Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce Clause Jurisprudence and the Limits of Federal Regulation

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I. INTRODUCTION

To some, James J. Wilson is "a conscientious, environmentally sensitive" builder of planned communities known for their parks, scenic trails, and substantial open space.(1) One of his most recent developments, St. Charles, in Charles County, Maryland, even provided for the preservation of seventy-five acres of wetlands.(2) "In my experience with developers all over America, I have met few who have as much concern for the environment as Jim Wilson," commented one of his colleagues.(3)

To others, however, Wilson was a menace to the environment, a greedy developer who, in his lust for profit, "wantonly destroy[ed]"(4) approximately fifty acres of wetlands that were "very critical to the continued health of the Potomac River watershed and the Chesapeake Bay."(5) Wilson began the development of St. Charles in 1976, at which time the U.S. Army Corps of Engineers (the Corps) determined that "[t]he construction of St. Charles [C]ommunities will have no impact on our area of responsibility."(6) Fourteen years later, after a significant expansion of the Corps's asserted jurisdiction over wetlands,(7) federal officials thought otherwise. Wilson was notified to cease construction on areas determined to be jurisdictional wetlands. Wilson complied, but turned around and slapped the federal government with a lawsuit demanding compensation for the regulatory taking of his land.(8)

In 1995, Wilson and his company, Interstate General Company (IGC), were indicted on four felony and misdemeanor counts for filling wetlands w without a federal permit between 1988 and 1993. Wilson's "egregious conduct"(9) made him an environmental criminal. "This case shows that wetlands are critical environmental resources," declared Environmental Protection Agency Regional Administrator W. Michael McCabe, adding "[t]he American people will not tolerate reckless lawbreaking, especially by those who know the rules."(10)

After a seven-week trial, Wilson and IGC were found guilty of "knowingly discharging fill and excavated material into wetlands of the United States"(11) in violation of section 404 of the Clean Water Act.(12) On June 17, 1996, a federal judge sentenced Wilson to 21 months in prison and imposed a $1 million fine.(13)

Wilson's conviction did not stand for long. On appeal, Wilson alleged that the regulations promulgated by the U.S. Army Corps of Engineers to regulate wetlands were invalid. In particular, Wilson charged that the Corps did not have jurisdiction over all wetlands that merely "could affect" interstate commerce,(14) as this regulation implied a "limitless view of federal jurisdiction."(15) Regulatory authority of such a broad scope, Wilson argued, would violate the Supreme Court's ruling in United States v. Lopez,(16) which reaffirmed the presence of constitutional limits of federal regulatory jurisdiction.(17) The Court of Appeals for the Fourth Circuit agreed, finding that the regulation was "unauthorized by the Clean Water Act as limited by the Commerce Clause."(18) The Corps's regulations defined "waters of the United States' to include intrastate waters that need have nothing to do with navigable or interstate waters" and therefore "expand[ed] the statutory phrase ... beyond its definitional limit."(19) In other words, the Corps did not have jurisdiction over the parcels that Wilson drained for his development. His conviction was reversed and remanded to the district court for a new trial.(20)

United States v. Wilson was not the first time a federal appeals court considered whether isolated wetlands could be regulated by Congress under the Commerce Clause,(21) and it is unlikely to be the last.(22) The federal wetlands regulations promulgated under section 404 of the Clean Water Act(23) have been one of the more contentious areas of federal environmental policy for the past several years, spawning substantial litigation(24) and political controversy.(25) Lopez is one of several recent decisions indicating that the Supreme Court will actively enforce constitutional limits on federal regulatory authority. …