Question: Does the Clean Water Act prohibit filling wetlands that are 15 miles away from any navigable water?

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1 Session 9 Statutory interpretation in practice For this session, I pose questions raised by Supreme Court cases along with the statutory materials that were used in the decision. Please read the materials carefully and be prepared to discuss the range of possible interpretations. 1. Clean Water Act and wetlands Question: Does the Clean Water Act prohibit filling wetlands that are 15 miles away from any navigable water? Excerpts of the Clean Water Act: Purposes: This Act aims: to restore and maintain the chemical, physical, and biological integrity of the Nation s waters. [i]t is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter. A principle function of the Act: Section 1311(a): The discharge of any pollutant by any person shall be unlawful. Section 1342(a) authorizes the Administrator of the EPA to issue a permit for the discharge of any pollutant, notwithstanding section 1311(a) of this title. Section 1344 authorizes the Secretary of the Army, acting through the Corps, to issue permits for the discharge of dredged or fill material into the navigable waters at specified disposal sites. 1344(a), (d). The Act defines some of these terms: The discharge of a pollutant includes any addition of any pollutant to navigable waters from any point source ; A pollutant includes traditional contaminants but also solids such as dredged spoil,... rock, sand, [and] cellar dirt, Navigable waters means the waters of the United States, including the territorial seas. 1

2 Agency Interpretations Army Corps of Engineers Interpretation of the Act: The Corps current regulations interpret the waters of the United States to include, in addition to traditional interstate navigable waters, [a]ll interstate waters including interstate wetlands ; [a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce ; [t]ributaries of [such] waters ; and [w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands). The regulation defines adjacent wetlands as those bordering, contiguous [to], or neighboring waters of the United States. It specifically provides that [w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are adjacent wetlands. In 1986, to clarify the reach of its jurisdiction, the Corps announced the so-called Migratory Bird Rule, which purported to extend its jurisdiction to any intrastate waters [w]hich are or would be used as habitat by migratory birds. In addition, the Corps interpreted its own regulations to include ephemeral streams and drainage ditches as tributaries that are part of the waters of the United States, see 33 CFR 328.3(a)(5), provided that they have a perceptible ordinary high water mark as defined in 328.3(e). 65Fed. Reg (2000). This interpretation extended the waters of the United States to virtually any land feature over which rainwater or drainage passes and leaves a visible mark even if only the presence of litter and debris. Supreme Court precedents: For a century prior to the CWA, we had interpreted the phrase navigable waters of the United States in the Act s predecessor statutes to refer to interstate waters that are navigable in fact or readily susceptible of being rendered so. The Daniel Ball, 10Wall. 557, 563 (1871); see also United States v. Appalachian Elec. Power Co., 311 U. S. 377, 406 (1940). In Riverside Bayview, we evaluated the validity of the very same regulations at issue today. These regulations interpret waters of the United States to cover all traditionally navigable waters; tributaries of these waters; and wetlands adjacent to traditionally navigable waters or their tributaries. 33 CFR 328.3(a)(1), (5), and (7) (2005); 323.2(a)(1), (5), and (7) (1985). Although the particular wetland at issue in Riverside Bayview abutted a navigable creek, we framed the question presented as whether the Clean Water Act authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries. 474 U. S., at 123 (emphasis added). 2

3 We held that, pursuant to our decision in Chevron, our review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act for the Corps to exercise jurisdiction over wetlands adjacent to but not regularly flooded by rivers, streams, and other hydrographic features more conventionally identifiable as waters. 474 U. S., at 131. Applying this standard, we held that the Corps decision to interpret waters of the United States as encompassing such wetlands was permissible. We recognized the practical difficulties in drawing clean lines between land and water, id., at 132, and deferred to the Corps judgment that treating adjacent wetlands as waters would advance the congressional concern for protection of water quality and aquatic ecosystems, id., at 133. In SWANCC, we considered the application of the Corps Migratory Bird Rule to an abandoned sand and gravel pit in northern Illinois. 531 U. S., at 162. Observing that [i]t was the significant nexus between the wetlands and navigable waters that informed our reading of the CWA in Riverside Bayview, id., at 167 (emphasis added), we held that Riverside Bayview did not establish that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. 531 U. S., at 168 (emphasis deleted). On the contrary, we held that nonnavigable, isolated, intrastate waters, id., at 171 which, unlike the wetlands at issue in Riverside Bayview, did not actually abu[t] on a navigable waterway, 531 U. S., at 167 were not included as waters of the United States. Legislative History This conclusion is further confirmed by Congress deliberate acquiescence in the Corps regulations in Id., at 136. Both Chambers conducted extensive debates about the Corps regulatory jurisdiction over wetlands, rejected efforts to limit this jurisdiction, and appropriated funds for a National Wetlands Inventory to help the States in the development and operation of programs under this Act. Id., at (quoting 33 U. S. C. 1288(i)(2)). We found these facts significant in Riverside Bayview, see 474 U. S., at , as we acknowledged in SWANCC. See 531 U. S., at (noting that [b]eyond Congress desire to regulate wetlands adjacent to navigable waters, respondents point us to no persuasive evidence of congressional acquiescence (emphasis added)). 3

