Melissa Derwart

February 12, 2001

In a 5-4 decision, the United States Supreme Court ruled in that the Army Corps of Engineers' interpretation and use of the Clean Water Act to protect isolated wetlands, and the migratory birds that depend on them, is an over-extension of federal jurisdiction.[1]  The Court's decision in Solid Waste Agency of Northern Cook County v. United States ("SWANCC"), focused on the statutory question of whether § 404(a) of the Clean Water Act (CWA) could be extended to isolated wetlands and ponds.[2]  Because this question was answered in the negative, the Court did not reach the Constitutional question whether Congress's exercise of that authority was consistent with the Commerce Clause.[3]

Brief Background

The Clean Water Act

Congress's stated goal in the enactment of the CWA is the "restoration and maintenance of chemical, physical and biological integrity of the Nation's waters."[4]  One way to achieve that goal is through the § 404 permit program, which regulates the discharge of dredged or fill material into navigable waters.[5]  The definition of "navigable waters" has been broadened since its original use in the 1899 Rivers and Harbors Act ("RHA") to the current definition that includes waters that are not truly navigable, like wetlands or small tributaries.[6]  The § 404 permit process, and the modern navigable waters definition, gave rise to the controversy in this case.

Facts of SWANCC

A consortium of twenty-three suburban Chicago cities was in need of land to develop a regional landfill for baled non-hazardous solid waste.[7]  This consortium, the Solid Waste Agency of Northern Cook County ("Solid Waste Agency"), found a parcel of land for its project, which had formerly been a sand and gravel mining operation from the 1930's until about 1960.[8]  In the thirty or so years since it had been abandoned, the land evolved into a successional stage forest, including seasonal and permanent ponds.[9]  Anticipating that these ponds would require filling in order to proceed with the landfill, the Solid Waste Agency contacted the appropriate state and federal environmental agencies to inquire about permitting restrictions. Originally, the Army Corps of Engineers ("Corps"), denied jurisdiction over the land saying that the ponds did not rise to the level of federally protected wetlands.[10]  Subsequently, the Illinois Nature Preserves Commission, a state agency, told the Corps that a large number of migratory birds were spotted at the Solid Waste Agency's site (approximately 121 bird species.)[11]  With this new information, the Corps asserted its jurisdiction on the site, requiring a § 404 permit to fill the ponds upon which these migratory birds depended.[12]  The Corps relied on its regulation, introduced in 1986, which expanded its § 404 permit jurisdiction to include those "Öintrastate watersÖwhich are or would be used as habitat by birds protected by Migratory Bird TreatiesÖ,"[13] commonly referred to as the Migratory Bird Rule.  Based on this rule, the Corps denied the Solid Waste Agency's applications for the § 404 permit.

The Solid Waste Agency filed suit in the U.S. District Court for the Northern District of Illinois challenging the denial of the permit, as well as the Corps's jurisdiction over the site. [14] The District Court granted summary judgment for the Corps. On appeal to the Seventh Circuit, a unanimous panel ruled that Congress had authority to regulate these waters and that the Migratory Bird Rule was a reasonable interpretation of the Act. [15] The United States Supreme Court granted certiorari to the U.S. Court of Appeals for the Seventh Circuit and reversed. [16]

The Supreme Court Majority Decision

Writing for the majority, Chief Justice Rehnquist, joined by Justices Scalia, Thomas, Kennedy, and O'Connor, ruled that the Migratory Bird Rule was not supported by the CWA. [17] The Court ruled on this statutory issue, but chose not to resolve the constitutional issue of whether Congress could exercise such authority consistent with the Commerce Clause. [18]

The Court next rejected respondents' argument that Congress's failure to pass legislation overturning the Corps's reaching jurisdiction based on its broad interpretation of "navigable waters" indicates Congress's acquiescence to the extension of jurisdiction. [19] The Court felt that the limited legislative history was not a sufficient showing of the Congressional intent.[20]

Respondents argued that the Supreme Court's decision in United States v. Riverside Bayview Homes [21] naturally lended itself to a holding that the Corps's jurisdiction should be used to protect isolated waters. [22] Riverside Bayview Homes, a 1985 Supreme Court decision, upheld the Corps's regulation of wetlands. [23] The SWANCC Court held that Riverside Bayview Homes was distinguishable from the instant case because the regulation of wetlands in 1985 was affirmed based on the fact that the wetlands "actually abutted on a navigable waterway;" in contrast, the ponds in question at the SWANCC site are "not adjacent to open water." [24]

