# Petition for Writ of Certiorari — Rapanos v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 715

## Text

3)
CL) somone us
NO41 074 JAN 28 2008
In the
Supreme Court of the United States
+

JOHN A. RAPANOS; JUDITH A. NELKIE
RAPANOS; PRODO, INC.; ROLLING MEADOWS
HUNT CLUB; and PINE RIVER BLUFF ESTATES, INC.,

Petitioners,
Vv.

UNITED STATES OF AMERICA,
Respondent.

~>

On Petition for Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit

——-
PETITION FOR WRIT OF CERTIORARI
~~
GREGORY T. BRODERICK M. REED HOPPER
Of Counsel Counsel of Record
Pacific Legal Foundation ROBIN L. RIVETT
3900 Lennane Drive, Suite 200 Pacific Legal Foundation
Sacramento, California 95834 3900 Lennane Drive, Suite 200
Telephone: (916) 419-7111 Sacramento, California 95834
Facsimile: (916) 419-7747 Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Petitioners
Sa a aE ED TI a a OE ED

QUESTIONS PRESENTED

1. Does the Clean Water Act prohibition on unpermitted
discharges to “navigable waters” extend to nonnavigable
wetlands that do not even abut a navigable water?

2. Does extension of Clean Water Act jurisdiction to
every intrastate wetland with any sort of hydrological
connection to navigable waters, no matter how tenuous or
remote the connection, exceed Congress’ constitutional power
to regulate commerce among the states?

ii

RULE 29.6 STATEMENT

Prodo, Inc.; Rolling Meadows Hunt Club; and Pine River
Bluff Estates, Inc. are wholly owned by John A. Rapanos and
Judith A. Nelkie Rapanos. Petitioner companies have no parent
company and no publicly held company owns 10% or more of
Petitioners’ stock.

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS AT ISSUE .............

I. THERE IS A CONFLICT AMONG THE
CIRCUITS ABOUT WHETHER FEDERAL
JURISDICTION UNDER SECTION 404 OF
THE CLEAN WATER ACT EXTENDS TO
INTRASTATE, NONNAVIGABLE WETLANDS
THAT DO NOT ABUT A TRADITIONAL

NAVIGABLE WATER ..............-0-+5055:

ll. THE EXTENSION OF CLEAN WATER
ACT JURISDICTION TO EVERY
INTRASTATE WETLAND WITH ANY
SORT OF HYDROLOGICAL CONNECTION
TO NAVIGABLE WATERS, NO MATTER
HOW TENUOUS OR REMOTE THE
CONNECTION, EXCEEDS CONGRESS’
CONSTITUTIONAL POWER TO REGULATE

COMMERCE AMONG THE STATES ...........

iv
TABLE OF CONTENTS—Continued

A. Under Lopez and Morrison, Intrastate Activity
May Be Regulated for its Substantial Effects

B. The Extension of CWA Jurisdiction over
Any Water with a Hydrological Connection

to a Navigable Water Fails the Lopez
Standard for “Substantial Effects” ............. 21
GE octciecdaddsecessecanseetenconneses 26

one ee ote ome

v
TABLE OF AUTHORITIES
Page
Cases

Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984) ...........-. s
Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building and C ion Trades C. iL,

Ss ED vcucccddbadcncesesséedsenes 15
Headwaters v. Talent Irrigation District,

BE Fe Se Sc ccccccsccccccecsoecs 13
In re Needham, 354 F.3d 340 (Sth Cir. 2003) ..... 8, 10-11
Rice v. Harken Exploration Co.,

BD Fee BOO EO, SEED ccc ccccccccccosces 10-12
Solid Waste Agency of Northern Cook County v.

