SOLID WASTE AGENCY OF NORTHERN COOK COUNTY v. UNITED STATES ARMY CORPS OF ENGINEERS ET AL.
No. 99-1178
SUPREME COURT OF THE UNITED STATES
Argued October 31, 2000—Decided January 9, 2001
531 U.S. 159
Timothy S. Bishop argued the cause for petitioner. With him on the briefs were Kaspar J. Stoffelmayr, Sharon Swingle, and George J. Mannina, Jr.
Deputy Solicitor General Wallace argued the cause for respondents. With him on the brief for the federal respondents were Solicitor General Waxman, Assistant Attorney General Schiffer, Malcolm L. Stewart, and John A. Bryson. Myron M. Cherry filed a brief for respondents Village of Bartlett et al.*
*Briefs of amici curiae urging reversal were filed for the State of Alabama by Bill Pryor, Attorney General, Alice Ann Byrne, Assistant Attorney General, and Jeffrey S. Sutton; for the American Farm Bureau Federation et al. by William G. Myers III; for Arid Operations, Inc., by Charles L. Kaiser; for Cargill, Inc., by Leslie G. Landau, Edgar B. Washburn, and David M. Ivester; for the Cato Institute et al. by Theodore M. Cooperstein, William H. Mellor, Clint Bolick, Scott G. Bullock, Timothy Lynch, Robert A. Levy, and Ronald D. Rotunda; for the Center for the Original Intent of the Constitution by Michael P. Farris and Scott W. Somerville; for the Chamber of Commerce of the United States by Robert R. Gasaway, Jeffrey B. Clark, Daryl Joseffer, and Robin S. Conrad; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for Defenders of Property Rights by Nancie G. Marzulla; for the National Association of Home Builders by Thomas C. Jackson; for the Nationwide
Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, Richard M. Frank, Chief Assistant Attorney General, J. Matthew Rodriguez, Senior Assistant Attorney General, Dennis M. Eagan, Supervising Deputy Attorney General, and Joseph Barbieri, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Thomas J. Miller of Iowa, Andrew Ketterer of Maine, John J. Farmer, Jr., of New Jersey, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, William H. Sorrell of Vermont, and Christine O. Gregoire of Washington; for the Anti-Defamation League et al. by Martin E. Karlinsky, Steven M. Freeman, Michael Lieberman, and Elliot M. Mincberg; and for Environmental Defense et al. by Louis R. Cohen and Michael Bean.
Briefs of amici curiae were filed for the American Forest & Paper Association et al. by Russell S. Frye; for the Center for Individual Rights by Michael E. Rosman; for the National Stone Association by Kurt E. Blase; and for Dr. Gene Likens et al. by Michael Bean.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Section 404(a) of the Clean Water Act (CWA or Act),
Petitioner, the Solid Waste Agency of Northern Cook County (SWANCC), is a consortium of 23 suburban Chicago
The municipalities decided to purchase the site for disposal of their baled nonhazardous solid waste. By law, SWANCC was required to file for various permits from Cook County and the State of Illinois before it could begin operation of its balefill project. In addition, because the operation called for the filling of some of the permanent and seasonal ponds, SWANCC contacted federal respondents (hereinafter respondents), including the Corps, to determine if a federal landfill permit was required under § 404(a) of the CWA,
Section 404(a) grants the Corps authority to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” Ibid. The term “navigable waters” is defined under the Act as “the waters of the United States, including the territorial seas.”
“waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce . . . .”
33 CFR § 328.3(a)(3) (1999) .
“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; or
“c. Which are or would be used as habitat for endangered species; or
“d. Used to irrigate crops sold in interstate commerce.” 51 Fed. Reg. 41217.
