Solid Waste Agency of Northern Cook County v. United States Corps of Engineers

531 U.S. 159

Case Year: 2001

Case Ruling: 5-4, Reversed

Opinion Justice: Rehnquist

FACTS

The Solid Waste Agency of Northern Cook County (SWANCC) was part of a consortium of twenty-three 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 that 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 included a scattering of permanent and seasonal ponds of varying size (from under one-tenth of an acre to several acres) and depth (from several inches to several feet). The consortium decided to pursue the project.

Because the operation called for filling in some of the ponds, petitioner contacted 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 term “navigable waters” is defined under the act as “the waters of the United States, including the territorial seas.” The Corps’ regulations define “waters of the United States” to include interstate lakes, rivers, mudflats, wetlands, sloughs, ponds, and so forth, the use or destruction of which would affect interstate or foreign commerce. In 1986 the Corps clarified its regulations by stating that federal authority also extended to intrastate waters that are used as habitat by migratory birds that cross state lines. This regulation is known as the “Migratory Bird Rule.”

The Corps initially ruled that it had no jurisdiction over the site. After the Illinois Nature Preserves Commission informed the Corps that approximately 121 bird species had been observed on the property, including several migratory bird species, the Corps reversed its position. It ultimately denied a landfill permit in spite of consortium proposals to minimize the impact of the project on the bird population. The Solid Waste Agency and other members of the consortium sued, challenging federal authority over the ponds. The district court ruled in favor of the Corps and the court of appeals affirmed.

Chief Justice Rehnquist delivered the opinion of the Court.

Congress passed the CWA [Clean Water Act] for the stated purpose of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters.”. . . Relevant here, §404(a) authorizes respondents to regulate the discharge of fill material into “navigable waters,” which the statute defines as “the waters of the United States, including the territorial seas.” Respondents have interpreted these words to cover the abandoned gravel pit at issue here because it is used as habitat for migratory birds. We conclude that the “Migratory Bird Rule” is not fairly supported by the CWA.

This is not the first time we have been called upon to evaluate the meaning of §404(a). In United States v. Riverside Bayview Homes, Inc. (1985), we held that the Corps had §404(a) jurisdiction over wetlands that actually abutted on a navigable waterway. In so doing, we noted that the term “navigable” is of “limited import” and that Congress evidenced its intent to “regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.” But our holding was based in large measure upon Congress’ unequivocal acquiescence to, and approval of, the Corps’ regulations interpreting the CWA to cover wetlands adjacent to navigable waters. We found that Congress’ concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands “inseparably bound up with the ‘waters’ of the United States.”. . .

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 §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 “[i]t 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.

Respondents next contend that whatever its original aim in 1972, Congress charted a new course five years later when it approved the more expansive definition of “navigable waters” found in the Corps’ 1977 regulations. In July 1977, the Corps formally adopted [regulations] which defined “waters of the United States” to include “isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.” Respondents argue that Congress was aware of this more expansive interpretation during its 1977 amendments to the CWA. . . . The failure to pass legislation that would have overturned the Corps’ 1977 regulations and the extension of jurisdiction in §404(g) to waters “other than” traditional “navigable waters,” respondents submit, indicate that Congress recognized and accepted a broad definition of “navigable waters” that includes nonnavigable, isolated, intrastate waters.

Although we have recognized congressional acquiescence to administrative interpretations of a statute in some situations, we have done so with extreme care. . . .

We conclude that respondents have failed to make the necessary showing that [Congress acquiesced] to the Corps’ regulations or the “Migratory Bird Rule,” which, of course, did not first appear until 1986. Although respondents cite some legislative history showing Congress’ recognition of the Corps’ assertion of jurisdiction over “isolated waters,” as we explained in Riverside Bayview Homes, “[i]n both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation.”. . .

We thus decline respondents’ invitation to take what they see as the next ineluctable step after Riverside Bayview Homes: holding that isolated ponds, some only seasonal, wholly located within two Illinois counties, fall under §404(a)’s definition of “navigable waters” because they serve as habitat for migratory birds. . . .

Where an administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result. This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority. This concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power. Thus, “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”

Twice in the past six years we have reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited. See United States v. Morrison (2000); United States v. Lopez (1995). Respondents argue that the “Migratory Bird Rule” falls within Congress’ power to regulate intrastate activities that “substantially affect” interstate commerce. They note that the protection of migratory birds is a “national interest of very nearly the first magnitude,” Missouri v. Holland (1920), and that, as the Court of Appeals found, millions of people spend over a billion dollars annually on recreational pursuits relating to migratory birds. . . .

These are significant constitutional questions raised by respondents’ application of their regulations, and yet we find nothing approaching a clear statement from Congress that it intended §404(a) to reach an abandoned sand and gravel pit such as we have here. Permitting respondents 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. . . . We thus read the statute as written to avoid the significant constitutional and federalism questions raised by respondents’ interpretation, and therefore reject the request for administrative deference.

. . . The judgment of the Court of Appeals for the Seventh Circuit is therefore

Reversed.

