Problem: Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 531 U.S. 159 (2001)

Chief Justice Rehnquist

Section 404(a) of the Clean Water Act (CWA or Act) regulates the discharge of dredged or fill material into "navigable waters." The United States Army Corps of Engineers (Corps) has interpreted Section 404(a) to confer federal authority over an abandoned sand and gravel pit in northern Illinois that provides habitat for migratory birds. We are asked to decide whether the provisions of Section 404(a) may be fairly extended to these waters, and, if so, whether Congress could exercise such authority consistent with the Commerce Clause. We answer the first question in the negative and therefore do not reach the second. Petitioner, the Solid Waste Agency of Northern Cook County (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. The Chicago Gravel Company informed the municipalities of the availability of a 533-acre parcel, which had been the site of a sand and gravel pit mining operation for three decades up until about 1960. Long since abandoned, the old mining site eventually gave way to a successional stage forest, with its remnant excavation trenches evolving into a scattering of permanent and seasonal ponds of varying size (from under onetenth of an acre to several acres) and depth (from several inches to several feet). The municipalities decided to purchase the site. Section 404(a) grants the Corps 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 Act as "the waters of the United States, including the territorial seas." The Corps has issued regulations defining the term "waters of the United States" to include.

Riverside Bayview Homes In order to rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the statute will not allow this. Indeed, the Corps' original interpretation of the CWA, promulgated two years after its enactment, is inconsistent with that which it espouses here. Its 1974 regulations defined Section 404(a)'s "navigable waters" to mean "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." The Corps emphasized that "it is the water body's capability of use by the public for purposes of transportation or commerce which is the determinative factor." Respondents put forward no persuasive evidence that the Corps mistook Congress' intent in 1974.

We hold that [the regulations], as clarified and applied to petitioner's balefill site pursuant to the "Migratory Bird Rule," [exceed] the authority granted to respondents under Section 404(a) of the CWA. The judgment of the Court of Appeals for the Seventh Circuit is therefore Reversed.

Questions

1. Summarize the arguments made by the Army Corps of Engineers for finding that the government had the power to regulate this site under the CWA.

2. Explain the Supreme Court's response to each of the Army Corps of Engineers' arguments previously identified.

3. Did the Supreme Court hold that the government could not regulate this type of site or only that Congress had not in fact sought to extend its regulation to this type of site?

4. In your view, should the federal government be able to regulate bodies of water that are of significant use by migratory birds? Explain.