Corps Jurisdiction Narrowed
 
March 13, 2001
 

On January 9, the U.S. Supreme Court issued its opinion in Solid Waste Agency of Northern Cook County v. U.S. Corps of Engineers, 121 S. Ct. 675 (2001). In that case, a consortium of Chicago-area municipalities sought authorization to construct a solid waste landfill at the site of an abandoned sand and gravel pit mining operation. On the property were excavation trenches that over time had become permanent and seasonal ponds of varying size and depth. These ponds were frequented by approximately 121 different species of migratory birds. Because of the existence of the ponds, the Solid Waste Agency of Northern Cook County (SWANCC) contacted the U.S. Corps of Engineers (Corps) to determine whether the Corps would require a permit for the landfill under section 404(a) of the Clean Water Act (CWA).

Section 404(a) grants the Corps authority to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” The CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” In 1977, the Corps issued regulations defining “waters of the United States” to include:

Waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce….  33 C.F.R. §328.2(a)(3).

In 1986, the Corps purported to clarify its jurisdiction under the CWA by issuing the “Migratory Bird Rule,” which stated that section 404(a) jurisdiction would be extended to intrastate waters:

a.  Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or

b.  Which are or would be used as habitat by other migratory birds which cross state lines; or

c.  Which are or would be used as habitat for endangered species; or

d.  Used to irrigate crops sold in interstate commerce.  51 F.R. 41217.

In 1987, the Corps advised the SWANCC that it would assert jurisdiction over the ponds pursuant to subpart (b) of the Migratory Bird Rule. By 1993, the SWANCC had received all required local and state approvals for the landfill, but the Corps denied a section 404(a) permit for failure to demonstrate no feasible alternative to the project and on the ground that the project threatened potable water supplies and was “unmitigable.” The SWANCC sued in federal district court. The district court granted summary judgment on the jurisdictional question, and on appeal, the Seventh Circuit Court of Appeals held that the Migratory Bird Rule was a reasonable interpretation of the Corps’ jurisdiction under the CWA and consistent with Congressional authority under the Commerce Clause.

In a 5:4 opinion, the Supreme Court reversed on the ground that the CWA did not grant the Corps the authority to assert jurisdiction in this case. In particular, the Court held “that 33 C.F.R. § 328.3(a)(3) (1999), as clarified and applied to petitioner’s [landfill] site pursuant to the ‘Migratory Bird Rule,” 51 Fed. Reg. 41217 (1986), exceeds the authority granted to [the Corps] under § 404(a) of the CWA.”

At first blush, the Court’s use of “as clarified and applied” would appear to limit its decision to the narrow facts in front of it. However, the dissent notes that the majority’s opinion appears to cast a much wider net. The Court appears to disapprove not only the Migratory Bird Rule, but also the Corps’ definition of “waters of the United States,” to the extent that it would allow jurisdiction over non-navigable waters that are not adjacent to navigable waters. First, the Court determines that the scope of the CWA’s “waters of the United States” was intended by Congress to be that “traditional jurisdiction over waters that were or had been navigable in fact or which could reasonable be so made.” 121 S. Ct. at 683. Based on this interpretation, the Court held that the Migratory Bird Rule “is not fairly supported by the CWA.” 121 S. Ct. at 680. In fact, the Court opines that the Corps’ jurisdiction cannot extend to isolated, non-adjacent ponds: “In order to rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude the text of the statute will not allow this.” Id. In the dissent’s opinion, the majority’s holding “invalidates the 1986 migratory bird regulations as well as the Corps’ assertion of jurisdiction over all waters except for actually navigable waters, their tributaries, and wetlands adjacent to each.” 121 S. Ct. at 685 (dissenting opinion).

Because it found that the CWA did not support jurisdiction in this case, the Court did not reach the question of whether Congress had authority under the Commerce Clause to extend CWA jurisdiction to isolated ponds visited by migratory birds. However, the Court suggested  that the Corp’s application of its rules to the isolated ponds at issue raised “significant constitutional questions” and that allowing such jurisdiction “would result in a significant impingement of the States’ traditional and primary power over land and water use.” 121 S. Ct. at 684.