In a Supreme Court case pitting the U.S. Army Corps of Engineers against local proponents of an Illinois landfill sited on seasonal ponds, both sides agree that the court's decision will answer at least one of two questions:
- Does the wording of the Clean Water Act intend to classify so-called "isolated" ponds as "waters of the United States" subject to federal regulation? Or;
- If Congress did intend to regulate such "isolated" ponds through the Clean Water Act, does it possess the constitutional authority to do so?
After arguing before the U.S. Supreme Court on October 31, attorneys for both sides said the justices' questions focused primarily on the statute's wording. It was clear, the attorneys say, that the court does not plan to question Congress' constitutional authority to regulate discrete bodies of water contained within states' borders.
"[The justices] were interested in what the statute means," says Timothy Bishop, who argued on behalf of a consortium of 23 Chicago-area municipalities. "The [U.S. Army Corps of Engineers] has stretched and strained the language of the statute beyond recognition."
Not so, says Tim Serchinger, an attorney for New York City-based Environmental Defense, which filed in support of the Corps in this case. Serchinger asserts that "the statutory argument was open and shut." Congress already has addressed any ambiguity in the wording of this statute, he says.
The debate started more than 16 years ago when the consortium - called the Solid Waste Agency of Northern Cook County - purchased 18 acres of abandoned strip mine land for a proposed landfill that would provide long-term disposal capacity for the region. During the 50 years since its abandonment, the land had filled with water as deep as 6 to 13 feet in places, creating 200 seasonal ponds that now are home to thousands of migratory birds.
After a permitting process that lasted seven years, the Agency received Illinois' approval for the project. But, citing concerns for the migratory birds and drinking water, the U.S. Army Corps of Engineers quickly vetoed the project on grounds that it violates the Clean Water Act.
The Corps' concerns about drinking water stem from the Solid Waste Agency's failure to provide for long-term landfill maintenance, Serchinger says. "[The Agency] hadn't put aside enough money for maintenance."
Lower federal courts agreed with the Corps, and the Solid Waste Agency appealed to the U.S. Supreme Court.
Now the Justices must decide whether the ponds constitute the "navigable waters" mentioned in and regulated by the Clean Water Act.
According to a Washington, D.C.-based National Public Radio report from correspondent Nina Totenberg, Bishop acknowledged during arguments that if the ponds were navigable by a canoe or a rowboat, they would be covered under the statute.
By these standards "the 6- to 13-foot-deep ponds clearly are navigable," Serchinger says. "Unfortunately," he admits, "the U.S. Solicitor General [arguing on the Corps' behalf] did not bring this up."
Responding to the rowboat question, Bishop explains, "the Court has suggested in previous cases that [the ability to use a rowboat] would be enough to create jurisdiction for the statute, but I don't agree with that conclusion."
Bishop is confident that his side will win.
"I believe they'll say the Clean Water Act does not mean isolated ponds," he says, adding that when he visited the site a few weeks ago, the seasonal ponds were not there.
"I did not see a single heron," he notes. "Birds come and go, and that uncertainty creates unfairness."
According to Bishop, a win for the other side would allow the Corps to "take control over almost any major project anywhere in the country where water can collect." This, he says, is an unjustified expansion of federal power.
Equally adamant about the negative affects of a win for the Solid Waste Agency, Serchinger says, "it's the right thing to do for the federal government to set minimum standards so that businesses can't avoid [these standards] simply by moving to different states.
"How would those members of the high-tech waste industry feel if ... they could be undercut by a primitive, old-fashioned landfill in another state?" he asks.
Serchinger insists that the federal government's efforts to set minimum standards has created the modern waste industry.
Conversely, Bishop asserts that such standards could kill the industry's prosperity by creating enormous costs.
The Supreme Court is expected to make its decision sometime next spring.