Justice Stevens,  with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

[T]he text of the 1972 amendments affords no support for the Court’s holding, and amendments Congress adopted in 1977 do support the Corps’ present interpretation of its mission as extending to so-called “isolated” waters. Indeed, simple common sense cuts against the particular definition of the Corps’ jurisdiction favored by the majority. . . .

Even if the majority were correct that Congress did not extend the Corps’ jurisdiction in the 1972 CWA [Clean Water Act] to reach beyond navigable waters and their nonnavigable tributaries, Congress’ rejection of the House’s efforts in 1977 to cut back on the Corps’ 1975 assertion of jurisdiction clearly indicates congressional acquiescence in that assertion. Indeed, our broad determination in [United States v.] Riverside Bayview [Homes, Inc.] that the 1977 Congress acquiesced in the very regulations at issue in this case should foreclose petitioner’s present urgings to the contrary. The majority’s refusal in today’s decision to acknowledge the scope of our prior decision is troubling. Having already concluded that Congress acquiesced in the Corps’ regulatory definition of its jurisdiction, the Court is wrong to reverse course today. . .

Because I am convinced that the Court’s miserly construction of the statute is incorrect, I shall comment briefly on petitioner’s argument that Congress is without power to prohibit it from filling any part of the 31 acres of ponds on its property in Cook County, Illinois. The Corps’ exercise of its §404 permitting power over “isolated” waters that serve as habitat for migratory birds falls well within the boundaries set by this Court’s Commerce Clause jurisprudence.

In United States v. Lopez (1995), this Court identified “three broad categories of activity that Congress may regulate under its commerce power”: (1) channels of interstate commerce; (2) instrumentalities of interstate commerce, or persons and things in interstate commerce; and (3) activities that “substantially affect” interstate commerce. The migratory bird rule at issue here is properly analyzed under the third category. In order to constitute a proper exercise of Congress’ power over intrastate activities that “substantially affect” interstate commerce, it is not necessary that each individual instance of the activity substantially affect commerce; it is enough that, taken in the aggregate, the class of activities in question has such an effect.

The activity being regulated in this case is the discharge of fill material into water. The Corps did not assert jurisdiction over petitioner’s land simply because the waters were “used as habitat by migratory birds.” It asserted jurisdiction because petitioner planned to discharge fill into waters “used as habitat by migratory birds.” Had petitioner intended to engage in some other activity besides discharging fill (i.e., had there been no activity to regulate), or, conversely, had the waters not been habitat for migratory birds (i.e., had there been no basis for federal jurisdiction), the Corps would never have become involved in petitioner’s use of its land. There can be no doubt that, unlike the class of activities Congress was attempting to regulate in United States v. Morrison (2000) (“[g]ender-motivated crimes”), and Lopez (possession of guns near school property), the discharge of fill material into the Nation’s waters is almost always undertaken for economic reasons.

Moreover, no one disputes that the discharge of fill into “isolated” waters that serve as migratory bird habitat will, in the aggregate, adversely affect migratory bird populations. Nor does petitioner dispute that the particular waters it seeks to fill are home to many important species of migratory birds, including the second-largest breeding colony of Great Blue Herons in northeastern Illinois, and several species of waterfowl protected by international treaty and Illinois endangered species laws.

In addition to the intrinsic value of migratory birds, it is undisputed that literally millions of people regularly participate in birdwatching and hunting and that those activities generate a host of commercial activities of great value. The causal connection between the filling of wetlands and the decline of commercial activities associated with migratory birds is not “attenuated”; it is direct and concrete.

Finally, the migratory bird rule does not blur the “distinction between what is truly national and what is truly local.” Justice Holmes cogently observed in Missouri v. Holland that the protection of migratory birds is a textbook example of a national problem. The destruction of aquatic migratory bird habitat, like so many other environmental problems, is an action in which the benefits (e.g., a new landfill) are disproportionately local, while many of the costs (e.g., fewer migratory birds) are widely dispersed and often borne by citizens living in other States. In such situations, described by economists as involving “externalities,” federal regulation is both appropriate and necessary. Identifying the Corps’ jurisdiction by reference to waters that serve as habitat for birds that migrate over state lines also satisfies this Court’s expressed desire for some “jurisdictional element” that limits federal activity to its proper scope.

The power to regulate commerce among the several States necessarily and properly includes the power to preserve the natural resources that generate such commerce. Migratory birds, and the waters on which they rely, are such resources. Moreover, the protection of migratory birds is a well-established federal responsibility. . . . Because of their transitory nature, they “can be protected only by national action.”

Whether it is necessary or appropriate to refuse to allow petitioner to fill those ponds is a question on which we have no voice. Whether the Federal Government has the power to require such permission, however, is a question that is easily answered. If, as it does, the Commerce Clause empowers Congress to regulate particular “activities causing air or water pollution, or other environmental hazards that may have effects in more than one State,” it also empowers Congress to control individual actions that, in the aggregate, would have the same effect. There is no merit in petitioner’s constitutional argument.

Because I would affirm the judgment of the Court of Appeals, I respectfully dissent.