Supreme Court Limits Scope of Clean Water Act

The U.S. Supreme Court ruled 5-4 yesterday that the Federal Clean Water Act cannot prevent a group of 23 Chicago-area municipalities from constructing a landfill atop seasonal ponds used by migratory birds.

The ruling followed the same split of justices as the 5-4 decision in last month's Florida vote recount case.

The proposed landfill was to be built on an abandoned 534 acre parcel of sand and gravel pits that had evolved into permanent and seasonal ponds of which about 14 acres were populated by migratory birds.

Under the Clean Water Act (CWA), the U.S. Army Corps of Engineers is authorized to issue permits allowing the dredged or filling of "navigable waters." The CWA defines "navigable waters" as "the waters of the United States."

Since the landfill project would require the filling of some ponds, which might be construed as "navigable waters," the cities petitioned the Corps of Engineers for a landfill permit.

On November 16, 1987, the Corps formally denied the petition after determined that the seasonally water-filled, abandoned gravel pits located on the site, while not wetlands, did qualify as "waters of the United States."

The Corps issued regulations defining the term "waters of the United States" to include "waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce . . . ."

The Corps further justified its position by citing a section of the Clean Water Act, called the "Migratory Bird Rule," that extends the Corp's authority to regulate those waters providing habitat for migratory birds.

Addressing the "Migratory Bird Rule," the court's majority states, "Permitting respondents (the government) 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."

In the court's dissenting opinion, Justice Stevens writes, "In its decision today, the Court draws a new jurisdictional line, one that invalidates the 1986 migratory bird regulation as well as the Corps’ assertion of jurisdiction over all waters except for actually navigable waters, their tributaries, and wetlands adjacent to each."

The court next took on the Corp's argument based on the interstate commerce clause of the Constitution.

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