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Just prior to the transition between the Clinton and Bush administrations, the Supreme Court issued a ruling that may set the stage for transforming the federal government’s role in environmental protection under Bush’s leadership. In a 5-4 decision announced Jan. 9, the Court held that the federal Clean Water Act does not allow the Army Corps of Engineers to assert jurisdiction over isolated ponds and wetlands solely because migratory birds use them. The decision, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, has profound implications for the Bush administration’s emphasis on a limited federal regulatory role and its desire to work in partnership with states in protecting our natural resources. The Solid Waste decision was written by Chief Justice William Rehnquist and joined by Justices Clarence Thomas, Antonin Scalia, Anthony Kennedy, and Sandra Day O’Connor. It overturned a ruling by the 7th U.S. Circuit Court of Appeals that had upheld the corps’ denial of a permit for construction of a regional solid waste landfill impacting isolated seasonal ponds on a 533-acre site near Chicago. In Rehnquist’s words, “Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the ‘Migratory Bird rule’ would result in significant impingement of the State’s traditional and primary power over land and water use.” In short, Solid Waste holds that the Clean Water Act’s provisions guarding waters and wetlands do not turn every isolated wet spot into a federally protected mud puddle. The case arose out of efforts by the Solid Waste Agency of Northern Cook County, Ill., a consortium of 23 suburban Chicago cities and villages, to construct a regional landfill. The Solid Waste Agency spent $31 million in seeking permits for construction of the landfill at an abandoned sand and gravel site that had developed isolated ponds and depressions that filled with rainwater. The corps asserted jurisdiction and denied the permit after finding that the site contained 121 bird species. The corps relied on a regulation that extended its jurisdiction under Section 404(a) of the Clean Water Act to include “intrastate lakes, rivers, streams … the use, degradation or destruction of which could affect interstate or foreign commerce,” including such waters “which are or would be used as habitat by … migratory birds that cross state lines.” 33 C.F.R. Section 328.3(a)(3). The lower courts upheld the corps’ jurisdiction under this “migratory bird rule” as consistent with the commerce clause of the Constitution. In reversing, the Supreme Court sidestepped the constitutional question of whether the bird rule conformed to the commerce clause. Instead, it relied on the more narrow grounds of statutory interpretation. On this basis, the Court held that, “Section 404(a) [of the Clean Water Act] authorizes [the corps] 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.’ … We conclude that the ‘Migratory Bird rule’ is not fairly supported by the CWA.” The Court further held that the text of the statute will “not allow extension of the corps’ jurisdiction” to regulate wetlands “not adjacent to open water.” The term navigable in the Clean Water Act reflects “what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.” What are the implications of the decision, after all the legal language gets parsed? Most important, the case should help advance President Bush’s agenda of limiting the role of the federal government in environmental regulation. The Court’s emphasis on the limits of federal power, and on traditional state and local control over land use, provides support for scaling back the federal role in local land use decisions. The ruling should allow the new administration to assert that the federal government cannot use its environmental regulations to usurp state and local environmental and land use controls — at least, not without clear direction from Congress. MATTER OF INTERPRETATION But the new administration must decide just how far it will interpret the reach of the Solid Waste decision. The key initial question is how the corps will interpret the terms isolated and adjacent. The corps has historically defined adjacent as whether a water or wetland is “nearby, or bordering” a navigable water. It has asserted jurisdiction where such waters are separated by dikes, berms, beaches, dunes, or roads. In many cases, the corps has relied on a groundwater connection between nearby wetlands and navigable waters. In devising this definition, the corps depended on the Supreme Court’s 1985 decision in United States v. Riverside Bayview Homes, which affirmed the corps’ jurisdiction over such adjacent wetlands. Under President Bush, the corps may now feel compelled to modify its interpretation in light of the Solid Waste decision. Another key issue is whether the decision will be extended to all isolated waters, and not just those used by migratory birds. A legal opinion issued by the corps and by the Environmental Protection Agency in the last days of the Clinton administration narrowly reads Solid Waste. It states that the case merely involves jurisdiction over isolated waters and wetlands based on migratory bird use, and allows federal regulation where the assertion of jurisdiction can be established by other connections to interstate commerce. Similarly, President Clinton, as one of his last acts, issued an executive order directing federal agencies to implement strong migratory bird protection policies in consultation with the Fish and Wildlife Service. Thus, the new administration will have to reconcile Clinton’s method of advocating a strong federal role in the environment with its contrasting policy objective of generally limiting federal regulation. The environmental community will feel compelled to challenge any broader interpretation of Solid Waste that would limit federal jurisdiction over, for example, “ephemeral” rivers and streams in arid Western states. Yet an overly broad interpretation of Solid Waste has risks. While the new administration campaigned on limiting the reach of federal regulation, it also pledged to protect our environment in a thoughtful and balanced way. Solid Waste allows for this. It does not stand for the proposition that isolated waters with migratory bird habitat have no value. Rather, the case holds that the power of the federal government to protect such areas is limited under the Clean Water Act. Indeed, as Justice John Paul Stevens’ dissent points out, the Solid Waste Agency did not dispute that the wetlands at issue in the case “are home to many important species of migratory birds.” Furthermore, using Solid Waste as a basis for ceasing federal environmental regulations would be unwarranted, given America’s successful experience with such regulations. For instance, protection of our water resources is now firmly set in federal law, and we have seen significant improvements because of the comprehensive Clean Water Act program. Thus, the challenge for the new administration is to use the case to pursue creative alternatives to further the express goals of the Clean Water Act. Those goals are to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters” — hardly objectionable intentions. ENVIRONMENTAL OPPORTUNITIES This challenge provides great opportunities for reasoned solutions. New partnerships with states (which have broad authority to regulate and manage wetlands and wildlife), along with effective incentives for the private sector, may actually lead to stronger protection and management of our natural resources than the federal government alone could provide. Many states have already enacted legislation aimed at protecting wetlands and wildlife habitat that is broader than the Clean Water Act — including the protection of isolated waters and wetlands. For example, Maryland’s Nontidal Wetlands Protection Act has an express goal of “no net loss” of wetlands. Moreover, many states and localities have programs aimed at enlisting private, market-based efforts. Finally, the Solid Waste decision — which has been vilified by environmentalists as opening the floodgates of wetlands destruction and hailed by property owners as a major victory — may actually help break the existing impasse in Congress that has prevented reasoned compromise and frank discussion over amending the Clean Water Act. If the Bush administration takes advantage of the Solid Waste decision, it and other affected parties can come together to break the customary gridlock and to help enact a clear and balanced wetlands protection program that everyone can accept. Lawrence R. Liebesman is a partner with Linowes and Blocher and was formerly a senior trial attorney with the Justice Department’s Environment Division. Rafe Petersen is an associate in Linowes and Blocher’s environmental practice group. They filed an amicus brief in support of the Solid Waste Agency on behalf of the Nationwide Public Projects Coalition, the American Road and Transportation Builders Association, and the Metropolitan Denver Water Authority.

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