In the realm of wetland regulation, it doesn’t get much bigger than the case currently before the Supreme Court challenging the very definition of “jurisdictional wetlands.”

In 1986, Solid Waste Agency of Northern Cook County (SWANCC) sought to develop a 533 acre landfill. The agency contacted the Corps on two separate occasions in 1986 and 1987 to determine if any part of the site contained waters of the U.S. On both occasions the Corps answered in the negative. However, in November 1987, the Illinois Nature Preserve Commission informed the Corps that a number of migratory birds had been spotted on the property. The Corps asserted jurisdiction over the aquatic areas on the site because they were “used as habitat by migratory birds that cross state lines.”

SWANCC subsequently applied for a permit (under Section 404 of the Clean Water Act) to fill approximately 17 of 533 acres. The Corps denied the permit because of its possible impact on migratory birds. SWANCC challenged the permit denial and the District Court granted the Corps summary judgment. SWANCC appealed. On appeal, SWANCC elected not to challenge the District Court’s underlying finding that the site was in fact habitat for migratory birds. Rather, SWANCC limited its challenge solely to the Corps’ use of the migratory bird rule as a means of asserting jurisdiction over an intrastate water.

SWANCC argued that Congress and the Corps did not have the authority to assert federal jurisdiction over isolated intrastate waters based solely on the presence of migratory birds, and the migratory bird rule is invalid because it was not promulgated in accordance with the Administrative Procedure Act. The federal appellate court upheld the District Court grant of summary judgment. The court found that the hunting and other enjoyment of migratory birds is a billion dollar industry and, while the adverse effects of eliminating one habitat may not be noticeable, the aggregate effect of destruction of many such areas on interstate commerce “is clear, and that is all the Commerce Clause requires.”

The Court of Appeals for the 3rd Circuit then found that the reach of the Commerce Clause is “broad enough to permit regulation of waters based on the presence of migratory birds, [and] it is reasonable for the EPA and the Corps to interpret the Act in such a manner.” But the court’s decision in this case is inconsistent with a 1989 case where the Court of Appeals for the 4th Circuit (the federal appellate court governing Maryland) held the government cannot rely on bird usage as a basis for commerce nexus, until, at a minimum, it formally adopts appropriate regulations. The Court distinguished the present case from United States v. Wilson, (a Maryland case also decided by the 4th Circuit Court of Appeals), finding that Wilson involved the issue of whether Congress and the Corps had the authority to regulate waters that “could” affect interstate commerce. Since the SWANCC case involved actual use (i.e., the birds had landed), there was no “potential” to affect; rather, appellant left unchallenged the District Court finding that filling of the 17 acres would have an immediate effect on migratory birds that actually use the area as habitat.

Because the Supreme Court has now agreed to review the dispute, this case could have far-reaching consequences. Most immediately, it is likely to decide whether and in what circumstances bird use can establish the Commerce Clause nexus required for federal jurisdiction under Section 404. If the high court affirms the lower court decisions in this case, virtually any area deemed “water” by the Corps or EPA will be federally regulated. If, however, the Supreme Court limits or rejects the lower courts’ holdings, many remote areas that are now thought to be jurisdictional may be removed from federal jurisdiction.

The broader legal consequences are also significant. Just the week before it granted review in SWANCC, the Supreme Court reaffirmed that Congress’ power under the Commerce Clause is not limitless. In United States v. Morrison, the Supreme Court struck down a federal statute granting civil remedies for gender-based violence. Reaffirming its earlier, controversial opinion in United States v. Lopez, the Supreme Court found that the conduct at issue (i.e., the rape of a coed) was non-economic in nature and fell within the realm of the police power which is traditionally exercised by the States. For such “non-economic” activities, the Supreme Court refused to consider the aggregate effect of such conduct as a basis for involving the Commerce Clause power.

The SWANCC case will be the first application of theLopez/Morrison Commerce Clause jurisprudence to an environmental statute. Presumably, the Court will need to decide whether the conduct at issue under Section 404 is “economic” or “non-economic,” and thus whether Congress or the courts can utilize aggregate effects to establish a substantial effect on interstate commerce. If the regulation is sustained as a proper exercise of the Commerce Clause, the Supreme Court will then need to decide whether the Clean Water Act can be used to protect habitat for migrating birds.

Solid Waste Agency of Northern Cook County v. Corps of Engineers, will be argued this Fall before the Supreme Court.