This last promulgation has been dubbed the “Migratory Bird Rule.”1
The Corps initially concluded that it had no jurisdiction over the site because it contained no “wetlands,” or areas which support “vegetation typically adapted for life in saturated soil conditions,”
During the application process, SWANCC made several proposals to mitigate the likely displacement of the migratory birds and to preserve a great blue heron rookery located on the site. Its balefill project ultimately received the necessary local and state approval. By 1993, SWANCC had received a special use planned development permit from the Cook County Board of Appeals, a landfill development permit from the Illinois Environmental Protection Agency, and approval from the Illinois Department of Conservation.
Despite SWANCC‘s securing the required water quality certification from the Illinois Environmental Protection Agency, the Corps refused to issue a § 404(a) permit. The Corps found that SWANCC had not established that its proposal was the “least environmentally damaging, most practicable alternative” for disposal of nonhazardous solid waste; that SWANCC‘s failure to set aside sufficient funds to remediate leaks posed an “unacceptable risk to the public‘s drinking water supply“; and that the impact of the project upon area-sensitive species was “unmitigatable since a landfill surface cannot be redeveloped into a forested habitat.” Id., at 87.
Petitioner filed suit under the Administrative Procedure Act,
The Court of Appeals began its analysis with the constitutional question, holding that Congress has the authority to regulate such waters based upon “the cumulative impact doctrine, under which a single activity that itself has no discernible effect on interstate commerce may still be regulated if the aggregate effect of that class of activity has a substantial impact on interstate commerce.” 191 F. 3d 845, 850 (CA7 1999). The aggregate effect of the “destruction of the natural habitat of migratory birds” on interstate commerce, the court held, was substantial because each year millions of Americans cross state lines and spend over a billion dollars to hunt and observe migratory birds.2 Ibid. The Court of Appeals then turned to the regulatory question. The court held that the CWA reaches as many waters as the Commerce Clause allows and, given its earlier Commerce Clause ruling, it therefore followed that respondents’ “Migratory Bird Rule” was a reasonable interpretation of the Act. See id., at 851-852.
We granted certiorari, 529 U. S. 1129 (2000), and now reverse.
Congress passed the CWA for the stated purpose of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation‘s waters.”
This is not the first time we have been called upon to evaluate the meaning of § 404(a). In United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985), we held that the Corps had § 404(a) jurisdiction over wetlands that actually abutted on a navigable waterway. In so doing, we noted that the term “navigable” is of “limited import” and that Congress evidenced its intent to “regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.” Id., at 133. But our holding was based in large measure upon Congress’ unequivocal acquiescence to, and approval of, the Corps’ regulations interpreting the CWA to cover wetlands adjacent to navigable waters. See id., at 135-139. We found that Congress’ concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands “inseparably bound up with the ‘waters’ of the United States.” Id., at 134.
It was the significant nexus between the wetlands and “navigable waters” that informed our reading of the CWA in Riverside Bayview Homes. Indeed, we did not “express any opinion” on the “question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water . . . .” Id., at 131-132,
Indeed, the Corps’ original interpretation of the CWA, promulgated two years after its enactment, is inconsistent with that which it espouses here. Its 1974 regulations defined § 404(a)‘s “navigable waters” to mean “those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.”
