Bye Bye Birdie...

The U.S. Supreme Court has redefined the scope of the Clean Water Act (CWA). This decision eliminates the Migratory Bird Rule and Army Corps of Engineers jurisdiction over smaller bodies of water that are neither navigable (such as lakes, streams and rivers) nor adjacent wetlands. This decision will have wide-ranging implications for local governments, property developers, agribusiness and even small property owners.

The case, Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, involved the Corps' refusal to issue a landfill permit to a consortium of 23 municipalities in Illinois. The consortium had identified an abandoned gravel pit for use as a landfill. After the lengthy approval process, the consortium requested a ruling from the Corps regarding the necessity for a permit to fill 17.6 acres of mining trenches. The Corps stated a permit was not needed as the trenches fell outside of the CWA. That should've been the end of the story.

The Corps, however, changed its mind after a July 1987 inspection noted some migratory birds using the property. Some of the property's trenches that filled with rainwater from time to time, were declared temporary habitats. Because of this, the Corps determined that the CWA applied and that a permit to fill the site was required. The Corps assumed jurisdiction, citing the Migratory Bird Rule, and then denied the permit.

The Corps became the self-styled defender of migratory birds in 1986, using the CWA as the basis to prohibit the discharge of any pollutants into "navigable waters" without a permit. In 1986, the Corps chose to define navigable waters to include not only lakes, streams, rivers, tidal waters, and wetlands adjacent to these waters, but also streams, mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, and ponds. Also, the Corps unilaterally declared that its jurisdiction was extended to cover any other waters which are used as a habitat by migratory birds whether protected by treaty or not. Arguing that the broad powers of the U.S. Constitution's commerce clause, the Corps purported to grab jurisdiction over any body of water where a bird might make a temporary home.

Now the U.S. Supreme Court has ruled that Congress did not intend the CWA to cover these bodies of water. Chief Justice Rhenquist wrote, "Permitting the [government] to claim federal jurisdiction over ponds and mudflats would also result in a significant impingement of the states' traditional and primary power over land and water use." This leaves the Migratory Bird Rule dead and the Corps without jurisdiction over such smaller or temporary waters.

The impact of this decision on business or property owners wishing to use non-navigable wetlands will be felt, but perhaps in unpredictable ways. Even though the CWA will still apply to wetlands adjacent to navigable waters, small isolated waters will be solely within the control of local authorities. While this should provide regulators, developers, and owners some security knowing that the Corps cannot arbitrarily reverse local authorities' decisions, it is still incumbent on those local authorities to make such decisions.

Moreover, how this ruling may affect the Endangered Species Act (ESA) and the current salmon rules is unclear. It appears, however, that ESA is not based solely on the commerce clause, but also on Congress' "international treaty" power. Therefore, migratory species protected by treaty may still be protected. Habitats where a protected species does not live, such as upland habitat around salmon streams, might only be protected if they are considered "critical habitats" essential to the recovery of the species under the ESA. This, however, will be an issue for future courts to shape.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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