameadmesa of 1972. § 404(a). as amended, 33
U.S.C.A. § 1344(a); 33 C.F.R. § 328.3(4(3).
[4] Statuses @219(6.1)
3611419(6.1)
of
(CWA) to include intrastate waters used ea habitat
by ten birds which cross stat litres was not
en ed to Chevron deference; rule raised significant
Constitutional questions, such as _whether .hep tss
bad ever to re. - such waters under the
mce Mese.4-y1J.S.C.A. Court. Art. 1, § 8,
el. 3; Federal Water Polludon Control Act
Amendments of 1972, § 404(a), as amended. 33
U.S.C.A. § 1344(a); 33 C.F.R. § 328.30(3).
[5] Administrative Law and Precedent 4=0330
15Ak330
Where an administrative imerpretadon of a statute
invokes the outer limits of Congress' power, agency
must establish a clear indication that Congress
intended that result
Copt. 0 West 2002 No Claim to Orig. U.S. Govt. Works
121 s.ct. 675
(Cite az 531 U.S. 159, 121 S.Ct. 675)
[6] Adminimative Law and Procedure 4=1330
1SA1330
Concern that agency iutcrpretadon of a statute
exceeds limits of power granted by Congress is
heightened where interpretation alters the federal -
stare framework by permitting federal encroachment
upon a traditional state power.
p) Constitutional Law X4M1)
92148(1)
Where an otherwise acceptable eonsuuction of' a
federal statute would raise serious constitutional
problems, court will construe the statute to avoid
such problems unless such construction is plainly
contrary to the intent of Congress.
"676 Syllabus [P141
Fs The syllabus constitutes no pan of the opinion
of the Court but has been prepared by the Reporter
of Decisions for the eonvenlenoe of the reader.
See United States v. Detroit Timber ek Loeber Co.;
200 V.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
959 Petitioner, a consortium of suburban Chicago
municipalities, selected as a solid waste disposal site
an abandoned sand and gravel pit with excavation
trend= that bad evolved into permanent and
seasonal ponds. Because the operation called for
filling in some of the ponds, petitioner contacted
federal respondents, hteluding 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
alto • the discharge of dredged or int material
vi able wawa.% 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 destrucden of
which could affect innateor foreign commerce;"
33 CFR § 328.3(a)(3). hi 1986, the Corps
attempted to clari$• its jurisdiction, stating, in what
has been clubbed the "Migratory Bird Rule.' that §
404(a) extends to intrastate waters that, utter alio,
provide habitat for migratory birds. 51 Fcd.Reg.
41217. Asserting jurisdiction Durr the instant site
pursuant to that Rule, the Corps refused to issue a §
404(a) permitWhen petitioner. challenged the
Corps' jurisdiction and the merits of the permit
denial, the District Court granted respondents
• •
Page 18
summary judgment on the jurisdictional issue. The
Seventh Circuit held that Congress bas 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(ax3), as clarified and
applied to petitioner's site pursuant to. the Migratory
Bird Rule. exceeds the authority granted to
respondents under § 404(a) of the CWA. Pp.
679484.
(a) In United Stater v. Riverside Bayview Homes,
Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.E41.2d 419,
this Coat held that the Corps had § '!' a)
over. wedands
a noting that the
'limited import' and that Congress •,..._. its
intent to "regulate at least some waters that would
not be deemed avigailo' er term s
classical understanding„ at 133, 106 S.Ct. 455.
But that holding was based in large measure upon
Congress' =equivocal acquiescence to, and 4160
approval of, the Corps' regulations in the
CWA to cover wetlands adjacent e
See id, at 135-139, 106 S.Ct
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. 679-681-
(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.
Respondentscontend that whatever Its original aim,
when Congress amended the CWA in 1977, it
approved the mom expansive definition of
1 �"ijxvtgab waters :%umd in the Corps' 1977
( regulate& SpecificaIy. respond submit that
Congress' failure to pass legislation that would have
overturned the 1977 regulation and the extension of
the Environmental Protection Agency's jurisdiction
in § 404(g) to include waters "other than traditional
"navigable ••677 waxers' indicates that Congress
recognized accepted a broad definition of
5j " rale waters",; that includes no>mavigable,
isolated, intrastate waters. This Court recognizes
Copr. C West 2002 No Claim to Orig. U.S. Govt. Works
•
121 S.Ct. 675 • •
((Ste as: 531 U.S. 159, '160, 121 S.Ct. 675, "677)
• congressional acquiescence to administrative
interpretations of a statute with extreme care.
