The recent Supreme Court case in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers has been decided, but the waves have not yet calmed for regulators, conservationists, and developers, who are still questioning how the decision will affect the nation’s wetlands. A new Environmental Law Institute® (ELI) publication analyzes the decision in detail and provides answers. ELI’s focus issue of the National Wetlands Newsletter examines the case from a number of perspectives and attempts to reach consensus on the issue.
The lawsuit was initiated following a Corps permit denial. An Illinois local government agency sought permission to construct a landfill. Ultimately the Corps denied the permit request because the project would have destroyed 31 acres of ponds that provided habitat to migratory birds. The Corps asserted jurisdiction over these ponds under the federal Clean Water Act, which was based upon the Interstate Commerce Clause of the U.S. Constitution. In its 5-4 decision, the Supreme Court held that the Corps could not use its so-called “Migratory Bird Rule” as the basis for regulating these ponds.
Although the Court has spoken, many find the decision raised more questions than it answered. Perhaps the most energetically debated issue is just how far this ruling reaches into federal regulation. Some experts interpret the decision narrowly — maintaining that it only applies to non-navigable, isolated, intrastate waters where the only interstate commerce connection is use or potential use by migratory birds. Others take a more expansive view, saying the decision applies to all traditionally non-navigable waters and waters not physically connected to navigable waters.
“If you had 20 people in the same room all talking about the Supreme Court’s decision, you’d probably hear 20 different versions of the story,” said Bonnie Nevel, editor of the National Wetlands Newsletter. “ELI opens the dialogue between the different interest groups. We think the new publication will help policymakers, government workers, and citizens understand this decision and the implications for wetlands and other waters.”
The National Wetlands Newsletter focus issue features experts in the fields of wetlands and law. Authors representing state wetland managers, private law firms, and environmental conservation organizations discuss their perspectives on the ruling and its potential repercussions for the nation’s waters, the regulated community, and the rest of the public. The Corps and U.S. Environmental Protections Agency’s most recent interpretation of the decision is also featured.
The National Wetlands Newsletter is a bi-monthly publication of the Environmental Law Institute, an independent research and education center located in Washington, DC. The newsletter, now in its 23rd continuous year of publication, provides balanced information on wetland law, policy, management, and science to professionals from non-profit organizations, government, and the private sector.
Press copies of the National Wetlands Newsletter’s focus issue on the SWANCC decision are available by contacting pressrequest@eli.org.