WASHINGTON, Oct. 31 (UPI) - The Supreme Court Tuesday wrestled with the question of whether the states or the federal government has jurisdiction over isolated wetlands that may be necessary to the survival of migratory birds.
The 1972 Federal Water Pollution Control Act, now generally known as the Clean Water Act, gives the Army Corps of Engineers jurisdiction over U.S. "navigable waters." At issue in the case before the Supreme Court is whether that includes isolated ponds or wetlands.
The case out of the Chicago area is being closely watched by environmentalists, who point out that the wetlands are crucial to migrating birds and other wildlife.
The Solid Waste Agency of Northern Cook County represents 23 suburbs of Chicago, and bought 533 acres for a landfill in which to dump toxic waste. Most of the land had been used decades ago for sand and gravel quarries; as a result, it was full of small ponds. A little more than 17 acres of these "wetlands" were earmarked to be part of the landfill.
After receiving all the necessary local permits, and two rejections of jurisdiction by the Army Corp of Engineers, the agency thought it was in shape to begin construction.
However, the corps changed its mind about jurisdiction after a state nature commission determined that the ponds were habitat for 121 bird species, including several species of migratory birds.
When the suburban agency applied in 1994 for a federal permit under the Clean Water Act, the corps, as one federal agency doing the reviewing, denied it.
The local agency then filed suit. A federal judge ruled for the corps, and an appeals court affirmed the judge's action. The appeals court cited Congress's power to regulate interstate commerce - the Commerce Clause of the Constitution - because of the federal government's large-scale efforts to preserve migratory birds.
The agency then asked the Supreme Court for review, citing a conflict of opinions among the federal appeals courts.
Speaking for the agency before the justices Tuesday, Chicago attorney Timothy Bishop pointed out that Illinois "subjected the project to 51 conditions before they would let us proceed," even before the federal government became involved.
The Clean Water Act "is not open-ended," Bishop argued, and does not come into play when there is "any change in the landscape" that turns the terrain into habitats for migratory birds.
The corps' jurisdiction doesn't "extend to isolated ponds (already) regulated by the states," Bishop said.
Speaking for the corps, Deputy U.S. Solicitor General Lawrence Wallace argued that it was "constitutional doubtful" that Congress would be able to protect migratory birds most of the time, but not be able to protect them during "breeding season" when the birds were using the wetlands.
The Supreme Court should hand down a decision in the case within the next several months.
(No. 99-1178, SWANCC vs. U.S. Army Corps of Engineers et al)
© 2000 UPI All Rights Reserved.