Palled' legislative proposals are a particularly
dangerous ground on wbicb to rest an interpretation
of a prior statute, Cereal Bank of Denver. Nat- Y.
Fiat tuentare Bast of Deriver, N.A., 511 U.S.
164, 187, 114 S.Ct. 1439. 128 L.Ed.2d 119,
bemuse a bid can be proposed or rejected for my
number of reasons. Here, respondents have failed
to maks the necessary showing that Congress
failure to pass legislationdemonstrates acquiescence
to the 1977 regulations or
1986 Migratory Mid
Rule. Section 404(g) is equally , it
' oto
does na conclusively determine the
be PHOS on the use of the term -waters' elsewhere
m the CWA. Riverside Bayview Hones, supra' at
138, n. 11, 106 S.Ct. 455. Pp. 680.683.
(c) Even if § 404(a) were not dear. this Court
would not extend deference to the Migratory Bird
Rule rude Chevron U.S.A. Dec v. Naaaal
Resources Defense Council, Die., 467 U.S. 837, 104
S.Ct. 2778, 81 L.E4.2d 04. Where an
administrative huerpretadoa of a statute would raise
serious constitutional problems, the Court will
• cavoid such problems unless
. the construction is poly country to Congress'
intern. Edward J. DeBartolo Corp. v. Florida Calf
Coast Bulking & Constr. fomes Comtdl. 485 U.S.
568, 375. 108 S.Ct 1392, 99 I PA Zd 645. The
grantof authcaity to Congress under the Commace
Clause. though broad. is not unlimited. See, e.g.,
United gates v. Morrison. 529 U.S. 598, 120 S.Ct.
1740. 146 L.Ed.2d 658. '
e.g., that the Migratory BIM Rule falls
within
61
Congress' power to regulate intrastate 1
aetivltles that substantially affect interstate
commerce. raise signify constitudonal questions,
yet there is nothing approaching a clear statement
Eton: Congress thal it intended § 404(a) to reach an
abandoned sand and gravel pit ;adz as dm one at
issue. Pamkling respondents to claim federal
mon over ponds and nmd9ats falling within
the Migratory Bird Rule would also result in a
significant impingerncm of the States' traditional and
primary power ova land and water use. me Court
thus reads the statue as written to avoid such
significant constimional and federalism questions
and rejects the request for admimstnisve deference.
Pp. 682-684.
• 191 F.3d 845, reversed.
• •
Page19
REHNQUIST, C.L. delivered the opinion of the
Court, im which O'CONNOR, SawA,
KENNEDY, and THOMAS, XL, joined.
STEVENS, 3., filed a dissenting opinin in which
SOUTER, GINSBURG, and BREYEt, 31., joined.
est, p. 684.
TimomY S. Bishop. Chicago, II., for peiuior er.
Lawrence G. Wallace, Washington. DC, for
For U.S. Supreme Court Briefs See:
•
2000 WL. 1369439 (Resp.Brlet
2000 WL 1369440 (Resp./hid)
2000 WL 1532361 (Reply.Brief)
2000 WL 1041190 (PetBrief)
2000 WL 1028522 (Amiau.Brid)
2000 WL 1041205 (Amicus.Briet)
2000 WL 1041206 (Amicus.BriSQ
2000 WL 1052146 (AmicutBrieO
2000 WL 1052154 (Amiens -Brief)
2000 WL 1052157 (Amiws.Briet)
2000 WL 1052159 (Amicus.BrieD
2000 WL 1059641 (Amiccu-Bdd)
2000 WL 1059644 (AmiwsBrief)
2000 WL 1059647 (Amicus -Brief)
2000 WL 1369409 (Amiens -Brief
2000 WL 1369410 (Amicus.Brief)
2000 WL 1369436 (Amicus.Brief)
2000 WL 1369438 (Amicas.BricO
2000 WL 1041204 (Amicus.Btief)
Copt. 0 West 2002 No Claim to Orig. U.S. Govt. Works
121 S.Ct. 675
(Cite as: 531 U.S. 159, Ps.Ct. 5)
2000 WL 1041203 (Amicns.BrieQ
2000 WL 1041200 (Amicus.Briet)
2000 WL 1041198 (Amicas.BrjeO)
2000 WL 1041197 (Ani cus Brief)
2000 WL 1041196 (Amieus.Brief)
2000 WI. 1041194 (Amicus.Brief)
2000 WL 1041193 (Amie:m.Briet)
2000 WL 1041192 (Atoicus.Brici)
For Transcript of Oral Argument See:
2000 WL 1669870 (U.S.Oral.Arg.)
•162 Chief Justice REHNQUIST delivered the
opinion of the Court.
Section 404(0 of the Clean Water Act (CWA or
Act), 86 Stat. 884, as amended, 33 U.S.C. §
1344(x), regulates the discharge of dredged or fill
ii -i Y'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
whkh 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 Commerc *1%78 Clause, U.S.
Const., Art. 1. § 8. cl. 3_ eanswer the !IIsi--•
tuin in a naat ve and therefore do
the sewn'�iye-., #rz tect4,Q#
Petitioner, the Solid Waste
• • P 20
scattering of permanent and seasonal ponds of
varying size (from under one-tenth of an acne 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 Courcy 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
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
namable w aged disposal sites."
lbfd. The vigable waters" defused under
the Act as waters of the United Stats,
including the territorial seas? § 1362(7). The Corps
has issued regulations defniag the term "wares of
the United States' to include -
isnseeintritteassee4akesrsaann
(inch+d• >•..srmitr..e r 4^..,r
nalsas
smadflats_ wetlands sloughs, prairie potholes. wet
meadows, playa 'lakes, or natural ponds, the use,,
'degradation or destruction of which could affect
interstate or foreign commerce .... S.i Ckll 4
328 ga)(3) (1999). •
'164 In 1986, in an attempt to 'clarify" the reach
of its jurisdiction, the Corps stated that § 404(a)
extends to intrastate waters:
"a. Which are or would be used as habitat by birds
protected by Migratory Bird Treaties; or
Y 'b. Which are or would be used as habitat by other
L f g�y 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.' [ENT)
FN1. The Corps issued the 'Migratory Bird Rule"
without following the notice and comment
procedures outlined In the Admluiszradye
Procedure Aa, 5 U.S.C. § 553.
QC4`-
of NGithan
Cook County (SWANCC). is a consorthmi of 23
suburban Chicago •163 cities and villages that
united in an effort to locate and develop a disposal
site for baled nonhazardous solid waste. The
Oilcago Gravel Companytin ... t
municipalities the availability `•
na.rrl gridin2 be IDiaois counh oo t and
and gra
120. Long since abandoned, the old coming site
eventually gave way to a successional stage forest,
with its remnant excavation trenches evolving into a
The Corps initially concluded that it had no
Copr. 0 West 2002 No Claim to Orig. U.S. Govt. Works
•
•
121 s.Ct 675
• (Cite as: 531 U.S. 159, •4 L2111.675, "678)
jttriidiction over the site because i<
"wedantls,' or areas which
r itadapted for life
conditions." 33 CFR § 328.3(b) (1999).—owcver,
atter 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 jmisdicdon
over the balefif ate pursuant to subpart (b) of the
'Migratory Bird Rule? • me Corps found that
approximately 121 bird species had been observed at
the she, including several known to depend upon
aquatic aavi onments for a significant portion of
dick Bile requirements. Thus, on November 16,
1987, tie Carps formally 'determined that the
seasonally ponded, abandoned gravel mining
depressions located on die project site, '•679 while
not wetlands, did qualify as 'waters of the linked
Stares' ... based upon the following criteria: (1) the
proposed site had been abandoned as a gravel
mining operation; (2) the water areas and spoil piles
bad developed a natural character; and (3) the water
areas 6165 ate used as habitat by migratory bind
fsidahich cross state line.' U.S. Army Corps of
.Fsglaeera, Chicago District, Dept. of Army Permit
Evaluation and Decision Document. Lodging of
petitioner, Tab No. 1, p. 6.
ivn. • [9• w.. 1)1
Durtng the application process, SWANCC made
several proposals to midgate the Wetly displacement
of the migratory birds and to preserve a great blue
beton rookery located on the she. Its balefill
project ultimately received die 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 Enviroamceral
Protection Agency, and approval from the Illinois
Deparunent of Conservation.