United S ; C of Engi

Se Ge SED ccacedescoseses 4, 7, 9, 14-16, 24
Treacy v. Newdunn Associates, LLP,

344 F.3d 407 (4th Cir. 2003) .................. 12-13
United States v. Deaton,

332 F.3d 698 (4th Cir. 2003) ...............---- 12-13
United States v. Lopez,

Se aes SEED cecoceccessoenss 15-19, 21-23, 25
United States v. Morrison,

I 15-16, 20-25
United States v. Rapanos,

190 F. Supp. 2d 1011 (E.D. Mich. 2002) .......... 5-6
United States v. Rapanos,

339 F.3d 447 (6th Cir. 2003)... ... 2... ee ee eens 13

vi

TABLE OF AUTHORITIES—Continued

Page
United States v. Riverside Bayview Homes, Inc.,
Ge SPEED weccccccncccccecescesscesces 7
United States v. Rueth Development Company,
33S P.36 S96 (TGs Cis. 2OGS) . 0.2 cece ccc cccccces 13
United States Constitution
PRE SEG SD ccccceccecccccocvscccscccsséscscsss 1
Statutes
BP is SED occccccccceccséecscoses 16, 17
FP ae OF EOE Sceedcccéncecescccccccencs 2, 5, 23
DEED dccbcbececscaccecousuivceséucees 2, 5, 23
DEED ceddcdedevosscevesscdsdsseotes 2, 5, 23
as SEED 0 cdc cdbevccocccrecesseesoces 19
DERE cosecceccaceesécesccecscesedscees 19
Regulations
Ss SD hooheeecendestescdcocsbecnboases 3
Pc cveccucctessvcssccscscessesecéesees 5
PE oo cesecdddesecscesdscdescocucceosecs 5
Clean Water Act
See ORE ce cccccccccceccaccctsecesecocees 2, 5, 23
DGD Codcecccesoccesecccccccoucesesans 2, 5, 23

eneeepees Geen

Vii

TABLE OF AUTHORITIES—Continued

Page
Miscellaneous .
S. Conf. Rep. No. 92- 1236 (1972),
U.S. Code Cong. & Admin. News 1972 ........... 24

- ee

PETITION FOR WRIT OF CERTIORARI

John A. Rapanos; Judith A. Nelkie Rapanos; Prodo, Inc.;
Rolling Meadows Hunt Club; and Pine River Bluff Estates,
Inc., respectfully petition this Court for a Writ of Certiorari to
review the judgment of the United States Court of Appeals for
the Sixth Circuit.

+

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 376
F.3d 629 (6th Cir. 2004), Appendix (App.) A. The opinion of
the district court, filed on March 22, 2000, was not published
but is included in App. B.

+

JURISDICTION

The judgment of the Court of Appeals for the Sixth Circuit
was entered on July 26, 2004. That court’s denial of the
Petition for Rehearing En Banc was entered on November 2,
2004, App. C. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

+

CONSTITUTIONAL, STATUTORY AND
REGULATORY PROVISIONS AT ISSUE

The United States Constitution provides that Congress has
power “[t]o regulate commerce . . . among the several states.”
Art. I, § 8, cl. 3.

The Clean Water Act (CWA) provides in pertinent part:

Except as in compliance with this section and
section[] . . . 1344 of this title, the discharge of any
pollutant by any person shall be unlawful.

33 U.S.C. § 1311(a) (CWA § 301(a)).

The Secretary may issue permits, after notice and
opportunity for public hearings, for the discharge of
dredged or fill materials into the navigable waters at
specified disposal sites.

33 U.S.C. § 1344(a) (CWA § 404(a)).

(5) The term “person” means an_ individual,
corporation, partnership, association, State,
municipality, commission, or political subdivision of
a State, or any interstate body.

(6) Theterm “pollutant” means dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt and
industrial, municipal, and agricultural waste
discharged into water... .

(7) The term “navigable waters” means the waters
of the United States, including the territorial seas.

33 U.S.C. § 1362(5-7) (CWA § 502(5-7).

(2) All interstate waters including interstate
wetlands;

(3) All other waters such as intrastate lakes, rivers,
streams (including intermittent streams), mudflats,
sandflats, wetlands, sloughs, prairie potholes, wet
meadows, playa lakes, or natural ponds, the use,
degradation or destruction of which could affect
interstate or foreign commerce including any such
waters:

(i) Which are or could be used by interstate or
foreign travelers for recreational or other purposes;
or (ii) From which fish or shellfish are or could be
taken and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial
purpose by industries in interstate commerce;

(4) All impoundments of waters otherwise defined
as waters of the United States under the definition;

(5) Tributanes of waters identified in paragraphs
(a)(1)-(4) of this section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than waters
that are themselves wetlands) identified in
paragraphs (a)(1)-(6) of this section.

