Journal of Environmental and Sustainability Law Journal of Environmental and Sustainability Law

Missouri Environmental Law and Policy Review Volume 6 Issue 1 1998-1999

Article 3

1998

Defining the Limits of Wetland Regulation under the CWA and the Defining the Limits of Wetland Regulation under the CWA and the

Commerce Clause. United States v. Wilson Commerce Clause. United States v. Wilson

Stephen S. Davis

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Recommended Citation Recommended Citation Stephen S. Davis, Defining the Limits of Wetland Regulation under the CWA and the Commerce Clause. United States v. Wilson, 6 Mo. Envtl. L. & Pol'y Rev. (xiv) (1998) Available at: https://scholarship.law.missouri.edu/jesl/vol6/iss1/3

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DEFINING THE LIMITS OF WETLAND REGULATIONUNDER THE CWA AND THE COMMERCE CLAUSE

United States v. Wilson'

by Stephen S. Davis

Limits of Wetland RegulationRiver and consists of about 4,000developed acres with a populationof 33,000 people at present.'When completed, the developmentwill cover more than 9,000 acresand have 80,000 residents.' Thecity was created pursuant to theNew Communities Act of 1968 asa collaboration between Interstate

I. INTRODUCTION Court to clarify its Commerce and the U.S. Department ofHous-Ever since the Supreme Clause jurisprudence and resolve ing and Urban Development

Court declared in 1985 that fed- the issue ofwetland regulation un- I The agreement betweeneral agencies could regulate wet- der the CWA. Unfortunately, the Interstate and HUD reserved por-lands adjacent to navigable water- United States chose not to appeal tions of St. Charles for parks,ways under the Clean Water Act the Fourth Circuit's decision, schools, and recreational areas, and("CWA"), federal courts have also set aside 75 acres of wetlandsseemed puzzled as to how far to 11. FACTS AND HOLDING near the Zekiah Swamp.' As re-extend wetland regulation. The In 1996, a jury convicted quired, Interstate and HUD pre-Court's decision in U.S. v. Lopez James J. Wilson along with two pared an Environmental Impactrenewed concerns about the limits firms he controlled, Interstate Gen- Statement for St. Charles, but theof permissible wetland regulation eral ("Interstate") and St. Charles statement did not mention any spe-under the Commerce Clause, since Associates, offourfelony counts of cific plan for development ofnot all wetlands are or lie adjacent knowingly discharging fill material Wilson's land within the wetlandto navigable waterways. In US v. and excavated dirt into wetlands area. This statement also did notWilson, the Fourth Circuit has now without a permit.I Wilson has been constitute a permit under the CWAheld that wetlands not adjacent to a land developer for over 30 years for development of the wetland ininterstate waters may not be regu- and was declared responsible for question.'lated under the CWA. This deci- both finns' activities from which this Evidence introduced at trialsion directly contradicts pre-Lopez dispute arose.3 The development at indicated that Wilson violated fed-rulings and receives criticism be- issue was located in the planned eral regulations by draining fourcause of Lopez's unpopularity community of St. Charles, Mary- parcels of land classified as wet-among courts. U.S. v. Wilson land.' St. Charles is situated in lands.' 0 Wilson drained the area bytherefore would have represented Charles County between the both digging drainageditchesto al-an opportunity for the Supreme Chesapeake Bay and the Potomac low for run-offand buding up the't133 FF3dr25t C4ithCir. 1997).2

JJames Wilson was CEO and Chairman of the Board of Interstate General Co. L.P. a publicly traded land detolopmentcompany with 340 employees, 2f000 shareholders, and assets of over 100 million, interstate General was the general partnerof St. Charles Associates, L.P., the firm which owned the land being de% eloped within St. Charles, Maryland U1Ison, 133 F3dat 254.

41d.

'Id6M.

'1d81d91d.'kwdi at 254-55.

Vol 6 Nn Iland by depositing truck loads offill material over it." The dirt re-moved in the digging process wasdeposited next to the ditches, in aprocess termed "sidecasting."The Army Corps of Engineers("Corps"), the agency with regula-tory authority over wetlands underthe CWA, charged the defendantswith violating rules prohibiting wet-land pollution without a permit.1"

One issue at trial waswhether the parcels should be clas-sified as wetlands. The governmentintroduced "substantial" evidencethat the area was in fact a wetland.14According to the National Wet-lands Inventory Map and other to-pographical maps, the area was awetland. In addition, testimony andphotographs proved the presenceof standing water and vegetationtypical ofwetland areas, and infra-red aerial photographs showed apattern ofwater currents under the

vegetation." The Corps also dem-onstrated that water from the landflowed in a drainage pattern throughintermittent streams and creeks tothe Potomac River, emptying intothe Chesapeake Bay.'6 Finally, thegovernment introduced evidencesupporting its claim that Wilsonacted knowingly, the mens rea re-quired for conviction under the rel-evant regulations.'"

