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Utah v. Marsh

Citation: 14 ELR 20683
No. No. 81-1528, 740 F.2d 799/21 ERC 2142/(10th Cir., 08/03/1984)

The court holds that Congress has the power under the Commerce Clause to grant the Corps of Engineers jurisdiction under § 404 of the Federal Water Pollution Control Act over Utah Lake, which is located completely within Utah and supports no interstate navigation. The court first notes the general agreement among the courts that Congress, despite its use of the term "navigable waters," intended to extend § 404 jurisdiction to the bounds of the Commerce Clause, without regard to navigability-in-fact. The court notes the broadly inclusive standards of Commerce Clause powers review, and concludes that this broad congressional grant of § 404 jurisdiction meets the applicable standard: the discharge of dredged or fill material into Utah Lake could well have a substantial economic effect on interstate commerce. Water that flows from the lake irrigates crops to be sold in interstate commerce, the commercial fishery on the lake sells most of its catch out of state, nonresidents use the lake for recreation, and the lake is on a flyway of migratory waterfowl.

Counsel for Appellant
Dallin W. Jensen, Ass't Attorney General
236 State Capitol, Salt Lake City UT 84114
(801) 533-5261

Counsel for Appellee
Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Holloway, J. - before Seth and Doyle, JJ.