Despite SWANCC's seeming the required water
quality certification from the Illinois Environmental
Protection Agency, the Craps refused to issue a §
404(at) permit The Corps found that SWANCC
bad not established that its proposal was the 'least
environmentally fig. most practicatde
ahernadve for disposal of nonhazardous solid
waste; that SWANCC's failure to ser aside
sufficient fluids to remediate leaks posed an
'unacceptable risk to the public's drinking water
supply'; and that the impact of the project upon
eve specks was 'tulmitigatable since a
• •
Page21
landfill surface cannot be redeveloped into a forested
habitat." Id.. at 87.
Petitioner Sled suit under the Administrative
Procedure An, 5 U.S.C. § 701 a seq., in die
Northern District of »limas 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,
peddoner renewed its attack on respondents' use of
the 'Migratory Bird Mee to assert jurisdiction over
the site. Petitioner argued that respondents bad
exceeded their statutory a .1:1, In
1 •narmavigab__, �.
jam -tate waters based 1.. , Dresenoe of
Co kackee lite power under the Commerce
Clause to grant
The Court of Appeals began its analysis with the
constitutional quesdon, bolding that Congress has
the authority to regulate such waters based spot the
comuladve impact doctrine, under which a single
activity that itself bas no discernible effect on
int^tate commerce may still be regulated if the
aggregate effect of that class of activity has a
substantial impact on in state wmmette? 191
F.38 845, 850 (C.A.7 1999). The aggregate effect
of the "destruction of the natural habitat of
migratory birds" on hrterstate commercce, the court
held, was substantial became each year millions of
Americans cross state rims and speed over a billion
dollars to hunt and observe migratory birds. [FN2)
Ibid. The Court of Appeals then turned to the
regulatory question. The court held that the CWA
reaches as many waters as the Commerce Chaise
allows and, given its earlier Commerce Clause
ruling, it therefore followed that respondents'
'Migratory "680 Bird Rale was a reasonable
interpretation of the Act See M., at 851-852.
FNZ. Relying upon its earner decision in Elam
Homes, Inc. v. EPA, 999 Fad 256 (C.A.7 1993),
and a report from the United Stares Cercus Bureau,
the Court of Appeab found that in 1996
approximately 3.1 minion Americans spent $1.3
billion to hunt mtgtatozy birds (with 11 percent
crossing sate lines to do so) as another 17.7
million Americans observed migratory birds eolith
9.5 million traveling for the purpose of observing
Copr. ® Wiest 2002 No Claim to Orig. U.S. Govt. Works
121 S.D. 675
(Cite as: S31 U.S. 159, *166, 121 S.Ct. 675,'680)
shorebirds). See 191 F.3d. at 850.
We granted certiorari, 529 U.S. 1129, 120 S.Ct.
2003, 146 L.Ed.2d 954 (2000), and now reverse.
Congress passed the CWA for the stated purpose of
"reswr[mB] and maid:An[mgl the chemical,
physical, and biological integrity of the Nation's
waters.' 33 U.S.C. § 1251(a). In so doing,
Congress chose to 'recognize, preserve, and protect
the primary responsibilities and rights of *167 States
to prevent, reduce, and eliminate pollution, to plan
the development and use (inducting restoradon,
preservation, and enhancement) of land and water
resources, and to consult with the Administrator in
the exercise of his authority tinder this chapter.' §
1251(b). Relevant here. § 404(a) authorizes
respondents to regulate the discharge of §B material
sato "Drag* able waters,' 33 U.S.C. § 1344(a),
which the mane defines as 'the waters of the
United States, including the territorial seas,' §
13622(/). Renu 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 dine we have been called upon
to evaluate the meaning of § 404(a). In United
Stater v. Riverside Rayview. Homes, Inc., 474 U.S.
held 106 S.he 455,E >1 � 419ltrr icc� over
held that the. Corps
wetlands that actually abutted on a navigable
waterway. In so doing. we noted that the term
'navigable 1s of 'limited import' and that Congress
evidenced its intent to 'regulate at least some wants
that would not be deemed 'navigable' under the
classical understanding of that term.' Id. at 133,
106 S.Ct. 455, But our holding was based in large
measly. upon Congress' tmegnrvacal acquiescence
to, and. approval of, the Corps' regulations
interpreting the CWA to cover wetlands adjacent to
navigable waters. See id., at 135-139, 106 S.Ct.
