(Slip Opinion) OCTOBER TERM, 2000 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SOLID WASTE AGENCY OF NORTHERN COOK COUNTY v. UNITED STATES ARMY CORPS OF ENGINEERS ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 99­1178. Argued October 31, 2000- Decided January 9, 2001 Petitioner, a consortium of suburban Chicago municipalities, selected as a solid waste disposal site an abandoned sand and gravel pit with excavation trenches that had evolved into permanent and seasonal ponds. Because the operation called for filling in some of the ponds, petitioner contacted federal respondents, including the Army Corps of Engineers (Corps), to determine if a landfill permit was required un- der §404(a) of the Clean Water Act (CWA), which authorizes the Corps to issue permits allowing the discharge of dredged or fill mate- rial into "navigable waters." 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 destruction of which could affect interstate or foreign commerce," 33 CFR §328.3(a)(3). In 1986, the Corps attempted to clarify its jurisdiction, stating, in what has been dubbed the "Migra- tory Bird Rule," that §404(a) extends to intrastate waters that, inter alia, provide habitat for migratory birds. 51 Fed. Reg. 41217. As- serting jurisdiction over the instant site pursuant to that Rule, the Corps refused to issue a §404(a) permit. When petitioner challenged the Corps' jurisdiction and the merits of the permit denial, the Dis- trict Court granted respondents summary judgment on the jurisdic- tional issue. The Seventh Circuit held that Congress has 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(a)(3), as clarified and applied to petitioner's site pursuant to the Migratory Bird Rule, exceeds the authority 2 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v. ARMY CORPS OF ENGINEERS Syllabus granted to respondents under §404(a) of the CWA. Pp. 5­14. (a) In United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, this Court held that the Corps had §404(a) jurisdiction over wetlands adjacent to a navigable waterway, noting that the term "navigable" is of "limited import" and that Congress evidenced its in- tent to "regulate at least some waters that would not be deemed `navigable' under [that term's] classical understanding," id., at 133. But that holding was based in large measure upon Congress' une- quivocal acquiescence to, and approval of, the Corps' regulations in- terpreting the CWA to cover wetlands adjacent to navigable waters. See id., at 135­139. The Court expressed no opinion on the question of the Corps' authority to regulate wetlands not adjacent to open wa- ter, and the statute's text will not allow extension of the Corps' juris- diction to such wetlands here. Pp. 5­7. (b) The Corps' original interpretation of the CWA in its 1974 regu- lations- 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 re- spondents present no persuasive evidence that the Corps mistook Congress' intent in 1974. Respondents contend that whatever its original aim, when Congress amended the CWA in 1977, it approved the more expansive definition of "navigable waters" found in the Corps' 1977 regulations. Specifically, respondents submit that Con- gress' failure to pass legislation that would have overturned the 1977 regulations and the extension of the Environmental Protection Agency's jurisdiction in §404(g) to include waters "other than" tradi- tional "navigable waters" indicates that Congress recognized and ac- cepted a broad definition of "navigable waters" that includes non- navigable, isolated, intrastate waters. This Court recognizes congressional acquiescence to administrative interpretations of a statute with extreme care. Failed legislative proposals are a par- ticularly dangerous ground on which to rest an interpretation of a prior statute, Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 187, because a bill can be proposed or rejected for any number of reasons. Here, respondents have failed to make the necessary showing that Congress' failure to pass legislation demonstrates acquiescence to the 1977 regulations or the 1986 Mi- gratory Bird Rule. Section 404(g) is equally unenlightening, for it does not conclusively determine the construction to be placed on the use of the term "waters" elsewhere in the CWA. Riverside Bayview Homes, supra, at 138, n. 11. Pp. 7­11. (c) Even if §404(a) were not clear, this Court would not extend def- erence to the Migratory Bird Rule under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837. Where an Cite as: 531 U. S. ____ (2001) 3 Syllabus administrative interpretation of a statute would raise serious consti- tutional problems, the Court will construe the statute to avoid such problems unless the construction is plainly contrary to Congress' in- tent. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575. The grant of authority to Congress under the Commerce Clause, though broad, is not unlim- ited. See, e.g., United States v. Morrison, 529 U. S. 598. Respon- dents' arguments, e.g., that the Migratory Bird Rule falls within Congress' power to regulate intrastate activities that substantially affect interstate commerce, raise significant constitutional questions, yet there is nothing approaching a clear statement from Congress that it intended §404(a) to reach an abandoned sand and gravel pit such as the one at issue. Permitting respondents to claim federal ju- risdiction over ponds and mudflats falling within the Migratory Bird Rule would also result in a significant impingement of the States' traditional and primary power over land and water use. The Court thus reads the statute as written to avoid such significant constitu- tional and federalism questions and rejects the request for adminis- trative deference. Pp. 11­14. 