Corps Values Get the Bird

The U.S. Army Corps of Engineers has no authority under the federal Clean Water Act (CWA) to regulate activities that affect isolated, intrastate ponds and wetlands that are used by migratory birds, under a ruling by the U.S. Supreme Court. [Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178, Jan. 9, 2001]

The 5-to-4 decision clears the way for completion of a nonhazardous solid waste disposal site by a consortium of some 23 Chicago-area municipalities. The proposed site, a long-dormant sand and gravel mining operation, contained excavation trenches and other recesses that had evolved into permanent and seasonal ponds. The Corps refused to issue a permit under Section 404(a) for site construction work that would have drained and filled these ponds. The federal agency invoked its “Migratory Bird Rule,” which purported to cover any water body used as habitat by treaty-protected birds that cross state lines.

“Chief Justice Rehnquist said that Section 404(a) does not allow the Corps to regulate the kind of water bodies that exist on the proposed landfill site.”

In 1999, a federal appeals court in Chicago upheld the Corps' jurisdiction over the proposed landfill site, ruling that even if the destruction of migratory bird habitat in an isolated locale had no discernible effect on interstate commerce, such activity “may still be regulated if the aggregate effect of [the] activity has a substantial impact on interstate commerce.” The appeals court found that the aggregate effects of bird habitat destruction were substantial because each year millions of Americans cross state lines and spend more than a billion dollars to hunt and observe migratory birds.

Writing for the majority, Chief Justice Rehnquist said that Section 404(a) does not allow the Corps to regulate the kind of water bodies that exist on the proposed landfill site. The high court rejected the Corps' argument that Congress indirectly endorsed its 1977 regulations (expanding the definition of “navigable waters”) and its 1986 “Migratory Bird Rule” by failing to pass legislation overturning these initiatives.

By contrast, the dissenting opinion, written by Justice Stevens, cited ample authority in the CWA for the Corps' actions and criticized the majority for taking an “unfortunate step that needlessly weakens our principal safeguard against toxic water.”

Although the majority opinion could have limited itself to statutory interpretation, it nevertheless proceeded to deprecate the Corps' alternative argument: that the “Migratory Bird Rule” was simply the agency's reasonable interpretation of its own operating statute. “[F]ederal jurisdiction over ponds and mudflats falling within the Migratory Bird Rule also would result in a significant impingement of the States' traditional and primary power over land and water use,” the chief justice said. “We read the statute as written to avoid such significant constitutional and federalism questions, and therefore reject the request for administrative deference.”

The majority's gratuitous reference to constitutional and federalism issues is a warning shot to Congress: Don't delude yourselves by thinking that a mere legislative fix will revive the Corps' authority. Even if the president signs your action into law, we won't hesitate to nullify it as unconstitutional overreaching.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected]

The columnist is a Washington, D.C., attorney and serves as general counsel of the Solid Waste Association of North America.