Wilson introduced evi-dence questioning the government'sassertion that the parcels in ques-tion were in fact wetlands under theCWA. This evidence included in-consistent actions ofthe Corps con-cerning the land and an intra-agencymemorandum questioning theclassification ofthe area as wetlandsunder the Act.'" After deliberatingfor 15 hours, the jury returned averdict for the government.19

In appealing his conviction,Wilson argued that the regulation he

allegedly violated was ultra vires, inthat it extended the application ofthe CWAs definition of waters un-der the Corps' jurisdiction to theparcels ofland in controversy. Spe-cifically, Wilson claimed that defin-ing "waters of the United States"as any waters whose "degradation'could affect' interstate commerce"improperly reached the parcels be-cause it violated the CommerceClause.20 He asserted that allow-ing the jury to justify regulation ofinterstate commerce by basing it onactivities that "could affect" inter-state commerce afforded the gov-ernment practically limitless author-ity and offended the U. S. SupremeCourt's recent Commerce Clausejurisprudence.2' The Fourth CircuitCourt ofAppeals set aside the con-viction and ordered a new trial,holding that the underlying regula-tion exceeded Congress' delegationof authority under the CWA in that

"Id at 254.121d.

"Id. at 255. See 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A). The Corps andthe EPA share responsibility for administering andenforcing the CWA. The EPA has authority to seek penalties for discharge of pollutants into waters of the United Stateswithout a permit in violation of 33 U.S.C. § 1311. The EPA can issue an order requiring compliance with the Act, bring a civilaction for injunctive relief and penalties, or seek administrative relief. The Corps has authority to issue permits to dischargedredged or fill materials into water covered by the Act. The Corps follows the guidelines established by the EPA in issuingpermits. The Corps also has authority to enforce violations of these permits, and the EPA has a veto power over the issuanceof permits when it determines, after consulting with the Corps, that the dredging or fill materials "will have an unacceptableadverse effect on municipal water supplies, shellfish beds. . .wildlife, or recreational areas." 33 U.S.C. § 1344(c). See HoffmanHomes, 961 F 2d at note 2. infra note 54.'4 ilson, 133 F.3d at 254."Id at 254.'61d at 254-55.

"Id. at 255. The evidence demonstrated that Wilson made extra efforts in constantly draining and re-draining the land,shoring up the land through the addition of hundreds of truckloads of filler, and fighting off reappearing wetland vegetation.In addition. a private consulting firm advised Wilson to apply for a permit from the Corps before beginning development. Thezoning commission in Charles County also contacted Wilson regarding its concerns that he was developing in a wetlandarea. Finally, even after Wilson complied with a Corps order to cease development on the land in question, Wilson continuedto develop other parcels without notifying the Corps or seeking a permit for them. Id.2 d.

' 0 Id. at 256.

Limits of Limits of Wetland Regulation

it encompassed areas not under thejurisdiction ofCongress pursuant toits commerce power.22

III. LEGAL BACKGROUND

Congress enacted theCWA pursuant to its authority un-der the Commerce Clause, but theambiguity of the Act's terms hascaused constitutional confusion.3The Act prohibits discharges ofdredge or fill material without a per-mit into "navigable waters."24 TheAct defimes "navigable waters" as"waters of the United States," anundefined, troubling jurisdictional

phrase which does not clearly en-compass wetlands." At first, theCorps, which administers section404 of the Act - the section re-quiring permits for dischargingdredged and fill materials into navi-gable waters - interpreted the termnarrowly and promulgated rulesaccordingly, only prohibiting dis-charges without a permit into bod-ies of water that were truly navi-gable and excluding wetlands fromregulation. 6 However, courtsstruck down these regulations be-cause they conflicted with the over-all purpose of the Act.2 7

7Id at 256.221d at 258. This Note deals exclusively with the Court of Appeals holding regarding the Commerce Clause and the regulationof wetlands under the CWA. Not discussed are the felony violation issues of the Court's decision, such as the mens rearequirement of the CWA regulations and the associated jury instruction issue. For treatment of felony violations of CWAprovisions, see the following: Richard J. Lazarus, Mens Rea in Evironmental Criminal Law: Reading Supreme Court 7eaLeaves, 7 FORDmI ~ENv-. L.J. 861 (1996); Patrick W Ward, Comment. The Criminal Provisions ofthe CI-A as Interpretedbythe Judiciary and the Resulting Response from the Legislature, 5 DICK. J. ENvn. L. & POLY 399 (1996): and Christine L.Wettach, Mens Rea and the "Heightened Criminal Liability - Imposed on Tliolators of the CW-4. 15 STAN. ENrLu. L.J. 377(1996).2 3 See U.S. Const. art. I, § 8, cl. 3.2433 U.S.C. § 1311(a).25See 33 U.S.C. §§ 1311(a), 1362(12)(A) and 33 C.FR. § 328.3(a)(3) (1993). For a more complete description of the regulatorydevelopment of wetlands under the CWA, see George K. Chamberlin, Annot.. What are "Navigable Maters " Subject to theProvisions ofthe Federal Water Pollution Contro/Act, asAmended. 52 A.L.R.FED. 788 (198 1); Elaine Bueschen, Comment,Do Isolated WetlandsSubstantiallyAffectInterstate Commerce?. 46 Am. U. L.REv. 931. 935 (1997). J. Blanding Holman.AfterUnited States v Lopez: Can the CWJA and the EndangeredSpeciesActSurvive Commerce ClauseAttack?, 15 VA. ENrIL. L.J.139, 165 (1995); StephenM. Johnson, Federal Regulation oflsolated Wetlands, 23 ENVTm. L. 1. 9 (1993) and John A. Leman.The Birds: Regulation oflsolated Wetlands and the Limits ofthe Commerce Clause, 28 U.C. DAvis L.REV. 1237. 1244 (1995).26Johnson, supra note 25, at 10.271d at 360 (citing U.S. v. Holland, 373 F.Supp. 665 (M.D. Fla. 1974), and Natural Resources Defense Councilv. Callaway. 392F.Supp. 685 (D.D.C. 1975)).UId at 11-12. See also 42 Fed Reg. 37,122 (1977).2 9Johnson, supra note 25, at I1-12.301d. The regulation at issue in Wilson defines "waters of the United States" to include: "All other waters such as intrastatelakes, rivers, streams (including intermittent streams), mud flats, sand flats, wetlands. sloughs. prairie potholes. wet mead-ows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate commerce." 33 C.F.R.§ 328.3(a)(3) (1993). See 1ilson, 133 F.3d at 256-57.4See U.S. v. Rands, 389 U.S. 121, 122-23 (1967) (quoting Gilman v. Philadelphia, 70 U.S. 713. 724-25 (1865)). In Gilman, theCourt stated that "[tihe Commerce Clause confers a unique position upon the Government in connection with navigablewaters. 'The power to regulate commerce comprehends the control for that purpose. and to the extent necessary, of all thenavigable waters of the United States . S.. ."ee il/son, 133 F.3d at 256.

