In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 2001 WL 15333 (2001), the United States Supreme Court held that the “Migratory Bird Rule,” as developed by the Corps of Engineers (Corps), is not supported by the Clean Water Act.
The Solid Waste Agency of Northern Cook County (Waste Agency) is a consortium of cites and villages that united to locate and develop a disposal site for baled nonhazardous solid waste. They sought to purchase a parcel of land that had been the site of a sand and gravel pit mining operation. Over time, the abandoned mining site had become a successional stage forest with permanent and seasonal ponds of varying size and depth. The Corps claimed it had jurisdiction over the balefill site because a number of migratory bird species had been observed at the site. The Corps refused to issue a permit, even after the Waste Agency had secured the necessary certification and permits from local and state agencies. The Waste Agency sought relief in federal court and the United States Supreme Court ultimately granted certiorari to review the Corps’ action.
Section 404(a) of the Clean Water Act, 33 U.S.C. sec. 1344(a), gives the Corps authority to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” The Act defines “navigable waters” as “the waters of the United States.” [33 U.S.C. § 1362(7).] Corps regulations include certain intrastate waters in the definition of “waters of the United States,” including intrastate waters “which are or would be used as habitat by other migratory birds which cross state lines.” This latter provision is included in a set of Corps regulations referred to as the “Migratory Bird Rule.”
The Supreme Court determined that the “Migratory Bird Rule” is not fairly supported by the Clean Water Act. The Court reached its conclusion after noting that, in enacting the Clean Water Act, Congress chose to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources . . . .” [33 U.S.C. § 1251(b).] The Court was reluctant to impinge on the traditional and primary power of the States over land and water use.
The Court further relied on its previous decision of United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), in which the Court determined that the Corps had jurisdiction over wetlands that actually abut a navigable waterway. It refused to extend the jurisdiction of the Corps to isolated ponds that are not adjacent to open water, simply because the ponds serve as habitat for migratory birds. The Court interpreted Congress’ intent as including water adjacent to navigable waters, such as nonnavigable tributaries and streams. According to the Court, there was no clear statement from Congress that it intended section 404(a) to reach an abandoned sand and gravel pit.
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