ELR Citation: ELR 21148
No(s). 90-3810 (7th Cir. Apr 20, 1992)

The court holds that the U.S. Environmental Protection Agency's (EPA's) regulation at 40 C.F.R. §230.3(s)(3) defining intrastate, nonadjacent (isolated) wetlands as "waters of the United States" under the Federal Water Pollution Control Act (FWPCA) is invalid, and the court vacates a $50,000 administrative penalty imposed by EPA under FWPCA §309 against a developer for placing fillmaterial in an isolated wetland without an FWPCA §404 permit. The court first holds that EPA's regulation of isolated wetlands is beyond the scope of the FWPCA. Isolated wetlands are not part of an aquatic ecosystem and do not control floods or pollution in other bodies of water. Protecting such wetlands would not further the objectives of the FWPCA to restore and maintain the chemical, physical, and biological integrity of the nation's waters. Moreover, the court notes that neither the FWPCA nor its legislative history, either in 1972 or 1977, mention isolated wetlands or were intended to protect isolated wetlands. Thus, EPA's construction of FWPCA §404 to include authority over such wetlands is unreasonable. The court next holds that isolated wetlands are not within the reach of the Commerce Clause of the U.S. Constitution, because no evidence exists to connect the wetland that the defendant filled with interstate commerce. No evidence was presented to show that filling the isolated wetland would affect navigation, pollute another open body of water used for irrigation, fishing, or recreation, or affect interstate travelers. EPA's sole claim that migratory birds could use the wetland as a basis for Commerce Clause jurisdiction is not rational, because no federal court has ever held that the mere presence of wildlife—actual or potential, interstate or intrastate—is enough to invoke the Commerce Clause power. Rather, in Commerce Clause precedents, the government has come forward with some connection, however tenuous, with human activity sufficient to have an impact on interstate commerce. Moreover, to extend the Commerce Clause power over all areas in migratory bird flyways would effectively obliterate the distinction between what is national and what is local, and create a completely centralized government. The Commerce Clause, at the very least, requires some connection to human commercial activity.

[Previous decisions in this litigation are published at 20 ELR 20002 and 20884.]

Counsel for Petitioner
Virginia Albrecht
Beveridge & Diamond
1350 I St. NW, Ste. 700, Washington DC 20005
(202) 789-6000

Counsel for Respondent
Daniel Pimkston
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before WOOD, JR.^* and MANION, Circuit Judges, and ROSZKOWSKI, Senior District Judge.^**