The Supreme Court has agreed to review a land-use case that could have a major role in defining the limits of federal power under the Clean Air Act.

The case involves the efforts of the Solid Waste Agency of Northern Cook County, Ill., a group of 23 local municipalities, to develop a non-hazardous waste "balefill" facility on a 50 acre site. The parcel contains 17 acres of wet depressions, the remains of an earlier strip mining operation.

Twice the U.S. Army Corps of Engineers told the agency it had no jurisdiction over the site. But later, the Corps changed its mind based on the use of the site by migratory birds. It then denied the local group's application for a development permit. The group appealed but the circuit court upheld the Corps.

Now the Supreme Court has agreed to take the case. And its decision "could have far-reaching consequences," say Virginia Albrecht and Mark Weisshaar of the Washington law firm of Hunton & Williams.

Under Section 404 of the Clean Water Act, the Corps of Engineers and the Environmental Protection Agency claim jurisdictions over any "waters" including wetlands that are or could be used by migratory birds. Their legal theory is that any alteration of ground subject to such use will affect interstate commerce and, therefore, is subject to their authority.

Under "the migratory bird rule," according to Albrecht and Weisshaar, the Corps "routinely" requires permits for projects that effect dry washes, drainage ditches, isolated wetlands, depressed areas in the middle of cornfields and other remote intrastate waters. The case tests the validity of the rule.

The High Court "is likely to decide whether and in which circumstances bird use can establish the Commerce Clause required for federal jurisdiction" under the law," the attorneys believe, explaining that the case will probably hinge on what is economic and what is non-economic.

If the court affirms the lower court's decision which, incidentally, Albrecht and Weisshaar think was incorrect they say "virtually any area" deemed water by the Corps or EPA will be federally regulated. But if it limits or rejects the lower courts' holdings, many remote areas now thought to be under the agencies' jurisdiction will be removed from their control.

Published: June 1, 2000

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When Lew Sichelman first started writing about housing in 1969, he was the youngest real estate writer in the country. Now, 37 years later, he's one of the oldest -- and most decorated. He has been rated the top housing columnist in the country by the National Association of Realtors as well as by his peers in the National Association of Real Estate Editors. Indeed, NAREE has recognized his work on numerous occasions. One year - due to his advancing age, he can't recall which one - he earned top honors in the annual NAREE Journalism Contest in three out of the four major writing categories. It was the first time one writer has won so many NAREE awards in a single year. Known for his ability to make even the most difficult topics understandable, Sichelman also has been honored by the National Association of Home Builders and the Mortgage Bankers Association. He began providing in-depth coverage of and consumer-oriented information about housing and housing finance at the Washington Daily News, where he was real estate editor. He held that same position for nine more years at the Washington Star, which purchased the News in 1972. The Star, a so-called "writer's newspaper" which also had the misfortune of being an evening paper, was put out of its misery in 1981, and Sichelman, who had begun self-syndicating his column in 1978, decided to become a full-time columnist. Today, his column, "The Housing Scene," is distributed by United Media to newspapers throughout the country. He also is on the staff of National Mortgage News, an independent newspaper which is considered the bible of the mortgage business. And he writes for numerous other publications, including MarketWatch.com, where he answers readers questions once a week, Sports Illustrated (don't ask), RealtyTimes.com, BigBuilder and others. Sichelman is married, the father of five and grandfather of eleven.