Migratory bird rule
Encyclopedia
The migratory bird rule, adopted by the United States Army Corps of Engineers
and the Environmental Protection Agency (EPA) asserted that the Clean Water Act
covers regulation of isolated waters "which are or would be used as habitat by... migratory birds that cross state lines." The rule was overturned by the Supreme Court in 2001.
Based on paragraph 3, above, the Migratory Bird Rule asserted in 1986 that the power of the Federal Government, under the Clean Water Act, could be extended to isolated, intrastate, non-navigable waters based on the following factors being present:
threw out the “Migratory Bird Rule,” A case that pitted a consortium of towns around Chicago, Illinois over isolated wetlands, inhabited or visited by over 100 migratory bird species, against the US Army Corps of Engineers. In this case, Skokie, Illinois
wanted abandoned quarries filled with water, but not connected to another or navigable body of water to serve as a site for a solid waste facility. For the previous 15 years lower courts had sustained the rule in favor of migratory birds, siding with the Army Corps.
The Supreme Court held that neither the Corps nor the EPA can exert CWA jurisdiction over isolated, intrastate, non-navigable waters, where the sole basis for asserting CWA jurisdiction rests on the three factors listed under the Migratory Bird Rule, above.
At least one state reacted to the new Supreme Court ruling by restoring isolated wetlands protection: the 2001 Wisconsin Act 6 is the first of its kind nationwide to restore wetlands regulation to the state after federal authority had been revoked. It restores protection to over 1 million acres (4,046.9 km²) of isolated wetlands in Wisconsin. On May 7, 2001, Wisconsin Governor Scott McCallum
signed a bill protecting wetlands by placing Wisconsin wetlands regulation under the jurisdiction of the Wisconsin Department of Natural Resources.
United States Army Corps of Engineers
The United States Army Corps of Engineers is a federal agency and a major Army command made up of some 38,000 civilian and military personnel, making it the world's largest public engineering, design and construction management agency...
and the Environmental Protection Agency (EPA) asserted that the Clean Water Act
Clean Water Act
The Clean Water Act is the primary federal law in the United States governing water pollution. Commonly abbreviated as the CWA, the act established the goals of eliminating releases of high amounts of toxic substances into water, eliminating additional water pollution by 1985, and ensuring that...
covers regulation of isolated waters "which are or would be used as habitat by... migratory birds that cross state lines." The rule was overturned by the Supreme Court in 2001.
Background
The Clean Water Act defines the waters of the United States as- All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerceInternational tradeInternational trade is the exchange of capital, goods, and services across international borders or territories. In most countries, such trade represents a significant share of gross domestic product...
, including all waters which are subject to the ebb and flow of the tide (navigable waters); - All interstate waters, including interstate wetlandWetlandA wetland is an area of land whose soil is saturated with water either permanently or seasonally. Wetlands are categorised by their characteristic vegetation, which is adapted to these unique soil conditions....
s; - All other waters, such as intrastate lakeLakeA lake is a body of relatively still fresh or salt water of considerable size, localized in a basin, that is surrounded by land. Lakes are inland and not part of the ocean and therefore are distinct from lagoons, and are larger and deeper than ponds. Lakes can be contrasted with rivers or streams,...
s, riverRiverA river is a natural watercourse, usually freshwater, flowing towards an ocean, a lake, a sea, or another river. In a few cases, a river simply flows into the ground or dries up completely before reaching another body of water. Small rivers may also be called by several other names, including...
s, and streamStreamA stream is a body of water with a current, confined within a bed and stream banks. Depending on its locale or certain characteristics, a stream may be referred to as a branch, brook, beck, burn, creek, "crick", gill , kill, lick, rill, river, syke, bayou, rivulet, streamage, wash, run or...
s (including intermittent streams), mudflatMudflatMudflats or mud flats, also known as tidal flats, are coastal wetlands that form when mud is deposited by tides or rivers. They are found in sheltered areas such as bays, bayous, lagoons, and estuaries. Mudflats may be viewed geologically as exposed layers of bay mud, resulting from deposition of...
s, sandflats, wetlandWetlandA wetland is an area of land whose soil is saturated with water either permanently or seasonally. Wetlands are categorised by their characteristic vegetation, which is adapted to these unique soil conditions....
s, sloughSloughSlough is a borough and unitary authority within the ceremonial county of Royal Berkshire, England. The town straddles the A4 Bath Road and the Great Western Main Line, west of central London...