33 C.F.R. 328.3(a).

Federal regulations define “waters of the United States” to *

mean: | INTRODUCTION
(1) All waters which are currently used, or were Since 1988, John and Judith Rapanos have been embroiled
used in the past, or may be susceptible to use in in a dispute with the government over federal regulation of
interstate or foreign commerce, including all waters remote wetlands on their property. For more than ten years they

which are subject to the ebb and flow of the tide;

have had to defend themselves in court against an expansive
interpretation of the Clean Water Act this Court has never
sustained and arguably rejected in Solid Waste Agency of
Northern Cook County v. United States Army Corps of
Engineers, 531 U.S. 159 (2001) (“SWANCC”’)—an
interpretation that has created a stark conflict among the Courts
of Appeals and which raises serious constitutional questions.

As a result of this dispute and a separate criminal suit,
John Rapanos now faces certain jail time in a federal
penitentiary, while in this civil case, both he and his wife are
subject to fines and mitigation fees totaling several million
dollars. The Rapanos are accused of filling wetlands on their
property without a federal permit in putative violation of
section 404(a) of the CWA.

+
STATEMENT OF THE CASE

Through their companies, the Rapanos own three parcels
of land in Bay, Midland, and Saginaw Counties in the State of
Michigan. See App. A2. These parcels are known as the
Salzburg, Hines Road, and Pine River sites. Jd. Although each
site is separated from the nearest navigable water by intervening
tributaries, as far as 20 miles, all three sites are alleged to
contain jurisdictional wetlands under the CWA. /d. at A21. In
February, 1994, criminal charges were brought against John
Rapanos for the unpermitted filling of wetlands on the Salzburg
site resulting from land-clearing activities. /d. at A2-A4. Upon
conviction in 1995, Rapanos was fined $185,000 and sentenced
to three years probation. /d. at A4. The conviction was upheld
by the Sixth Circuit but this Court vacated the conviction and
remanded the case in light of SWANCC in 2001. Jd. On
remand, the district court set aside the conviction ruling that,
under SWANCC, the federal government lacked jurisdiction to

regulate wetlands that are not physically adjacent to navigable
waters. Jd. at A4-A5. See also United States v. Rapanos, 190
F. Supp. 2d 1011 (E.D. Mich. 2002). But, on appeal, the Sixth
Circuit reversed the district court, finding SWANCC had little
effect on CWA jurisdiction, and remanded the case for
resentencing with mandatory jail time. Jd. at AS. A subsequent
petition for writ of certiorari by Rapanos was denied by this
Court in 2004. Jd. Simultaneous to the criminal case in 1994,
this civil action was brought against the Rapanos for land-
clearing activities on all three sites. Jd.

The CWA prohibits discharges of “fill” material into
“navigable waters” without a permit from the federal
government. See 33 U.S.C. §§ 1311(a) and 1344(a) (CWA
§ 301(a) and 404(a)). The Act defines “navigable waters” only
as “waters of the United States.” 33 U.S.C. § 1362(5-7).
Although the CWA does not mention “wetlands” in any
relevant provision, federal agencies have defined “waters of the
United States” to include wetlands the “use, degradation or
destruction of which could affect interstate or foreign
commerce” or any wetland “adjacent” to a tributary of defined
waters. 33 CFR § 328.3(a)(3), (7). In this case, the government
and the courts have interpreted that definition to authorize
federal regulation of any wetland with a “hydrological
connection” to a navigable water. See App. A and B.

A. The District Court Decision

Between 1988 and 1997, the Rapanos hired contractors to
prepare the Salzburg, Hines Road, and Pine River sites for
development. See App. A2-A4. The government contends the
site preparations resulted in the filling of jurisdictional wetlands
with sand and other materials in violation of section 404(a) of
the CWA. See App. Bl. Therefore, the Environmental
Protection Agency ordered the Rapanos to stop all land-clearing
activities and to restore the sites to their original condition. Jd.

at B30-36. When the Rapanos refused, based on their belief
that the CWA did not apply to their land, the United States
brought this suit. /d. at B2.

After a bench trial, the district court found the Rapanos
had filled 54 acres of wetlands on the three sites. See App. AS.
In reliance on the government’s “Migratory Bird Rule,” the
district court rejected the Rapanos’ defense that CWA
jurisdiction does not extend to wetlands far removed from
actual navigable waters. That rule was an administrative
interpretation of “navigable waters” and authorized federal
regulation of any water that could be used by migratory birds.
Id. at A11. However, after this Court ruled the “Migratory Bird
Rule” invalid in SWANCC because it exceeded statutory
authority, the district court “amended its findings to remove all
references to the ‘Migratory Bird Rule’ as a basis for federal
jurisdiction.” Jd. at A6 n.2. Instead, the court held the wetlands
on the Rapanos’ property were “adjacent” to tributaries and,
therefore, jurisdictional because they are “hydrologically
connected” to navigable waters. Jd. at A8.

