the FD & P Property and the navigable waters of the Hackensack River. As noted above, both parties agree that the wetlands on the FD & P Property drain into Penhorn Creek, which flows into the Hackensack River one mile away from the wetlands. As a general matter, wetlands stabilize and incorporate inorganic sediments and chemicals, a process which benefits downstream waters. Coakley Declaration, at 441-442. The Corps argues that, given the proximity of the wetlands on the FD & P Property to the Hackensack River, filling of the wetlands would have an injurious impact on the river by increasing the sediments and chemicals flowing into the river. The Corps further argues that because the FD & P Property is within the 100-year flood plain, the proposed fill will displace flood storage capacity, increasing the likelihood of rain-induced flooding.
FD & P, on the other hand, asserts that the wetlands on the FD & P Property do not provide any environmental benefits to either Penhorn Creek or the Hackensack River, and therefore the placement of fill onto the wetlands will not be detrimental to the river. Declaration of Agnes Antonian in Support of Plaintiff's Motion for Summary Judgment ("Antonian Declaration"), Ex. A. In fact, FD & P argues, placement of fill will actually enhance the water quality of Penhorn Creek and the Hackensack River, because FD & P plans to install catch basins and storm-water retention basins, which will trap sediment from the FD & P Property. Id. Moreover, FD & P argues that because the FD & P Property is located at the lowest point in the Meadowlands watershed, the wetlands do not provide any flood storage function, and therefore filling the FD & P Property will not impact the likelihood of flooding. Id.
If the relevant standard before this court was whether the FD & P wetlands had a "hydrological connection" to the Hackensack River, this court could easily dispose of this matter on summary judgment: because water flows from the wetlands through Penhorn Creek and into Hackensack River, there is a hydrological connection between the wetlands and a navigable body of water, and therefore the Corps would properly have jurisdiction over the FD & P Property under the CWA. As discussed above, however, "hydrological connection" is no longer the relevant standard to be applied in this case. Instead, this court must determine whether there is a substantial nexus between the FD & P Property and the Hackensack River.
In light of Solid Waste, this court was strongly tempted to grant summary judgment in favor of FD & P. If, as FD & P asserts, the filling of the wetlands will not be detrimental to the Hackensack River, then there is no substantial nexus, and therefore no CWA jurisdiction. Nevertheless, the evidence submitted by the parties does not permit this court to conclude that no genuine issue of material fact exists as to the effect of the filling of the wetlands on the Hackensack River. The Corps has submitted sufficient evidence such that a reasonable jury could find that the filling of the wetlands will have a substantial injurious impact upon the chemical, physical, and/or biologcial integrity of the Hackensack River. Under these circumstances, there would be a substantial nexus between the wetlands and the river, and the Corps would have jurisdiction under the CWA. Because the court cannot resolve this factual issue based upon the record before it, a genuine issue of material fact exists as to whether there is a substantial nexus between the FD & P wetlands and the Hackensack River. Therefore, this court must deny FD & P's motion for summary judgment.
III. Commerce Clause Claim
FD & P additionally argues that the Corps' assertion of jurisdiction over the FD & P wetlands violates the Commerce Clause of the United States Constitution. This claim may be dealt with briefly. First, it is important to note that while Solid Waste altered the Court's jurisprudence with respect to the interpretation of the CWA, that case did not touch on Congress's authority to regulate waters under the Constitution. Therefore, the extensive jurisprudence holding that CWA jurisdiction over wetlands such as those in the instant case is permissible — as a Constitutional matter — remains good law.
In United States v. Lopez, 514 U.S. 549, 558-559, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Supreme Court identified "three broad categories of activity that Congress may regulate under its commerce power": (1) channels of interstate commerce; (2) instrumentalities of interstate commerce, or persons and things in interstate commerce; and (3) activities that "substantially affect" interstate commerce. The wetlands at issue in this case fall under the third category. As Justice Stevens noted in his Solid Waste dissent, "[t]here can be no doubt that, unlike the class of activities Congress was attempting to regulate in United States v. Morrison, 529 U.S. 598, 613, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (`[g]ender-motivated crimes'), and Lopez, 514 U.S. at 561, 115 S.Ct. 1624 (possession of guns near school property), the discharge of fill material into the Nation's waters is almost always undertaken for economic reasons." 531 U.S. 159, 193, 121 S.Ct. 675, 148 L.Ed.2d 576 (Stevens, J., dissenting). In this case, FD & P's purpose for seeking the § 404 permit to construct a commercial facility. Indeed, this commercial facility would be engaged in interstate freight transportation services. As such, FD & P's argument that its filling activities would not "substantially affect" interstate commerce must fail.
For the foregoing reasons, on this 15th day of January, 2003, it is hereby ORDERED that FD & P's Motion for Summary Judgment is DENIED.