455. 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, 106 S.Ct. 455.
It was _the_sign}f4 ,nexu>s between the wetlands
,nexus
informed our reading of
the CWA in Riversi& Bayview Homes. Indeed, we
•
Copr. 0 West 2002 No Claim
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• •
did not 'express any opinion' on the "question of
the authority of the Corps to regulate d"twbarges of
fill material into wetlands that ate not adjacent to
bodies of open water ....' Id., at 131-132, '168 n.
8, 106 S.Ct. 455. In order to rule for resp
here, we would have to bold that the jurisdiction of
the Corps extends to ponds that are nor adjacent to
open water. But we conclude that the text of the
statute wit not allow this.
Indeed, the Corps' original interpretation of the
CWA, promulgated two yeats after its enaomabt, 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 dde,
and/or are presadly, or have been in the past, or
may be in the future susceptible for use for proposes
of interstate or foreign commerce.' 33 CFR §
209.120(d)(l). The Corps emphasized that '[7r 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(.X1).
Respondents put forward no persuasive evidence that
the Corps mistook Congress' intent in 1974. EFN3)
FM. Respondents refer us to portions of the
legislative history that they believe indicate
Congress' intent to expand the definition of
navigable waters." Although the Conference {-
Report includes the ee-dase conferees
intend that the term navigable wags'
the broadest possible uaapremd°° '
S. Coef. Rep. No. 92- 1236, p. 144 (1972),
U.S.Code Cong. & Admin.News 1972 pp. 3668,
3812,, niter this, war anything else in the
legislative history to wbith respondents point
signifies that Congress intended to exert any hhig
more than its commerce power over navigation.
Indeed,. respondents admit that the legislative
bistary is somewhat ambiguous. See Brief for
Federal Respondents 24.
•*681 Respondents next contend that its
original aimcharted
five years la
defmiti
1977
adopted 33 CFR § 323.2(a)(5) (1978). which defined
'waters of the United States' to include "Isolated
wetlands and lakes, intermimeat streams, prairie
potholes, and other waters that ate not part of a
tributary system to interstate waters or to navigable
1
m 1972, Congas course
ter when ed eve
navigable waters found is the Corps'
. the Corps formally
to Orig. U.S. Govt. Works
•
•
•
•
•
121 S.0.675
(Cite as: 531 U.S.159> 121S 675, "681)
waters of the United States, the degradation or
destruction of which could affect 6169 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 Rouse bill, H.R. 3199,
that would have defined 'navigable wafers” 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). [PN4] 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 $ndividml and general permit
program for the discharge of dredged or fill material
into the navigable waters (other than those waters
watch are presently used, or are susceptible to use in
their naval conditiaa or by reasonable
iniprovemess as i means to transport intentate or
foreign commerce ..., including wetlands adjacent
thereto) within its jurisdiction .... 33 U.S.C. §
1344(g)(1). The failt¢e to pass legislation that
would have overarmed the Carps' 1977 regulations
and the Gammon of jarisdictian is § 404(g) to
waters borer man' traditional 'navigable waters,'
respondents submit, indite that Congress
recognized and accepted a broad definition of
'navigable waters' that includes nomnavigable,.
isolated, intrastate s
FI44. While rnia WO passed in the House, a
similarly worded amendment to a bill origfmadug m
the Senate, S.1952, faded. See 123 Cong. Rec.
26710, 26728 (1977).