s, prairie potholePrairie potholeThe Prairie Pothole Region is an area of the northern Great Plains and midgrass and tallgrass prairies that contains thousands of shallow wetlands known as potholes. These potholes are the result of glacier activity in the Wisconsin glaciation, which ended approximately 10,000 years ago...
s, wet meadowWet meadowA wet meadow is a semi-wetland meadow which is saturated with water throughout much of the year. Wet meadows may occur because of poor drainage or the receipt of large amounts of water from rain or melted snow. They may also occur in riparian zones....
s, playa lakes, or natural pondPondA pond is a body of standing water, either natural or man-made, that is usually smaller than a lake. A wide variety of man-made bodies of water are classified as ponds, including water gardens, water features and koi ponds; all designed for aesthetic ornamentation as landscape or architectural...
s, the use, degradation, or destruction of which could affect interstate or foreign commerce, including any such waters:- Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
- From which fishFishFish are a paraphyletic group of organisms that consist of all gill-bearing aquatic vertebrate animals that lack limbs with digits. Included in this definition are the living hagfish, lampreys, and cartilaginous and bony fish, as well as various extinct related groups...
or shell fishShellfishShellfish is a culinary and fisheries term for exoskeleton-bearing aquatic invertebrates used as food, including various species of molluscs, crustaceans, and echinoderms. Although most kinds of shellfish are harvested from saltwater environments, some kinds are found only in freshwater...
are or could be taken and sold in interstate or foreign commerce; or - Which are used or could be used for industrial purposes by industries in interstate commerce.
- All impoundmentImpoundmentImpoundment is the election of a President of the United States not to spend money that has been appropriated by the U.S. Congress. The precedent for presidential impoundment was first set by Thomas Jefferson in 1801. The power was available to all presidents up to and including Richard Nixon, and...
s of waters otherwise defined as waters of the United States under the definition; - Tributaries of waters identified in paragraphs a (1)-(4) of this section;
- The territorial seas;
- Wetlands adjacent to waters identified in paragraphs (1)-(6).
Based on paragraph 3, above, the Migratory Bird Rule asserted in 1986 that the power of the Federal Government, under the Clean Water Act, could be extended to isolated, intrastate, non-navigable waters based on the following factors being present:
- Use of the water as habitat by birds protected by the Migratory Bird Treaty Act;
- Use of the water as habitat for Federally protected endangered or threatened speciesEndangered Species ActThe Endangered Species Act of 1973 is one of the dozens of United States environmental laws passed in the 1970s. Signed into law by President Richard Nixon on December 28, 1973, it was designed to protect critically imperiled species from extinction as a "consequence of economic growth and...
; or - Use of the water to irrigate crops sold in interstate commerce.
Overturning the rule
On January 9, 2001 the US Supreme Court in Solid Waste Agency of Northern Cook Cty. v. Army Corps of EngineersSolid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 , was a decision by the Supreme Court of the United States interpreting a provision of the Clean Water Act...
threw out the “Migratory Bird Rule,” A case that pitted a consortium of towns around Chicago, Illinois over isolated wetlands, inhabited or visited by over 100 migratory bird species, against the US Army Corps of Engineers. In this case, Skokie, Illinois
Skokie, Illinois
Skokie is a village in Cook County, Illinois, United States. Its name comes from a Native American word for "fire". A Chicago suburb, for many years Skokie promoted itself as "The World's Largest Village". Its population, per the 2000 census, was 63,348...
wanted abandoned quarries filled with water, but not connected to another or navigable body of water to serve as a site for a solid waste facility. For the previous 15 years lower courts had sustained the rule in favor of migratory birds, siding with the Army Corps.
The Supreme Court held that neither the Corps nor the EPA can exert CWA jurisdiction over isolated, intrastate, non-navigable waters, where the sole basis for asserting CWA jurisdiction rests on the three factors listed under the Migratory Bird Rule, above.
At least one state reacted to the new Supreme Court ruling by restoring isolated wetlands protection: the 2001 Wisconsin Act 6 is the first of its kind nationwide to restore wetlands regulation to the state after federal authority had been revoked. It restores protection to over 1 million acres (4,046.9 km²) of isolated wetlands in Wisconsin. On May 7, 2001, Wisconsin Governor Scott McCallum
Scott McCallum
Scott McCallum is a member of the Republican Party who served as the 43rd Governor of Wisconsin, from 2001 to 2003. Prior to assuming the role of governor upon the appointment of Tommy Thompson as Secretary of Health and Human Services, McCallum served as a member of the Wisconsin State Senate and...
signed a bill protecting wetlands by placing Wisconsin wetlands regulation under the jurisdiction of the Wisconsin Department of Natural Resources.