Says Local Governments Rule In Major Land Use Case

In a 5-4 decision, the U.S. Supreme Court has ruled that the U.S. Corps of Army Engineers cannot regulate isolated wetlands merely because passing birds might land on such property.

In Solid Waste Agency of Northern Cook County (SWANCC) v U.S. Army Corps of Engineers, the Court ruled that local communities can zone and regulate such property. The decision, says the National Association of Home Builders (NAHB), is "a major legal victory for home builders and other private property owners."

Because the Corps defines wetlands and waters of the U.S. so that an area can be dry at the surface year-in and year-out and still qualify as a "wetland" for regulatory purposes -- and because all places on earth are susceptible to bird use, the agencies' bird test extends federal authority over millions of shallow geographic depressions. The effect of the decision is to reinforce the authority of state and local governments to determine local land use.

"Permitting the (government) to claim federal jurisdiction over ponds and mudflats," said Supreme Court Chief Justice William Rehnquist, would "result in a significant impingement of the states' traditional and primary power over land and water use."

"With this decision, the Supreme Court has struck a blow for legal regulation of wetlands under the Clean Water Act," said NAHB President Robert L. Mitchell, a home builder from Rockville, Md. "By reversing the lower court decision on the regulation of isolated wetlands, the Court has told the Army Corps of Engineers and the Environmental Protection Agency that regulating beyond what Congress intended under the Clean Water Act is illegal and likely unconstitutional. If federal agencies wish to regulate isolated wetlands or make other changes to the Act, they need to go to Congress and have the Act amended."

The Court's decision involves a basic question: Can a federal agency restrict land use in any of the 8 million U.S. isolated wetlands not connected to any water body simply because a migrating bird could land in those wetlands? In its 5-4 decision, the Court said "no."

SWANCC is a consortium of 23 municipalities formed in 1988 to implement long-range plans to dispose of garbage in an efficient, cost effective and environmentally sound manner. In 1990 SWANCC bought a 533-acre former strip mine and proposed to build a balefill site on the land.

"It has always been the responsibility of state and local government to make land use decisions that best serve their communities," said Skokie Mayor George Van Dusen, chairman of SWANCC. "We underwent lengthy and detailed local and state processes to ensure that the proposed balefill was an appropriate use of land and that it posed no threat to the environment. We feel vindicated and gratified that the Supreme Court recognized our authority."

The SWANCC case originated out of a Corps denial of a metropolitan Chicago area solid waste district's request for a permit. The Corps refused to issue the permit, reasoning that filling the isolated wetlands would result in lost habitat, a decrease in migratory bird populations and diminished bird-watching opportunities, all of which would "substantially affect" interstate commerce. Since that denial, the case has worked its way through the U.S. federal court system. In October of 1999, Cook County lost in the U.S. Court of Appeals for the 7th Circuit. However, the 7th Circuit decision conflicted with a 1997 ruling of the 4th Circuit, which held in a similar case that the Corps had exceeded any powers it might invoke under the Commerce Clause.

SWANCC and NAHB, which filed an amicus brief in the case, wanted the Supreme Court to address whether the "migratory bird test" could justify federal regulation of isolated waters, including wetlands. If the agency could use the migratory bird test to claim jurisdiction, the groups feared the federal government would interject itself into millions of small, isolated wetlands areas and displace the traditional authority that states and localities have over local land use.

Corps data from a 1995 study shows that there are 8,309,502 discrete isolated depressional areas in the U.S. that meet the federal definition of wetlands. The average size of these low spots is one-quarter acre. By using the migratory bird test to claim jurisdiction, NAHB believed the federal government had interjected itself into all of these small, isolated areas and displaced the traditional authority of states and localities over land use.

After the Army Corps of Engineers twice informed SWANCC that it had no jurisdiction over the site, the Corps reversed itself when opponents of the balefill site informed them that migratory birds had been spotted around some of the seasonal, water-filled trenches on the site.

The Corps said its jurisdiction came through its migratory bird rule, which was enacted without public hearings more than 10 years after Congress passed the Clean Water Act. The Act, which does not mention migratory birds, gives the Corps jurisdiction over "navigable waters." The Corps also invoked the Commerce Clause of the Constitution, which gives Congress the power to regulate interstate commerce.

SWANCC's attorney, Timothy S. Bishop of Mayer Brown & Platt, successfully argued that in its application of the migratory bird rule, the Corps had overreached its authority.

"SWANCC was not asking the Court to overturn the Clean Water Act or to narrow the scope of federal power to protect our environment. It simply asked the Court to invalidate the Corps' application of its migratory bird rule, which has absolutely no legal basis. Congress never intended the Corps to have authority over virtually every body of water in the nation, including seasonally wet areas in a farmer's meadow or a puddle in a homeowner's backyard," Bishop added.

From 1997 to 1989, SWANCC underwent lengthy local and state processes to ensure that the proposed balefill was an appropriate use of the strip-mine and that it posed no threat to the environment. After 10 public hearings and 2,500 pages of testimony, the local zoning board and the Cook County Board of Commissioners approved the application. The Illinois Environmental Protection Agency also approved a permit after reviewing SWANCC's 1,700 page application and conducting four days of public hearings.

"A ruling against SWANCC would have transformed the Army Corps of Engineers into a super zoning agency with land use authority over vast tracts with the power to block any projects approved by local or state agencies," said Van Dusen.

SWANCC's position was supported by nearly 20 friend-of-the-court briefs from groups as diverse as the National League of Cities to the U.S. Chamber of Commerce.

Published: January 10, 2001

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