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Army cannot regulate isolated wetlands


Migratory Bird Rule is Dead

By Carol W. LaGrasse

The United States Supreme Court dealt a fatal blow to the U.S. Army Corps of Engineers decades of regulation of isolated wetlands on January 9. Ruling on an appeal brought to it by the Solid Waste Agency of Northern Cook County, Illinois, Justice Rehnquist wrote for the Supreme Court that the "Migratory Bird Rule" that the Corps of Engineers put in place in 1986 "exceeds the authority" granted to the Corps of Engineers under Section 404 (a) of the Clean Water Act.

The case related to a plan to deposit baled waste from 23 suburban Chicago cities and villages in an abandoned sand and gravel mining area where there were trenches containing a scattering of permanent and seasonal ponds on which the Illinois Nature Preserve Commission had observed migratory birds. For over two decades, the Corps of Engineers has been claiming authority over such isolated wetlands, ones that are not connected to any navigable waters or even small tributaries of them, on the basis of its authority under the Commerce Clause to regulate such ponds because "millions of people of spend over a billion dollars annually on recreational pursuits relating to migratory birds," as the Court recalled from the Corps papers. But the Supreme Court stated, "We conclude that the 'Migratory Bird Rule' is not fairly supported by the CWA," and decided not to address the constitutional question about the Commerce Clause.

By reversing the decision of the Court of Appeals for the Seventh Circuit, the Court's narrow (five to four) decision relieves landowners of having to apply to the Corps of Engineers for permits to disturb wetlands that are not connected to navigable waters.

The decision pointed out that the Corps' original interpretation of the 1972 Clean Water Act in its 1974 regulations-which emphasized that a water body's capability of use by the public for transportation or commerce determines whether it is navigable-is inconsistent with the authority the Corps espoused in its arguments before the court. The decision pointed out that the Corps' argument that Congress never passed legislation to overturn the Corps' more expansive definition of "navigable waters" in its 1977 regulations was dangerous ground on which to argue that the regulations were valid, and so the court rejected that argument.

The Court specifically refused to deal with the question of how far the definition of "navigable waters" could be expanded to grant regulatory authority over wetlands adjacent to open water and small tributaries to the Corps of Engineers. It did point out the consistency of its present thinking with the earlier Supreme Court ruling in another case, Riverside Bayview Homes, that tested the authority of Corps over wetlands. This year, the Supreme court quoted its holding in the earlier case that Congress intended the phrase "navigable waters" to include "at least some waters that would not be deemed 'navigable' under the classical understanding of that term."

For the current case before it, however, the Court held: "Respondents conjecture that 'other...waters' must incorporate the Corps' 1977 regulations, but it is also plausible, as petitioner contends, that Congress simply wanted to include all waters adjacent to 'navigable waters,' such as nonnavigable tributaries and streams. The exact meaning of [Section] 404(g) is not before us and we express no opinion on it."

While deciding not to reach the constitutional issue related to the Commerce Clause, the Supreme Court did, however, point out, "Twice in the past six years we have reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited."

The Supreme Court made a strong statement of principle relating to the division of power between the federal and state governments: "Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the 'Migratory Bird Rule' would result in a significant impingement of the States' traditional and primary power over land and water use."

- Carol W. LaGrasse
January 2001

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