[17fn Although wo have recognized congressional
acquiescence to administrative interpretations of a
stance in some situations, we have done so with
extreme tare. (FNS) '[F]ailed legislative *170
proposals are 'a particularly dangerous ground on
winch to rest an mterpaeat[on of a prior statute.' "
Cenral Bask of Dower, N.A. v. Fun herdsman
Bacot ( Denver, NA., 511 U.S. 164, 187, 114
S.Ct. 1439, 128 LEd.2d 119 (1994) (quoting
Pentton Benefit Guaranty Corponaton v. LTV
Corp.. 496 U.S. 633, 650, 110 S.Ct. 2668, 110
L.Ed.2d 579 (1990)). A bill can be proposed for
any mumbo of rte, and h can be rejected for
just as many others. The relationship between the
actions and inactions of the 95th Congress and the
intent of the 924 "682 Congress hi Being § 404(a)
• •
Page 23
Is also considerably attenuated, Because
'subsequent history is less illuminating than the
contemporaneous evidence," Hager v. Utah, 510
U.S. 399,420, 114 3.Q. 958, 127 L.E1.2d 252
(1994), respondents face' a difficult task in
overcoming the plain ten and import of § 4044) -
FM le Bob .Iona Univ. v. Unfurl Siam 461
US. 574, 595, 600- 601, 103 S.Q. 2017, 76
L.Ed.2d 157 (1983), for example, we upbdd an
Internal Revenue Scrvico Its) Revenue bale
dm revoked the tax-exempt sates of private
scboob practicing racial c isciminadon because the
IRS' imezpreaaon of elle relevant scannas was
'correct': because Conn= had beld Barings on
this precise fie,' making k 'hardly conceivable
that Congress -and in this setting. any Member of
Congress—was not abundantly aware of what was
going me; and became 'no fewer than 13 bills
introduced to ovannn the WS mmpretadnc• bad
faded. Absent such overwhebiling evidence of
acquiesce**, we are loan to replace the plain tea
and original emdersanding of a statute with an
amended agency intexpraadon. See Consumer
Produa Safety Comm'n v. GTE Sylvania, Dna, 447
U.S. 102. 118, n. 13, 100 S.O. 2051, 64 L.F.d.2d
766 (19 80) ( "(Elven when it would otherwise be
useful, subsequent legislative blstoty will rarely
override a reasonable interpretation of a sterane that
can be gleaned from its language and iegisladve
history prior to its marmrem7.
We conclude that respondents have failed to make
the necessary showing that the Patine of the 1977
Rouse ball demonstrates Congress' acquiescence to
the Corps' regulations or the ,".figntary Bhd 1lila,'
which, of course, did not first appear --a f 986.
showing Congress' =opiates of the
assertion of jurisdiction over isolated waters,'
{FN6) as we explained in Riverside Bayview Henna,
TO born Chambers, debate on the proposals to
narrow the definition of navigable waters centered
largely on die issue of wetlands preservation," 474
U.S., at 136. 106 S.Ct. 455. Beyond Congress'
deshe to regulate "171 wetlands adiaoettt 93
respondents point m to no
persuasive evidence that the House bull was
proposed in rsspoase to the Carps' claim of
jurisdiction over twmn'vivat l t ..1 et4
waters or that its failure indicated congressional
acquiescence to such jurfsdicaon.
FN6. Respondents cite. for example, the senate
Report on S.1952, wbfcb referred to the Corps'
Copt. 0 West 2002 No Claim to Ong. U.S. Govt. Worcs
►i
121 S.Ct. 675
• •
(Cite as: S31 U.S.159, nn, 121 S.Ct. 675,'*68)
'isolated water' regulation. See S.Rep. No.
95-370, p. 75 (1977), U.S-Code Cong. &
Admin.News 1977 pp. 4326, 4400. However, the
same report reiterated that '[t]he committee
ameadmeat does not redefine navigable waters."
4
Section 404(g) is
une nlighiening,
Riverside Bayview Ho a we
Congress intended the
wat
deemed
waters ,it,, 1, ., + not be
under the dassieal
understan • • : o •- term.' Id., at 133, 106 S.Ct.
