Decision by Court of Appeal for the Seventh Circuit
Facts
The petitioner, Solid Waste Agency of Northern Cook County (SWANCC), is an agency for suburban Chicago municipalities. They united with the aim of identifying and purchasing a site for solid waste disposal. The Chicago Gravel Company alerted them of a 533 acre, abandoned sand and gravel pit with excavation trenches that had transformed into permanent and temporary ponds which is ideal as a solid waste disposal site. Upon identification, the agency decided to buy the site. However, It required getting authorization from Cook County and the State of Illinois before they could begin working on it.
Essentially, this exercise required filling on some of the excavated ponds. Therefore, the association contacted some federal respondents who were in-charge of authorizing bodies on such land use projects. One of the respondents contacted was the Army Corps of Engineers (Corps). His role was to establish if a landfill authorization document was required for the project to continue.
Section 404(a) of the Clean Water Act (CWA) allows the Corps to issue filling permits allowing the discharge of filling materials into ‘navigable waters’ of America. ‘Navigable waters’ under the act simply refers to the water bodies within the boundaries of United States of America—including the seas within the American territories but bordering it with other countries. The Corps stated, at first, that it had no authority over the land since it was not considered as a wetland. Their jurisdiction was only limited to wetlands and areas with ‘navigable waters. The area had no vegetation already adapted to the habitat that had soils with high moisture content.
The Illinois Nature Preserves Commission told the Corps that a number of migratory bird species were spotted at the site. This gave them an opportunity to reclaim their authority on the site under the ‘Migratory Bird Rule’ subpart (b). In doing so, they determined that about 121 avian species were identified at the site; some of them depending on the pond water to feed and drink.
The Corps changed their argument to state that the water in the ponds qualified as ‘waters of the United States of America’ and not as initially determined. They then assumed some level of control on the land use with the latter interpretation.
The Migratory Bird Rule defines interstate waters as:
- Waters that are or would be used by migratory birds within the state as a habitat;
- Waters that are or would be used by migratory birds which move across states as a habitat;
- Waters that are or would be used by endangered species of animal life as habitat;
- Water used to irrigate plant life and thus adding to interstate revenue.
On November 16th, 1987, the Corps concluded that the abandoned mining depressions that were earlier not recognized as a wetland, did actually qualify as ‘waters of the United States’ under the ‘Migrating Birds Act,’ This was based on the following lines of legal defense:
- The site was abandoned and excavation works were no longer going on;
- The water available in the ponds had already transformed into a natural water shed;
- It provided a habitat for the migrating birds, both within and outside the state.
SWANCC made attempts to avoid the likelihood of displacement of the migrating birds at the excavation site as they waited for their project approved by the Corps. They especially concentrated on preservation of the blue heron rookery bird species dotting the site.
This led them to getting three approvals: the special use planned development permit from the Cook County Board of Appeals, a landfill of the excavated sites development permit from the Illinois Environmental Protection Agency (IEPA), and an approval from the Illinois Department of Conservation (IDC).
In spite of getting all these legal licenses; the permits SWANCC found were apparently not enough to start the landfill project because the Corps denied them the last permit. The Corps found that SWANCC’s proposal was not the least environmentally destructive and it was not the best alternative for solid waste disposal in Illinois. The Corps questioned the SWANCC’s ability to mitigate the anticipated risk of contamination of public drinking water system. They also stated that the project posed a great danger to the bird species in the area.
SWANCC reacted speedily upon this permit rejection by filing a suit under the Administrative Procedure Act challenging the Corps decision over the site and their reasons for denying the agency the landfill permit. The District Court decided to give a summary judgment to the respondents upon the matter to clear it once and for all. The petitioner then stopped its objection to the Corps permit rule.
The agency appealed to the American Court of Appeal on application of the ‘Migratory Bird Rule’ by the Corps. This was to restore its ownership of the site and start their development plans.
They did this by revisiting the ‘Clean Water Act’ to question water suitability for animal use. They argued that the water was not navigable, isolated and interstate based on presence of migrating bird species. They also noted that Congress lacked the authority to regulate jurisdiction over the land under the Commerce Clause in the American Constitution.
Legal Question
Is the action by the state of Illinois against the Solid Waste Agency of North Cook County violation of ‘Clean Waters Act’ which defines ‘navigable waters’ as water bodies used commercially for food production and not an isolated water body as was the case in the site?
Does the Congress have the power under the Commerce Clause to give regulation jurisdiction on the site?
Decision
Yes. (5-4, Chief Justice Rehnquist wrote the majority judges’ opinion.)
Court’s Rationale
The Congress is authorized to regulate such waters based upon the cumulative impact doctrine, which states that ‘a single activity that itself has no discernible effect on interstate commerce may still be regulated if the cumulative effect of that class of activity has impact on interstate commerce.’ 191 F. 3d 845, 850 (CA7 1999).
This means that, even if the environmental and economic effects were not yet noticeable, the longer term impact is taken into consideration. The Congress makes this deliberation based on these considerations. Their rationale to uphold this decision is based on the fact that each year, Americans spend a huge chunk of their income crossing border lines to follow migrating birds. This contributes to the transfer of state resources to other states providing habitat to the birds.
The court argued that the Clean Waters Act has extensive powers and give a wider description of the term ‘watered areas.’ it included intrastate waters that supported avian life. Therefore, the ‘Migratory Bird Rule’ was a substantive explanation of the act. The ‘Clean Waters Act’ was passed with the purpose of maintaining American water’s physical and chemical composition to prevent water contamination.
