The migratory bird rule after Lopez: questioning the value of state sovereignty in the context of wetland regulation.

• Author: Gilbert, Peter Arey
• Position: Case Note

Before a land owner may lawfully undertake development that could result in wetland destruction, even if the affected wetland is wholly within the limits of his estate, he must first obtain a permit from the Army Corps of Engineers.(1) This federally operated permit program is a product of section 404 of the Clean Water Act.(2) The Clean Water Act authorizes federal jurisdiction over all "navigable waters."(3) By defining navigable waters broadly, Congress contemplated federal jurisdiction over wetlands to operate to the full extent of the Commerce Clause.(4) In crafting regulations for the enforcement of section 404, the EPA adopted what is known as the "migratory bird rule" (MBR). The MBR extends the Army Corps's section 404 jurisdiction to wetlands "whose use by and value to migratory birds is well established."(5)

This Note explores the constitutional validity(6) of the MBR as one method to determine whether a wetland comes under federal commerce power jurisdiction. Commerce power jurisdiction is a prerequisite to federal regulation of any isolated wetland pursuant to section 404 of the Clean Water Act.(7) In the wake of the United States v. Lopez(8) decision, which explicitly recognized a limit to federal commerce power, many scholars examined congressional extensions of commerce power with renewed interest.(9) In Leslie Salt v. United States(10) a landowner challenged the MBR's extension of congressional commerce power. By the time the challenger petitioned for certiorari, the United States Supreme Court already had issued the Lopez decision. The Court denied certiorari, but Justice Thomas dissented, questioning the MBR's validity in view of the Lopez decision.(11) Several authors have shared his concern.(12)

This Note concludes that the MBR survives the Lopez test and that the denial of certiorari to Leslie Salt can be reconciled with the Lopez decision. Other notes and articles have scrutinized the strength of the MBR's interstate commerce nexus.(13) A careful reading of Lopez, however, suggests that its application to the MBR should focus not exclusively on the strength of the interstate commerce nexus, an essentially formalistic test,(14) but also on the broad implications to the federal-state balance in sustaining the rule as constitutional expression of commerce power--a functionalist or pragmatic test. The Lopez test introduces a novel, albeit intuitive, criterion for assessing the constitutionality of federal regulation based on the commerce power. By scrutinizing the impact of a federal regulation on the constitutionally contemplated federal-state balance, Lopez invites a broad inquiry into the relative merits of permitting federal regulation in favor of state regulation in a given arena. In effect, this permits the obvious and welcome inquiry into whether federal regulation in a particular area is more or less consistent with the organizing principles behind the structure of the government. Because the Framers deliberately designed the federal-state balance with a specific purpose in mind, it seems fair to assert that the Framers' federal-state sovereignty distinction warrants extension only insofar as it furthers their contemplated purpose.

A broad inquiry into the MBR in the context of the Framers' contemplated federal-state balance produces two conclusions. First, the federal rather than state government is better situated to protect the economic interests in the nation's wetlands. Development and destruction of wetlands results in a market failure that demands a regulatory solution.(15) Because this, market failure stems from interstate economic externalities, corrective regulations are best fashioned and administered on a federal level. Second, the reasons that justify the presumption of state regulation of most matters do not support state regulation of isolated wetlands. The MBR may represent an accession to power by the federal government at the states' expense, but it does not upset the guiding principles behind the constitutionally contemplated federal-state balance.

The first section of this Note traces the development of the MBR as one of several tests applied to define the limits of Commerce Clause jurisdiction over regulation of isolated wetlands. The second section describes and analyzes the Lopez decision in the context of Commerce Clause jurisprudence. The Note then applies the Lopez test to the MBR and concludes that the MBR would survive the Lopez test. The Note arrives at this conclusion by applying the more traditional aspects of the Lopez test as well as the less traditional, more functionalist aspects of the Lopez test. Pursuant to the functional-federalism inquiry, this section also examines the impact of sustaining the MBR as a valid expression of congressional commerce power on the federal-state balance of power. The Note argues that state, not federal, regulation frustrates efficient and representationally fair wetland regulation. The Framers did not decide arbitrarily to reserve to the states the vast majority of regulatory power. The Framers recognized that certain benefits would flow from state sovereignty.(16) These "benefits," however, are absent in the context of wetland regulation. This Note concludes that whatever its merit, the presumption of state sovereignty should extend only so far as the reasons that justify its existence. The Note asserts in conclusion that Lopez, properly understood, should not threaten federal regulations designed to correct market failures involving significant interstate externalities.

