Solid Waste Agency N. Cook County v. US. Army Eng'r

• Decision Date: 07 October 1999
• Docket Number: No. 98-2277,98-2277
• Citation: 191 F.3d 845
• Parties: (7th Cir. 1999) Solid Waste Agency of Northern Cook County,Plaintiff-Appellant, v. United States Army Corps of Engineers, et al., Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 845

191 F.3d 845 (7th Cir. 1999)

Solid Waste Agency of Northern Cook County,Plaintiff-Appellant, v. United States Army Corps of Engineers, et al., Defendants-Appellees.

No. 98-2277

United States Court of Appeals, Seventh Circuit

Argued January 8, 1999

Decided October 7, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 7489--George W. Lindberg, Judge. [Copyrighted Material Omitted] Before Kanne, Diane P. Wood, and Evans, Circuit Judges.

Diane P. Wood, Circuit Judge.

This case involves the efforts of a consortium of Illinois municipalities to find a place to dump their trash. The Solid Waste Agency of Northern Cook County ("SWANCC") thought that it had found such a spot in a 533-acre parcel of land straddling Cook and Kane Counties, Illinois. Before its "balefill" could open, however, approximately 17.6 acres of ponds and small lakes located on the parcel had to be filled in. This case presents the question whether the U.S. Army Corps of Engineers ("the Corps"), acting under sec. 404 of the Clean Water Act ("the Act"), 33 U.S.C. sec. 1344, had jurisdiction to require SWANCC to obtain a permit for its fill operations. SWANCC initially applied for such a permit, but the Corps denied it. SWANCC then sued, claiming both that the Corps had no business meddling in the matter at all and that it was wrong on the merits. For its part, the Corps claimed jurisdiction under the so-called "migratory bird rule," which interprets the Act as extending to certain intrastate waters based on their actual or potential use as habitat for migratory birds. (The parties dispute whether this is a mere interpretation of statutory language, or something that should be regarded as a free- standing rule--a point that we discuss later in this opinion. Our use of the common phrase "migratory bird rule" is not intended to suggest a position on that issue.)

The district court granted summary judgment in the Corps' favor on the jurisdictional point. At that point, SWANCC decided voluntarily to dismiss the remainder of its claims, so that the district court could enter a final judgment from which it could appeal. See 28 U.S.C. sec. 1291. We conclude that the Corps properly asserted jurisdiction in this matter, and we therefore affirm.

I

SWANCC is a group of 23 municipalities that banded together to form a municipal corporation for the purpose of locating and developing a disposal site for nonhazardous waste. It found and purchased the 533-acre site to which we have already referred, from which it hoped to carve out approximately 410 acres for a "balefill"-- that is, a landfill where the waste is baled before it is dumped. Approximately 298 acres of the proposed balefill site is what is known as an early successional stage forest. At one time, it was a strip mine, but when the mining operation shut down approximately 50 years ago, a labyrinth of trenches and other depressions remained behind. Over time, the land evolved into an attractive woodland vegetated by approximately 170 different species of plants. What were once gravel pits are now over 200 permanent and seasonal ponds. These ponds range from less than one-tenth of an acre to several acres in size, and from several inches to several feet in depth. The forest is also home to a variety of small animals. Most important for our purposes are the 100-plus species of birds that have been observed there. These include many endangered, water- dependent, and migratory birds. Among the species that have been seen nesting, feeding, or breeding at the site are mallard ducks, wood ducks, Canada geese, sandpipers, kingfishers, water thrushes, swamp swallows, redwinged blackbirds, tree swallows, and several varieties of herons. Most notably, the site is a seasonal home to the second-largest breeding colony of great blue herons in northeastern Illinois, with approximately 192 nests in 1993.

This litigation arose because the proposed balefill project would require the filling of approximately 17.6 acres of semi-aquatic property within the forested area. Section 404 of the Act prohibits the discharge of fill material into "the navigable waters" without a permit issued by the Secretary of the Army, acting through the Chief of Engineers. 33 U.S.C. sec. 1344(a). The term "navigable waters" is defined in the statute as "the waters of the United States, including the territorial seas." Id. sec. 1362(7). Although the Act itself provides no further explanation of which waters are subject to sec. 404's requirements, regulations issued by the Environmental Protection Agency ("EPA") and the Corps define the phrase "waters of the United States" to include "intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce." 33 C.F.R. sec. 328.3(a)(3).