But in the case of the Salzburg site, the nearest navigable
water is more than 20 miles away. See Rapanos, 190 F. Supp.
2d at 1012. Any surface water connection is intermittent and
connected to a navigable waterway only by means of a
manmade ditch, a nonnavigable creek and a river that ultimately
flows into the Saginaw Bay. Jd. at 1014-15. Likewise, the
wetlands on the Hines Road and Pine River sites are connected
to navigable waters only through surface runoff that purportedly
flows into nonnavigable tributaries to distant navigable waters.
See App. B20, B26. Relying on SWANCC, the Rapanos

appealed.
B. The Sixth Circuit Opinion

On appeal, the Rapanos argued this Court’s decision in
SWANCC did more than invalidate the “Migratory Bird Rule;”

et AE EN ek moe

it also prohibited federal regulation of wetlands that do not
physically abut a traditional navigable, water. See App. A20-
A21. In SWANCC, this Court explained its landmark decision
in United States v. Riverside Bayview Homes, Inc., 474 U.S.
121 (1985), noting it held in that case “that the Corps had
§ 404(a) jurisdiction over wetlands that actually abutted on a
navigable waterway.” SWANCC, 531 U.S. at 167. This Court
explained further that “[i]t was the significant nexus between
the wetlands and ‘navigable waters’ that informed [its] reading
of the CWA in Riverside Bayview Homes.” Id. This Court
pointed out, however, that it had expressed no opinion in that
case on the “question of the authority of the Corps to regulate
discharges of fill material into wetlands that are not adjacent to
bodies of open water.” Jd. With the stage thus set, this Court
proceeded to answer that question:

In order to rule for respondents here, we would have
to hold that the jurisd‘ction of the Corps extends to
ponds that are not adjacent to open water. But, we
conclude that the text of the statute will not allow
this.

Id. at 168.

Although the Sixth Circuit readily acknowledged the
wetlands on the Rapanos’ parcels are not physically adjacent to,
or directly abut, an open body of navigable water, the court
found this fact irrelevant to its jurisdictional determination:

What is required for CWA jurisdiction over
“adjacent waters,” however, is a “significant nexus
between the wetlands and ‘navigable waters,” . . .
which can be satisfied by the presence of a
hydrological connection.

App. Al6.

According to the Sixth Circuit, this Court’s decision in
Riverside Bayview does not require physical adjacency between
a wetland and a navigable water to establish CWA jurisdiction,
whereas this Court’s decision in SWANCC only invalidated the
“Migratory Bird Rule” and did not further limit the scope of the
CWA. See App. Al4. Nevertheless, the court recognized that
its broad reading of Riverside Bayview and narrow reading of
SWANCC, which had also been adopted by the courts in other
circuits, created a direct conflict with the Fifth Circuit’s
decision in Jn re Needham, 354 F.3d 340 (Sth Cir. 2003). Jd.

The primary difference the Sixth Circuit cited between its
understanding of CWA jurisdiction and the Fifth Circuit
concerned the “adjacency” requirement as determined by this
Court in SWANCC:

The Fifth Circuit requires that non-navigable water
be “truly adjacent to navigable waters” in order to
qualify for CWA jurisdiction. The majority of
courts, including this one, however, construe
Riverside Bayview and SWANCC to hold that, while
a hydrological connection between the non-navigable
and navigable waters is required, there is no “direct
abutment” requirement.

App. Al6.

The Sixth Circuit’s crabbed reading of SWANCC did not
stop there, however. The court also failed to follow this Court’s
lead in denying deference to the government’s interpretation of
the CWA under Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). See App. Al7- -

A20. In SWANCC, as the Sixth Circuit noted, this Court
refused to accord Chevron deference to the government’s
“Migratory Bird Rule,” which authorized federal regulation of
nonadjacent waters, because the regulation impinged on the

5. +

state’s “traditional and primary power over land and water use”

9

and, “where an otherwise acceptable construction of a statute
would raise serious constitutional problems, the Court will
construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress.” /d.
at A19 (citing SWANCC, 531 U.S. at 173-74).