Subsequently, the Corpspromulgated new rules defining"waters ofthe United States."' Theregulation included wetlands amongthose waters regulated.29 The rulesprohibited permitless dischargesinto wetlands adjacent to waters ofthe United States and, on a case-by-case basis, non-adjacent wet-lands whose "degradation" couldaffect interstate commerce.3 0 Theauthority of Congress to regulatenavigable waters under the Com-merce Clause has long been upheldby the Supreme Court." Thepresent controversy arose because

Vol. 6 *No.1

ofthe regulation's expansion ofthereach of the Act from navigablewaters to all waters of the UnitedStates, including those waterswhose "degradation 'could affect'interstate commerce." 32

In 1985, the SupremeCourt dealt with the authority ofCongress to regulate navigablewaters under the CWA in U.S. v.Riverside Bayview Hvmes, Inc.3

In that case, the Court upheld theCorps' definition of"waters oftheUnited States," which included wet-lands adjacent to navigable wa-ters.M The Corps filed suit to halt ahousing development because thedeveloper did not have the requi-site permits to dredge and fill theland." The Court limited its discus-sion to adjacent wetlands becausethe wetland at issue bordered theBlack Creek, a navigable water-way, and the wetland had ground-water connections with other bod-ies of water.' The Court stated thatin using the term "navigable" in theCWA, Congress "evidently in-tended to repudiate limits" previ-

ously applied to pollution controlstatutes in order to regulate "at leastsome waters that would not bedeemed 'navigable' under the clas-sical understanding ofthat term." 7

Thus, the Court concluded, it wasreasonable for the Corps of Engi-neers to construe the term "watersof the United States" as encom-passing wetlands that are adjacentto what are commonly considerednavigable waters."

Since the subject in contro-versy in Riverside Bayview Homeswas an adjacent wetland, the Su-preme Court left open the issue ofwhether CWA regulations governnon-adjacent wetlands." A fewyears after the Riverside BayviewHomes decision, the issue of iso-lated wetlands emerged in twocases before the federal courts ofappeals. The first case, Leslie SaltCo. v U. S., was heard by the NinthCircuit; the other, HoffmanHomes, Inc. v. Administrator,U.S. Environmental ProtectionAgency, arose in the Seventh Cir-cuit.40

In Leslie Salt, the Court ofAppeals for the Ninth Circuit heldthat a wetland lying a quarter-milefrom the Newark Slough, a tidal armofthe San Francisco Bay, could beregulated under the CWA. 4 1 Theland at issue fell under the Act eventhough its characteristics as a wet-land arose through artificial means.42

In the early part of the century,Leslie Salt Company's predeces-sor in interest excavated pits fordepositing calcium chloride andother pits for crystalizing salt. 3 Saltproduction later ceased in the late1950s, but the pits remained.'These pits filled with rainwater dur-ing the rainy season, but wetland-type vegetation did not grow foryears because ofthe land's high saltcontent.4 ' The government laterconstructed a sewer line and pub-lic roads in and around the prop-erty that created culverts connect-ing the land to the NewarkSlough.' The area also becamereachable to ocean tidal backflowwhen the state highway agency de-stroyed a tidegate on neighboring

32 filson. 133 F.3d at256.3 3474 U.S. 121, 133 (1985).4RiversideBawiewHones, 474 U.S. at 133.

35 d.36Id at 131.371d at 132-33.3 1d at 133.39Id at 131, n.8. The Court expressed. "We are not called upon to address the question of the authority of the Corps toregulate discharges of fill material into wetlands that are not adjacent to bodies of open water ... and we do not express anyopinion on that question." Id. See also Johnson, supra note 25 at 19."0See Leslie Salt, infra note 41. and Hoffman Homes. infra note 55.4tLeslie Salt Co. v U.S.. 896 F2d354, 355 (9th Cir. 1990).42ld at 355.431d.44Id.45Id.4 1d. at 356.

land." When Leslie began effortsto drain the land in the mid-I 980s,the Corps issued a cease and de-sist order under § 404 of theCWA.48

The court explained thatgovernment jurisdiction would in-clude the wetland at issue if it fellwithin the scope of Congress' au-thority to regulate interstate com-merce.49 The court rejected Leslie'sargument that government intrusionshould not create government ju-risdiction under the CWA, stating:

[t]he fact that third parties, in-cluding the government, areresponsible for flooding Leslie'sland is irrelevant. The Corps'jurisdiction does not depend onhow the property at issue be-came a water of the United

47Id.

