Migratory Bird Rule Upheld

On October 7, 1999, the United States Court of Appeals for the Seventh Circuit upheld the U.S. Army Corps of Engineers' migratory bird rule. In the case of Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, No. 94 C7489 (Oct. 7, 1999), the court denied a challenge by the Solid Waste Agency of Northern Cook County to the rule which interprets the Clean Water Act to grant the Corps jurisdiction over certain intra-state waters based on their actual or potential use as a habitat for migratory birds. The Solid Waste Agency attempted to site a landfill on property that included some old gravel pits and seasonal ponds. The Corps determined that there were no jurisdictional wetlands but determined that the ponds were used as a habitat for migratory birds and therefore could not be filled in without a permit. When the Solid Waste Agency was denied a permit, it brought this action challenging the migratory bird rule. The court upheld the exercise of legislative power by Congress over the ponds as a regulation of activities that substantially affect interstate commerce because of the cumulative effect on the birds. "The effect may not be observable as each isolated pond used by the birds for feeding, nesting and breeding is filled, but the aggregate effect is clear, and that is all the Commerce Clause requires." Having concluded that Congress had the power under the Commerce Clause to permit the regulation of waters based on the presence of migratory birds, it had no problem at all finding that it was reasonable for EPA and the Corps to interpret the act in a manner that concluded that Congress did exercise that power.