Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (01/09/2001)

By: Anna Marie Johnson, Medill News Service

Questions presented

May the U.S. Army Corps of Engineers, consistent with the Clean Water Act and the Commerce Clause of U.S. Constitution, assert jurisdiction over isolated intrastate waters solely because those waters do or potentially could serve as habitat of migratory birds?

Brief

The Army Corps of Engineers claimed it could see everything from a birds eye view when it denied a Chicago-area waste agency a permit to convert over 500 acres of land into Cook Countys newest landfill.

Although the Corps had previously granted the Solid Waste Agency of North Cook County (SWANCC) permission to begin draining some of the more than two hundred lakes on the site, it retracted the decision after being informed by the Illinois Nature Preserves Commission, a state agency, that many migratory birds had been observed there.

This new information made all the difference to the Corps, because of the ""migratory bird rule."" The rule gives the Corps jurisdiction, under section 404 of the Clean Water Act, to protect the hundreds of species of birds that had made and could potentially make their home in the ""navigable"" waters on the land.

The rule says that ""navigable"" waters, which include any body of water in the U.S that is or would be used as a habitat by birds, are protected by the rule.

Initially, SWANCC, a consortium of more than 20 municipalities, contacted the Corps in March of 1986 to obtain permission to begin work on part of the landfill, a 533-acre parcel of land straddling Cook and Kane Counties, northwest of Chicago. After an on-site inspection, the Corps determined the site, to be used for a ""balefill"" (that is, a landfill where the waste is baled before it is dumped), did not include protected wetlands and therefore did not fall within its regulatory jurisdiction. One year later, the waste agency sought to add another 400 acres to the landfill and the Corps again granted approval.

However, in November of 1987, the Corps sent a letter to SWANCC explaining the migratory bird rule and denying them access to drain the lakes. The Corps explained that its two previous determinations that the site did not fall within its jurisdiction were based on its finding that the site did not meet the definition of ""wetland."" In contrast, the November 1987 decision -- that the Corps did have jurisdiction over the site -- was based on the theory that, regardless of wetland status, it appeared that the aquatic areas of the site ""are or could be used as habitat by migratory birds which cross state lines.""

SWANCC's application for a sec. 404 permit under the Clean Water Act was denied because the waters in the site were in fact used as habitat by migratory birds.

SWANCC filed suit, and the U.S. District Court granted summary judgment in the Corps' favor, finding that the Corps had jurisdiction over the site.

In the 7th Circuit Court of Appeals, SWANCC raised three arguments to support its position that the Corps had no authority to require it to obtain a permit: (1) Congress lacked the power to grant the Corps regulatory jurisdiction over isolated, intrastate waters based on the presence of migratory birds alone; (2) the Corps exceeded its statutory authority in interpreting the Act to confer jurisdiction as provided by the migratory bird rule; and (3) the migratory bird rule is invalid because it was not promulgated in accordance with proper notice and comment requirements.

A unanimous 7th Circuit panel affirmed, holding that under the ""cumulative impact doctrine,"" Congress had the power to grant the Corps jurisdiction because activity, in this case, the destruction of the natural habitat of migratory birds, that by 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.""

""The effect may not be observable as each isolated pond used by the birds for feeding, nesting, and breeding is filled, but the aggregate effect is clear, and that is all the Commerce Clause requires,"" the opinion stated.

In conclusion, the 7th Circuit held that ""the decision to regulate isolated waters based on their actual use as habitat by migratory birds is within Congress' power under the Commerce Clause, and that it was reasonable for the Corps to interpret the Act as authorizing this regulation.""

On May 22, 2000, the U.S. Supreme Court granted certiorari in the case. The Court allowed amicus briefs to be filed by the Pacific Legal Foundation, Randy Peterson, the National Association of Home Builders, the American Farm Bureau Federation, and Cargill, Inc.

On Jan. 9, 2001, the Court, split along ideological lines, reversed, holding that the Army Corps of Engineers does not have the authority under the Clean Water Act to apply the Migratory Bird Rule to wetlands that are isolated, intrastate waters, and not navigable.

In so holding, the Court majority avoided the Commerce Clause question by holding that the Act itself cannot be read to apply to ""ponds that are not adjacent to open water.""

We decline the invitation to hold ""that isolated ponds, some only seasonal, wholly located within two Illinois counties, fall under §404(a)s definition of “navigable waters” because they serve as habitat for migratory birds,"" wrote Chief Justice William Rehnquist for the 5-4 majority.

Though the majority did not rely on the Commerce Clause to strike down the Army Corps' use of the Migratory Bird Rule to the wetlands in question, the justices did note that ""significant constitutional questions"" might prevent the Court from allowing Congress to regulate intrastate commerce ""to reach an abandoned sand and gravel pit such as we have here.""

Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas completed the majority.

In dissent, Justice John Paul Stevens criticized the majority for taking an ""unfortunate step that needlessly weakens our principal safeguard against toxic water.""

In characterizing the Clean Water Act as “watershed” legislation, the dissent argued that the Act allowed the Army Corps jurisdiction all the waters of the United States, whether or not they are navigable.

Calling the majority's construction of the Clean Water Act ""miserly,"" the dissent went on to reinforce its continuing disagreement with the Court's conservative majority on its interpretation of the Commerce Clause, as it applies to the 31 acres of ponds in Cook County, Illinois.

""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 petitioners land simply because the waters were 'used as habitat by migratory birds,'"" Stevens argued. ""It asserted jurisdiction because petitioner planned to discharge fill into waters 'used as habitat by migratory birds.'""

Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer joined in the dissent.