Blake Hudson and T. M. Hardig (Louisiana State University, Baton Rouge – Paul M. Hebert Law Center and University of Montevallo) have posted Isolated Wetland Commons and the Constitution (Brigham Young University Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:
Isolated wetlands provide great ecological and economic value to the United States. While some states provide protection for isolated wetlands, a great many do not. These wetlands are also left outside the ambit of federal wetland regulatory protections under the Clean Water Act, with its murky jurisdictional reach. Notwithstanding jurisdictional questions under current federal statutes, the U.S. Supreme Court has gone so far as to call into question the constitutionality of federal isolated wetland regulation. This article makes a normative argument that, in the absence of state programs providing holistic isolated wetland protections, federal action is needed. The article further provides the legal foundation — despite doubts manifested by the nation’s highest court — for the constitutionality of federal isolated wetlands regulation. This legal foundation is based upon commons analysis, which ties developers of isolated wetlands — those engaged in interstate commerce — to isolated wetlands within a single act of appropriation. Such acts of appropriation are economic transactions that in the aggregate substantially affect interstate commerce—thus meeting one of the tests established by the Supreme Court for determining the constitutionality of federal legislation.