But, without citing any evidence that Congress intended
the CWA to cover nonabutting wetlands or that the regulation
of such wetlands does not impinge on the State’s traditional and
primary power over land and water use, the Sixth Circuit
determined Chevron deference was appropriate in this case
because this Court applied such deference in Riverside
Bayview. Id. at Al9-A20. Although Riverside Bayview
involved wetlands that actually abutted a navigable waterway,
and this case does not, the Sixth Circuit held the government's
interpretation of “waters of the United States” was reasonable
under Chevron. Id. at A20. .

+

REASONS FOR GRANTING THE WRIT
I

THERE IS A CONFLICT AMONG
THE CIRCUITS ABOUT WHETHER
FEDER AL JURISDICTION UNDER SECTION
404 OF THE CLEAN WATER ACT EXTENDS
TO INTRASTATE, NONNAVIGABLE
WETLANDS THAT DO NOT ABUT A
TRADITIONAL NAVIGABLE WATER

With obvious frustration, the Sixth Circuit remarked:
“determining the precise boundary of which waters are covered
by the CWA has been difficult” for the courts. App. A7. So
difficult in fact, that the court felt compelled to mention the
difficulty again and again. See App. A8 (“Determining which

10

wetlands are considered ‘adjacent to’ traditional navigable
waters or their tributaries has proved to be a complication in
defining CWA jurisdiction.”). Jd. (“Determining how much of
a connection is necessary has proven difficult.”). The court lays
blame for this difficulty squarely ow this Court’s decisions in
Riverside Bayview and SWANCCU. “Unfortunately, the two
leading Supreme Court cases on the reach of the CWA have
done little to clear the muddied waters of CWA jurisdiction.”
Id.

The Court of Appeals appears to be calling for further
clarification, but its decision in this case has muddied the
waters even further while expressly acknowledging a conflict
between the Sixth Circuit (and other Courts of Appeals) and the
Fifth Circuit. As if to punctuate the need for this Court’s
resolution, the Sixth Circuit takes pains to lay out the exact
nature of this conflict.

The definitive statement of the Fifth Circuit's
interpretation of CWA jurisdiction, cited by the Sixth Circuit,
is found in Needham. But to put that case in context, a look at
Rice v. Harken Exploration Co., 250 F.3d 264 (Sth Cir. 2001),
is instructive. In Rice, an action was brought against Harken
Exploration Company under the Oil Pollution Act (OPA) for oil
spills on Rice’s property in Hutchinson County, Texas. Among
other things, the OPA imposes strict liability on parties
responsible for discharging oil into “navigable waters,” defined
as “waters of the United States.” /d. at 266-67. The scope of
the OPA was an issue of first impression for the Fifth Circuit
and required the court to define “navigable waters.” Jd. at 267.

Because only a few cases had construed the OPA, the
court turned to the cases interpreting the term “navigable
waters” under the CWA. The Fifth Circuit determined that the
legislative history and the use of identical definitions of

11

“navigable waters” in the OPA and CWA suggested Congress
intended the term to “have the same meaning” in both Acts. /d.

The Fifth Circuit began its analysis with Riverside
Bayview noting this Court appeared to adopt an expansive
reading of “navigable waters” which the Fifth Circuit had
previously followed. /d. at 268. But the court concluded its
analysis with SWANCC, stating this Court had more recently
“limited the scope of the CWA.” Jd.

The Fifth Circuit observed that in SWANCC, this Court
had “distinguished Riverside Bayview Homes on the ground that
in that case the wetlands in question were adjacent to a body of
open water that was actually navigable” and that the term
“navigable waters” had to have some effect. Jd. Based on its
reading of SWANCC, therefore, the Fifth Circuit declined to
characterize a small seasonal creek as “waters of the United
States” subject to federal regulation under either the OPA or
CWA, even though the creek flowed intermittently into the
Canadian River, a “navigable water.” “Instead,” the court held,
“a body of water is protected under the Act only if it is actually
navigable or is adjacent to an open body of navigable water.”
Id. at 270.

More recently, the Fifth Circuit affirmed its holding in
Rice and expressly rejected the interpretation of CWA
jurisdiction which the Sixth Circuit applied in this case. In
Needham, the Fifth Circuit was again required to determine the
scope of “navigable waters” under the OPA and, as in Rice, the
Fifth Circuit relied on SWANCC for this determination. See In
re Needham, 354 F.3d at 344-47.