4 2. Immigration and Nationality Act of 1952 and homosexuality Question: Can the INS use the Immigration and Nationality Act of 1952 to exclude an alien solely based on the fact that he engaged in homosexual activities? Immigration and Nationality Act of 1952: SEC (a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:. (4) Aliens afflicted with psychopathic personality, epilepsy, or a mental defect Legislative history: Original Senate Bill excluded from admission homosexuals or sex perverts. This language was replaced with term psychopathic personality in the final bill. Senate Judiciary Committee Report: The provision of S. 716 (one of the earlier bills not enacted) which specifically excluded homosexuals and sex perverts as a separate excludable class does not appear in the instant bill. The Public Health Service has advised that the provision for the exclusion of aliens afflicted with psychopathic personality or a mental defect which appears in the instant bill is sufficiently broad to provide for the exclusion of homosexuals and sex perverts. This change of nomenclature is not to be construed in any way as modifying the intent to exclude all aliens who are sexual deviates. House Committee Report: Psychopathic personality is sufficiently broad to provide for the exclusion of homosexuals and sex perverts. Other materials: The American Psychiatric Association s Diagnostic and Statistical Manual: Mental Disorders (1952) characterizes homosexuality as a sociopathic personality disturbance. The American Psychiatric Association s Diagnostic and Statistical Manual: Mental Disorders (1973) removes homosexuality as a pathology. Doctors testify at trial that the medical consensus is that homosexuality is not a mental illness. 4

5 3. The Civil Rights Act of 1969 and affirmative action Question: Does Title VII of the Civil Rights Act of 1964 permit a private employer to implement an affirmative action program that gives preferences to African-Americans in hiring and promotion? Title VII of Civil Rights Act of 1964 Section 703(a) It shall be an unlawful employment practice for an employer- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. Section 703(d) It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training. Section 703(j) Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area. 5

6 Legislative History: The House Report: No bill can or should lay claim to eliminating all of the causes and consequences of racial and other types of discrimination against minorities. There is reason to believe, however, that national leadership provided by the enactment of Federal legislation dealing with the most troublesome problems will create an atmosphere conducive to voluntary or local resolution of other forms of discrimination. Senator Clark: The rate of Negro unemployment has gone up consistently as compared with white unemployment for the past 15 years. This is a social malaise and a social situation which we should not tolerate. That is one of the principal reasons why the bill should pass. Senator Humphrey: A major impetus for this bill is the the plight of the Negro in our economy and the need to improve the lot of those who had been excluded from the American dream from so long. What good does it do a Negro to be able to eat in a fine restaurant if he cannot afford to pay the bill? What good does it do him to be accepted in a hotel that is too expensive for his modest income? How can a Negro child be motivated to take full advantage of integrated educational facilities if he has no hope of getting a job where he can use that education? Without a job, one cannot afford public convenience and accommodations. Income from employment may be necessary to further a man's education, or that of his children. If his children have no hope of getting a good job, what will motivate them to take advantage of educational opportunities? The title does not provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups. It does not provide that any quota systems may be established to maintain racial balance in employment. In fact, the title would prohibit preferential treatment for any particular group, and any person, whether or not a member of any minority group would be permitted to file a complaint of discriminatory employment practices. If the Senator can find in title VII... any language which provides that an employer will have to hire on the basis of percentage or quota related to color... I will start eating the pages one after another, because it is not in there. 6

7 Senator Williams: Those opposed to H.R should realize that to hire a Negro solely because he is a Negro is racial discrimination, just as much as a white only employment policy. Both forms of discrimination are prohibited by title VII of this bill. The language of that title simply states that race is not a qualification for employment.... Some people charge that H.R favors the Negro, at the expense of the white majority. But how can the language of equality favor one race or one religion over another? Equality can have only one meaning, and that meaning is self-evident to reasonable men. Those who say that equality means favoritism do violence to common sense. 7