481d491d at 357.old. at 358.

"Id at 357-58. The district court held that the government intrusions could not create government jurisdiction. To allow thiswould be to allow the Corps to "expand its own jurisdiction by creating some wetland conditions where none existed before."Id. at 357.521d. at 360. The Corps introduced evidence that the land was a habitat for migratory birds who used the pits when they wereflooded during the winter and spring. The Corps also showed that the salt marsh harvest mouse, an endangered species.inhabited the area.53Id. The Court did cite cases to back up its decision, e.g., Utah v. Marsh. 740 F.2d 799. 804 (10th Cir. 1984): Palila v. HawaiiDep't of Land and Natural Resources, 639 F2d495 (9th Cir. 1981); and Hughes v Oklahoma., 441 U.S. 322, 329-36 (1979).mId. After asserting that the wetland could be classified as adjacent to navigable waters and, therefore. that the issue was nota bar to the Corps' jurisdiction, the Court explained that it was still necessary to determine whether the crystallizers and pitshave sufficient connections to interstate commerce to be regulated Id. The Court remanded this issue to the district court. Id.It instructed that jurisdiction may extend if the district court finds that the area was a habitat for migratory birds or endan-gered species, as the EPA regulations provide. Id. On remand, the district court found this to be the case and extendedjurisdiction. Id. On appeal, the Ninth Circuit affirmed, holding that the Court of Appeals' previous decision was not clearlyerroneous, and thus., did not warrant reconsideration. See generally Leslie Salt Co. v. U.S., 55 F.3d 1388 (9th Cir. 1995)."Hoffman Homes, Inc. v. Administrator. U.S. Envtl. Protection Agency. 999 F.2d 256 (7th Cir. 1993)."Id at 258."Id. at 257.

States. Congress intended toregulate local aquatic ecosys-tems regardless oftheir origin."o

Because the government actschanged the nature of the wetlandfrom isolated to adjacent, the courtpermitted regulation, provided thatthere was a sufficient connectionbetween the land and interstatecommerce." The court directedthat jurisdiction would be properunder the Commerce Clause if theland provided a habitat for eithermigratory birds or an endangeredspecies, as the Environmental Pro-tection Agency ("EPA") regulationsinstructed." It gave no reasoning forthis finding." In so ruling, the Courtdemonstrated that it would go togreat lengths to defer to the Corps'interpretation ofthe CWA, both on

Limits of Wetland Regulationadjacency and interstate commerceissues, for even an isolated wetlandwith no natural, hydrological con-nection to a navigable water fellunder the Act's jurisdiction.'

The Seventh Circuit's hold-ing in Hoffman Homes can be dis-tinguished from the Ninth Circuit'sdecision in Leslie Salt. TheHoffman Homes court held that theEPA lacked jurisdiction under theCWA to regulate an isolated wet-land." This case involved an one-eighth acre piece of land with abowl-shaped depression that oftencollected rainwater.56 In 1986, aCorps employee happened to driveby the site and notice that it wasbeing developed." Upon investiga-tion, the EPA and the Corps deter-mined that the area was an intra-state wetland, and that dredging and

Vol. 6 *No.1filling the area without a permit wasa violation of the CWA.5' It was notdisputed that the area had no sur-face or groundwater connection toany other body of water, was notused for any interstate commercefunction, such as fishing or indus-trial use, nor was it visited by inter-state travelers for recreational orother purposes." The EPA arguedthat the area fell under CWA juris-diction solely because migratorybirds could potentially use the areafor feeding, nesting or resting be-fore moving on to other states. 0

There was no evidence, however,that any migratory birds actuallyused the site.'

The Corps, under the di-rection ofthe EPA, denied Hoffman

a retroactive pernnit for filling anddredging the land and filed an ad-ministrative complaint against thecompany when it refused to restorethe land to its original condition.6 2

An EPA administrative law judge("AL") concluded that the areawas, in fact, a wetland within themeaning of the CWA and its regu-lations, but that the EPA did nothave authority to regulate it, sincethe area had no effect on interstatecommerce.63 The EPA's Chief Ju-dicial Officer ("CJO") reversed theAL's decision, finding that the EPAhad authority under the Act to regu-late intrastate wetlands that had a"minimal, potential effect" on inter-state commerce.' Hoffman thenappealed to the Seventh Circuit