In Needham, as in this case, the government argued the
definition of navigable waters “covers all waters, excluding
groundwater, that have any hydrological connection with
‘navigable water.’” Jd. at 345. The Fifth Circuit acknowledged
some support for this view noting at least two appellate courts

12

had agreed with the government's interpretation: United States
v. Deaton, 332 F.3d 698, 702 (4th Cir. 2003) (“asserting
authority, under the CWA, over wetlands that are ‘adjacent to,
and drain into, a roadside ditch whose waters eventually flow
into the navigable Wicomico River and Chesapeake Bay’ ”),
and the Sixth Circuit in the Rapanos criminal case (“asserting
authority, under the CWA, over wetlands that flow into a man-
made drain, which in turn flows into a creek, which in turn
flows into a navigable river.”). In re Needham, 354 F.3d at
345.

But the Fifth Circuit expressly rejected this interpretation,
Stating unequivocally that the government’s definition of
navigable waters “is unsustainable” under SWANCC. Id. So as
not to be misunderstood, the court stated further that the CWA
and OPA are not so broad as to permit federal regulation of
“tributaries” that are neither navigable in fact nor cdjacent to
such waters. Jd. The court thus held:

Consequently, in this circuit the United States may

roadside ditches and the like; under SWANCC “a

body of water is subject to regulation . . . if the body

of water is actually navigable or adjacent to an open

body of navigable water.”

In Re Needham at 345-46 (citing Rice, 250 F.3d at 269).

This conclusion puts the Fifth Circuit in direct conflict
the Sixth Circuit observed, the Needham court disagreed with
decisions from the Fourth, Sixth, Seventh, and Ninth Circuits
that, under SWANCC, “water exhibiting a hydrological
connection with ‘navigable water’ should be considered part of
the “waters of the United States."” See App. A at Al4. Instead,
the Sixth Circuit stated, the Needham court found that the

13

“water must be ‘truly adjacent to navigable waters,” thus
supporting the Rapanos’ abutment argument. /d.

As noted by the Sixth Circuit, this disagreement runs to
the following noteworthy cases: United States v. Rapanos, 339
F.3d 447, 453 (6th Cir. 2003) (finding that SWANCC merely
invalidated the “Migratory Bird Rule”); Treacy v. Newdunn
Associates, LLP, 344 F.3d 407, 415 (4th Cir. 2003) (noting that
SWANCC reaffirmed a broad reading of CWA jurisdiction);
United States v. Deaton, 332 F.3d 698 at 703 (holding that
SWANCC did not disavow any Corps interpretations of the
CWA, except the “Migratory Bird Rule”); United States v.
Rueth Development Company, 335 F.3d 598, 604 (7th Cir.
2003), cert denied, (finding SWANCC did not significantly limit
the government’s wetland jurisdiction); Headwaters, Inc. v.
Talent Irrigation District, 243 F.3d 526, 533-34 (9th Cir. 2001)
(expressing the view that SWANCC did not change the
jurisdictional). See App. at A14-A15.

This conflict among the circuits is real and substantial and
involves an important question of law. To resolve this conflict,

14

THE EXTENSION OF CLEAN WATER ACT
JURISDICTION TO EVERY INTRASTATE
WETLAND WITH ANY SORT OF
HYDROLOGICAL CONNECTION
TO NAVIGABLE WATERS, NO MATTER
HOW TENUOUS OR REMOTE THE
CONNECTION, EXCEEDS CONGRESS’
CONSTITUTIONAL POWER TO REGULATE
COMMERCE AMONG THE STATES

In SWANCC, this Court held the word “navigable”
constrains the jurisdictional reach of the Clean Water Act.
Otherwise, “the use of the word navigable in the statute . . .
does not have any independent significance.” SWANCC, 531
U.S. at 172. Accordingly, this Court found: “the term
‘navigable’ has at least the import of showing us what Congress
had in mind as its authority for enacting the CWA: _ its
traditional jurisdiction over waters that were or had been
navigable in fact or which could reasonably be so made.” /d.

Besides the Act’s express language, this Court gave
another reason for limiting section 404(a) to Congress’
traditional power over navigable waters. This Court found the
government’s application of its CWA _ regulations to
nonnavigable, isolated, intrastate waters was overly broad and
a “far cry, indeed, from the ‘navigable waters’ and ‘waters of
the United States’ to which the statute by its terms extends” and
thus raises “significant constitutional questions.” /d. at 173-74.

