NCPA - National Center for Policy Analysis

Supreme Court Restricts Reach Of Clean Water Act

January 16, 2001

In a 5-4 decision last Tuesday, the U.S. Supreme Court ruled that the Army Corps of Engineers may not regulate an abandoned gravel pit as a navigable waterway within the Corps' jurisdiction under the Clean Water Act. In the process the Court knocked aside a regulation derisively known as the "glancing geese" rule.

Here's the story:

  • For the past 15 years, the Environmental Protection Agency and the Corps have regulated nearly every wet spot they could find because it just might become a habitat for migratory birds crossing state lines -- leading critics to refer to the doctrine as the "glancing geese" rule, because if the bird even glanced at a puddle federal regulators claimed it was involved in interstate commerce and hence under their jurisdiction.
  • The Corps refused to issue a permit to the town of Skokie, Ill., to use the abandoned gravel pit as a landfill.
  • But the Supreme Court ruled that the Clean Water Act protects only "navigable waters" -- dismissing the Corps' argument that the pools of water left in the pit by winter snows made it a protected "wetland."
  • The Corps has used such arguments in the past to subject roughly 100 million acres to federal controls.

The Court's decision makes clear that in the future it intends to use federalism to limit the expansive field of federal environmental regulation.

Source: Editorial, "The Glancing Geese Test," Wall Street Journal, January 16, 2001.


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