Circuit Courts Apply Solid Waste Agency v. Corps of Engineers

Stephanie Showalter, J.D., M.S.E.L.

In January 2001, the United States Supreme Court in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, known as SWANCC, invalidated the Corps’ Migratory Bird Rule which the Corps had been using to assert authority over isolated, intrastate wetlands.1 In SWANCC, the Corps attempted to regulate activities taking place in ponds which had formed in pits originally used in a sand and gravel mining operation. Under Corps regulations, the definition of “waters of the United States” included waters “which are or could be used as habitat by birds protected by the Migratory Bird Treaty” or by other migratory birds crossing state lines.2 Migratory birds could potentially use the gravel pits in question in SWANCC, but the ponds were not adjacent to a navigable water or tributary. The Supreme Court ruled that the Corps’ attempt to regulate such isolated waters exceeded their authority under the Clean Water Act.3

As a result of the decision in SWANCC, millions of acres of wetlands in the United States no longer fall within the jurisdiction of the Corps. Today, states are scrambling to fill the enforcement gap created by the Supreme Court and lower courts are struggling to interpret and apply SWANNC. The Fourth and Seventh Circuit Courts of Appeals, in the decisions summarized below, recently addressed the question of the jurisdictional limits of the Corps of Engineers and EPA in light of SWANCC.

United States of America v. Interstate General Company, 2002 U.S. App. LEXIS 13232 (4th Cir. July 2, 2002).
In 1999, Interstate General Company pled guilty to knowingly discharging fill materials into a protected wetland in violation of the Clean Water Act (CWA) and entered into a consent decree with the United States. After the SWANCC decision, Interstate General sought to invalidate the consent decree, claiming the Supreme Court legalized the conduct underlying the criminal conviction. A motion to vacate a consent decree is only warranted if there has been “a fundamental or significant change in the law governing [the] case.”4

The wetlands owned by Interstate General are adjacent to headwaters5 of small streams which flow into larger creeks, which in turn flow into the Potomac River and the Chesapeake Bay. As the Chesapeake Bay is navigable, these wetlands are considered “adjacent to” tributaries of navigable waters. Interstate General argued that SWANNC limited the jurisdiction of the Corps solely to traditionally navigable waters and those wetlands directly adjacent to those waters. Interstate General, therefore, claimed that because their wetlands are not immediately adjacent to traditionally navigable waters, a CWA § 404 permit is not required. The Fourth Circuit disagreed.

The Fourth Circuit Court of Appeals narrowly interprets the Supreme Court’s holding in SWANCC to apply only to the Migratory Bird Rule. The Court states that “the Supreme Court’s actual holding is limited to one particular application of 33 C.F.R. § 328(a)(3),”6 namely the exercise of jurisdiction over isolated wetlands. As the Fourth Circuit had reached the same conclusion in 1997, finding the Corps had exceeded its authority by promulgating § 328(a)(3),7 SWANNC effected no fundamental or significant change in the law. Consequently, Interstate General was not entitled to the invalidation of the consent decree.

Furthermore, the Corps had not asserted jurisdiction in this case based upon the Migratory Bird Rule. These wetlands are adjacent to tributaries of navigable waters. The Fourth Circuit found that the Corps’ jurisdiction over adjacent wetlands of tributaries is still intact.

United States v. Krilich, 2002 U.S. App. LEXIS 18445 (7th Cir. September 9, 2002).
The factual background in Krilich is similar to Interstate General. Robert Krilich was charged with violating the Clean Water Act after he discharged fill material into Illinois wetlands without the proper permit. Krilich entered into a consent decree with the United States. After the decision came down in SWANCC, Krilich petitioned to have the consent decree invalidated, claiming the EPA did not have jurisdiction over the wetlands covered by the decree.

In 1992, the Seventh Circuit ruled that the “EPA’s construction of ‘waters of the United States’ as including intrastate, nonadjacent or ‘isolated’ wetlands”8 exceeded its authority under the Clean Water Act. The consent decree between the EPA and Krilich reflected this limitation on the EPA’s authority and stipulated that certain wetlands on Krilich’s property were waters of the United States. After the ruling in SWANCC, Krilich argued that the wetlands in question were isolated and sought to invalidate the consent decree by subjecting the EPA to the same jurisdictional limitation as the Corps. The Seventh Circuit rejected Krilich’s claims as there was no fundamental change in the law which would warrant invalidating the consent decree, as the parties were already operating under the 1992 restriction and had stipulated that the wetlands were indeed “waters of the United States.”

Although the court disposed of the case on other grounds, in its opinion the Seventh Circuit narrowly interprets SWANCC. The court states, similar to the Fourth Circuit in Interstate General, that SWANCC only invalidated the Corps’ exercise of jurisdiction over isolated wetlands pursuant to the Migratory Bird Rule. The Seventh Circuit further indicated that SWANCC did not destroy EPA’s traditional jurisdiction over wetlands adjacent to navigable waters.

Conclusion
Although SWANCC eliminated millions of acres of isolated wetlands from the jurisdictional reach of the Corps, it is apparent from the above cases that Circuit Courts are reluctant to further erode the authority of the Army Corps of Engineers. Both the Fourth and the Seventh Circuits limit SWANCC to the Migratory Bird Rule and do not extend the Supreme Court’s holding to other aspects of the Corps’ jurisdiction. In these Circuits, EPA and the Corps retain the authority to regulate discharges into navigable waters, tributaries, and the wetlands adjacent to both.

ENDNOTES:
1. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).
2. 40 C.F.R. § 328.3(a)(3) (2001).
3. For an in-depth analysis of the Supreme Court’s ruling in SWANCC, see Treadwell, Supreme Court Invalidates Corps’ Migratory Bird Rule, 21:1 Water Log 1 (2001) (available online at http://www.olemiss.edu/orgs/SGLC).
4. United States of America v. Interstate General Company, 2002 U.S. App. LEXIS 13232, at *7 (4th Cir. July 2, 2002).
5. Headwaters refer to the source of a river or stream.
6. U.S. v. Interstate General Company, at *11.
7. See United States v. Wilson, 133 F.3d 251 (4th Cir. 1997).
8. United States v. Krilich, at *2 (citing Hoffman Homes, Inc. v. EPA, 961 F.2d 1310, 1316 (7th Cir. 1992)).

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