Furthermore, the Rehnquist majority was troubled by a lack of a clear definition of "navigable waters," because some sections of the CWA refer to "waters of the United States." [25] The Court made it clear that it would not let the Corps have unlimited authority. Here, where the ponds are completely isolated, the majority was not ready to "read the term 'navigable waters' out of the statute." [26] The opinion continued, "[t]he term 'navigable' has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made."[27]

Finally, the Court reasserted the need to limit federal power and bestow powers back to states. [28] Rehnquist wrote, "[p]ermitting respondents to claim federal jurisdiction over ponds and mudflats falling within the 'Migratory Bird Rule' would result in significant impingement of the State's traditional and primary power over land and water use." In support of this finding, the Court cited two recent cases where it limited federal Congressional power.[29]

The Dissent

In a strong dissent, Justice Stevens, joined by Justices Souter, Breyer, and Ginsburg, accused the Court of taking "an unfortunate step that needlessly weakens our principal safeguard against toxic water." [30] The dissent disagreed with the majority's analysis of the federal government's jurisdiction based on the terms "navigable waters" and "the waters of the United States." [31] Stevens recited at length the background and history of the CWA, noting that the CWA's origins were found in the RHA. [32] While these two statutes resemble each other, Justice Stevens explained their differences in function: the RHA's "Öprimary purposeÖis the maintenance of navigability, § 404 [of the CWA] was principally intended as a pollution control measure." [33] This distinction in purposes is important when interpreting the scope of the Corps's jurisdiction,

Because of the [CWA]'s ambitious and comprehensive goals, it was necessary to expand its jurisdictional scope. Thus, although Congress opted to carry over the traditional jurisdictional term 'navigable waters' from the RHA and prior versions of the FWPCA, it broadened the definition of that term to encompass all 'waters of the United States.' [34]

According to the dissent, when the definition is broadened, the Corps's interpretation of the Migratory Bird Rule within the CWA is reasonable. [35]

The dissenters also disagreed with the majority's distinction between the SWANCC site and the wetlands at issue in Riverside Bayview Homes [36], stating that the broad finding of the previous case upholding federal jurisdiction on wetlands applies equally to the site at issue in the instant case. [37] Justice Stevens asserted, "once Congress crossed the legal watershed that separates navigable streams of commerce from marshes and inland lakes, there is no principled reason for limiting the statute's protection to those waters or wetlands that happen to lie near a navigable stream." [38] In short, the dissenters emphasized that in light of the precedential weight that should be afforded to Riverside Bayview Homes, "[t]he majority's refusalÖto acknowledge the scope of our prior decision is troubling." [39]

Justice Stevens stressed that the Corps's assertion of jurisdiction over isolated wetlands is firmly supported by Congress's Commerce Clause authority. [40] The dissenter's statutory construction differed dramatically from that of the majority. Under the dissent's opinion, the third prong of the Commerce Clause analysis identified in United States v. Lopez[41] applies to the SWANCC site; this third prong includes "activities that 'substantially affect' interstate commerce" within the federal government's regulatory power. [42] Stevens found that the Corps's, and other federal agency's, findings of "the causal connection between the filling of wetlands and the decline of commercial activities associated with migratory birds is not 'attenuated'". [43] This substantial affect on commercial activities, especially viewed in the aggregate, would certainly warrant upholding federal jurisdiction under the Migratory Bird Rule. [44]

Finally, the dissent discredited the majority's argument that upholding federal regulation would harm the balance of rights and powers between the federal government and the states."The destruction of aquatic migratory bird habitat, like so many other environmental problems, is an action in which the benefits (e.g., a new landfill) are disproportionately local, while many of the costs (e.g., fewer migratory birds) are widely dispersed and often borne by citizens living in other states." [45] Because the burdens are shared across state lines, the dissent argues that federal regulation is appropriate.[46]