455. But § 404(g) gives no }ndmation of what those
waters p be; it simply refers to than Coder")
other )
Respondents conjecture that
-must incorporate the Corps' 1971
regulations, bit it is also plausible, as petitioner
Congress all
water adjacent _ navigable waters, tech as
nonnavigable Crib 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
student to say, as we did in Riverside Bayview
Homo. that • § 404(g)(1) does not conclusively
determine the construction to be placed on the use of
the term 'waters' elsewhere in the Act (panicularly
in § 502(7), which contains the relevant defrnidoaa of
'navigable waters') ....' Id, at 138, n. 11, 106
S.Ct. 455. (PN7]
FN7. Respondents also mate a passing reference to
Congress' decision in 1977 to exempt certain types
of discharges from § 404(a), including, for
example, 'discharge of dredged or fill material ...
for the purpose of construction or maintenance Of
farm or stock ponds or irrigation ditches. or the
maintenance of drainage ditches.' § 67, 91 Stat.
1600, 33 U.S.G. § 1344(t)(C). As § 404(a) only
regulates dredged or fill material that is discharged
'into navigable visnas,* Congress' decision to
exempt certain types of these diet -barges does not
affect, much -less address, the definition of
"navigable waters? .
C.
[3] We tau &liline respondisswinvitation. to take
what they see as the next ineluctable step after
Riverside Bayview Homer: holding that isolated
'ponds, some only seasonal, wholly located within
tion Illinois counties, fill ander § 404(a)'s definidon
of JnaY]gaht� water' because they cern *172 as
habitat for migratory bads. As counsel for
respondents conceded at oral argument, such . a
•
•. •
Page 24
ruling would assume that 'the use of the word
nnavinble in theme .." o not have any
mdse en�den[ significance." Tr. of Oral Arg. 28.
v�e Cannot agree cher f` ng"�—g`Y- sfinidcga. '
am of rhe pine "warn* of the 7lttirc l Stales"
csuglimMe a sin for rea�_the-.M _ _air ere
emrs We said in 8lversfde
Bayview Homes that the/word 'navigable' in the
**683 statute was of "limited import" and weal on
to hold that .§ 404(a) extended to
wetlands ad'acent to • • waters.
c
at east the import of showmg t s what
tad m mind as its authority for enacting the CNA:
its traditional jurisdiction over waters that were or
shad been navigable in fact or which could
reasonably be <, Tie See, e.g., United Sian v.
Appalachian Elec. Power Co., 311 U.S. 377,
407-408, 61 S.Ct. 291, 85 L.Ed. 243 (1940).
[4] 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 quad= of § 404(a)'s scope with regard to
, blee-isolated, intrastate waters,. and 812,
therefore, we should give defence to the
'Migratory Bird Rule.' See, e.g., Chevron (1.54.
Inc. v. Neutral Resources Deface. Council, Inc„
467 U.S. 837, 104 S.Ct. 2778, 81 L.Fd2d 694
(1984). We find § 404(a) to be clear, but even were
we to agree with respondents, we would not extend
Chewevt deference hem.
[5][6][7] Where an administrative interpretadon of
a statute invokes the outer limits of Congress'.
power, we expect a clear indication that Congress
intended that result. See Edward 1. beBarrolo
Corp. v. Florida Gdf Coact Building & Const:
Trades Comuzl, 485 U.S. 568, 575, 108 S.Ct.
1392, 99 L.Ed.2d 645. (1988). This =gunmen:
stems from our pmdagial desire not to needlessly
reach constitutional issues and err assumpdoa than
Congress does not casually authorize administrative
agencies to interpret a *173 statute to push the limit
of congressional authority. See fMd. This concern
is heightened where the administrative interpraation
alters the federal -state framework by permitting
federal encroachment upon a traditional state power.
See United States v. Ban, 404 U.S. 336, 349, 92
S.Ct. 515, 30 L.E.d_2d 488 (1971) ('[U]nless
Congress conveys its purpose clearly, it will not be
Cope. 0 West 2002 No Claim to Orig. U.S. Govt. Works
•
hurl a e—..i
•
a a
((Ste as: 531 U.S. 199, 0173, 121 S.Ct 675, "683)
deemed to have significatab' changed the federal -
sate balance-). Tina, "where an otherwise
acceptable construction of a statute would raise
salons constitutional problems, the Conti will
consume the taamte to avoid such problems unless
such construction is play copy to the intent of
Congress.' De-Ranolo, supra, at 575, 108 &Ct.
