The opinion of the court was delivered by: LINDBERG
This action concerns the future of a 533-acre parcel of real estate owned by plaintiff Solid Waste Agency of Northern Cook County. Defendant United States Army Corps of Engineers asserted regulatory jurisdiction over the property after determining that it contained approximately fifty-five acres of navigable waters as defined by the Clean Water Act. 33 U.S.C. § 1262(7). It then denied plaintiff a permit to develop the property under section 404 of that statute. 33 U.S.C. § 1344(a). Plaintiff sought judicial review of these actions under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. ("APA"), and the parties filed cross-motions for summary judgment on the issue of jurisdiction. For the reasons below, plaintiff's motion for summary judgment will be denied and defendant's motion for summary judgment will be granted.
I. Factual and Procedural Background
Plaintiff Solid Waste Agency of Northern Cook County ("SWANCC") is a municipal corporation created by intergovernmental agreement under the laws of Illinois. Plaintiff owns a 533-acre parcel of real estate located in Cook and Kane Counties, which, due to its prior incarnation as a gravel mining pit, contains large surface depressions that now hold rainwater and other precipitation. Plaintiff sought to convert approximately 180 acres of the property into a balefill, a repository for non-hazardous solid waste that cannot be recycled or otherwise removed from the waste stream. The Army Corps of Engineers determined that 17.6 acres of the balefill area contained "navigable waters" as defined by the Clean Water Act, 33 U.S.C. § 1362(7), and it therefore required plaintiff to obtain a permit for the project under section 404(a) of that statute, 33 U.S.C. § 1344(a).
Section 404(a) of the Clean Water Act authorizes the Corps to issue permits for the "discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a). The Clean Water Act defines navigable waters as "the waters of the United States." 33 U.S.C. § 1362(7). By regulation, the Army Corps of Engineers has further defined the phrase "waters of the United States" to include "all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce." 33 C.F.R. § 328.3(a)(3). In a preamble to this regulation, the Corps has explained that the term "other waters" includes those which "are or would be used as habitat by other migratory birds which cross state lines." 51 Fed. Reg. 41,217 (Nov. 13, 1986). For lack of a better term, perhaps, this language in the preamble has been described as the "migratory bird rule."
On March 12, 1986, plaintiff invited the Corps to determine whether its property contained any "apparent wetlands." (R. 34,594.) On April 17, 1986, the Corps indicated that the SWANCC property did not contain any wetlands or lakes as defined by 33 C.F.R. § 323.2(c) and (e). On February 25, 1987, after acquiring additional land, plaintiff again requested the Corps to indicate whether its property contained any "protected wetlands." (R. 34,598.) On March 4, 1987, the Corps issued a virtually identical letter stating that the property did not contain any wetlands or lakes under 33 C.F.R. §§ 323.2(b) or 328.3(b). In each letter, the agency stated that it did not have jurisdiction over the property and that plaintiff would not need a permit to develop it.
The parties have filed cross-motions for partial summary judgment on the issue of whether the Army Corps of Engineers has regulatory jurisdiction over the 17.6 acres of water on the proposed balefill site. A supplemental brief in support of the government's motion was submitted by intervenor-defendants Village of Bartlett and Citizens Against the Balefill. Plaintiff has argued that the Corps lacks jurisdiction because (1) the migratory bird rule exceeds the legislative authority created by the commerce clause, (2) the agency's assertion of jurisdiction over the waters of the proposed balefill was arbitrary and capricious, (3) the migratory bird rule goes beyond the mandate of the Clean Water Act, and (4) the rule was adopted in violation of the notice and comment requirements of the APA. On May 22, 1997, the court heard oral argument on these issues, and it will now address them in turn.
Plaintiff contends that the waters of the proposed balefill site are not subject to federal regulatory jurisdiction under the commerce clause. It argues that the migratory birds on the balefill site do not have any relationship with interstate commerce because they do not support any human commercial activity on the site itself. Noting that the balefill area is closed to the public and is not visible from adjacent properties, plaintiff reasons that it cannot be subject to federal jurisdiction because "birds do not conduct commerce, people do." (Pl.'s S.J. Mem. at 3.) The court must therefore decide whether the commerce clause authorizes the federal government to exercise regulatory jurisdiction over isolated intrastate waters that serve as a habitat for migratory birds.
