A recent U.S. Supreme Court decision substantially reduced the geographic scope of federal water pollution control. As a result of the Solid Waste Agency of Southern Cook County v. U.S. Army Corps of Engineers decision (2001 WL 15333, U.S., Jan. 9), the federal Clean Water Act (CWA) no longer protects "isolated intrastate waters," including intrastate lakes, mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, and natural ponds, that support migratory bird habitat. Filling these waters may go unfettered unless states fill this newly created vacuum.

Should the Corps Regulate Isolated Wetlands?

Under CWA Sec. 404, the U.S. Army Corps of Engineers may issue permits authorizing the discharge of dredged and fill material into "navigable waters," which CWA defines as "waters of the United States, including the territorial seas." Under 33 CFR Sec. 328 and the Migratory Bird Rule, the Corps defines "waters of the United States" (and, hence, the scope of its jurisdiction under Sec. 404) to include intrastate waters that

  • are or would be used as habitat by birds protected by migratory bird treaties,
  • are or would be used as habitat by other migratory birds that cross state lines,
  • are or would be used as habitat for endangered species, or
  • are used to irrigate crops sold in interstate commerce.

Therefore, projects that would fill waters providing migratory bird habitat must have a Sec. 404 permit.

In 1986, several suburban Chicago, Ill., communities selected a 217-ha (535-ac) abandoned sand and gravel pit for use as a 166-ha (410-ac) solid waste disposal site. The site had been mined for sand and gravel for approximately 30 years, and after work ceased in the 1960s, the pit and surrounding property evolved into seasonal and permanent ponds used by migratory birds.

Because the communities intended to fill some of these ponds, they contacted the Corps to determine whether a Sec 404 permit was required. At first, the Corps said "no" because the site did not support wetlands vegetation. However, after reviewing studies by the Illinois Natural Preserves Commission that documented migratory bird use of the site, the Corps changed its mind, citing the Migratory Bird Rule. After negotiations over mitigation plans failed, the Corps denied the Sec. 404 permit application, and the communities brought the case to court.

Supreme Court: Corps Exceeded Its Authority

The suburban communities argued that the Corps' definition of "waters of the United States" exceeded CWA's scope and, therefore, violated the Constitution.

In a 5-to-4 decision, the Supreme Court agreed with the communities, holding "that 33 C.F.R. § 328.3(a)(3)(1999), as clarified and applied to petitioner's balefill site pursuant to the 'Migratory Bird Rule,' 51 Fed. Reg. 41217 (1986), exceeds the authority granted to [the Corps] under § 404(a) of the CWA." Narrowly construing its 1985 United States v. Riverside Bayview Homes decision (474 U.S. 121), the court found that the term navigable waters limited federal CWA jurisdiction to navigable waters and tributaries, ponds, and wetlands adjacent or connected to such open waters.

Although this decision ostensibly does not apply to CWA jurisdiction asserted over isolated intrastate waters for "other" reasons, the language used suggests that the Supreme Court might find that the Corps has no jurisdiction over any isolated intrastate waters. It rejected every statutory and regulatory construction, as well as agency deference arguments posited by the Corps in favor of federal jurisdiction. In so doing, the court indicated that by its use of the word "navigable," Congress was relying on its traditional jurisdiction over waters that are, had been, or reasonably could be made navigable.

The Supreme Court also observed that, in the absence of clear direction in CWA, the Corps' interpretation pushed the limit of federal authority granted under the Constitution's interstate commerce regulation clause. "Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority," the court noted. Therefore, the court concluded,

we find nothing approaching a clear statement from Congress that it intended §404(a) to reach an abandoned sand and gravel pit, such as we have here. Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the 'Migratory Bird Rule' would result in significant impingement of the States' traditional and primary power over land and water use. . . . We thus read the statute as written to avoid the significant constitutional and federalism questions raised by respondents' interpretation, and therefore reject the request for administrative deference. (2001 WL 15333)

Meanwhile, the dissenting justices found that Congress knew of and ultimately supported the Corps' expansive jurisdictional interpretations and rebuffed attempts to narrow federal jurisdiction. Their arguments which focused on legislative history and CWA's broad purpose (to control degradation of the nations' waters, which includes protecting such wildlife as migratory birds), lend some support to a narrow reading of the majority opinion.

Extensive Potential Consequences

The immediate implication is that the Corps cannot apply the Migratory Bird Rule as grounds for jurisdiction over isolated intrastate waters. Now, homebuilders, animal feedlot operators, and other dischargers can use intrastate waters on their properties free of federal jurisdiction.

A number of states assert jurisdiction over isolated intrastate waters, and some require landowners to acquire federal Sec. 404 or state permits to fill such "waters of the state." Now, state environmental protection agencies will have sole responsibility for protecting intrastate isolated waters that provide migratory bird habitat.

Given that this is the first time that the Supreme Court -- albeit narrowly -- has restrained CWA jurisdiction, what does this portend for future challenges to regulations and the Corps' assertions of CWA jurisdiction over waters attenuated from "navigable waters"? We think that the decision should encourage challenges to CWA jurisdiction, especially in cases involving waterbodies with attenuated relationships to a navigable or open waterbody. Unless clarifying legislation is passed, a new body of federal jurisdiction over waters is likely to emerge.

Although the majority opinion takes great pains to stress the narrow focus of the issues decided, the logic of the case portends a broader application. Arguably, activities that do not affect a navigable water fall outside federal jurisdiction. Does the Corps have jurisdiction over any intrastate isolated wetlands? What are the implications for the Sec. 402 permit program? Can the federal government continue to regulate "discharges of pollutants" into intrastate ponds, playa lakes, or wetlands? Can the federal government enforce against wastewater spills that do not enter "navigable waters"?

The answers to these questions must wait until another day. However, it is clear that this decision ushers in a more restricted era of reduced federal regulations over water pollution.

Ronald L. Raider and Susan H. Richardson are partners in the Environmental Practice Group of the national law firm Kilpatrick Stockton LLP. Raider is in the firm's Washington, D.C., office, and Richardson is in the Atlanta, Ga., office.

© 2001 Water Environment Federation. Reprinted with permission. This article first appeared in the February 2001 issue of Water Environment and Technology.

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