ELR Citation: ELR 21012
No(s). 92-1454 (3d Cir. Jun 25, 1993)

The court upholds a district court's judgment finding a husband and wife strictly liable under the Federal Water Pollution Control Act (FWPCA) for discharging fill material into wetlands on their property without a §404 permit, and denies their appeal of various orders granting the government injunctive relief, finding the husband in contempt of the injunction, and denying the couple's motion for relief from the judgment. The court holds that the couple's wetlands filling activities constituted "discharge into waters" and that the FWPCA permit requirements applied to these discharges. The term "pollutant" as defined in the FWPCA includes dredged spoil, rock, and sand, which are the constituents of the fill material discharged by the couple. Contrary to the couple's contention that the phrase "into water" in the definition of "pollutant" is the critical limiting feature of the FWPCA, Congress intended "navigable waters" to be the controlling phrase in defining the scope of the Act. The court holds that the phrase "navigable waters" modifies the more general term "into water" appearing in the FWPCA definition of "pollutant," rather than that the phrase refers only to the geographic jurisdiction of the Act. The Act's congressional declaration of goals and policy provides that the FWPCA is intended to eliminate discharges of pollutants into navigable waters, and the legislative history of the Act supports this position and provides that it is the discharge of materials constituting "pollutants" into "navigable waters" that triggers the Act's permit requirements. Moreover, placing emphasis on "navigable waters" comports with the interpretation of the Act by other courts, who have reached the same conclusion without expressly considering the "into water" portion of the definition of "pollutant."

The court next holds that the FWPCA use of the word "water," both as part of the "into water" phrase in the definition of "pollutant" and in the phrase "navigable waters," poses no statutory obstacle to the U.S. Army Corps of Engineers' (Corps') regulation under which the district court found the couple liable. Although the couple attempts to argue that the term "water" as used in the Act is unambiguous, thus precluding application of the rule of deference to an agency's statutory interpretation established by Chevron U.S.A., Inc. v. Natural Resources Defense Council, 14 ELR 20507, the U.S. Supreme Court has held that the term "water" lacks a fixed meaning. Applying Chevron in United States v. Riverside Bayview Homes, 16 ELR 20086, the Supreme Court rejected the contention that "water" cannot mean "wetlands" and concluded that the Corps' interpretation of the term to include adjacent wetlands was reasonable. Moreover, the Chevron Court's concern that agencies have political accountability, which courts lack, also supports deference to the Corps' wetlands regulation. The regulations that the couple challenge represent the product of nearly 20 years of policy battles over the scope of federal wetlands protection, and it is not the role of courts to decide which policy choice is better because Congress entrusted that decision to the Corps.

The court holds that because the wetlands in issue qualify as "adjacent" within the meaning of the Corps' regulation, the government was not required to prove that "the use, degradation or destruction of [the couple's wetlands] could affect interstate commerce," in order to subject the couple to liability under the FWPCA. The uncontroverted evidence indicates that the stream running across the couple's property, which the government relied on in tying the filled wetlands to interstate commerce, is a tributary of the Pennsylvania Canal, which flows into the Delaware River. The court further takes judicial notice of the canal's historic significance as an interstate commerce route, and rules that the couple's discharges were into "navigable waters," because the Corps' regulation equates adjacent wetlands with waterways. Moreover, the couple's attempt to shield their filling activities from the Corps' jurisdiction by arguing that their wetlands are essentially isolated wetlands subject to the exemption in the Corps' Nationwide Permit 26 regulation is unavailing, because the couple's use of the adjective "essentially" cannot convert their "adjacent" wetland to an "isolated" wetland. This effort to rewrite the regulation, like the couple's argument that the term "water" cannot mean "wetlands," is a policy question properly put to Congress or the Corps.

The court next holds that application of the Corps' wetlands regulation to the couple's discharge activities did not violate the Commerce Clause to the U.S. Constitution. Contrary to the couple's assertion that the Corps' regulation violates the Commerce Clause because it does not require proof of a specific effect on interstate commerce from the couple's filling activities, the case law construing the Commerce Clause in light of other federal statutes does not reveal any requirement to show local or regional aggregation or cumulative impacts to interstate commerce in order to establish a Commerce Clause violation. The Corps' decision to regulate wetlands located above the headwaters of the adjacent watercourse under Nationwide Permit 26 is a classification that has no significance for interstate commerce purposes.

Finally, the court upholds the district court's various other orders entered during the course of the litigation. First, the court upholds the district court's order of contempt against the husband for his past violations of the temporary restraining order against filling on the property and the order to pay $5,000 within 48 hours or be jailed. The district court afforded the husband the protections necessary for a valid finding of criminal contempt, even though the order contains aspects of civil contempt. The government's petition sought contempt sanctions for past violations, and expressly requested that the husband be incarcerated five days for each prior violation and fined $25,000 for each continued violation. This petition put the husband on notice of the criminal nature of the contempt proceeding. Moreover, the husband was not prejudiced by the timing of the notice, since the overwhelming evidence showed that he knew of the post-restraining order dumping and it occurred with his approval. The court also upholds the district court's denial of the couple's contention that they should be able to direct the redeposition of the illegally placed fill material, because the couple's repeated noncompliance with the FWPCA and the Corps' directives to stop filling foreclose such equitable relief.

[Previous decisions in this litigation are published at 22 ELR 20353, 20536, and 20772.]

Counsel for Appellees
Vicki Plaut, J. Carol Williams
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellants
Paul D. Kamenar
Washington Legal Foundation
1705 N St. NW, Washington DC 20036
(202) 857-0240