278 



one if one is needed and can be legally granted 

 by the Congress." 



The Court granted summary judgment for Landholders 

 and directed the Secretary of the Army to issue the 

 permit. This appeal followed. 



The question presented to us is whether the Secretary 

 of the Army can refuse to authorize a dredge and 

 fill project in navigable waters for factually substan- 

 tial ecological reasons even though the project would 

 not interfere with navigation, flood control, or the pro- 

 duction of pov/er. To answer this question in the affirm- 

 ative, we must answer two intermediate questions af- 

 firmatively. (1) Does Congress for ecological reasons 

 have the power to prohibit a project on private riparian 

 submerged land in navigable waters? (2) If it does, 

 has Congress committed the power to prohibit to the 

 Secretary of the Army? 



II 



Constitutional Power 



The starting point here is the Commerce Clause* 

 and its expansive reach. The test for determining 

 whether Congress has the power to protect wildlife 

 in navigable waters and thereby to regulate the use 

 of private property for this reason is whether there 



»**The Congress sliall have power to regulate Commerce with foreign 

 nations, and among the several states, and with the Indian 

 Tribes." VS. Const Art X, § 8. CL 3. 