But federal regulation of the wetlands in this case raises
the same “significant constitutional questions” and is, likewise,

a “far cry” from the waters “to which the statute by its terms
extends.” According to the Sixth Circuit, nonnavigable,

15

intrastate wetlands are subject to federal jurisdiction if they are
merely connected to navigable waters:

What is required for CWA jurisdiction over

“adjacent waters,” however, is a “significant nexus

between the wetlands and ‘navigable waters,’” . . .

which can be satisfied by the presence of a

hydrological connection.
App. A16. (emphasis added).

Therefore, under this decision, CWA jurisdiction extends
to every intrastate wetland with any sort of hydrological
connection to navigable waters, no matter how tenuous or
remote the connection. This is evidenced by the facts in this
case. It is undisputed that the intrastate wetlands on the

Rapanos’ property are not navigable waters. Nor do they abut

a navigable water. To the contrary, they have only an
intermittent, indirect and remote surface runoff connection to

the nearest navigable waters, which in the case of the Salzburg
site is 20 miles away.

In SWANCC, the government argued, much as it has in
this case, that the CWA reaches “nonnavigable, isolated,
intrastate” waters. SWANCC, 531 U.S. at 172. However, this
Court determined the government’s broad interpretation of the
statute invoked “the outer limits of Congress’ power” and could
not be sustained. /d.

Thus, “where an otherwise acceptable construction
of a statute would raise serious constitutional
problems, the Court will construe the statute to avoid
such problems unless such construction is plainly
contrary to the intent of Congress.”

Id. at 173 (quoting Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building and Construction Trades Council, 485 U.S.
568, 575 (1988)).

16

. The constitutional problem was the government’s claim
that it could regulate any waters that could be used by migratory
birds under “Congress” power to regulate intrastate activities
that ‘substantially affect’ interstate commerce.” SWANCC, 531
U.S. at 173. This Court was clearly skeptical of that argument
and, to underscore the point, cited its Commerce Clause
decisions in United States v. Lopez, 514 U.S. 549 (1995), and
United States v. Morrison, 529 U.S. 598 (2000), stating:
“Twice in the past six years we have reaffirmed the proposition
that the grant of authority to Congress under the Commerce

Clause, though broad, is not unlimited.” SWANCC, 531 U.S. at
173.

Evidently, because the regulation of nonnavigsole,
isolated, intrastate waters implied unlimited Commerce Clause
authority in the federal government, this Court was unwilling to
read such authority into the CWA. But the government’s
assertion of authority over any wetland with a hydrological
connection to a navigable water in this case implies essentially
the same limitless commerce power as the “Migratory Bird
Rule” and is likewise invalid.

In Lopez, as subsequently affirmed in Morrison, this Court
set forth a simple standard for analyzing Commerce Clause
enactments that are based on the regulation of activities that
substantially affect interstate commerce, like the CWA. These

cases show the government has exceeded its authority in this
case.

A. Under Lopez and Morrison, Intrastate
Activity May Be Regulated for Its Substantial
Effects on Interstate Commerce Only if the
Regulated Activity Is Economic in Nature

The Gun-Free School Zones Act of 1990 made it a federal
offense “for any individual knowingly to possess a firearm . . .
at a place that the individual knows, or has reasonable cause to

ere.

= moe ar

17

believe, is a school zone.” 18 U.S.C. § 922(q)(2)(A). Lopez,
a 12th-grade student, was arrested and charged under this Act
when he brought a concealed .38 caliber handgun and five
bullets to school. Lopez, 514 U.S. at 551. However, Lopez
challenged the Act as beyond the commerce power of Congress.
Id. The Fifth Circuit agreed with Lopez and this Court
affirmed. Jd. at 552.

In Lopez, this Court declared the purpose of its inquiry
was to determine if Congress intended to regulate commerce,
and then to ascertain “whether a rational basis existed for
concluding that a regulated activity sufficiently affected
interstate commerce.” Jd. at 557.

