Melissa Derwart

November 2, 2000

On October 31, 2000,[1] the United States Supreme Court heard oral arguments examining the issue of whether the U.S. Army Corps of Engineers, consistent with the Clean Water Act and the U.S. Constitution, has jurisdiction over permanent and seasonal intrastate ponds that are used as habitat for numerous species of migratory birds.[2]  The U.S. District Court granted summary judgment in the Corps's favor[3] and a unanimous Seventh Circuit panel affirmed the Corps's jurisdiction in October 1999.[4]  On May 22, 2000 the U.S. Supreme Court granted certiorari in the case.[5]  The following recounts the events that have brought this case to the highest court in the land.

Background Facts

The Solid Waste Agency of Northern Cook County ("SWANCC"), a consortium of 23 Illinois municipalities, needed to find a location for a balefill (a landfill where the waste is baled before it is dumped).  The acquired site consisted of 533 acres in Cook and Kane Counties, Illinois, but approximately 17.6 acres of ponds had to be filled prior to opening the balefill.[6]  In March of 1986, SWANCC contacted the Army Corps of Engineers ("Corps") for a permit to fill in the land.[7]  The Corps investigated the land and determined that it did not fall within the category of "protected wetlands," and therefore the Corps did not have the jurisdiction to require a permit.[8]  One year later, in February 1987, during further development of the balefill, the consortium inquired whether another 400 acres of the parcel contained wetlands.[9]  Once again, the Corps concluded that the land was not within its regulatory jurisdiction.[10]

Several months after the Corps's second response, the Illinois Nature Preserves Commission (a state agency) reported that it had observed a large number of migratory bird species on SWANCC's land.[11]  In November of 1987, the Corps sent a letter to SWANCC announcing that it did in fact have jurisdiction over the parcel of land under the Migratory Bird Rule.[12]  The previous two decisions still remained; the Corps did not claim jurisdiction due to the presence of wetlands.  Instead, jurisdiction could be exercised because the aquatic areas on the site "are or could be used as habitat by migratory birds which cross state lines."[13]  In response to this last letter, SWANCC then applied for a Clean Water Act §404 permit.  The permit was denied.[14]

The Seventh Circuit's opinion

SWANCC asserted three major arguments to the Seventh Circuit, including: "(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 the notice and comment requirements of the Administrative Procedure Act ("APA"), 5 U.S.C. §553."[15]

The court's analysis began with an evaluation of the effect of United States v. Lopez[16] on Congress's power, under the Commerce Clause, to permit regulation of intrastate waters based on the presence of migratory birds.  In Lopez, the Supreme Court reinforced the principle that any federal statute enacted under the authority of the Commerce Clause must "serve one of these purposes: (1) regulation of the channels of interstate commerce; (2) regulation or protection of the instrumentalities of interstate commerce, or persons or things in interstate commerce; or (3) regulation of activities that 'substantially effect' interstate commerce."[17]  In addition, the Lopez Court recognized the function of an aggregate, or cumulative, effect of activities on interstate commerce.[18]  This aggregate effect is the notion that while a single act may not have significant consequences, the cumulative impact of a class of activity will have substantial impact on interstate commerce.[19]

In the instant case, the Seventh Circuit focused on whether the destruction of migratory bird habitats, when viewed in the aggregate, had a "substantial effect" on interstate commerce.[20]  After considering statistics, which illustrated that millions of dollars are spent in America on hunting, observing and trapping birds across state lines, the court concluded:

We find (once again) that the destruction of migratory bird habitat and the attendant decrease in the populations of these birds 'substantially effects' interstate commerce.  The effect may not be observable as each isolated pond used by birds for feeding, nesting, and breeding is filled, but the aggregate effect is clear, and that is all the Commerce Clause requires.[21]

The Seventh Circuit quickly dismissed SWANCC's next two arguments.  First, SWANCC expressed the concern that the Corps would carry its jurisdiction to extremes under the migratory bird rule because the rule did not include limits.  The court refuted this contention, saying that "any suggestion that next the Corps will be trying to regulate the filling of every puddle that forms after a rainstorm, at least if a bird is seen splashing in it, misses the point."[22]  Under the migratory bird rule, in order for the Corps to exercise jurisdiction, a factual determination must be made that the semi-aquatic land in question provides a habitat for migratory-birds.[23]  The Court concluded that that factual determination occurred here.[24]  Second, SWANCC argued that the Corps's assertion of jurisdiction violated principles of federalism.  The court noted the large number of international treaties and conventions specifically created to protect migratory birds,[25] as well as national case law recognizing the importance of protecting these habitats.[26]  The court, therefore, concluded that this matter was not solely a state or local interest and no federalism principles were violated.[27]