5 Id at 258.59Id.601d at 259.6 1 id.62Id at 258.

"d at 258-59.65See Hoffman Homes. Inc. v Administrator, U.S. Envtl. Protection Agency. 961 F.2d 1310 (7th Cir. 1992). In this opinion, thecourt held that the EPA could not regulate an intrastate wetland that did not affect interstate commerce. According to theEPA, even isolated wetlands fall under its regulatory jurisdiction if "the use, degradation, or destruction" of the wetland"could affect interstate commerce." Id at 1313 (quoting 40 C.F.R. § 230.3(a)(3)). The court examined the language of thestatute. its legislative history: and its stated policy objectives in deciding whether to uphold the EPA's interpretation of itunder the Chevron doctrine. Id It found the language of the statute ambiguous with respect to wetlands in general, that the1972 and 1977 legislative history failed to support regulation of isolated wetlands, and that the Act's stated policy objectivesdid not evidence an intent to regulate isolated wetlands. Id at 1316. The Hoffman Homes court also interpreted RiversideBaview Homes as denying regulation of isolated wetlands. Id. at 1314 (quoting Riverside BaviewHomes, 474 U.S. at 131,n.8). The court also discussed wetland regulation under the Commerce Clause. Id at 1317. It asserted that an isolatedwetland, by definition, has no effect on interstate waters and that the EPA had produced no evidence showing that thewetland affected interstate commerce. Id at 1319-20. The EPA claimed that the potential use of the wetland by waterfowl inthe midst of interstate flight was sufficient to grant it jurisdiction. Id at 1320. The court rejected this argument, replying thatmigratory birds, until they are "watched. photographed. shot at or otherwise impacted" by people engaging in interstatecommerce. do not "ignite the Commerce Clause." Id The court ruled that the "potential presence" of migratory birds does notsufficiently support Commerce Clause regulation. Id"See Hoffman Homes, Inc. v Administrator, U.S. Envtl. Protection Agency. 975 F 2d 1554 (7th Cir. 1992).

67See Hoffman Homes. Inc. v Administrator. U.S. Emil. Protection Agency, 999 F 2d 256 (7th Cir. 1993)."'Hoffman Homes, 999 F 2dat 261-62.

Court of Appeals, which found inits favor on the merits.' Later, how-ever, the court granted the EPAsmotion for rehearing and vacatedits decision." Upon rehearing, thecourt once again overruled theCJO's decision, but only discussedthe Commerce Clause issue indicta.67

In its final 1993 decision,the Seventh Circuit Court of Ap-peals held that the potential pres-ence of migratory birds was indeedenough to tie an isolated wetlandto interstate commerce so that itcould be regulated."8 However,since the EPA had furnished an un-substantial amount of evidence toestablish that the area was a po-

Limits of Wetland Regulation

tential habitat for migratory birds, it state commerce basis. cept the regulation of non-navigablereversed the CJO's decision." Ac- Ten years after Riverside waters to the extent that they sub-cording to the regulation, the EPA Bayview Homes,' the Supreme stantially affect the use, potential usehad regulatory jurisdiction over Court put limits on Congress' au- or instrumentalities of interstatewaters "which are or could be thorny under the Commerce Clause commerce.taken," or "are used or could be in US. v. Lopez.7 ' The Court in Scholars have been busyused" for industrial purposes.'o The Lopez struck down the Gun-Free theorizing what effect Lopez willcourt interpreted the word "could" School Zones Act of 1990, a crimi- have on wetland regulation underin the regulation as the CJO had nal statute Congress enacted pur- the CWA8 At least one scholardone, that EPA jurisdiction extends suant to its authority under the believes that the decisions of theto waters whose nexus to interstate Commerce Clause.7' Because the Ninth and Seventh Circuits may becommerce is only potential rather intrastate activity at issue in Lopez on shaky ground after Lopez."than actual and "minimal rather than did not "substantially affect" inter- Because of Lopez, the Supremesubstantial." In dicta, the court state commerce, even in the aggre- Court may now view the connecmaintained that migratory birds af- gate if repeated elsewhere, the Su- tion between isolated wetlands andfect interstate commerce. 72 Thus, preme Court ruled that the law was interstate commerce as so "tenu-the court explained that the poten- unconstitutional. 77 In the instant ous" as to say that such regulationtial presence ofmigratory birds was case, the Fourth Circuit cited Lopez "seriously erode1s] the distinctiona sufficient connection to interstate for the proposition that Congress between local and national con-commerce to grant the EPA juris- may regulate matters substantially cems."I In particular, the migratorydiction based on a reasonable in- affecting interstate commerce. 78 bird rule "does not guarantee" thatterpretation ofthe regulation.' But Thus, the Wilson court asserts that filling isolated wetlands substantiallythe lack of substantial evidence on although the full reach ofCongress' affects interstate commerce. 83thethe migratory bird issue precluded power under the Commerce Clause migratory bird rule as insufficient tothe court from ruling on an inter- remains unclear, courts should ac- confer regulatory authority under691d at 262.

7d.at 26 1.71id.72Md. The court cited U.S. v. Byrd, 609 F.2d 1204(71h Cir. 1979). holdingthat Congress may regulate activities that"affectinterstate commerce, and the Migratory Bird Treaty Act and the Migratory Bird Conservation Act, passed b Congress in1918 and 1929 respectively, showing congressional regulation of and interest in protecting migratory birds.731d.

74474 U.S. 121 (1985).7'514 U.S. 549 (1995).7

LLopeZ, 514 U.S. at 558-59.771d at 567.7

n saItSOn, 133 F.3d at 255-56.791d In 1997 the Supreme Court issued its decision in Prinz v. U.S. 117 S.Ct. 2365. Although that case dealt with regulationof interstate commerce. it primarily concerned such regulation in conjunction with state sovereignty issues. It. therefore.does not significantly add to a discussion of federal regulation of wetlands when no state executive authority is involved.

diSee supra note 25.

stHoaman , supra note 2e5. at 168.p edC at 195.

unosiutoa3 Inthdistn

Vol. 6 *No.1

There are two concernsthat the Supreme Court would viewthe Commerce Clause." First,Congress has not made explicitfindings that the filling of isolatedwetlands substantially affects inter-state commerce." Were Congressto do so, the Supreme Court wouldlikely defer to the legislature's rea-soning, even under Lopez. InLopez, the Court found no eco-nomic activity inherent in carrying ahandgun in a city school. On thecontrary, congressional regulation ofthe nation's waters as well asagency regulation of wetlands havebecome historic practices andgained approval by the SupremeCourt. 6 Secondly, migratory birdsare a "weak weapon" for the EPAto use because their flyways covermost of the United States, and thebirds tend to alight almost any-where." Thus, the court may viewthe migratory bird rule as a limit-less, and therefore unusable, ap-proach. However, the effect Lopez

will have is uncertain for a numberof reasons. Although Lopez putsquestions on the constitutionality ofisolated wetlands regulation, thefederal judiciary's treatment ofLopez since it was announced raisesquestions ofwhether the SupremeCourt would remain completelyfaithful to its 1995 decision."

