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Solid Waste Agency of N. Cook County v. Corps of Eng'rs

ELR Citation: 30 ELR 20161
Nos. No. 98-2277, 191 F.3d 845/49 ERC 1353/(7th Cir., 10/07/1999)

The court holds that the U.S. Army Corps of Engineers has jurisdiction under the Migratory Bird Rule to require a consortium of municipalities to obtain a Federal Water Pollution Control Act (FWPCA) §404 permit before filling ponds and lakes on a proposed landfill site. The court first holds that the destruction of migratory bird habitat and the attendant decrease in the populations of these birds "substantially affects" 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, which is all that the U.S. Commerce Clause requires. All the Corps must do before asserting jurisdiction under the Migratory Bird Rule is make a factual determination that a particular body of water provides a habitat for migratory birds, which it has done in the instant case. The court next holds that because Congress' power under the Commerce Clause is broad enough to permit the regulation of waters based on the presence of migratory birds, it is certainly reasonable for the Corps to interpret the FWPCA in such a manner. Moreover, because the unchallenged facts in this case show that the proposed filling would have an immediate effect on migratory birds that actually use the area as a habitat, it is not necessary for the court to reach the question of the Corps' jurisdiction over areas that are only potential habitats. Last, the court holds that the migratory bird rule was not promulgated in violation of the Administrative Procedure Act's notice-and-comment requirements. The Migratory Bird Rule is an interpretive rule rather than a legislative or substantive rule.

Counsel for Plaintiff
Russell R. Eggert
Mayer, Brown & Platt
190 S. La Salle St., Chicago IL 60603
(312) 782-0600

Counsel for Defendants
Ethan G. Shenkman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Kanne and Evans, JJ.