SWANCC next asserted that the Corps inaccurately interpreted the Clean Water Act.  The Act limits the Corps's jurisdiction to the "waters of the United States."[28]  Courts turn to Chevron analysis when examining an agency's statutory interpretation.[29]  In this case, the court found that, "if Congress possesses the power to regulate a body of water under the Act, generally this court will conclude that it has in fact done so it is certainly reasonable for the EPA and Corps to interpret the Act in such a manner."[30]

SWANCC's final argument charged that the migratory bird rule was promulgated without clearing the notice and comment procedures required by the Administrative Procedures Act ("APA").[31]  The Seventh Circuit made a distinction between an agency's "interpretive rules, general statements of policy, or rules of agency organization, procedure or practice,"[32] and agency rules that are legislative, or substantive.  The latter requiring notice and comment procedures, while the former falling into a category of exemptions.  The court interpreted the migratory bird rule as an interpretive rule falling short of the status requiring formal notice and comment rulemaking procedures.[33]

In conclusion, the Seventh Circuit held "that the decision to regulate isolated waters based on their actual use as a 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."[34]

Conclusion

The ramifications of the Supreme Court's interpretation of the migratory bird rule are difficult to measure.  Over 20 amicus briefs have been filed to date,[35] illustrating the diverse interest in the issue before the Court.  No doubt all parties anxiously await the final resolution.

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[1] Supreme Court of the United States, argument calendar (October Term 2000) http://www.supremecourtus.gov/calendar/argument_oct30.pdf.

[2] See Brief for the Respondents in Opposition at (I), Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 191 F.3d 845 (7^th Cir. 1999) petition for cert. filed (U.S. Jan. 14, 2000 (No. 99-1178).

[3] Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 998 F.Supp. 946 (N.D. Ill. 1998).

[4] Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 191 F.3d 845 (7^th Cir. 1999).

[5] Supreme Court of the United States, Docket for 99-1178 (October Term 2000) http://www.supremecourtus.gov/docket/99-1178.htm.

[6] See Solid Waste Agency of Northern Cook County, 191 F.3d 845, 847 (1999) [hereinafter SWANCC].

[7] See id. at 848.

[8] See id.

[9] See id.

[10] See id.

[11] See id.

[12] See id. at 848-849.

[13] Id. at 849 (quoting letter from Corps to SWANCC, explaining the Corps's interpretation of the Migratory Bird Rule (51 Fed.Reg. 41, 206, 41, 217 (1986))).

[14] See id.

[15] Id.

[16] 514 U.S. 549 (1995).

[17] SWANCC, 191 F.3d at 849; See U.S. v. Lopez, 514 U.S. at 558-59.

[18] See SWANCC at 850 (citing United States v. Hicks 106 F.3d 187, 189-190 (7^th Cir. 1997); Lopez, 514 U.S. at 561).

[19] See Lopez, 514 U.S. at 561; See also Wickard v. Filburn, 317 U.S. 111 (1942).

[20] See SWANCC at 850.

[21] Id.

[22] Id.

[23] See id.

[24] See id.

[25] See id. at 851, citing e.g. Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, US-Japan, 25 U.S.T. 3331, T.I.A.S. No. 7990 (1972); Convention for the Protection of Migratory Birds and Game Mammals, U.S.-Mex., 50 Stat. 1311, T.S. No. 912 (1936); Convention for the Protection of Migratory Birds, U.S.-Gr. Brit., 39 Stat. 1702, T.S. No 628 (1916).

[26] See id.; See North Dakota v. United States, 460 U.S. 300, 309 (1983) (acknowledging "the national interest of very nearly the first magnitude" in protecting such birds).

[27] See id.

[28] 33 U.S.C. §1362(7).

[29] See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (Holding that agency's must first examine whether the plain meaning of the statute supports or opposes the regulation. If no such plain meaning is found, meaning the statute is ambiguous or silent on the issue, the court must defer to the judgment of the agency so long as it is a reasonable interpretation of the statute.)

[30] SWANCC, 191 F.3d at 851.

[31] 5 U.S.C. §553.

[32] SWANCC at 852 (citing 5 U.S.C. §553(b)(3)(a)).

[33] SWANCC at 852.

[34] Id. at 853.

[35] See Supreme Court of the United States, Docket for 99-1178 (October Term 2000) http://www.supremecourtus.gov/docket/99-1178.htm.