Law School Case Brief
Solid Waste Agency v. United States Army Corps of Eng'rs - 531 U.S. 159, 121 S. Ct. 675 (2001)
33 U.S.C.S. § 1344(a) grants the United States Army Corps of Engineers authority to issue permits for the discharge of dredged or fill material into the navigable waters at specified disposal sites. The term "navigable waters" is defined under the Clean Water Act as the waters of the United States, including the territorial seas. 33 U.S.C.S. § 1362(7). The Corps has 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. 33 C.F.R. § 328.3(a)(3) (1999)
Solid Waste Agency of Northern Cook County (“SWANCC”), a consortium of suburban Chicago municipalities, selected as a solid waste disposal site an abandoned sand and gravel pit with excavation trenches that had evolved into permanent and seasonal ponds. Because the operation called for filling in some of the ponds, SWANCC contacted federal respondents, including the Army Corps of Engineers (“Corps”), to determine if a landfill permit was required under § 404(a) of the Clean Water Act (“CWA”), which authorizes the Corps to issue permits allowing the discharge of dredged or fill material into "navigable waters." The CWA defines "navigable waters" as "the waters of the United States," 33 U.S.C. § 1362(7), and the Corps' regulations define such waters to include intrastate waters, "the use, degradation or destruction of which could affect interstate or foreign commerce," 33 CFR § 328.3(a)(3). In 1986, the Corps attempted to clarify its jurisdiction, stating, in what has been dubbed the "Migratory Bird Rule," that § 404(a) extends to intrastate waters that, inter alia, provide habitat for migratory birds. 51 Fed. Reg. 41217. Asserting jurisdiction over the instant site pursuant to that Rule, the Corps refused to issue a § 404(a) permit. When SWANCC challenged the Corps' jurisdiction and the merits of the permit denial, the District Court granted Corps summary judgment on the jurisdictional issue. The Seventh Circuit held that Congress has authority under the Commerce Clause to regulate intrastate waters and that the Migratory Bird Rule is a reasonable interpretation of the CWA.
Did the Army Corps of Engineers have jurisdiction over the proposed disposal site consisting of an abandoned gravel pit?
The Supreme Court of the United States held that the Corps’ regulatory interpretation of the Clean Water Act to include the gravel pit, based solely on its nature as a bird habitat, impermissibly extended the Corps’ jurisdiction to ponds that were not adjacent to open water. The lack of legislation overruling the Corps’ interpretation did not indicate congressional acquiescence to such jurisdiction. Also, the Corps’ regulation effectively eliminated the statutory limitation of such jurisdiction to navigable waters. Further, the significant constitutional issues presented by the Corps’ attempt to usurp the states' traditional and primary power over land and water use precluded administrative deference and warranted reading the statute as written, rather than as interpreted by the Corps.
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