IV. INSTANT DECISION

The Wilson court first con-sidered the issue of whether theregulation exceeded Congress' del-egation of authority in extending thedefinition of "waters of the UnitedStates" to include "those waterswhose degradation 'could affect'interstate commerce."" While thedefendants in Wilson ("Defen-dants") did not challenge the Act'sconstitutionality under the Com-merce Clause, they did challengethe jury instructions and regulationsas both exceeding Congress' del-egation of authority to the Corps ofEngineers under the Act and Con-

gress' power under the CommerceClause. 0 The court held that theregulation was ultra vires, but chosenot to reach the issue of the limitsof congressional power under theCommerce Clause." It stated thatresolving the regulation issue wasdispositive to the issue ofthe Com-merce Clause and that it need notundertake to answer the "difficultquestions" regarding the limits ofcongressional authority under theCommerce Clause.'

At trial, the instructions al-lowed the jury to convict ifit foundthat Defendants' activities affectedinterstate commerce. If those ac-tivities affected interstate com-merce, they could be reached bythe regulations under the Act. Forinstance, if the jury could find that"fish or shellfish are or could betaken" from the waters and sold ininterstate commerce, then the gov-ernment had established a sufficientconnection with interstate com-merce to apply the regulation."

41d at 197.85Id86See general/v Riverside Bavview Homes. 474 U.S. 121.87Holman., supra note 25. at 197."Judge Luttig's concurrence in if7/son emphasizes that the 4th Circuit has dismissed Lopez. See J'il/son. 133 F.3d at 266.and also infra note 109.' 911lson, 133F.3d at 255.901d at 257.911d at 256-57.921d931d. at 256. The instructions regarding the regulation read: "The government must prove that these waters have somepotential connection with interstate commerce. If you find, ladies and gentlemen, beyond a reasonable doubt that thesewaters were or could be used by visitors from other states for recreational or other purposes, or that fish or shellfish are orcould be taken from these waters and sold in interstate or foreign commerce. or that these waters were used or could havebeen used for industrial purposes by industries in interstate commerce, or that these waters were subject to the ebb and flowof the tide or that the use, degradation or construction [sic] [destruction?] of such waters could affect interstate commerce.then I instruct you as a matter of law that the government has established such connection with interstate commerce and thatthese waters, including wetlands. are waters of [the] United States." Id.

The Court of Appealsfound this set of instructions flawed.It found that interpreting "waters ofthe United States" as waters whoseuse potentially affected interstatecommerce was contrary to the Su-preme Court'sjurisprudence on theCWA." The Act prohibits the dis-charge, without a permit, of pollut-ants into "navigable waters."9 TheAct then defines "navigable waters"as "waters ofthe United States."96

The court noted that the SupremeCourt ruled that by defining "navi-gable waters" as "'waters of theUnited States,' Congress intended'to exercise its powers under theCommerce Clause to regulate atleast some waters that would notbe deemed 'navigable' under theclassical understanding of thatterm. "'" Thus, it was not disputedthat the regulation may extend tosome waters that are not in fact"navigable." In addition, Lopez en-941d at 258."Id at 257.96Id

971d. at 256 (quoting U.S. v Riverside Bavview Homes. Inc., 474 U.S. 121. 133 (1985)).98Id (quoting U.S. v. Lopez, 514 U.S. 549. 558-59 (1995)).991d at 258.'oold at 256 (citing Printzv U.S., I17 S.Ct. 2365 (1997): SeininoleTribe v. Florida. 517 U.S. 44 (1996). U.S. v. Lopez. 514 U.S. 549(1995); andNew Yorkv. U.S.. 505 U.S. 144 (1992)).'Id at 257.

0 2Id

'Id.

10 Id.

sured that Congress could regulatedischarges of pollutants that "sub-stantially affect interstate com-merce. " However, the court foundthat the regulation surpassed eventhis broad interpretation."