The Seventh Circuit addressed this very issue in Hoffman Homes, Inc. v. EPA, 961 F.2d 1310 (7th Cir. 1992) ("Hoffman Homes I "). In that case, a residential developer was fined after it filled a one-acre pond on its property without a permit. Id. at 1311. The EPA had asserted jurisdiction over the pond pursuant to 40 C.F.R. § 230.3(s)(3)
after finding that it could be used as a habitat by migratory birds. Id. at 1311-1312. The Seventh Circuit held that the EPA had exceeded its authority under the commerce clause by extending jurisdiction over the pond based solely on its potential use as a habitat for migratory birds. Id. at 1321-1322. Reasoning that birds do not affect commerce until they are "watched, photographed, shot at or otherwise impacted by the people who do," id. at 1320, the court explained that:
The EPA has provided evidence of only one interstate connection: [The pond] is a potential landing site for migratory birds. Although we recognize that the Commerce Clause power is broad, it has never been extended to reach all areas in (much less those only potentially in) migratory bird flyways. Such an extension, we believe, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government. After all, what area of the United States is not a potential landing spot for migratory birds? The Commerce Clause, at the very least, requires some connection to human commercial activity.
On rehearing, the court vacated its first opinion and held that 40 C.F.R. § 230.3(s)(3) did not violate the commerce clause. Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 260-261 (7th Cir. 1993) ("Hoffman Homes II "). The court explained that it was reasonable for the EPA to interpret the regulation as extending its jurisdiction to waters whose connection with interstate commerce was "potential rather than actual, minimal rather than substantial." Id. at 261. It further explained that the potential use of wetlands by migratory birds was sufficient to invoke commerce clause jurisdiction because "millions of people annually spend more than a billion dollars on hunting, trapping, and observing migratory birds" and "the cumulative loss of wetlands has reduced populations of many bird species." Id. at 261. The court nevertheless ruled in favor of the developer because the EPA had not presented substantial evidence that the water site was a suitable or potential habitat for migratory birds. Id. at 261-262.
The Seventh Circuit has not been alone in suggesting that the migratory bird rule is a valid application of federal commerce clause power. In Leslie Salt Co. v. United States, 896 F.2d 354 (9th Cir. 1990), a company sought to develop a property that contained surface depressions as a result of previous industrial usage. Id. at 355-356. The Army Corps of Engineers asserted jurisdiction over the site under 33 C.F.R. § 328.3(a) because the excavations collected water on a seasonal basis and could be used as a habitat for migratory birds. Id. at 357, 360. The district court held that the ponds were not "other waters" under 33 C.F.R. § 328.3(a) because they were not of a natural origin and were only seasonally filled. Leslie Salt Co. v. United States, 700 F. Supp. 476 (N.D. Cal. 1988) ("Leslie Salt I "). The Ninth Circuit reversed, explaining that the "commerce clause power, and thus the Clean Water Act, is broad enough to extend the Corps' jurisdiction to local waters which may provide habitat to migratory birds and endangered species." Leslie Salt Co. v. United States, 896 F.2d 354, 360 (9th Cir. 1990) ("Leslie Salt II "). When the Court of Appeals remanded the case to the district court to determine whether the ponds could be used as a habitat by migratory birds, the district court found that the property was a seasonal home to more than fifty species of migratory birds and was thus subject to federal commerce clause jurisdiction. Leslie Salt Co. v. United States, 820 F. Supp. 478, 480 (N.D. Cal. 1992) ("Leslie Salt III "). On a second appeal, the Ninth Circuit affirmed this finding and reiterated that the migratory bird rule was a valid exercise of the federal commerce clause power. Leslie Salt Co. v. United States, 55 F.3d 1388, 1392 (9th Cir. 1995) ("Leslie Salt IV ").
The Tenth Circuit reached a similar result in Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984). In that case, the Army Corps of Engineers asserted regulatory jurisdiction over an intrastate lake pursuant to a regulation which, like 33 C.F.R. § 328.3(a), conferred administrative authority over isolated wetlands whose degradation or destruction could affect interstate commerce. Id. at 802 & n.4, 803. Plaintiff argued that the lake had no effect on interstate commerce because it was located entirely within the borders of the state. Id. at 803. The court explained that the lake was subject to federal commerce clause ...