Finding that the Army Corps of Engineers exceeded its authorization under the Clean Water Act (CWA), the 4th U.S. Circuit Court of Appeals has overturned the conviction of a developer found guilty of filling wetlands in Southern Maryland.

In United States of America v. James J. Wilson, et al., Nos. 96-4498, et seq., 4th Cir. Md., Dec. 23, 1997, Judge Paul Neimeyer determined the regulation defining “waters of the United States” or the federal government’s wetlands programs, to be invalid.

The importance of this decision by a federal appellate court cannot be overstated.

This ruling makes clear that the Corps has gone too far in promulgating regulations extending coverage of the CWA to wetlands not connected to navigable waters of the United States. Significant land areas previously deemed wetlands would not be subject to Corps regulation.

In this case, the jury convicted the defendants of four felony counts of knowingly discharging fill material and excavated dirt into wetlands without a permit, in violation of the CWA.

The federal court sentenced Wilson to 21 months of imprisonment and one year of supervised release, and fined him $1 million. It fined the business entities $3 million and ordered the defendants to implement a wetland restoration plan.

The CWA prohibits the discharge, without “a permit,” of pollutants into “navigable waters.” In defining navigable waters in the CWA as “waters of the United States,” Congress intended to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed ‘navigable’ under a classical meaning of that term.

The relevant regulation, 33 C.F.R. Sec. 328.3(a)(3)(1993), defines navigable waters to include: “All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mud flats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce…”

That regulation purports to extend coverage of the CWA to waters solely on the basis that the use, degradation or destruction of such waters could affect interstate commerce.

The flawed regulation requires neither that the regulated activity have a “substantial affect on interstate commerce,” nor that the “waters have any sort of nexus to navigable” waters.

The appellate court concluded that regulation defining waters of the United States to include those waters whose degradation “could affect” interstate commerce “is unauthorized by the Clean Water Act as limited by the Commerce Clause and therefore is invalid.”

The defendants also claimed on appeal that their property was not adjacent to water of the United States and that any wetlands that may have been involved were too remote from navigable waters to be under the jurisdiction of the CWA. The wetlands involved were more than 10 miles from the Chesapeake Bay, more than six miles from the Potomac River and hundreds of yards from the nearest creeks.

In response the government argued that the wetlands in this case “were [as a factual matter] clearly adjacent to streams which flow into the Chesapeake Bay” and therefore “were properly regulated pursuant to the Commerce Clause.”

The court, agreeing with the defendants, determined that the trial court erred in instructing the jury to extend the jurisdiction of the CWA to wetlands “even without a direct or indirect surface connection” to interstate waters or navigable waters.

Additionally, the court decided that “sidecasting,” which moves native wetlands a few feet to the side of a ditch being created (to allow the land to dry) is not a discharge such to violate the CWA.

Acknowledging that in this instance, soil was removed from a ditch and redeposited on the immediately adjacent land (and that the excavated soil may constitute a pollutant within the meaning of the CWA), the court concluded that the movement of the soil a few feet within a wetland, does not constitute the introduction of new material into the area and, as such, is not a discharge into a wetland.

Given the significance of this decision by a three-judge panel, which ordered a new trial, it can be anticipated that the U.S. attorney’s office will, with the consent of the solicitor general, seek further review by the entire 4th U.S. Circuit Court of Appeals.

With hundreds of thousands of acres in Maryland and literally millions of acres throughout the country previously deemed wetlands under the jurisdiction of the Corps, the importance of this decision in the debate between property rights and environmental protection cannot be overstated.