Respondents next contend that whatever its original aim in 1972, Congress charted a new course five years later when it approved the more expansive definition of “navigable waters” found in the Corps’ 1977 regulations. In July 1977, the Corps formally adopted
Although we have recognized congressional acquiescence to administrative interpretations of a statute in some situations, we have done so with extreme care.5 “[F]ailed legis-
We conclude that respondents have failed to make the necessary showing that the failure of the 1977 House bill demonstrates Congress’ acquiescence to the Corps’ regulations or the “Migratory Bird Rule,” which, of course, did not first appear until 1986. Although respondents cite some legislative history showing Congress’ recognition of the Corps’ assertion of jurisdiction over “isolated waters,”6 as we explained in Riverside Bayview Homes, “[i]n both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation.” 474 U. S., at 136. Beyond Congress’ desire to regu-
Section 404(g) is equally unenlightening. In Riverside Bayview Homes we recognized that Congress intended the phrase “navigable waters” to include “at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.” Id., at 133. But § 404(g) gives no intimation of what those waters might be; it simply refers to them as “other . . . waters.” Respondents conjecture that “other . . . waters” must incorporate the Corps’ 1977 regulations, but it is also plausible, as petitioner contends, that Congress simply wanted to include all waters adjacent to “navigable waters,” such as nonnavigable tributaries and streams. The exact meaning of § 404(g) is not before us and we express no opinion on it, but for present purposes it is sufficient to say, as we did in Riverside Bayview Homes, that “§ 404(g)(1) does not conclusively determine the construction to be placed on the use of the term ‘waters’ elsewhere in the Act (particularly in § 502(7), which contains the relevant definition of ‘navigable waters‘) . . . .” Id., at 138, n. 11.7
We thus decline respondents’ invitation to take what they see as the next ineluctable step after Riverside Bayview Homes: holding that isolated ponds, some only seasonal, wholly located within two Illinois counties, fall under § 404(a)‘s definition of “navigable waters” because they serve
Respondents—relying upon all of the arguments addressed above—contend that, at the very least, it must be said that Congress did not address the precise question of § 404(a)‘s scope with regard to nonnavigable, isolated, intrastate waters, and that, therefore, we should give deference to the “Migratory Bird Rule.” See, e. g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). We find § 404(a) to be clear, but even were we to agree with respondents, we would not extend Chevron deference here.
Where an administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a
Twice in the past six years we have reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited. See United States v. Morrison, 529 U. S. 598 (2000); United States v. Lopez, 514 U. S. 549 (1995). Respondents argue that the “Migratory Bird Rule” falls within Congress’ power to regulate intrastate activities that “substantially affect” interstate commerce. They note that the protection of migratory birds is a “national interest of very nearly the first magnitude,” Missouri v. Holland, 252 U. S. 416, 435 (1920), and that, as the Court of Appeals found, millions of people spend over a billion dollars annually on recreational pursuits relating to migratory birds. These arguments raise significant constitutional questions. For example, we would have to evaluate the precise object or activity that, in the aggregate, substantially affects interstate commerce. This is not clear, for although the Corps has claimed jurisdiction over petitioner‘s land because it contains water areas used as habitat by migratory birds, respondents now, post litem motam, focus upon the fact that the regulated activity is petitioner‘s municipal landfill, which is “plainly of a commercial nature.” Brief for Federal Respondents 43. But this is a far cry, indeed, from the “navigable waters” and “waters of the United States” to which the statute by its terms extends.
We hold that
Reversed.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
In 1969, the Cuyahoga River in Cleveland, Ohio, coated with a slick of industrial waste, caught fire. Congress re-
It is fair to characterize the Clean Water Act as “watershed” legislation. The statute endorsed fundamental changes in both the purpose and the scope of federal regulation of the Nation‘s waters. In § 13 of the Rivers and Harbors Appropriation Act of 1899 (RHA),
The Court has previously held that the Corps’ broadened jurisdiction under the CWA properly included an 80-acre
In its decision today, the Court draws a new jurisdictional line, one that invalidates the 1986 migratory bird regulation as well as the Corps’ assertion of jurisdiction over all waters
As I shall explain, the text of the 1972 amendments affords no support for the Court‘s holding, and amendments Congress adopted in 1977 do support the Corps’ present interpretation of its mission as extending to so-called “isolated” waters. Indeed, simple common sense cuts against the particular definition of the Corps’ jurisdiction favored by the majority.
I
The significance of the FWPCA Amendments of 1972 is illuminated by a reference to the history of federal water regulation, a history that the majority largely ignores. Federal regulation of the Nation‘s waters began in the 19th century with efforts targeted exclusively at “promot[ing] water transportation and commerce.” Kalen, Commerce to Conservation: The Call for a National Water Policy and the Evolution of Federal Jurisdiction Over Wetlands, 69 N. D. L. Rev. 873, 877 (1993). This goal was pursued through the various Rivers and Harbors Acts, the most comprehensive of which was the RHA of 1899.3 Section 13 of the 1899 RHA, commonly known as the Refuse Act, prohibited the discharge of “refuse” into any “navigable water” or its tributaries, as well as the deposit of “refuse” on the bank of a navigable water “whereby navigation shall or may be impeded or obstructed” without first obtaining a permit from the Secretary of the Army. 30 Stat. 1152.
