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Copyright (c) 1997 The American University Law Review
American University Law Review

COMMENT: DO ISOLATED WETLANDS SUBSTANTIALLY AFFECT INTERSTATE COMMERCE?

February, 1997

46 Am. U.L. Rev. 931

Author

Elaine Bueschen *

Excerpt





Introduction
 
Isolated wetlands - wetlands that do not have a hydrological surface connection to another body of water and are not adjacent 1 to an interstate or navigable body of water 2 - have been the center of much recent controversy. First, the House of Representatives passed a bill 3 ("House Bill 961") to amend the Clean Water Act 4 that drastically would have reduced federal protection of isolated wetlands. 5 Second, a Supreme Court decision 6 establishing limits on congressional Commerce Clause authority is a likely impetus for an increase in isolated wetlands litigation. 7

The federal regulation of isolated wetlands sometimes prevents individuals from undertaking economically advantageous activities on private land. 8 Generally, opponents of such regulation argue that federal oversight of isolated wetlands located entirely within a state's boundaries exceeds the reach of the Commerce Clause because there is not a sufficient nexus between isolated wetlands and interstate commerce. 9 This argument rests on the fact that isolated wetlands have no surface connection to any navigable body of water. 10 Proponents of federal regulation of isolated wetlands, on the other hand, look beyond hydrological connections to the ecological functions of these wetlands in order to establish a connection to interstate commerce. 11

Isolated wetland regulation is predicated primarily on the use or potential use of the isolated wetland as a migratory bird habitat. 12 Courts have held that this rationale for regulation is within the scope of Congress' commerce power. 13
 
 
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