1392.
Twice in the past six years we have reaffirmed the
proposition that die grant of authority to Congress
under the rummer a Clause_ ,hough broad, is not
intim* d. See trotted Staa v. Monson. 529 U.S.
598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000);
linked Stet v. Lopez 514 U.S. 549, 115 S.Ct.
1624, 131 L.E4.26 626 (1995). Fa
that BirdRulefalls •
ower m�ctulate intrastate activities that
:� *ablat . They
note
note that the protec — of mreraton' birds is a
"name= interest of very nearly the fust
magnitude,' Minoan v Hoamrd 252 U.S. 416,
331a'S.Ct. 382, 64 L.Bd 641 (1920), and that,
u the Court of Appeals found. matins of people
spend over a billion dollars annually on recreational
pursuits relatiug to migratory birds. These
• argnmems raise significant consrimtioml questions.
For example, we would have to evaluate the precise
object or activity that, in the aggregate, substantially
affects interstate cummasm. 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, Pau
l rem 474 focus upon the fact that the regulated
activity is petition's municipal landfill, which is
'plainly of a commercial nater.' Brief for Federal
Respondents 43.. Brtt ibjs •
•tares m Which the statute by lsie
0174 These are significant constitutional questions
raised by respondents' application 00684 of their
regulations, and yet we find nig approaching a
clear stance from Congress that it intended §
404(a) to reach an abandoned sand and gravel pit
here. Permitting respondents to
infer jurisdiction ova ponds and mudflats
falling within the 'Migratory Bird Rule' world
result in a significant impingement of the States'
traditional and primary power over land and water
we. Sets, e.g., fest v. Pon Authority nuns -
Hudson Corporation, 513 U.S. 30, 44, 115 S.Ct.
121 5.0. 675
•
• •
Page ss
394, 130 L.Ed.2d 245 (1994) ('[Rjegulation of land
use Os) A tmcttoa traditionally performed by local
governments"). Rather than expressing a desire to
readjust the federal- state balance in this matuser.
Congress chose to 'recognize, preserve, a= protect
the primary responsibilities and rights of States ... to
plan the development and me ... of land and water
resources ....' 33 U.S.C. § 12$1(b). We thus read
the stance as written to avoid the significant'
constitutional and federalism quesdons raised by
respondents' itderprctnion, and therefore' reject the
request for administrative deference. [F148]
FNS. Beouse violations of the CWA carry
criminal penaidess. see 33 USX. f 1319(c)(2).
perldoner invokes the sob of lenity as another barb
for relearns the Corps' imeepmatbo a the CWA.
Brief for petitioner 31.32. We need net address
this alternative argamorn. See Haired Stam v.
5habimd, 513 V.S. 10, 17, 115 S.C. 382, 130
L.Ed.2d 225 (1994).
We hold that 33 CFR § 328.3(0)(3) (1999). as
clarified and applied to petitioner's baleSII site
pursuant to the 'Migratory Bird Rule.' 51 Fed -Reg.
41217 (1986), exceeds the authority granted to
respondents aria § 404(a) of the CWA. The
judgment of the Cont of Appeals for the Seventh
Circuit is therefore
Reversed.
Justice STEVENS, with
GINSBURG, and
1111 .2 ._
J
Justice SOUTER.
BREYER join.
In 1 the Cuyahoga it Cleveland. Ohio,
coated a slick of ' waste, caught fire.
Congress r 75 to that dramatic event,
and to others le enacting the Federal Water
Pollution Conte • (FWPCA) Amendments of
1972, 136 Stat. 8 , amended, 33 U.S.C. § 1251
et Sat.. •• •• .. •-•e% as the Cham Ware Act
(Clean Water CW or Aa). [PN1j The Aet
proclaimed ambltio goal of ending water
pollution by 985. § 1251.. The Court's past
iatetp s:tad of the have been fhlly
consistent' . that goaL though Congress'
vision of zero pollution =fulfilled, its
pursuit unquestionably the destruction
of the aquatic environment. Our ,''s waters
no longer bum. Today, however, or Court takes
Copt. 4) West 2002 No Clain to Orig. U.S. Govt. Works