The United States Army Corps of Engineers ("Corps") and the regulated community have often disagreed about what types of water bodies should be regulated under Section 404(a) of the Clean Water Act ("CWA") -- the so called "dredge and fill" permit section. Although all would agree that Section 404(a) subjects large, interstate, navigable bodies of water to federal regulation, there has been significant debate about whether it should extend to nonnavigable, intrastate, isolated waters. The Corps' use of its "Migratory Bird Rule" to extend its jurisdiction to small, isolated water bodies has caused particular concern.
On January 9, 2001, in the case of Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, et al., 531 U.S. ____, 69 U.S.L.W. 4048 (2001) ("SWANCC"), the United States Supreme Court resolved in favor of the regulated community at least some of the debate about the scope of Section 404(a) of the CWA. The Court rejected the Corps' application of Section 404(a) to certain isolated, intrastate waters. In a 5-4 decision authored by Chief Justice Rehnquist, in which Justices O'Connor, Scalia, Kennedy and Thomas joined, the Court ruled that the CWA does not give the Corps authority to regulate the construction of a landfill on isolated small ponds used by migratory birds. The ruling is significant not only because it restricts the regulatory authority of the Corps under Section 404(a) of the CWA, but also because it could provide the basis to narrow other CWA programs not at issue in SWANCC. In addition, it reveals once again the concerns of a majority of the Court about the limits under the Commerce Clause to federal regulation of matters the majority views as more appropriate subjects for state or local authority.
This article has three parts. First, it reviews the basics of Section 404 and the Migratory Bird Rule. Then, the article discusses the Supreme Court's decision in SWANCC. Finally, it addresses the potential impacts of the decision.
The CWA provides that federal authority to regulate dredging or filling depends upon the type of water body in which the activity occurs. Section 404(a) of the CWA grants the Corps authority to issue permits "for the discharge of dredged or fill material into navigable waters at specified disposal sites." 33 U.S.C. § 1344(a). If waters constitute "navigable waters," defined under the CWA as "the waters of the United States, including the territorial seas," then the Corps has the authority to regulate the discharge of dredged or fill material into them. If the waters at issue are not sufficiently substantial to be considered navigable waters under the CWA, the Corps does not have jurisdiction.
SWANCC scrutinizes how the Corps defines the waters that are subject to its jurisdiction. Since its promulgation of more expansive regulations in 1977, the Corps has defined the term "waters of the United States," which is used in the definition of "navigable waters," to include waters such as intrastate lakes, rivers, streams (including intermittent streams), mud flats, sand flats, 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. § 328.3(a)(3). As a result, the Corps extended its jurisdiction to many waters that are not in fact "navigable" in the ordinary sense of the term. In 1986, to "clarify" what nonnavigable waters qualify as "waters of the United States," the Corps adopted its "Migratory Bird Rule." 51 Fed. Reg. 41217. That rule essentially provides that degradation of water bodies used as habitat by migratory birds that cross state lines affects interstate commerce under the Commerce Clause and is subject to the Corps' CWA jurisdiction. It was undisputed that the ponds at issue in SWANCC are used by migratory birds, but petitioners asserted that the Corps' Migratory Bird Rule defines the Corps' jurisdiction under Section 404(a) more broadly than the CWA and the Commerce Clause allow.
In SWANCC, the Solid Waste Agency of Northern Cook County, a consortium of suburban Chicago localities, sought to develop a landfill on a parcel that contained a scattering of small ponds created from abandoned sand and gravel mining pits, and the Corps ultimately asserted jurisdiction over the proposed filling activity at the site. The Corps required that SWANCC obtain a Section 404 permit under the CWA. As the predicate to its assertion of jurisdiction, the Corps applied its "Migratory Bird Rule" to determine that the ponds that had been left by sand and gravel mining were "waters of the United States," subject to its regulation under the CWA. Specifically, it determined that the ponds had evolved to a natural character in the many years since gravel mining ceased and were being used as habitat by migratory birds that cross state lines. The small ponds are not connected to interstate water, are not navigable, and are found wholly on private land.
After asserting jurisdiction over SWANCC's proposed landfill, the Corps refused to issue a Section 404 permit. It found that SWANCC had not succeeded in showing that its proposal was the least environmentally damaging, most practicable alternative. Also, the Corps was concerned about insufficient funds to remediate potential leaks and about the general impact of the project upon certain species.
Initially, SWANCC challenged the Corps' decision on both the merits of the denial and the Corps' CWA jurisdiction, but SWANCC dropped its challenge to the merits of the Corps' decision. Therefore, CWA jurisdiction was the focus of the decisions of the lower courts; the district court and the Seventh Circuit Court of Appeals both rejected SWANCC's challenge based on a lack of CWA jurisdiction. The Supreme Court was presented with essentially two jurisdictional issues: (1) whether the jurisdiction of the Corps under Section 404(a) of the CWA extends to these isolated waters, and (2) if so, whether Congress has authority under the Commerce Clause to regulate such waters.
