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

ELR Citation: 31 ELR 20382
Nos. 99-1178, 531 U.S. 159/121 S. Ct. 675/(U.S., 01/09/2001) Rev'd, migratory bird rule not supported by CWA

The Court holds that the U.S. Army Corps of Engineers exceeded its Clean Water Act (CWA) §404(a) authority to regulate the discharge of dredged or fill material into U.S. navigable waters, when, under the Migratory Bird Rule, it extended the definition of "waters of the United States" to include non-navigable, intrastate, isolated waters used a migratory habitat. A circuit court decision upheld the Corps' refusal to grant several Illinois municipalities a CWA §404(a) permit for the development of a solid waste disposal site on an abandoned sand and gravel pit that contained isolated seasonal ponds used by migratory birds. The municipalities appealed.

The Court first holds the Migratory Bird Rule is not fairly supported by the CWA and the plain text of the statute. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985), the Court held that the Corps had CWA §404(a) jurisdiction over wetlands that actually abutted on a navigable waterway. In so doing, the Court noted that the term "navigable" is of limited import and that Congress evidenced its intent to regulate at least some waters that would not be deemed navigable under the classical understanding of that term. However, that holding was based in large part on Congress' unequivocal acquiescence to, and approval of, the Corps' regulations interpreting the CWA to cover wetlands adjacent to navigable waters. Thus, Congress' concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands inseparably bound up with the waters of the United States. To find for the Corps here, the Court would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water, but the CWA's text will not allow this. Moreover, the Corps' original interpretation of the CWA in 1974 defined "navigable waters" to mean those waters subject to the tide that can be used for transportation or commerce. Further, Congress' failure to pass a 1977 bill that would have overturned the Corps' extension of CWA §404(a) jurisdiction to nontraditional navigable waters did not demonstrate Congress' acquiescence to the Corps' regulations or the Migratory Bird Rule, which was not promulgated until 1986. Similarly, CWA §404(g)(1)'s reference to waters other than navigable waters gives no intimation what those other waters might be and, thus, does not require acceptance of the Corps' regulations. The Court next holds that even if CWA §404(a) was not clear, the Court could not extend deference to the Corps' interpretation. According to the Corps, the Migratory Bird Rule falls within Congress' power under the U.S. Commerce Clause. However, there are significant constitutional questions regarding the rule and no clear statement from Congress that it intended §404(a) to reach an abandoned sand and gravel pit. Permitting the Corps to claim federal jurisdiction over ponds falling within the Migratory Bird Rule would result in a significant impingement of the state's traditional and primary power over land and water use. Thus, the statute must be read as written to avoid the significant constitutional and federalism questions raised by the Corps' interpretation. Therefore, the circuit court decision is reversed.

Justice Stevens, with Justices Souter, Ginsburg, and Breyer, dissented arguing that the Court previously held in Riverside Bayview Homes that the Corps CWA jurisdiction extends to non-navigable waters that are not directly adjacent to or hydrologically connected to navigable water. Further, Justice Stevens argued that the Corps' §404(a) interpretation is entitled to deference and that the Migratory Bird Rule is constitutionally valid under the Commerce Clause.

[Prior decisions in this litigation are published at 27 ELR 20566 and 30 ELR 20161.]

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

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