191 F. 3d 845, reversed. REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. Cite as: 531 U. S. ____ (2001) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 99­1178 _________________ SOLID WASTE AGENCY OF NORTHERN COOK COUNTY, PETITIONER v. UNITED STATES ARMY CORPS OF ENGINEERS, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT [January 9, 2001] CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. Section 404(a) of the Clean Water Act (CWA or Act), 86 Stat. 884, as amended, 33 U. S. C. §1344(a), regulates the discharge of dredged or fill material into "navigable wa- ters." 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 which 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 Com- merce Clause, U. S. Const., Art. I, §8, cl. 3. We answer the first question in the negative and therefore do not reach the second. Petitioner, the Solid Waste Agency of Northern Cook County (SWANCC), is a consortium of 23 suburban Chi- cago cities and villages that united in an effort to locate and develop a disposal site for baled nonhazardous solid waste. The Chicago Gravel Company informed the mu- nicipalities of the availability of a 533-acre parcel, be- 2 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v. ARMY CORPS OF ENGINEERS Opinion of the Court striding the Illinois counties Cook and Kane, which had been the site of a sand and gravel pit mining operation for three decades up until about 1960. Long since abandoned, the old mining site eventually gave way to a successional stage forest, with its remnant excavation trenches evolv- ing into a scattering of permanent and seasonal ponds of varying size (from under one-tenth of an acre 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 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 respon- dents (hereinafter 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 per- mits "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." §1362(7). The Corps has issued regulations defining the term "waters of the United States" to include "waters such as intrastate lakes, rivers, streams (in- cluding 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). In 1986, in an attempt to "clarify" the reach of its jurisdic- tion, the Corps stated that §404(a) extends to instrastate waters: "a. Which are or would be used as habitat by birds Cite as: 531 U. S. ____ (2001) 3 Opinion of the Court 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 endan- gered species; or "d. Used to irrigate crops sold in interstate com- merce." 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," 33 CFR §328.3(b) (1999). How- ever, after the Illinois Nature Preserves Commission informed the Corps that a number of migratory bird spe- cies had been observed at the site, the Corps reconsidered and ultimately asserted jurisdiction over the balefill site pursuant to subpart (b) of the "Migratory Bird Rule." The Corps found that approximately 121 bird species had been observed at the site, including several known to depend upon aquatic environments for a significant portion of their life requirements. Thus, on November 16, 1987, the Corps formally "determined that the seasonally ponded, abandoned gravel mining depressions located on the proj- ect site, while not wetlands, did qualify as `waters of the United States' . . . based upon the following criteria: (1) the proposed site had been abandoned as a gravel mining operation; (2) the water areas and spoil piles had devel- oped a natural character; and (3) the water areas are used as habitat by migratory bird [sic] which cross state lines." U. S. Army Corps of Engineers, Chicago District, Dept. of - - - - - - 1 The Corps issued the "Migratory Bird Rule" without following the notice and comment procedures outlined in the Administrative Proce- dure Act, 5 U. S. C. §553. 4 SOLID WASTE AGENCY OF NORTHERN COOK CTY. v. ARMY CORPS OF ENGINEERS Opinion of the Court Army Permit Evaluation and Decision Document, Lodging of Petitioner, Tab No. 1, p. 6. During the application process, SWANCC made several proposals to mitigate the likely displacement of the migra- tory 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 Depart- ment 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 for- ested habitat." Id., at 87. Petitioner filed suit under the Administrative Procedure Act, 5 U. S. C. §701 et seq., in the Northern District of Illinois 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, petitioner re- newed its attack on respondents' use of the "Migratory Bird Rule" to assert jurisdiction over the site. Petitioner argued that respondents had exceeded their statutory authority in interpreting the CWA to cover nonnavigable, Cite as: 531 U. S. ____ (2001) 5 Opinion of the Court isolated, intrastate waters based upon the presence of migratory birds and, in the alternative, that Congress lacked the power under the Commerce Clause to grant such regulatory jurisdiction. The Court of Appeals began its analysis with the consti- tutional que