It's Time for Congress to Rearm the Army Corps of Engineers: A Response to the Solid Waste Agency Decision
By Philip Weinberg
INTRODUCTION
The authority of the federal government to protect lakes, ponds and wetlands, among the most environmentally sensitive of areas and particularly vulnerable to development, was cast into doubt by a recent Supreme Court decision. In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, a narrow majority of the Court annulled a regulation of the Army Corps requiring a permit to fill a pond not connected to a navigable waterway that is a habitat for migratory birds. The regulation was adopted to implement the Clean Water Act, section 404 of which empowers the Army Corps to issue permits to fill in “navigable waters.” That term is in turn defined to encompass “the waters of the United States, including the territorial seas.”
Section 404, enacted in the 1972 Clean Water Act, provides effective protection to waterways and wetlands, requiring a permit to deposit fill or dredge soil. The Army Corps, in determining whether to issue a permit, is to weigh the impacts of the filling on navigation, as well as on fish and wildlife habitat and other environmental concerns, balancing the need for the project against the need to safeguard the resource.
For many years the Army Corps regulations have defined “navigable waters” to include wetlands, sloughs, and natural ponds, “the use, degradation or destruction of which could affect interstate or foreign commerce.” Applying the Act to ponds and wetlands of this sort is not in dispute, and was in fact upheld by the Supreme Court in United States v. Riverside Bayview Homes, Inc., decided in 1985. In Riverside the Court explicitly noted the importance of those areas for “food chain production, general habitat, and nesting, spawning, rearing and resting sites” for birds and other wildlife. The Court had no problem finding the statute applicable to a wetland unconnected to any navigable waterway except by seasonal surface runoff, and which had only been inundated five times in the past eighty years.
In a surprising turnabout, the Court in Solid Waste Agency has now severely hamstrung the Army Corps' ability to protect ponds and wetlands. Ironically, the Court did so only after that agency at last overcame its own long resistance to safeguarding these vital resources.
This decision - which watered down, as it were the statutory definition - vastly exceeds the scope of recent Supreme Court rulings sensibly limiting congressional power. Congress should, as we shall show, promptly enact a definition of “navigable waters” consonant with its own plainly-shown intent to protect lakes, ponds, wetlands and similar waterways from environmental degradation. Since the challenge to the Army Corps' jurisdiction in Solid Waste Agency was originally based on a claim that the Army Corps' regulation exceeded the commerce power (an argument the Court avoided by finding the regulation went beyond the statute), we should commence by examining the extent to which the commerce power authorizes protection of migratory birds and the habitats on which they depend. The Solid Waste Agency decision amounts to an invitation to Congress to clarify and restate its intention to assert broad federal jurisdiction under the Clean Water Act.
The authority of the federal government to protect lakes, ponds and wetlands, among the most environmentally sensitive of areas and particularly vulnerable to development, was cast into doubt by a recent Supreme Court decision. In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, a narrow majority of the Court annulled a regulation of the Army Corps requiring a permit to fill a pond not connected to a navigable waterway that is a habitat for migratory birds. The regulation was adopted to implement the Clean Water Act, section 404 of which empowers the Army Corps to issue permits to fill in “navigable waters.” That term is in turn defined to encompass “the waters of the United States, including the territorial seas.”
Section 404, enacted in the 1972 Clean Water Act, provides effective protection to waterways and wetlands, requiring a permit to deposit fill or dredge soil. The Army Corps, in determining whether to issue a permit, is to weigh the impacts of the filling on navigation, as well as on fish and wildlife habitat and other environmental concerns, balancing the need for the project against the need to safeguard the resource.
For many years the Army Corps regulations have defined “navigable waters” to include wetlands, sloughs, and natural ponds, “the use, degradation or destruction of which could affect interstate or foreign commerce.” Applying the Act to ponds and wetlands of this sort is not in dispute, and was in fact upheld by the Supreme Court in United States v. Riverside Bayview Homes, Inc., decided in 1985. In Riverside the Court explicitly noted the importance of those areas for “food chain production, general habitat, and nesting, spawning, rearing and resting sites” for birds and other wildlife. The Court had no problem finding the statute applicable to a wetland unconnected to any navigable waterway except by seasonal surface runoff, and which had only been inundated five times in the past eighty years.
In a surprising turnabout, the Court in Solid Waste Agency has now severely hamstrung the Army Corps' ability to protect ponds and wetlands. Ironically, the Court did so only after that agency at last overcame its own long resistance to safeguarding these vital resources.
This decision - which watered down, as it were the statutory definition - vastly exceeds the scope of recent Supreme Court rulings sensibly limiting congressional power. Congress should, as we shall show, promptly enact a definition of “navigable waters” consonant with its own plainly-shown intent to protect lakes, ponds, wetlands and similar waterways from environmental degradation. Since the challenge to the Army Corps' jurisdiction in Solid Waste Agency was originally based on a claim that the Army Corps' regulation exceeded the commerce power (an argument the Court avoided by finding the regulation went beyond the statute), we should commence by examining the extent to which the commerce power authorizes protection of migratory birds and the habitats on which they depend. The Solid Waste Agency decision amounts to an invitation to Congress to clarify and restate its intention to assert broad federal jurisdiction under the Clean Water Act.