ELR Citation: ELR 21139
No(s). 90-3810 (7th Cir. Jul 19, 1993)

The court holds that a one-acre wetland that does not border a stream or adjoin a large wetland, which has no surface or groundwater connection and whose only source of moisture is rainfall, and which is only wet part of the year, is not a "water of the United States" subject to the U.S. Environmental Protection Agency's (EPA's or the Agency's) dredge and fill regulations under the Federal Water Pollution Control Act (FWPCA). This ongoing case is back before the Seventh Circuit after the court, en banc, vacated its panel's previous decision, which held that EPA went beyond the limits of the FWPCA in seeking to regulate a developer's activities on land containing an intrastate, isolated wetland. After vacating the panel's ruling, the Seventh Circuit referred the case to a senior staff attorney of the court for settlement negotiations, which the parties were unable to resolve, and the case is now back before the original panel of the Seventh Circuit.

The court holds that EPA's chief judicial officer (CJO) properly ruled that the wetland at issue was covered by the Agency's definition of "waters of the United States" at 40 C.F.R. §230.3(s)(3). That regulation includes waters which could be used by interstate travellers, indicating that the connection to interstate commerce may be potential rather than actual, minimal rather than substantial. The court further holds that the CJO properly interpreted the regulation as allowing migratory birds to be the connection between a wetland and interstate commerce, typically in the form of hunting, trapping, and observing migratory waterfowl. The court, however, holds that the CJO's conclusion that the wetland was suitable for migratory bird habitat was not supported by substantial evidence, and EPA's order requiring the developer to pay an administrative penalty for filling the wetland is vacated. An EPA administrative law judge (ALJ) found no evidence that any migratory birds actually used the area and witnesses testified to seeing only migratory birds in an area near the wetland. Nonetheless, the CJO concluded on the same evidence that the wetland was a site suitable to migratory birds. Although it is true that migratory birds can, and do, alight most anywhere, no justification existed from the evidence to expand EPA's FWPCA jurisdiction over the wetland.

[Previous decisions in this litigation are published at 20 ELR 20002 and 20884, and 22 ELR 21148 and 21547.]

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

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

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