Initial Reactions to the Decision

Carol Browner, U.S. EPA Administrator under the Clinton Administration, was one of the first people to voice her objection to the decision. Browner stated that the split decision "weakens America's ability to protect its wetlands, which are among this country's most valuable natural resources." [47] She added that the ruling, "further underscores the need for Congressional action to strengthen the laws that protect wetlands."[48]

Another disappointed reaction to the SWANCC majority was voiced by Dirk Manskopf, a representative of the Sierra Club national wetlands committee. Manskopf viewed the decision as a "severe blow to federal protection of so-called isolated wetlands, and a major step back in protecting wildlife habitats." [49]

In stark contrast, the Cato Institute, a conservative research and advocacy group, was pleased with the outcome of this case. The group released a statement expressing that the decision was "one more in the string of cases the Rehnquist Court has issued in recent years that reassert the court's authority to police the powers of the political branches. The court once again put a brake on expansive government." [50]

Conclusion

Justice Rehnquist's majority opinion is a major victory for landowners and developers, while environmental groups have been forced to take a step back. Regrouping, the Corps and EPA are continually issuing new and revised regulations and policy memos in response to the decision. Practitioners in a multitude of areas (including the aggregate industry, agriculture, construction and land development, forestry, mining, transportation, and public works) will need to know the impacts of this decision to appropriately advise their clients.

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[1] Solid Waste Agency of Northern Cook County v. United States, No. 99-1178 (January 9, 2001).

[2] See id. at 1.

[3] See id.

[4] 33 U.S.C. § 1252(a) (2000).

[5] 33 U.S.C. § 1344 (2000).

[6] See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).

[7] Solid Waste Agency of Northern Cook County, No. 99-1178, slip op. at 1.

[8] Id. at 2.

[9] Id.

[10] Id. at 3.

[11] Id.

[12] Id.

[13] 51 Fed. Reg. 41217 (1986).

[14] Solid Waste Agency of Northern Cook County, No. 99-1178, slip op. at 4.

[15] Id. at 5.

[16] Solid Waste Agency of Northern Cook County v. United States, 191 F.3d 845 (7th Cir.(Ill.) Oct 07, 1999) cert. granted, 120 S.Ct. 2003, 146 L.Ed.2d 954, 68 USLW 3480, 68 USLW 3719, 68 USLW 3724 (U.S. May 22, 2000) (NO. 99-1178).

[17] Solid Waste Agency of Northern Cook County, No. 99-1178, slip op. at 6.

[18] Id. at 1.

[19] Id. at 9.

[20] See id. at 10.

[21] United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).

[22] Solid Waste Agency of Northern Cook County, No. 99-1178, slip op. at 10-11.

[23] Riverside Bayview Homes, 474 U.S. 121 (1985).

[24] Solid Waste Agency of Northern Cook County, No. 99-1178, slip op. at 6-7.

[25] See id. at 11.

[26] Id.

[27] Id.

[28] Id. at 13

[29] See United States v. Lopez, 514 U.S. 549 (1995); see also United States v. Morrison, 529 U.S. 598 (2000).

[30] Solid Waste Agency of Northern Cook County, dissenting slip op. at 1.

[31] See id. at 4; See also 33 U.S.C. §1362(7) (2000).

[32] Solid Waste Agency of Northern Cook County, dissenting slip op. at 4-6.

[33] Id.

[34] Id. at 7.

[35] Id.

[36] United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).

[37] Solid Waste Agency of Northern Cook County, dissenting slip op. at 3.
[38] Id.

[39] Id. at 14.

[40] Id. at 20.

[41] See United States v. Lopez, 514 U.S. 549, 558-559 (1995).

[42] Id.

[43] Solid Waste Agency of Northern Cook County, dissenting slip op. at 22-23.

[44] Id. at 23.

[45] Id.

[46] See id.

[47] Carol M. Browner, Statement by U.S. EPA Administrator Carol M. Browner Regarding Supreme Court Decision on Wetlands, January 9, 2001, available at http://yosemite.epa.gov/opa/admpress.nsf/b1ab9f485b098972852562e7004dc686/ac1a63b17d652130852569cf00751a65?OpenDocument.

[48] Id.

[49] Lyle Denniston, Supreme Court Limits Role of Congress in Wildlife Issue, BALT. SUN., January 10, 2001, at 3A.

[50] Id.