1. Summarize the arguments made by the Army Corps of Engineers for finding that the government had the power to regulate this site under the CWA.
2. Explain the Supreme Court’s response to each of the Army Corps of Engineers’ arguments previously identified.
3. Did the Supreme Court hold that the government could not regulate this type of site or only that Congress had not in fact sought to extend its regulation to this type of site?
4. In your view, should the federal government be able to regulate bodies of water that are of significant use by migratory birds? Explain.
Section 404(a) of the Clean Water Act (CWA or Act) regulates the discharge of dredged or fill material into “navigable waters.” The United States Army Corps of Engineers (Corps) has interpreted Section 404(a) to confer federal authority over an abandoned sand and gravel pit in northern Illinois that pro-vides habitat for migratory birds. We are asked to decide whether the provisions of Section 404(a) may be fairly extended to these waters, and, if so, whether Congress could exercise such authority consistent with the Commerce Clause. We answer the first question in the negative and therefore do not reach the second.