SECTION 404 OF THE CLEAN WATER ACT AND THE MIGRATORY BIRD RULE

In the last thirty years, society's perception of wetlands, including swamps, bogs, marshes, prairie potholes, and similar areas, has changed. Once considered valueless obstacles to economic development,(17) wetlands are now recognized to perform valuable and irreplaceable functions.(18) The recognized ecological functions provided by wetlands include floodpeak reduction, shoreline erosion control, water quality control, and provision of fish and wildlife habitat.(19) In addition to recognizing ecological contributions of wetlands, society recognizes intrinsic,(20) aesthetic,(21) and recreational(22) values in wetland preservation.

The nation's rapid growth came at the expense of the American wetland. In the continental United States, of 221 million acres of wetland, only 103 million remain, and 200,000 to 300,000 acres are lost yearly.(23)

In 1972, Congress enacted the "Clean Water Act" (CWA)--officially, the Federal Water Pollution Control Act.(24) The CWA's self-stated purpose "is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."(25) In recognition of wetland value and massive wetland destruction, Congress included in the CWA section 404, which prohibits the discharge of dredge or fill into wetlands or other waters without a permit.(26) The language of the CWA, however, refers not to wetlands but rather to "navigable waters."(27) The CWA defines navigable waters as "waters of the United States."(28) By defining "navigable waters" broadly, Congress intended for the regulation to apply to the full extent of the Commerce Clause.(29) Between 1974 and 1986, pursuant to authority granted in the CWA,(30) the Army Corps of Engineers promulgated regulations interpreting the scope of section 404 jurisdiction.(31)

The Army Corps's regulations require permits for discharges into three types of waters: interstate waters, waters that are adjacent to other waters of the United States, and "[a]ll other waters such as intrastate lakes, rivers, ... wetlands, ... or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce."(32) In 1986, in an attempt to set section 404 guidelines for wetland jurisdiction, the Corps adopted regulatory criteria to define wetlands subject to federal jurisdiction by virtue of federal commerce power.(33) The Corps recognized the EPA's interpretation of "waters of the United States" that includes, inter alia, waters: "(a) Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or (b) Which are or would be used as habitat by other migratory birds which cross state lines."(34) This regulation codified an EPA memorandum describing what has become known as the "Migratory Bird Rule:"

[I]f a particular waterbody shares the characteristics of other

waters whose use by and value to migratory birds is well

established and those characteristics make it likely that the

waterbody in question will also be used by migratory birds, it

would also seem to fall clearly within the definition [of "waters of

the United States"] (unless, of course, there is other information

that indicates the particular waterbody would

not in fact be so used).(35)

The Migratory Bird Rule, somewhat radically, expands federal jurisdiction over wetlands by recognizing a not so intuitive nexus between wetlands and interstate commerce. This nexus is based on the commercial industry surrounding wetland-dependent migratory fowl. In 1980, 5.3 million Americans spent 10 billion dollars hunting migratory birds.(36) That same year, 55 million Americans spent nearly 10 billion dollars to watch and photograph wetland-dependent birds.(37) Migratory bird related commerce is dependent on the preservation of migratory birds' wetland habitats--many of which are isolated wetlands.(38) Although commerce power jurisdiction over U.S. waters in the past has been limited to waters connected to, or at least adjacent to, interstate waterways, the MBR is unique in that it creates an interstate commerce nexus that includes intrastate, isolated waters.(39) Two circuits have reviewed the substance of the MBR.(40) The Supreme Court has upheld permitting authority over an adjacent wetland,(41) but has not reviewed the application of section 404 to an isolated wetland.

United States v. Hoffman Homes(42)

In...