The Court reversed the Seventh Circuit decision and decided the case in favor of SWANCC based on statutory construction of the CWA. It struck down the Migratory Bird Rule on grounds that it exceeds the scope of the CWA, holding that the provisions of Section 404(a) of the CWA should not be read to extend to all waters used by migratory birds. It distinguished the Court's earlier decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (applying the CWA to waters adjacent to navigable waters), because the waters in SWANCC are isolated.
By basing its decision on the CWA, the Court avoided the constitutional question of whether regulation of isolated waters would be outside the reach of Congress under the Commerce Clause. Nevertheless, the Court did raise significant concerns about whether the Commerce Clause would support federal regulation of isolated, intrastate waters, noting that the Corps' exercise of jurisdiction over ponds and mud flats under the Migratory Bird Rule would result in a "significant impingement of states' regulatory authority." 69 U.S.L.W. 4051. The Court suggested that to hold otherwise could raise significant constitutional and federalism questions. Similar concerns about federalism in different contexts have surfaced in earlier decisions by the same five justices in the majority. See e.g., United States v. Morrison, 120 S. Ct. 1740 (2000), and United States v. Lopez, 514 U.S. 549 (1995). Also, the Court refused to give deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to the Corps' administrative interpretation of the CWA in promulgating the Migratory Bird Rule.
In a dissenting opinion authored by Justice Stevens and joined by Justices Souter, Ginsburg, and Breyer, the majority's opinion is characterized as resting on two "equally untenable premises": (1) that Congress did not intend to exert anything more than its commerce power over navigable waters when it passed the CWA in 1972, and (2) that Congress drew the boundary defining Corps' jurisdiction at the "odd line" on which the majority opinion is based. 69 U.S.L.W. at 4052. The dissenting opinion concludes that Riverside Bayview Homes should not be distinguished, and that the Corps has jurisdiction to regulate isolated waters under the CWA. It finds no constitutional infirmity under the Commerce Clause.
The decision was generally good news for the regulated community. Natural resource development operations that take place in and around isolated intrastate waters have become subject to increasingly broader regulation under Section 404 of the CWA; SWANCC should reverse that trend. Although the facts at issue in SWANCC involved small ponds, and not headwaters or drainages with only remote connection to navigable streams and rivers, the decision's restrictive definition of "navigable waters" may cast doubt upon the Corps' ability to regulate such headwaters or drainages. Also, the Court's refusal to give deference under Chevron to the Corps' administrative interpretation of its authority may provide helpful precedent in some circumstances to those challenging broad regulatory assertions of authority by federal agencies.
The decision was a blow to environmentalists and to federal efforts to regulate certain types of wildlife habitat. It is well-recognized that isolated, intrastate waters such as those at issue in SWANCC can provide extensive and significant breeding grounds and habitat to migratory birds and other wildlife. This ruling clearly makes it more difficult for the federal government to protect those wetlands from dredging and filling operations. However, for those who advocate broad federal regulation of the environment, the decision in SWANCC could have been worse. Although the Court saw "serious constitutional questions" if the CWA were applied to isolated waters, the decision was based upon interpretation of the CWA rather than upon the limits of the Commerce Clause. Had the decision been based upon the latter, its implications for other federal regulatory schemes could have been more broad. Nevertheless, the Court's concerns about the limits of the Commerce Clause are apparent, and time will tell whether a broader, more express constitutional restriction of federal environmental regulation will be handed down by the Supreme Court in other cases.
It is too soon to predict the effect of the decision upon migratory birds because alternatives to the Corps' Migratory Bird Rule may exist for protection of certain wetlands. As one alternative, Congress could pass legislation to broaden the application of the CWA so that the statute actually supports regulation similar to that of the Migratory Bird Rule. However, such legislation may be difficult to pass given the present composition of the Congress. Also, it could be difficult to defend a challenge under the Commerce Clause to legislation of such scope; this Court's stated concerns, in SWANCC and other cases, about federalism and the authority of the federal government to regulate in this area seem substantial. Recognizing the limitations upon regulation by the federal government, both the CWA and the Court's decision suggests that additional state regulation of wetlands that are outside of federal control could present a second alternative. However, it seems unlikely, at least in the foreseeable future, that regulation by individual states will offer the comprehensive degree of protection of wetlands that was afforded by the Migratory Bird Rule. As an additional alternative to federal control, private conservation initiatives to acquire wetlands or obtain conservation easements on them likely will become ever more important alternative tools for protection of waterfowl habitat in wetlands. In rejecting the role of federal command and control tactics in the conservation of small wetlands, SWANCC rejects a method, not the merits, of wetlands conservation.
The implications of SWANCC for other federal environmental programs also may be significant. Under the CWA itself, the decision's restriction of federal authority to navigable waters and waters adjacent to them could limit the scope of other CWA programs that are beyond Section 404 and that are administered by EPA or states. SWANCC may help define the waters that subject dischargers to NPDES requirements. Future interpretation of how SWANCC affects regulation of headwaters or ephemeral drainages that have only remote connection with navigable waters will also be significant. Also, there likely will still be disagreement about what waters are "navigable" under the CWA. Beyond the CWA, the Court's constitutional concerns will continue to impose limits upon federal regulation. Although the Commerce Clause was not the basis of the Court's decision in SWANCC, the Court's restrictive interpretation of it may continue to surface and limit federal regulation of the environment in other cases.