Section 404 of the
The 1972 Act, in contrast, appropriated large sums of money for research and related programs for water pollution control, 86 Stat. 816-833, and for the construction of water treatment works, id., at 833-844. Strikingly absent from its declaration of “goals and policy” is any reference to avoiding or removing obstructions to navigation. Instead, the principal objective of the Act, as stated by Congress in
Because of the statute‘s ambitious and comprehensive goals, it was, of course, necessary to expand its jurisdictional scope. Thus, although Congress opted to carry over the traditional jurisdictional term “navigable waters” from the
The Conference Report explained that the definition in
The majority‘s reading drains all meaning from the conference amendment. By 1972, Congress’ Commerce Clause power over “navigation” had long since been established. The Daniel Ball, 10 Wall. 557 (1871); Gilman v. Philadelphia, 3 Wall. 713 (1866); Gibbons v. Ogden, 9 Wheat. 1 (1824). Why should Congress intend that its assertion of federal jurisdiction be given the “broadest possible constitutional interpretation” if it did not intend to reach beyond the very heartland of its commerce power? The activities regulated by the
As we recognized in Riverside Bayview, the interests served by the statute embrace the protection of “‘significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites’ for various species of aquatic wildlife.” 474 U. S., at 134-135. For wetlands and “isolated” inland lakes, that in-
The majority accuses respondents of reading the term “navigable” out of the statute. Ante, at 172. But that was accomplished by Congress when it deleted the word from the
II
In 1975, the Corps therefore adopted the interim regulations that we upheld in Riverside Bayview. As we noted in that case, the new regulations understood “the waters of the United States” to include, not only navigable waters and their tributaries, but also “nonnavigable intrastate waters whose use or misuse could affect interstate commerce.” 474 U. S., at 123. The 1975 regulations provided that the new program would become effective in three phases: phase 1, which became effective immediately, encompassed the navigable waters covered by the 1974 regulation and the
The Corps’ broadened reading of its jurisdiction provoked opposition among some Members of Congress. As a result, in 1977, Congress considered a proposal that would have limited the Corps’ jurisdiction under
“In both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation. See [123 Cong. Rec.], at 10426-10432 (House debate); id., at 26710-26729 (Senate debate). Proponents of a more limited § 404 jurisdiction contended that the Corps’ assertion of jurisdiction over wetlands and other nonnavigable ‘waters’ had far exceeded what Congress had intended in enacting § 404. Opponents of the proposed changes argued that a narrower definition of ‘navigable waters’ for purposes of § 404 would exclude vast stretches of crucial wetlands from the Corps’ jurisdiction, with detrimental effects on wetlands ecosystems, water quality, and the aquatic environment generally. The debate, particularly in the Senate, was lengthy. In the House, the debate ended with the adoption of a narrowed definition of
‘waters‘; but in the Senate the limiting amendment was defeated and the old definition retained. The Conference Committee adopted the Senate‘s approach: efforts to narrow the definition of ‘waters’ were abandoned; the legislation as ultimately passed, in the words of Senator Baker, ‘retain[ed] the comprehensive jurisdiction over the Nation‘s waters exercised in the 1972 Federal Water Pollution Control Act.‘” 474 U. S., at 136-137.
The net result of that extensive debate was a congressional endorsement of the position that the Corps maintains today. We explained in Riverside Bayview:
“[T]he scope of the Corps’ asserted jurisdiction over wetlands was specifically brought to Congress’ attention, and Congress rejected measures designed to curb the Corps’ jurisdiction in large part because of its concern that protection of wetlands would be unduly hampered by a narrowed definition of ‘navigable waters.’ Although we are chary of attributing significance to Congress’ failure to act, a refusal by Congress to overrule an agency‘s construction of legislation is at least some evidence of the reasonableness of that construction, particularly where the administrative construction has been brought to Congress’ attention through legislation specifically designed to supplant it.” Id., at 137.
