ELR Citation: ELR 21096
No(s). s. 88-03100-RV, 91-30428-RV (N.D. Fla. Mar 31, 1993)

The court holds that the U.S. Supreme Court's decision in United States v. Riverside Bayview Homes, 16 ELR 20086, constrains the court to rule that Congress' delegation of authority to the U.S. Army Corps of Engineers (Corps) under the Federal Water Pollution Control Act (FWPCA) to define "waters of the United States," which the Agency has defined to include "wetlands," the illegal filling of which may be punished by incarceration, is not an unconstitutional delegation of legislative power to the executive branch. A father and son were convicted of discharging sand, a pollutant under the FWPCA, into "dry" wetlands determined to be "waters of the United States," and were each sentenced to 21-month prison terms, one-year supervised releases, $5,250 fines, and compliance with a site restoration plan. On direct appeal to the Eleventh Circuit, the men challenged that they were prevented from introducing evidence at trial that the land in question was probably not wetland for purposes of the FWPCA at the time of the alleged violations, because the developer of the area containing the men's lot had blocked and partially filled an old drain that ran through their lot causing the wetland conditions. After the Eleventh Circuit upheld the trial court's sentence, the men entered motions under 28 U.S.C. §2255 to vacate, set aside, or correct their sentences.

The court first notes that the father and son procedurally defaulted at trial and on direct appeal by failing to raise their challenge to the constitutionality of Congress' delegation, which generally bars a movant from raising the same issue in a §2255 proceeding. The court observes, however, that even though the men are correct in stating that procedural defaults such as theirs, in certain exceptional circumstances, may be excused to avoid a fundamental miscarriage of justice, Supreme Court precedent constrains the court to conclude that the FWPCA does not impermissibly delegate legislative power to the Corps. The court further observes that the principle that the U.S. Constitution prohibits Congress from delegating its legislative authority is essentially nugatory, because little is required for Congress to obtain the assistance of its coordinate branches. The Supreme Court has ruled that as long as Congress provides by legislative act an intelligible principle to which the person or body authorized to act is directed to conform, such legislative action is not a forbidden delegation of legislative power.

The court holds that based on the language, policies, and legislative history of the FWPCA, in light of Riverside Bayview Homes, the Act does not impermissibly delegate authority to the Corps by allowing the Agency to define "waters of the United States" to include "wetlands," and to define "wetlands" as encompassing land that is not "wet" in the ordinary sense of the word. Congress intended "waters of the United States" to extend as far as permissible under the Commerce Clause to satisfy the FWPCA's overriding purpose. Subsequently, the Supreme Court concluded in Riverside Bayview Homes that the Corps' interpretation that the term "waters of the United States" includes wetlands adjacent to what are conventionally thought of as "waters" is consistent with the broad purposes of the FWPCA.

The court holds that although a person of common intelligence may not be able to ascertain that the FWPCA's statutory prohibition against discharging pollutants into "waters of the United States" applies to the placing of clean dirt fill onto an apparently dry waterfront lot, the Supreme Court has approved the Corps' power to extend the Act to encompass wetlands and the court must abide by that precedent. The criminal laws, as a general principle, are to be construed strictly to ensure fair warning of the boundaries of criminal conduct and that legislatures, not courts, define criminal liability. Although it denies the men's motions to vacate, the court concludes that a delegation doctrine which essentially allows Congress to abdicate its power to define the elements of a criminal offense in favor of an unelected administrative agency such as the Corps, does violence to the time-honored principle of strictly construing criminal laws.

Counsel for Plaintiff
Samuel A. Alter Jr., Ass't U.S. Attorney
114 E. Gregory St., Pensacola FL 32301
(904) 434-3251

Counsel for Defendants
Ronald W. Johnson
Kinsey, Troxel, Johnson & Walborsky
438 E. Government St., Pensacola FL 32301
(904) 434-5267