Running Aground on the (Shoal) Waters of the United States: The Supreme Court Invalidates the Migratory Bird Rule

For the better part of the last fifty years, the Commerce Clause provided a safe harbor for congressional legislation. However, the legislative landscape began to change with the Supreme Court’s decision in United States v. Lopez. For the first time in nearly sixty years, an act of Congress was invalidated as exceeding the authority granted to Congress by the commerce Clause. As courts applied the stricter standard announced in Lopez, some regulations began to founder under the newly heightened scrutiny. Among the regulations that struggled in these rough waters was 33 C.F.R. § 328.3, the United States Army Corps of Engineers’s (“Corps’s”) definition of “waters of the United States.” In United States v. Wilson, the Fourth Circuit held that 33 C.F.R. § 328.3 exceeded the statutory authority of the CWA in order to avoid raising constitutional questions. Against this background the Supreme Court granted certiorari in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, a case considering whether a series of rain-filled gravel mine qualified as “waters of the United States” under the CWA and the Corps’s Migratory Bird Rule