In a 5-4 decision reminiscent of last months ruling giving the national election to George W. Bush, the conservative majority of the United States Supreme Court handed property rights advocates a major victory by holding that property owners are not required to obtain permits from the Army Corps. of Engineers to fill or otherwise physically alter isolated bodies of water that might be located on their property.
Under the language of the Clean Water Act, the Army Corps. of Engineers has jurisdiction to regulate "navigable waters." According to the Corps., the term "navigable waters" is broadly interpreted to include waters that are non-navigable if they could affect interstate or foreign commerce. Based on this interpretation, the Corps. developed the "Migratory Bird Rule" which gives the Corps. permit jurisdiction over any water body used by migratory water fowl which cross state lines. The Migratory Bird Rule has been used to extend the Corps. permit jurisdiction over isolated, non-navigable water bodies such as man made lakes, ponds, and wetlands. The practical impact of the Rule has been wide reaching, particularly on small property owners who often do not have the expertise or financial wherewithal to move through the Corps.' arduous permit process. Even where it is feasible for the property owner to process a permit, there is no guarantee it will be granted since meeting the standards for permit issuance is particularly difficult.
The Migratory Bird Rule has also been used to stop some pretty large development projects. That is how the Supreme Court of the United States became involved and ultimately issued its decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps. of Engineers. The case involved a group of 23 suburban Chicago Cities and Villages got together and purchased a 533 acre parcel to be used for the disposal of their non-hazardous solid waste. The parcel had been previously used for mining but mining was discontinued in 1960 and the site remained abandoned until purchased by the municipalities. During the period of abandonment, vegetation returned to the site and excavation trenches previously created by the mining operation filled with water and created seasonal ponds. During the solid waste disposal facility permit process, the Corps. of Engineers asserted its jurisdiction claiming the ponds were regulated under the Clean Water Act since they had been observed being used by migratory water fowl. In other words, they applied their Migratory Bird Rule. Although all State and local agencies ultimately granted approval to the project, the Army Corps. of Engineers denied its permit on the ground that the municipalities failed to establish that the proposal was the least environmentally damaging , most practicable alternative for disposal of non-hazardous solid waste.
On appeal to the United Supreme Court, the municipalities maintained that the Corps.' use of the Migratory Bird Rule over the ponds is not authorized under he Clean water Act . The municipalities argued that the ponds are non-navigable isolated water bodies and therefore cannot be regulated by the Clean Water Act. Justice Rhenquist, writing for the majority, agreed concluding that the Migratory Bird Rule is not fairly supported by the Clean Water Act. The majority found no support in the legislative history of the Clean Water Act to support an extension of the Corps.' jurisdiction to isolated water bodies that are non-navigable or not adjacent to navigable waters. In the majority's view, extending jurisdiction to isolated water bodies that are not navigable or have no connection to navigable waters would render the ordinary meaning of "navigation" meaningless. The four dissenting Supreme Court justices (the same ones who dissented in the national election case), read the legislative history of the Clean Water Act quite different. In an opinion by Justice Stevens, the minority argued that the Clean Water Act broadened the definition of "navigable waters" to include all waters of the United States since the principal goal of the act is to eliminate pollution of these waters.
It remains to be seen how the Army Corps. of Engineers will apply its jurisdiction in light of the Supreme Court's decision and the demise of the Migratory Bird Rule. One thing is certain. The Corps. will read the decision in the narrowest possible way and property rights groups will do the opposite. Property owners who now wish to fill or alter these isolated water bodies better be sure that they are truly isolated (i.e that they are not adjacent to navigable waterways or tributaries to navigable waterways). Otherwise, a visit from an enforcement official might be forthcoming. The safest course is to check with the Corps. before the activity is undertaken or await the Corps.' formal regulatory guidance in reaction to the decision.