Hesitating to embark on adiscussion ofcongressional author-ity under the Commerce Clause, thecourt noted that the Supreme Courthas changed its view regardingsome issues of federalism.'o Be-cause the object ofthe controversywas an administrative regulation andnot a statute, the court stated that itcould avoid the constitutionallytroubling Commerce Clause issue,that would have been presented hadthe facts surrounded a statute.'The court explained that because asimilarly-worded statute would cer-tainly appear to contradict recentSupreme Court rulings, a situationinvolving such a statute would bemuch harder to deal with.102

Limits of Wetland RegulationThe court struck the rule as

exceeding the scope of Congress'delegation.'o3 It explained that aconstitutionally troubling regulationdid not impose as formidable anobstacle for it to dispose ofas sucha statute would have, although it didnot elaborate as to why. In strikingthe rule, the court asserted that "ab-sent a clear indication to the con-trary, we should not lightly presumethat merely by defining 'navigablewaters' as 'the waters of the UnitedStates' . . . Congress authorizedthe Army Corps of Engineers toassert its jurisdiction in such asweeping and constitutionally trou-bling manner."' 4 Not only did theregulation's definition surpass whatcould be interpreted as "navigablewaters," it even reached beyondwhat could be regarded as "closelyrelated to navigable or interstatewaters."o' The court held that bydefining "navigable waters" so

Vol. 6 *No.1broadly, the regulation went too tar.It ruled that the Corps ofEngineersexceeded its authority under theCWA in promulgating 33 C.F.R.§328.3(a)(3) and thus, the rule wasinvalid. '0

V. CONWEuFAt some point, the Su-

preme Court should consider theissue presented in Wilson. Assess-ing jurisdiction under the CWA andits regulations is a fact-intensive de-termination. The facts of Wilsonwere distinct from those of priorcases and amplify the problemsthey raised. In light ofthe SupremeCourt's developing CommerceClause jurisprudence and federalcase law concerning the regulationof wetlands under the CWA, the06Id Eachjudge on the panel filed an opinion. Judge Niemeyer wrote the opinion of the court, while Judge Luttig

concurred in the judgment and filed a separate opinion. Judge Payne, a district court judge sitting by designation,concurred in part of the Court's opinion and in the judgment, but also filed a separate opinion. Judge Niemeyer's opinionis divided into seven parts as outlined below:

I.Facts and evidence presentedII.Jurisdiction of the regulation - "navigable waters"III. Jury instructions regarding wetlands and interstate watersIVSidecasting issueV.Mens rea jury instructionVI. Admissibility of expert testimonyVl.Conclusion

A majority of the panel adopted parts II, V and VI as well as the ultimate judgment. Judge Luttig only concurred in theultimate judgment and only for the reasons stated in Part V Although he believed that Judge Niemeyer's analysis in Part IIwas "convincing." he nevertheless declined to adopt it. Wilson, 133 F. 3d at 266. He felt that it directly conflicted with theFourth Circuit's holding in Brzonkala v. Virginia Polytechnic & State University, 132 F. 3d 949 (4th Cir 1997). Id In his briefstatement. Judge Luttig asserted that the Circuit has dismissed Lopez as an "aberration" and limited it to its specific facts.Id. In Brzonkala., the Court held that the Violence Against Women Act did not exceed congressional authority under theCommerce Clause. See generally Brzonkala, 132 F. 3d 949. Judge Luttig was on the Brzonkala panel and dissented in itsjudgment. If i/son, 133 F 3d at 266. Since filson was handed down, the Circuit has granted a motion for rehearing inBrzonkala.

Judge Payne adopted Parts II, V, and VI of Judge Niemeyer's opinion and voiced his own views on coverage of bothadjacent wetlands and sidecasting under the Act. Id at 266-75.07Riverside Bayview Hones, 474 U.S. at 131.

'osM. at 132-35.'0l. at 134."oSee Wilson, 133 F.3dat 254-55...'Id. at 254. The facts of Wilson are not entirely clear. For instance, the wetlands at issue were not part of the ZekiahSwamp, although they were nearby Id. Also, although the case mentions a drainage pattern through intermittent streams

Wilson court's ruling makes sensebut further muddied the water. Iteffectively applies the spirit ofLopezto the CWA, but altered the Su-preme Court's ruling on wetlandsin Riverside Bayview Homes. Insum, the Fourth Circuit's ruling inWilson raised questions that standin need of resolution by the Su-preme Court.

Wilson seemed to strayfrom the Supreme Court's CWAjurisprudence in RiversideBayview Homes. In that case, theSupreme Court pronounced thatwetlands may be regulated if adja-cent to a navigable body of wa-ter.o'0 The Court evaluated adja-cency according to the broad mean-ing of"navigable waters" that Con-gress intended the Act to have.'0o

It reasoned that wetlands con-nected to navigable waters on thebasis ofhydrological cycles and theflow ofwater through ecosystemsare sufficient to fall under the pur-view ofthe Act.'0 As in RiversideBayview Homes, the wetlands inWilson flowed through hydrologi-cal cycles to navigable water-ways. "0 Thus, the facts of Wilsonseemed strikingly similar to River-side Bayview Homes, althoughsome inconsistencies appeared."'The court did not adequately ex-plain how the facts of Wilson weredistinguishable from those ofRiv-erside Bayview Homes.

The facts of Wilson wereclearly distinguishable from LeslieSalt and Hoffman Homes. InLeslie Salt, the wetland was iso-

lated until altered by artificialmeans.112 In Hoffman Homes, thewetland at issue was completelyisolated, separate from any otherwater source or body."I The wet-land at issue in Wilson was clearlydifferent in that it was not isolatedin the same sense as the areas inboth Leslie Salt and HoffmanHomes. Thus, it seems that the Wil-son court changed the recipe - ittook facts similar to RiversideBayview Homes and appliedLopez-like reasoning. Leslie Saltand Hoffman Homes held that themere presence of migratory water-fowl justified regulation under theCommerce Clause.114 Lopezseemed to conflict with thesecases."' Under Lopez, the appro-priate question for a court to ask inconsidering the constitutionality ofCWA regulations was whether theysubstantially affected interstate com-merce." 6 This was what the FourthCircuit did in Wilson. "' It logicallyapplied the reasoning ofLopez towetland regulation under the CWAIn doing so, however, it createdfriction with the Seventh and NinthCircuits as well as Supreme Courtprecedent on wetlands, and thus itpresented an issue that the Supreme