Even if the majority were correct that Congress did not extend the Corps’ jurisdiction in the 1972
More important than the 1977 bill that did not become law are the provisions that actually were included in the 1977 revisions. Instead of agreeing with those who sought to withdraw the Corps’ jurisdiction over “isolated” waters,
In addition to the enumerated exceptions, the 1977 amendments included a new section,
“The Governor of any State desiring to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce ..., including wetlands adjacent thereto) within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact.”
33 U. S. C. § 1344(g)(1) .
Section 404(g)(1)‘s reference to navigable waters “other than those waters which are presently used, or are susceptible to use,” for transporting commerce and their adjacent wetlands appears to suggest that Congress viewed (and accepted) the Act‘s regulations as covering more than naviga-
The Conference Report discussing the 1977 amendments, for example, states that § 404(g) “establish[es] a process to allow the Governor of any State to administer an individual and general permit program for the discharge of dredged or fill material into phase 2 and 3 waters after the approval of a program by the Administrator.” H. R. Conf. Rep. No. 95-830, p. 101 (1977), reprinted in 3 Legislative History of the Clean Water Act of 1977 (Committee Print compiled for the Committee on Environment and Public Works by the Library of Congress), Ser. No. 95-14, p. 285 (emphasis added) (hereinafter Leg. Hist. of CWA). Similarly, a Senate Report discussing the 1977 amendments explains that, under § 404(g), “the [C]orps will continue to administer the section 404 permit program in all navigable waters for a discharge of dredge or fill material until the approval of a State program for phase 2 and 3 waters.” S. Rep. No. 95-370, p. 75 (1977), reprinted in 4 Leg. Hist. of CWA 708 (emphases added).
Of course, as I have already discussed, “phase 1” waters are navigable waters and their contiguous wetlands, “phase 2” waters are the “primary tributaries” of navigable waters and their adjacent wetlands, and “phase 3” waters are all other waters covered by the statute, and can include such “isolated” waters as “intermittent rivers, streams, tributaries, and perched wetlands that are not contiguous or adjacent to navigable waters.” The legislative history of the 1977 amendments therefore plainly establishes that,
In dismissing the significance of
The majority also places great weight, ante, at 171, on our statement in Riverside Bayview that § 404(g) “does not con-
III
Although it might have appeared problematic on a “linguistic” level for the Corps to classify “lands” as “waters” in Riverside Bayview, 474 U. S., at 131-132, we squarely held that the agency‘s construction of the statute that it was charged with enforcing was entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Today, however, the majority refuses to extend such deference to the same agency‘s construction of the same statute, see ante, at 172-174. This refusal is unfaithful to both Riverside Bayview and Chevron. For it is the majority‘s reading, not the agency‘s, that does violence to the scheme Congress chose to put into place.
Contrary to the Court‘s suggestion, the Corps’ interpretation of the statute does not “encroac[h]” upon “traditional state power” over land use. Ante, at 173. “Land use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits.” California Coastal Comm‘n v. Granite Rock Co., 480 U. S. 572, 587 (1987). The
IV
Because I am convinced that the Court‘s miserly construction of the statute is incorrect, I shall comment briefly on petitioner‘s argument that Congress is without power to prohibit it from filling any part of the 31 acres of ponds on its property in Cook County, Illinois. The Corps’ exercise of its § 404 permitting power over “isolated” waters that serve as habitat for migratory birds falls well within the boundaries set by this Court‘s Commerce Clause jurisprudence.
