Supreme Court strikes down bird habitat rule

Published March 1, 2001

In a major victory for private property rights proponents, the United States Supreme Court has struck down a rule giving the U.S. Army Corps of Engineers authority to regulate isolated and wholly intrastate “ponds and mudflats.”

“Navigable waters”

The Migratory Bird Rule case is an outgrowth of the federal Clean Water Act, which prohibits the discharge of pollutants–including sand and other fill material–into “navigable waters” without a permit from the Corps of Engineers. “Navigable waters” are further defined in the Act as “waters of the United States.”

Corps regulations expanded the definition of “waters of the United States” to include not only “navigable waters,” but also “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds” which could affect interstate commerce when used, degraded, or destroyed.

In Corps guidance documents, that definition was further expanded to include waters that “are or would be used as habitat by other migratory birds which cross state lines.” Under these definitions, almost every pothole, no matter how small, is subject to federal regulation.

The case decided by the Supreme Court arose when the Corps refused to issue a permit allowing the fill of trenches and depressions left by strip mining in an abandoned sand and gravel pit in northern Illinois. The trenches and depressions capture rainfall all or part of the year. The permit was sought by a consortium of 23 Illinois municipalities who purchased the site to use as a balefill for disposal of non-hazardous solid waste.

The Corps asserted that the trenches and depressions on the site were subject to federal regulation because they were “navigable” “waters of the United States” because they are or could be used as habitat by migratory birds. The Corps consequently denied the permit, and the municipal consortium sued.

The Supreme Court held the Corps had gone too far and struck down the Corps’ regulations and its Migratory Bird Rule. The Court held that when Congress enacted the Clean Water Act, it must have had in mind the traditional definition of navigable waters, meaning “waters that were or had been navigable in fact or which could reasonably be so made.”

The Court further stated, “we find nothing approaching a clear statement from Congress that it intended ¤Ê404 to reach an abandoned sand and gravel pit such as we have here. Permitting [the Corps] 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.”

Legal consequences

The question left open by the Court’s decision, and now under consideration by regulators, the regulated community, and environmental activist groups, is how to define the term “isolated” as opposed to “navigable.” The case, along with other recent Supreme Court rulings, has fanned discussion in legal and political circles of whether the entire body of federal environmental law is unconstitutional.

According to Timothy S. Bishop of Mayer, Brown & Platt in Chicago, who argued the case before the Supreme Court for the municipal balefill consortium, “The real question now is what does ‘isolated waters’ mean?” In a 1985 Supreme Court case, the Court held that a marshy wetland adjacent to a large lake in Michigan was subject to regulation because the wetland was “inseparably bound up with the ‘waters’ of the United States.” The Court in the Migratory Bird case characterized this relationship as a “significant nexus” between the wetland and the adjacent body of water.

Noting that some regulators and environmentalists have argued that all bodies of water–even isolated, wholly intrastate ones–are physically, hydraulically connected to actual navigable waters in some remote fashion, Bishop said, “The issue is how remote is too remote.” In his view, the Supreme Court case supports federal regulation only of navigable waters, streams flowing into or from navigable waters, and waters adjacent to navigable waters.

The municipal balefill consortium had also challenged the Migratory Bird Rule on the ground that in granting to the Corps the power to regulate wholly intrastate and isolated waters, Congress had violated the Commerce Clause of the U.S. Constitution. Having found that Congress had not intended such expansive regulation, the Court declined to address the constitutional issue.

In a number of recent non-environmental cases, however, the Court has consistently cut back federal laws on Commerce Clause grounds, finding, for example, that federal laws criminalizing gender-hostile rape and the arson of a private residence did not raise Commerce Clause concerns. The Court has also held that Congress lacked the power under the Commerce Clause to establish gun-free zones near schools because education was not commercial in nature.

These cases, coupled with the Migratory Bird Case, several cases concerning the Endangered Species Act now working their way to the Supreme Court, and a Clean Air Act case regarding ozone and particulate matter regulations in which a ruling is due soon (see “U.S. Supreme Court puts EPA to the test,” Environment & Climate News, February 2001), caused the American Bar Association’s Section on Environment, Energy, and Resources to raise the question, “Is Environmental Law Constitutional?” A panel discussion on this topic is scheduled at the Section’s annual conference beginning March 8, 2001, in Keystone, Colorado.

Maureen Martin is an attorney in private practice in Chicago.