They stated that the ‘Clean Waters Act’ gives Corps the sole responsibility of regulating what’s discharged in the ‘navigable waters.’ This is to purposely protect the environment and the lives of local inhabitants. These waters include the bordering seas and all water bodies supporting animal and plant life. The Corps said that the abandoned pits were habitats for the migratory birds.
In reference to a case: In United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985). The court’s position is supported on a large part with the Congress’ agreement with the Corps’ interpretation of the term ‘navigable waters’ in this case to include the adjacent wetlands.
Water bodies have vegetation that develops due to the high moisture content. This is protected to improve ecological balance for the benefit of animal life. The Congress is good intended in its effort to care for the environment by providing legislations that protect water quality and aquatic life.
The Corps original interpretation of the ‘Clean Waters Act’ defines ‘navigable waters’ to be those that might be used in the future for commercial purposes in whatever capacity. They stated that the waters would be used in the future for transportation purposes and the resident birds could be a good tourist attraction spot.
The Congress determined that ‘navigable waters’ should go beyond the conventional understanding to mean other waters present in the adjacent wetlands. This entails the Corps 1977 rule that is applied in the Riverside Bayview Homes case.
There are ox-bow lakes and streams joined with the large water bodies through the tributaries, most of them are not navigable but need be protected too. The close wetlands also have to be protected to prevent surface run offs which washes away the top soil thereby reducing its productivity.
The court disagreed with the Congress determination that all ‘waters of America’ are navigable waters and hence the ‘Clean Waters Act’ can apply wholesomely. The ponds created by the excavation works could not be classified as ‘navigable waters‘, just because they support the habitat of the navigating birds. The Congress gave an ambiguous meaning and interpretation to the term ‘navigable waters’ and hence the best line of the Corps’ defense on their jurisdiction is the ‘Migratory Bird Rule’. It had clarity of application in this case.
Allowing the Corps to claim federal authority over the gravel pits and ponds within the ‘Migratory Bird Rule’ will act to limit the State’s power and control over its land and water resources. These powers have traditionally been with the local administrations in charge of counties and states. The rule should not be used exclusively as a determinant of the jurisdiction regulator since the water in the ponds and pits are cannot support transport activities in the area.
Dissenting Opinion
The dissenting opinion was written by Justice Stevens, joined by Justice Souter, Justice Ginsburg, and Justice Breyer. They observed that the ‘Clean Water Act’ was enacted by Congress to protect the water bodies after past water contamination cases by industrial wastes. Both the courts and the Congress have not been able to give legislations and rulings that are consistent with the spirit of the ‘Clean Water Act.’
According to the Rivers and Harbors Appropriation Act of 1899, the Congress determined the Corps’ jurisdiction upon water bodies to include only ‘navigable waters’ in order to protect their use as transport and commercial routes.
In the ‘Clean Waters Act’, the power of Corps is broadened to deny the local authority jurisdiction over their resource. The water body was neither viable as a transport route nor connected to a large water body serving as its tributary.
The goal of maintaining clean water bodies is in the Rivers and Harbors Act of 1899. This act prohibits discharge of industrial residues and refuses to the ‘navigable waters’ in a way that obstructs the passage of means of transport available in the lake or tributary. Anybody willing to undertake such an operation has to get approval from the Secretary of the Army.
Amendment of the FWCPA Act to the ‘Clean Water Act’ was meant to draft a legislation that would move from the original waterway clearance to environmental protection. This was to put in place a comprehensive law that can handle water pollution at all levels across states. The Court of Appeal was right when it described the 1972 amendments as the foundation for establishment of a water pollution mechanism.
In 1975, the Corps adopted a decision from the Riverside Bayview case to understand ‘the waters of United States’ to not only refer to navigable waters, but also to include ponds and other seasonal waters within the state whose misuse could negatively affect state commerce.
This was adopted in the case to specifically give Corps the jurisdiction over land and water resources in the area. They only give permits to projects that are not degrading to the ecology. The 1977 amendments to the ‘Clean Waters Act’ tend to limit Corps jurisdiction over navigable waters in its extended meaning of protecting the adjacent wetland. It excludes the Corps the regulatory power over discharge for the purposes of construction of irrigation ditches or general land development.
There are other viable projects that can be done on these ponds and gravel pits, such as, its transformation into a recreational park where the residents of North Cook County can cool off. The state management was also allowed to issue permits over land and water use in some non-navigable waters.
Significance of the Case
The case sought to explore the lines of balance between overall development and environmental conservation. The ‘Clean Water Act’ is enacted to offer protection to water bodies for future sustainability. However, the states have jurisdiction upon the resources that exist within their territories and hence the term ’navigable waters’ should be clearly defined to avoid ambiguities in understanding.
Moreover, the case brought into focus the developments in legislation over time in the effort to prevent environmental degradation. The FWCPA Act was amended to the ‘Clean Water Act’ to give jurisdiction to the Corps to enforce the environmental protection law by restricting developments on watersheds and other navigable waters to ease transport.
Bibliography
Kalen, Sam. “Commerce to Conservation: The Call for a National Water Policy and the Evolution of Federal Jurisdiction Over Wetlands.” The National Agricultural Law Center, 1993. Web.
Supreme Court. “Solid Waste Agency of Northern Cook Cty. V.Army Corps of Engineers (99-1178) 531 U.S. 159 (2001)191 F.3d 845, Reversed.” Connell University Law School, 2011. Web.