Supreme Court Reinforces Local Authority for Land Use

Article excerpt

Last week, the United States Supreme Court upheld the right of state and local government to make local land use decisions based upon a local determination of what is in the best interest of local citizens. In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the Court, in a 54 decision, made clear the Clean-Water Act does not give the federal government jurisdiction over land on which isolated intrastate seasonal ponds are located merely because migratory birds may land there. The effect of this decision is to reinforce the authority of state and local governments to make decisions involving local land use.

Striking down the Corps' "migratory bird rule," the majority -- in an opinion by Chief Justice William H. Rehnquist -- said the government has no authority under the Clean Water Act to monitor the waterborne environment in isolated ponds, pools, mudflats and "prairie potholes." The decision was based on an interpretation of Congressional intent rather than on a conclusion about constitutional limits on Congressional power. But the ruling was nonetheless very much a part of the court's ongoing federalism debate. If Congress had granted the government that authority, the court said, it would probably have violated the Constitution because such expansion of federal power would intrude on "states' traditional and primary power over land and water uses."

Depending on how future rulings define "isolated," the 5-to-4 decision could remove 20 percent of the country's waters from federal oversight. It leaves in place federal regulation of wetlands that, while not actually navigable themselves, abut navigable rivers or their tributaries, an interpretation of the Clean Water Act the Supreme Court upheld in 1985.

For that reason, Chief Justice Rehnquist said in his opinion for the court, Congress should not be understood to have granted the agency this degree of authority in the absence of a "clear statement" to that effect. He said there was no such statement in the Clear Water Act, a 1972 law that gives the Army Corps jurisdiction over dredging and filling of "navigable waters."

Justice John Paul Stevens, writing for the four dissenters, asserted that Congress had written broad language into the Clean Water Act to attack water pollution, to show a "powerful interest" in wetlands and isolated inland lakes. Congress, Stevens said, has regarded the national interest in the aquatic environment as far broader than simply those streams that can be navigated by boats or waterways flowing into those streams. Justice Stevens said the regulation was a "manifestly reasonable" interpretation of the Clean Water Act and was therefore entitled to the deference the Court usually gives to executive branch agencies' interpretations of their statutory authority. There was no reason to inject "the specter of federalism," he said.

The regulation the court invalidated was known as the migratory bird rule, because it asserted jurisdiction over waters that were or could be used by birds that cross state lines or that are protected by international treaties. The Army Corps of Engineers, which issued the regulation in 1986, invoked it in 1994 to block a landfill project on an abandoned strip mine in northeastern Illinois.

The old strip mine had partly returned to forest, with the depressions left by the mining operations having turned into ponds that became a breeding ground for great blue herons. More than 100 species of birds had been seen at the site, which was bought in 1990 by a consortium of 23 municipalities, to use for disposing of solid waste. …