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United States v. Byrd

Citation: 9 ELR 20757
No. No. 78-2459, 609 F.2d 1204/13 ERC 1954/(7th Cir., 10/15/1979)

The Seventh Circuit Court of Appeals affirms a lower court's issuance of a permanent injunction against further filling of wetlands adjacent to a 3,000-acre intrastate freshwater lake without a permit from the Army Corps of Engineers under § 404 of the Clean Water Act. The Corps' regulations implementing § 404 adopted a phased schedule for asserting the agency's full regulatory authority over filling activities in all waters of the United States. Under a provision which allows acceleration of this timetable where necessitated by water quality considerations, the Corps asserted its permit jurisdiction against defendant's filling activity before the agency's permitting authority was scheduled to extend to the lake in question. The court first rejects the argument that Congress and the Corps have no constitutional authority to regulate such filling activities. Noting that Congress intended to assert regulatory control over water pollution to the limits of its constitutional authority, the court concludes that congressional power to regulate navigable waters under the Commerce Clause extends to wetlands which adjoin or are contiguous to intrastate lakes, such as the one in this case, that are used by interstate travelers for water-related recreational purposes. The court then determines that the provisions in the Corps' regulation defining those wetlands that are subject to the agency's permitting authority are reasonably related to the statutory purpose. The court also rejects as premature defendant's claim that the requirement that he obtain a permit constitutes a taking of his property. The defendant has not yet applied for a permit from the Corps. If the permit is denied, he may then seek judicial review of the Corps' decision.

Counsel for Plaintiff-Appellee
James W. Moorman, Ass't Attorney General; Robert Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Melvyn B. Kalp
Army Corps of Engineers
477 Michigan Ave., Detroit MI 48226
(313) 266-6413

Counsel for Defendant-Appellant
Richard Ver Wiebe
Ver Wiebe, Snow, Miller & Gray
1310 Anthony Wayne Bank Bldg., Fort Wayne IN 46802
(219) 423-2353

Before CUMMINGS, Circuit Judge, MOORE, Senior Circuit Judge,* and TONE, Circuit Judge.