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United States v. Hallmark Constr. Co.

Citation: 29 ELR 20168
(09/10/1998)

The court holds that there is a constitutional and statutory basis for the U.S. Army Corps of Engineers to assert Federal Water Pollution Control Act (FWPCA) § 404 jurisdiction over isolated wetlands, but a genuine issue of fact exists as to whether the Corps may assert jurisdiction over five acres of isolated wetlands that a construction company seeks to develop. The court first holds that the regulation of intrastate isolated wetlands based on their actual or potential use by migratory birds does not exceed Congress' powers under the federal Commerce Clause. The court rejects the company's argument that Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 23 ELR 21139 (7th Cir. 1993), warrants a reexamination in light of United States v. Lopez, 514 U.S. 549 (1995). This is not a case where the U.S. Supreme Court has clearly abrogated the Seventh Circuit's reasoning in Hoffman Homes; indeed, there is wide disagreement among courts and commentators about the implications and scope of the Lopez decision. Under these circumstances, the court declines to anticipate a departure from what might still be correctly viewed as the law of the Seventh Circuit. The court next holds that the Corps has not exceeded its authority under the FWPCA by regulating intrastate isolated wetlands as waters of the United States. Reasonable minds may differ whether isolated intrastate wetlands are waters of the United States for purposes of the FWPCA. Accordingly, the Corps' definition is entitled to deference. The court also holds that the migratory bird rule was not subject to the notice-and-comment requirements of the Administrative Procedure Act because it is an interpretive rule.

The court then holds that genuine issues remain as to whether the government may exert jurisdiction over the area in question. There is at least a genuine issue as to whether the area was particularly suitable as a habitat for migratory birds. In addition, the parties dispute whether aerial photographs and crop compliance photographs show evidence of significant or lengthy inundation of the area at issue. Last, the court holds that the government's claims are not barred by the statute of limitations. The five-year statute of limitations set forth in 28 U.S.C. § 2462 does not apply to claims for equitable relief by the United States.

[A prior decision in this litigation is published at 28 ELR 21438.]

Counsel for Plaintiff
Christopher E. Tracy
U.S. Attorney's Office
Everett M. Dirksen Bldg.
219 S. Dearborn St., 5th Fl., Chicago IL 60604
(312) 353-5300

Counsel for Defendant
Johnine J. Brown
The Brown Environmental Law Group
35 E. Wacker Dr., Ste. 1356, Chicago IL 60601
(312) 236-1450