531 U.S. 159, 173 (2001)
In the late 1980s, the Solid Waste Agency of Northern Cook County, a consortium of 23 suburban Chicago municipalities, sought to develop a baled nonhazardous solid waste landfill on a 533-acre former sand and gravel mining site spanning Cook and Kane counties in Illinois.1 The site, abandoned since around 1960, featured remnant excavation trenches that had become permanent and seasonal ponds ranging from under one-tenth of an acre to several acres, surrounded by successional stage forest.2
After securing local and state permits, SWANCC contacted the United States Army Corps of Engineers to determine whether a federal permit was required under section 404(a) of the Clean Water Act for filling some of the ponds.3 The Corps initially determined it lacked jurisdiction because the site contained no wetlands, but later reversed course after the Illinois Nature Preserves Commission reported that numerous migratory bird species had been observed there.4 In November 1987, the Corps formally asserted jurisdiction over the ponds under its 1986 Migratory Bird Rule, citing the presence of approximately 121 bird species, including those dependent on aquatic environments.5
SWANCC proposed mitigation measures, including preserving a great blue heron rookery, and obtained all required state and local approvals by 1993, including a landfill development permit from the Illinois Environmental Protection Agency.6 Despite this, the Corps denied the section 404 permit, finding the project was not the least environmentally damaging alternative, posed risks to drinking water, and had unmitigable impacts on area-sensitive species.7
SWANCC then filed suit in the United States District Court for the Northern District of Illinois under the Administrative Procedure Act, challenging both the Corps' assertion of jurisdiction and the permit denial.8 The district court granted summary judgment to the Corps on the jurisdictional issue, after which SWANCC abandoned its challenge to the permit decision itself.9 On appeal, the Seventh Circuit upheld the Corps' jurisdiction, and the Supreme Court granted certiorari in 2000.10
Whether the provisions of section 404(a) of the Clean Water Act may be fairly extended to isolated intrastate waters used as habitat by migratory birds?11
Section 404(a) authorizes the Corps to issue permits for the discharge of dredged or fill material into navigable waters, defined as the waters of the United States.12 The term navigable retains independent significance and limits jurisdiction to waters with a significant nexus to traditional navigable waters, as recognized in Riverside Bayview Homes.13 Isolated intrastate ponds used solely as habitat for migratory birds fall outside this statutory reach, and the Migratory Bird Rule lacks support in the text, original 1974 regulations, or 1977 legislative history.14
No. The Corps exceeded its authority under section 404(a) by asserting jurisdiction over the SWANCC site pursuant to the Migratory Bird Rule.15 The 533-acre former sand and gravel mining site in Cook and Kane counties featured remnant excavation trenches that evolved into permanent and seasonal ponds surrounded by successional stage forest. The Corps initially determined these areas were not wetlands and thus outside its jurisdiction.16
After the Illinois Nature Preserves Commission reported migratory bird observations, the Corps reversed its position in November 1987 and claimed authority solely because approximately 121 bird species used the ponds as habitat.17 This application to non-adjacent, wholly intrastate, isolated waters contradicts the statutory text and the Corps' own 1974 regulations limiting coverage to waters subject to the ebb and flow of the tide or used for interstate commerce.18 The 1977 amendments and section 404(g) do not demonstrate clear congressional acquiescence to such an expansive reading, and the significant nexus requirement from Riverside Bayview Homes is absent here.19 Therefore the isolated ponds on the SWANCC site do not qualify as navigable waters under the Clean Water Act.20
The provisions of section 404(a) of the Clean Water Act may not be fairly extended to isolated intrastate waters used as habitat by migratory birds.21
Related opinions on this issue
Joined by Souter, Ginsburg, And Breyer, Jj.
Justice Stevens dissented on the ground that the 1972 Clean Water Act redefined navigable waters to encompass all waters of the United States.22 The 1977 Congress expressly acquiesced in the Corps' broadened jurisdiction over phase 3 isolated waters.23 He noted that Congress rejected a House bill that would have narrowed jurisdiction and instead enacted section 404(g) allowing states to assume permitting authority over non-phase-1 waters.24
This confirmed that isolated ponds serving as migratory bird habitat remained within federal reach.25 Stevens further observed that the ecological functions of such waters, including habitat for species protected by international treaties, justified the Corps' assertion of authority over the SWANCC site.26
Whether Congress could exercise authority over such waters consistent with the Commerce Clause?27
The Commerce Clause empowers Congress to regulate channels of interstate commerce, instrumentalities of commerce, and activities that substantially affect interstate commerce in the aggregate.28 Application of the Migratory Bird Rule to isolated intrastate waters raises serious questions about the outer limits of this power and the preservation of traditional state authority over land and water use.29
No. Because the statutory interpretation question was resolved against the Corps, the majority declined to decide whether Congress possesses authority under the Commerce Clause to regulate isolated intrastate ponds used by migratory birds through section 404(a).30 The majority noted that extending jurisdiction in this manner would implicate significant federalism concerns by altering the traditional balance between federal and state power over land use.31
The Court did not reach the question whether Congress could exercise authority over such waters consistent with the Commerce Clause.32
Related opinions on this issue
Joined by Souter, Ginsburg, And Breyer, Jj.
Justice Stevens addressed the constitutional question directly and concluded that the Corps' regulation of discharges into isolated waters serving as migratory bird habitat falls comfortably within Congress's Commerce Clause power.33 He explained that the discharge of fill material into the Nation's waters is almost always undertaken for economic reasons.34 Stevens emphasized that the national character of migratory bird protection, recognized since Missouri v. Holland, justifies federal regulation even when the waters lie entirely within one state.35