Court snoulo resolve.The Wilson court's decision

also created some additional con-fusion. The court commented thatCongress' far-reaching power toregulate waters that are, in fact, notnavigable "could be drawn intoquestion by the [Supreme] Court'srecent federalism jurisprudence.""'But then the Court collected itselfand dismissed the point it just made,saying, "we need not resolve thesedifficult questions about the extentand limits of congressional powerto regulate non-navigable waters toresolve the issue before us.""' Onemight ask then, why did the courtbring it up to begin with? Such aremark only serves to encourageskepticism on the constitutionalityofthe Act's provision and how itshould be interpreted by courts re-garding all wetlands under theCommerce Clause. But perhaps thisis precisely what the court had inmind.

Were the Supreme Courtto apply a Lopez analysis to regu-lation of isolated wetlands under theCWA, it is likely that such a regula-tion would not be sustained.120 Ac-cording to one scholar, the Su-preme Court would begin by inquir-

and creeks, it fails to mention if these were navigable. Id Thus, it is unknown just how isolated the wetlands were from anavigable waterway."2Leslie Salt, 896 F.2dat 356."3Hoffman Homes, 961 F.2d at 1311, 1314."4 See Leslie Salt, 896 F.2d at 360.'5See generally Lopez, 514 U.S. 549.'"See ifIlson, 133 F.3d at 256."Id. at 256-57.

"'Id at 256."I9 d.120Holman, supra note 25, at 198.'21Id at 197.

122Id at 198.

Limits of Wetland Regulationing as to whether the relevant por-tions of the CWA regulate an ac-tivity that substantially affects inter-state commerce.121 It would likelyconclude that while the Act as awhole does bear some relation tocommerce or an economic enter-prise, "it must be admitted that theAct does not concern itself solelywith the 'regulation of economicactivity. "'122 For example, the Courtwould likely view regulation ofiso-lated wetlands as having no con-nection with interstate commerce,because they are totally intrastateand bear no impact on navigablewaterways used as channels ofcommerce. The migratory bird rulecould establish an economic con-nection between isolated wetlandsand interstate commerce, but aLopez-governed court would likelyanalogize the happenstance landingof birds that fly over state lines tothe potential travel of guns over statelines to rule that such a connectionis insufficient to establish CommerceClause jurisdiction. Whether theSupreme Court would remain trueto Lopez in considering the consti-tutionality ofregulating isolated wet-lands under the CWA is anotherquestion.

Vol. 6 *No.1The Wilson court's decision

is unclear in another aspect. In rea-soning that the regulation defining"waters ofthe United States" is in-valid, the court stated that it had noreason to believe Congress wouldauthorize such a constitutionallytroubling interpretation as theagency had given." The courtstated:

[w]ere this regulation a statute,duly enacted by Congress, itwould present serious consti-tutional difficulties, because, atfirst blush, it would appear toexceed congressional authorityunder the Commerce Clause.This regulation is not, however,a statute. 124

It is a well-establishedstatutory canon of construction thata court should, if possible, inter-pret a statute so as not to violatethe Constitution. Apparently, theWison court said that it had no suchduty regarding administrative rules.Such a pronouncement seemed toconflict, however, with the Chev-ron doctrine, that when Congresshas not spoken to the matter, anagency's construction of its autho-rizing statute should enjoy great def-erence.22 The court could havedecided, under Chevron, that theregulation was an unreasonableconstruction of the CWA, in that itwas unreasonable to say that theEPA may regulate all wetlands,even seasonal pools of water, un-der the term "navigable waters."

reaffirm Lopez in the wetlands con-text.

'23 Jfflson, 133 F.3d at 257.124Id.

125For an authoritative explanation of the Chevron doctrine, see I KENNETH CuLP DAVIS & RIcHARD J. PIERCE, JR., ADMINISTRA-

TIVE LAw TREAIE i §3.1-3.6 (3ded. 1994).

Instead, it struck the regulation in away that appeared to conflict withChevron. The court would havedone better to either elaborate andexplain its point or omit it altogether.

VI. CONCLUSIONThe Fourth Circuit has now

ruled to prohibit regulation of intr-astate, non-adjacent wetlands un-der the CWA. In so doing, it ap-plied the Supreme Court's revisedjurisprudence limiting congressionalauthority under the CommerceClause. This decision was novelbecause it broke from prior Su-preme Court precedent as well asrecent federal court rulings regard-ing wetland regulation. It under-scored the inherent conflict betweenthe reasoning ofRiverside BayviewHomes and the philosophy ofLopez Lopez. This controversy isripe for review and should be re-solved by the Supreme Court inorder to establish a coherent na-tional policy.

When given a chance toaddress the issue in Wilson, the Su-preme Court should stay true to itsdecision in Lqpez. It should rule thatintrastate, isolated wetlands, be-cause they do not substantially af-fect interstate commerce, fall out-side federal regulation under theCommerce Clause. Such a rulingwould go far to clear up the Court'soccluded CWA and CommerceClause jurisprudence. Ifthe Courtis truly committed to strengtheningfederalism and reigning in Congress'Commerce Clause authority, it must