In United States v. Lopez, 514 U. S. 549, 558-559 (1995), this Court identified “three broad categories of activity that Congress may regulate under its commerce power“: (1) channels of interstate commerce; (2) instrumentalities of inter-
The activity being regulated in this case (and by the Corps’ § 404 regulations in general) is the discharge of fill material into water. The Corps did not assert jurisdiction over petitioner‘s land simply because the waters were “used as habitat by migratory birds.” It asserted jurisdiction because petitioner planned to discharge fill into waters “used as habitat by migratory birds.” Had petitioner intended to engage in some other activity besides discharging fill (i. e., had there been no activity to regulate), or, conversely, had the waters not been habitat for migratory birds (i. e., had there been no basis for federal jurisdiction), the Corps would never have become involved in petitioner‘s use of its land. There can be no doubt that, unlike the class of activities Congress was attempting to regulate in United States v. Morrison, 529 U. S. 598, 613 (2000) (“[g]ender-motivated crimes“), and Lopez, 514 U. S., at 561 (possession of guns near school property), the discharge of fill material into the Nation‘s waters is almost always undertaken for economic reasons. See V. Albrecht & B. Goode, Wetland Regulation in the Real World, Exh. 3 (Feb. 1994) (demonstrating that the overwhelming majority of acreage for which § 404
Moreover, no one disputes that the discharge of fill into “isolated” waters that serve as migratory bird habitat will, in the aggregate, adversely affect migratory bird populations. See, e. g., 1 Secretary of the Interior, Report to Congress, The Impact of Federal Programs on Wetlands: The Lower Mississippi Alluvial Plain and the Prairie Pothole Region 79-80 (Oct. 1988) (noting that “isolated,” phase 3 waters “are among the most important and also [the] most threatened ecosystems in the United States” because “[t]hey are prime nesting grounds for many species of North American waterfowl ...” and provide “[u]p to 50 percent of the [U. S.] production of migratory waterfowl“). Nor does petitioner dispute that the particular waters it seeks to fill are home to many important species of migratory birds, including the second-largest breeding colony of Great Blue Herons in northeastern Illinois, App. to Pet. for Cert. 3a, and several species of waterfowl protected by international treaty and Illinois endangered species laws, Brief for Federal Respondents 7.16
In addition to the intrinsic value of migratory birds, see Missouri v. Holland, 252 U. S. 416, 435 (1920) (noting the importance of migratory birds as “protectors of our forests and our crops” and as “a food supply“), it is undisputed that
Finally, the migratory bird rule does not blur the “distinction between what is truly national and what is truly local.” Morrison, 529 U. S., at 617-618. Justice Holmes cogently observed in Missouri v. Holland that the protection of migratory birds is a textbook example of a national problem. 252 U. S., at 435 (“It is not sufficient to rely upon the States [to protect migratory birds]. The reliance is vain ...“). The destruction of aquatic migratory bird habitat, like so many other environmental problems, is an action in which the benefits (e. g., a new landfill) are disproportionately local, while many of the costs (e. g., fewer migratory birds) are widely dispersed and often borne by citizens living in other States. In such situations, described by economists as involving “externalities,” federal regulation is both appropriate and necessary. Revesz, Rehabilitating Interstate
The power to regulate commerce among the several States necessarily and properly includes the power to preserve the natural resources that generate such commerce. Cf. Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941, 953 (1982) (holding water to be an “article of commerce“). Migratory birds, and the waters on which they rely, are such resources. Moreover, the protection of migratory birds is a well-established federal responsibility. As Justice Holmes noted in Missouri v. Holland, the federal interest in protecting these birds is of “the first magnitude.” 252 U. S., at 435. Because of their transitory nature, they “can be protected only by national action.” Ibid.
Whether it is necessary or appropriate to refuse to allow petitioner to fill those ponds is a question on which we have no voice. Whether the Federal Government has the power to require such permission, however, is a question that is easily answered. If, as it does, the Commerce Clause empowers Congress to regulate particular “activities causing air or water pollution, or other environmental hazards that may have effects in more than one State,” Hodel, 452 U. S., at 282, it also empowers Congress to control individual actions that, in the aggregate, would have the same effect.
Because I would affirm the judgment of the Court of Appeals, I respectfully dissent.