Corps Of Engineers' 'Migratory Bird Rule' Runs Afoul Of U.S. Supreme Court
On January 9, 2001, by a simple majority of 5-4, the United State’s Supreme Court recognized a principle that many have long debated in interpreting the regulatory scope of authority held by the United States Army Corps of Engineers under Section 404(a) of the federal Clean Water Act, 33 U.S.C.A Section 1344(a). Specifically, is there a limit to the Corps’ jurisdiction in enforcing permit requirements for the discharge of "dredged or fill material into the navigable waters" of the United States? In other words, are there non-jurisdictional waters of the United States -- wet places safe from the Corps’ real or perceived authority to enforce its interpretation of the Clean Water Act? With its analysis in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, ____ U.S._____, 2001 WL 15333 (2001) (the "SWANCC" decision), the U.S. Supreme Court concluded that the answer is a resounding: YES. We are now certain that there are identifiable waters that are not within the Corps’ authority to regulate.
The effect of the Court’s decision is broader than simply the Corps’ authority to regulate wetlands – as that term is defined in regulations and in the Corps’ guidance documents. Indeed, for the most part, wetlands that meet the Corps’ guidance criterion (hydrophilic vegetation, hydric soils and adequate inundation) in areas that are connected, or adjacent, to interstate waterways (e.g., streams, rivers and lakes) will be unaffected by this decision. As such, the Court did not alter or limit the influence of its earlier decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). (There the Court held that the Corps had Section 404 (a) jurisdiction over "wetlands" that were adjacent to a navigable waterway, noting that the term "navigable" is of "limited import" and that Congress indicated its intent to "regulate at least some waters that would not be deemed ‘navigable’ under that term’s classical understanding," Id, at 133.)
Clearly, it is only isolated waters (i.e., those that are not hydraulically connected to interstate waterways, such as, gravel pits, marshes, ponds and "prairie potholes"), which will no longer be subject to the Corps regulatory efforts. Moreover, the effect of the Court’s decision is to impose a jurisdictional limitation on the every agency’s authority to impose regulatory standards under the Clean Water Act. This decision will be heralded by developers who face the spectre of fines and penalties in developing areas with isolated wet spots, often times spending significant time and money in analyzing and permitting isolated, low lands, simply because the land may contain water (for brief periods during the year), and, as such treated as jurisdictional waters of the United States by the various agencies that enforce the Clean Water Act.
In that context, it is important to recognize the facts of this decision. In SWANCC, a consortium of suburban Chicago municipalities selected an abandoned sand and gravel pit with excavation trenches as a solid waste disposal site for municipal waste. Apparently, the abandoned excavation trenches filled with water, and "evolved into permanent and seasonal ponds" within the abandoned site. The Corps of Engineers claimed jurisdiction to regulate the development of the site under the Corps’ own, revised and significantly expanded, interpretation of its jurisdiction under the Clean Water Act.
Specifically, the Corps had abandoned its earlier 1974 interpretation of its authority (which emphasized that a jurisdictional water body must be somewhat capable of use by the public for transportation or commerce), and substituted its "Migratory Bird Rule" in 1986 (emphasizing that a jurisdictional water body includes waters that, among other things, provide habitat for migratory birds). See 51 Fed. Reg. 41217. The issue before Court in SWANCC was the propriety of the Corps’ "Migratory Bird Rule" under the enacting statute (i.e., the Clean Water Act) and the United States Constitution –specifically, the Commerce Clause (U.S. Constitution, Art. 1, Section 8, cl. 3).
Perhaps just as interesting as the effect of the decision is the Court’s analysis in reaching the result. Specifically, the Court found that the Corps had not issued the "Migratory Bird Rule" in accordance with the notice and comment procedures described in the Administrative Procedure Act, 5 U.S.C. Section 553. In other words, the "Migratory Bird Rule" was not an enforceable regulation, but rather only an interpretive statement published by the Corps in the Federal Register purportedly defining the Corps’ jurisdiction. Indeed, the Court recognized that an Agency may issue interpretive statements in certain contexts, and that the Courts will defer to the Agency’s interpretations of a statute so long as the interpretation comes from the Agency that is charged with enforcing the statute, and so long as the Court finds the statute ambiguous and the Agency’s interpretation reasonable. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984).
In this case, the Court found the statue clear and unambiguous. On the other hand, the Court found that the Corps’ explanation that Congress approved of Corps’ expanded interpretation of its jurisdiction, by not overruling the "Migratory Bird Rule" in subsequent legislative sessions, unpersuasive. Moreover, the Court indicated that even if it had found the statute ambiguous, the majority warned that "there are significant constitutional questions raised" by the Corps’ expansive interpretation of its jurisdiction under the Clean Water Act. In other words, the Court very clearly indicated its concern with such an interpretive statement of expanded jurisdiction from the Corps, and it warned that should Congress amend the Clean Water Act accordingly, such expanded jurisdiction would likely not be a proper exercise of governmental authority under this Court’s interpretation of the Commerce Clause.
The full impact of the Supreme Court’s decision in SWANCC will likely come from future and existing legislative challenges and subsequent Commerce Clause litigation. Suffice to say, with this decision, expansive jurisdiction for environmental regulation is not likely to pass this Court. Moreover, previously failed legal challenges to governmental authority may be viable again. Environmental and Commercial Litigators, continue to make your record. In the meantime, developers have one less, not insignificant, burden to endure.
William J. Anaya is a shareholder in the Chicago law firm of Johnson & Bell who concentrates his practice in real estate, environmental, and commercial litigation matters.
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