Environmental Case Study Case Title:

SWANCC v. U.S. Army Corps of Engineers

Parties:

The Petitioner is the Solid Waste Agency of Northern Cook County (SWANCC) and the respondent is the U.S. Army Corps of Engineers

United States Court of Appeals for the Seventh Circuit

Facts:

The petitioner, SWANCC, is a consortium of 23 suburban Chicago cities and villages that united in an effort to locate and develop a disposal site for baled nonhazardous solid waste. SWANCC had purchased a 533-acre parcel, located in Northern Illinois that straddled the Cook County and Kane County line. The site had been abandoned by a sand and gravel mining operation in about 1960 and had given away to a successional stage forest with its remnant excavation trenches evolving into a scattering of permanent and seasonal ponds of various sizes and depths.

SWANCC was required by law to file for various permits from Cook County and the State of Illinois. Because the operation called for the filling of some of the permanent and seasonal ponds, SWANCC contacted the respondent, the Corps, to determine if a federal landfill permit was required under Section 404(a) of the Clean Water Act, 33 U.S.C. Section 1344(a). Section 404(a) grants the Corps authority to issue permits "for the discharge of dredged or fill material into navigable waters at specified disposal sites" (531 U.S. 159).

The Clean Water Act defines 'navigable waters' as "the waters of the United States, including territorial seas" (531 U.S. 159). The Corps had issued regulations that defined the term 'waters of the United States' to include "waters, such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use degradation or destruction n of which could affect interstate or foreign commerce…." 33 CFR Section 328.3(a)(3) (1999) (531 U.S. 159). To clarify its jurisdiction, in 1986 the Corps stated that Section 404(a) extends to interstate waters: a. which are or would be used as habitat by birds protected by Migratory Bird Treaties; or b. which are or would be used as habitat by other migratory birds which cross state lines; or c. which are or would be used as habitat for endangered species; or d. used to irrigate crops sold in interstate commerce 51 Fed. Reg. 41217 (531 U.S. 159). This is called the Migratory Bird Rule. The Corps determined the site qualified under the Migratory Bird Rule based on being abandoned, the water areas had developed a natural character, and the migratory birds used the site as a habitat.

SWANCC had made several proposals to mitigate for the possible displacement of the birds and to preserve a blue heron rookery that was located on the site. SWANCC had received the necessary permits from the Cook County Board of Appeals, the Illinois Environmental Protection Agency, and the Illinois Department of Conservation. The Corps denied the permit to SWANCC based one the facts that SWANCC had not established its proposal as the 'least environmentally damaging' or most practicable alternative, SWANCC had failed to put back public's drinking water supply," and the impact of the project was significant on area-sensitive species because the land could not be redeveloped into a forested habitat.

SWANCC filed a suit under the Administrative Procedure Act, 5 U.S.C. Section 701 et seq. To challenge the Corps' authority over the site and the Section 404(a) permit denial. The District Court granted summary judgment to the Corps on the jurisdictional issue. SWANCC had abandoned the challenge on the Section 404(a) permit denial.

Question:

Is the provisions of Section 404(a) fairly extended to the waters of the abandoned mining site in Northern Illinois, and, if so, can Congress exercise such authority consistent with the Commerce Clause, U.S. Const. Art. I, Section 8, cl. 3?

The laws involved are Section 404(a) of the Clean Water Act, 86 Stat. 884, as amended, 33 U.S.C. Section 1344(a) and the Commerce Clause, U.S. Const. Art. I, Section 8, cl.3.

Holding:

The court held that Congress did have authority to regulate such waters based upon "the cumulative impact doctrine, under which a single activity that itself has no discernible effect on interstate commerce may still be regulated if the aggregate effect of that class of activity has a substantial impact on interstate commerce" 19] F. 3d 845, 850 (CA7 1999). The aggregate effect of the "destruction of the natural habitat of migratory birds" on interstate commerce was substantial. The Clean Water Act reaches as many waters as the Commerce Clause allows and,...

Although, the court concluded the 'Migratory Bird Rule' was not fairly supported by the Clean Water Act. The court held that 33 CFR Section 328.3(a)(3) (1999), as clarified and applied to petitioner's, SWANCC's, baleful site pursuant to the "Migratory Bird Rule" 51 Fed. Reg. 41217 (1986), exceeds the authority of the Corps under Section 404(a) of the Clean Water Act.
Justification:

The impact on interstate commerce coming from the operations of the disposal site with the destruction of the habitat for the migratory birds was considered substantial because of millions of Americans crossing state lines and spending over a billion dollars each year to hunt and observe the migratory bird species. The consideration of the waters and land as natural resources was also considered a part because the destruction of the habitat would have eliminated the water resources and the land would have been changed to the point it could not have been redeveloped back to a natural habitat. The economy would lose over a billion dollars in revenues by the destruction. The combination of the factors creates a substantial economic loss for Northern Illinois.

The court based their holdings on the historical facts and Congressional intentions of enacting the Clean Water Act. The Clean Water Act was passed for the purpose of "restoring and maintaining the chemical, physical, and biological integrity of the Nation's waters" 33 U.S.C. Section 1251(a) (531 U.S. 159). In passing the Clean Water Act, Congress chose to recognize, preserve, and protect primary responsibilities and rights of the States to control pollution and to plan the development and use, including restoration, preservation, and enhancement, of natural resources as well as consult the Administrator under this chapter (531 U.S. 159). The purpose was to control pollution and to give States the responsibility and rights within their own territories to control pollution and restore, preserve, and enhance the resources under the consultation of the Administrator to ensure compliance under the Clean Water Act. What is relevant in this case is the fact that Section 404(a) authorized the Corps to regulate the discharge of fill material into 'navigable waters', 33 U.S.C. Section 1344(a), which the statue defines as the "waters of the United States, including territorial seas," Section 1362(7) (531 U.S. 159). The Clean Water Act provided a broad definition concerning the Nation's water resources.

In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), the court concluded the term 'navigable' as having 'limited import' and that Congress evidenced its intent to "regulate at least some waters that would not be deemed as 'navigable' under the classical understanding of the term (531 U.S. 159). The holding was based on Congress' unequivocal acquiescence to, and approval of, the Corps' regulations interpreting the Clean Water Act to cover wetlands adjacent to 'navigable' waters. The court found that Congress' concerns for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands "inseparately bound up with the waters of the United States" (531 U.S. 159). This case focused on wetlands, not all waters. The Corps' original interpretation was inconsistent with what it argued. The Corps' argument was based on a failed House Bill, which the court considered dangerous territory because bills are proposed for many reasons and can be rejected for many reasons, therefore, it does not produce convincing evidence to the court. The debate on proposals to narrow the definition were concerned with wetland preservation, so the Corps did not produce persuasive evidence of its interpretation of Congress' intent concerning the Corps' jurisdiction.

The 1974 Section 404(a) regulations defined 'navigable waters' as "those waters of the United States which are subject to the ebb and flow of the tide and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce" 33 CFR Section 209.120(d)(1) (531 U.S. 159). A more expansive definition in 1977, 33 CFR Section 323.2(a)(5) defined 'waters of the United States' to include "isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of the tributary system to interstate waters or to navigable waters in the United States, the degradation or destruction which could affect interstate commerce" (531 U.S. 159). The changes in the regulations definitions broadened over time. The Corps failed to provide convincing evidence to the court. The court disagreed with the site qualifying under Section 404(a)'s definition of 'navigable waters' because of being a…