In March 1986, SWANCC contacted the Corps to find out if a particular 267-acre parcel within the proposed balefill site included "wetlands" within the meaning of the Act, such that SWANCC would have to obtain a sec. 404 permit in order to fill it in. After an on-site inspection, the Corps initially decided that the site did not include protected wetlands and therefore did not fall within its regulatory jurisdiction. One year later, in February 1987, SWANCC contacted the Corps to request a determination as to whether a 414-acre parcel of the site included "wetlands." The Corps again responded in the negative.

The Corps changed its position with regard to its jurisdiction over the balefill site, however, after the Illinois Nature Preserves Commission (a state agency) informed it that a number of migratory bird species had been observed there. This new information made all the difference to the Corps, because of the so-called migratory bird rule. This rule, or interpretive convention, reflects the fact that the definition of "waters of the United States" found in 33 C.F.R. sec. 328.3(a)(3) has long been understood by the EPA and the Corps to include all waters, including those otherwise unrelated to interstate commerce, "which are or would be used as habitat by birds protected by Migratory Bird Treaties" or "which are or would be used as habitat by other migratory birds which cross state lines." 51 Fed. Reg. 41,206, 41,217 (1986) ("1986 preamble"). In a letter to SWANCC dated November 16, 1987, the Corps explained that its two previous determinations that the site did not fall within its jurisdiction were based on its finding that the site did not meet the definition of "wetland." In contrast, the latest determination- -that the Corps did have jurisdiction over the site--was based on a different theory entirely. Regardless of wetland status, it now appeared that the aquatic areas of the site "are or could be used as habitat by migratory birds which cross state lines." In response to the Corps' notification that it intended to exercise jurisdiction over the site, SWANCC submitted an application for a sec. 404 permit. The Corps denied that application, finding that all of the affected waters in the site were in fact used as habitat by migratory birds (and thus were not merely potential habitat). SWANCC then submitted a revised application that was also denied.

At this stage in the litigation, SWANCC has abandoned its challenge to the merits of the Corps' decisions and has instead focused exclusively on its challenge to the migratory bird rule as a basis for the Corps' jurisdiction. Accordingly, we accept as true the Corps' factual findings with regard to SWANCC's permit application, including the crucial finding that the waters of this site were a habitat for migratory birds.

II

SWANCC offers three arguments to support its position that the Corps had no authority to require it to obtain a permit: (1) Congress lacked the power to grant the Corps regulatory jurisdiction over isolated, intrastate waters based on the presence of migratory birds alone; (2) the Corps exceeded its statutory authority in interpreting the Act to confer jurisdiction as provided by the migratory bird rule; and (3) the migratory bird rule is invalid because it was not promulgated in accordance with the notice and comment requirements of the Administrative Procedure Act ("APA"), 5 U.S.C. sec. 553.

We begin with the most ambitious of SWANCC's arguments, which is that the migratory bird rule is unconstitutional in light of the Supreme Court's decision in United States v. Lopez, 514 U.S. 549 (1995). Prior to Lopez, it had been established that Congress' powers under the Commerce Clause were broad enough to permit regulation of waters based on the presence of migratory birds. See, e.g., Rueth v. EPA, 13 F.3d 227, 231 (7th Cir. 1993); Leslie Salt Co. v. United States (Leslie I), 896 F.2d 354, 360 (9th Cir. 1990). We must decide whether Lopez now compels the opposite conclusion.

In Lopez, the Court reaffirmed the well- established principle that a federal statute based on the Commerce Clause must serve one of three purposes: (1) regulation of the channels of interstate commerce; (2) regulation or protection of the instrumentalities of interstate commerce, or persons or things in interstate commerce; or (3) regulation of activities that "substantially affect" interstate commerce. Lopez, 514 U.S. at 558-59; see also Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276 (1981); Perez v. United States, 402 U.S. 146, 150 (1971); United States v. Wilson, 159 F.3d 280, 285 (7th Cir. 1998). The gun control law at issue in Lopez, like the migratory bird rule challenged here, could only have been sustained as an exercise of the third variety of regulatory power. The Lopez Court concluded that the statute before it, which made it a crime "knowingly . . . [to] possess a firearm at a place that the individual knows, or...