Supreme Court Ruling to Affect Army Corps of Engineers' Jurisdiction by Lew Sichelman
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. | 