First, this Court turned to the statute itself and found
section 922(q), by its own terms, had “nothing to do with
‘commerce’ or any sort of economic enterprise, however
broadly one might define those terms.” /d. at 561. This
obvious conclusion was compelled by the express language of
the Act which made the mere possession of a firearm in a
school zone a crime. It followed, therefore, that the regulated
act, the possession of a gun, was “not an essential part of a
larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were
regulated.” Lopez at 561. In fact, this Court observed, the Act
was a criminal statute that did not involve a commercial or
economic regulatory scheme at all. Jd. Accordingly, section
922(q) could not be sustained under this Court’s cases that
allowed congressional regulation of activities “that arise out of
or are connected with a commercial transaction, which viewed
in the aggregate, substantially affects interstate commerce.” Jd.
Interestingly, this Court came to this conclusion even though
the prohibited activity, possession of a gun, involved a
commercial item.

18

Second, this Court sought to determine whether section
922(q) contained a “jurisdictional element” that would ensure
on a case-by-case basis that the possession of a firearm
substantially affects interstate commerce. /d. at 562. For that
determination, this Court turned again to the language of the
Act and found it did not provide an express requirement that
would “limit its reach to a discrete set of firearm possessions

that additionally have an explicit connection with or effect on
interstate commerce.” Jd.

Third, because no substantial effect was “visible to the
naked eye,” in the text of the Act itself, this Court also looked
to the legislative history to locate any express congressional
findings that demonstrated Congress’ belief that the possession
of a gun in a school zone substantially affected interstate
commerce. /d. at 562-63. But this Court found none.

Nevertheless, the government argued that Congress could
rationally have concluded that section 922(q) did substantially
affe:t interstate commerce because possession of a gun in a
school zone may result in violent crime and violent crime
interferes with the national economy in two respects: (1)
violent crime increases the cost of insurance throughout the
nation, and (2) violent crime deters people from traveling to
unsafe areas. /d. at 563-64. The government also argued that
guns in school undermine the learning environment, producing
less productive citizens, which hurts the national economy. Jd.
at 564. To underscore the inherent limitations on the commerce

power, this Court also addressed the implications of those
arguments.

The government acknowledged under its “costs of crime”
argument, that Congress could regulate any activity that might
lead to violent crime no matter how remote the connection to
interstate commerce. Jd. Likewise, this Court found that under
the government’s “national productivity” argument, Congress

2 ss sees Lil SMM Ni dew
oT aia ete, Maiti OD LS TPE to WOR ee a es LT RN le eons

19

could ate anything related to individual economic
we Id. If these arguments were accepted, this Court
concluded, it would be “hard pressed” to find any individual
activity that Congress could not regulate under the commerce
power. Id. “Depending on the level of generality, this Court
observed, “any activity can be looked upon as commercial. Id.
at 565.

This was the fallacy in the government's arguments; they
provided no logical stopping point to congressional authority
and converted the commerce power into a general police power
like that enjoyed by the states. Jd. at 567. Although some of
this Court’s earlier cases leaned in that direction and suggested
a possible expansion of the commerce power, this Court set
aside section 922(q) as an invalid Commerce Clause enactment
and declined in Lopez to go any further. Id. “To do so, this
Court stated, “would require us to conclude that the
Constitution’s enumeration of powers does not presuppose
something not enumerated . . . and that there never will be a
distinction between what is truly national and what is truly
local.” Id. at 567-68.

As if to demonstrate that Lopez was no anomaly, this
Court affirmed that opinion five years later in Morrison. In
Morrison, Christy Brzonkala brought an action against two
university students for rape under section 13981 of the Violence
Against Women Act of 1994. That Act provided a federal civil
remedy for victims of gender-motivated violence and stated that
“persons within the United States shall have the right to be free
from crimes of violence motivated by gender.” 42 U.S.C. §
13981(b). The Act defined gender-motivated crime as a crime
of violence committed because of gender or on the basis of
gender, and due, at least in part, to an animus based on the
victim’s gender.” 42 U.S.C. § 13981(d)(1). The district court
dismissed the suit because it determined that section 13981 was

20

an invalid Commerce Clause enactment. The Fourth Circuit,
sitting en banc, and this Court both affirmed.

Relying on Lopez, this Court first determined, as it must,
that the statute, by its terms, had nothing to do with commerce:
“[g]ender-motivated crimes of violence are not, in any sense of
the phrase, economic activity.” Morrison, 529 U.S. at 613. As
a result, this Court held gender-motivated crimes are not the
type of activity that, through repetition elsewhere, would
substantially affect interstate commerce. /d. at 610-11.

This determination was critical to the outcome of the case.
As this Court observed, the noneconomic, criminal nature of the
prohibited activity in Lopez was central to its decision in that
case. /d. at 610. But this Court did not stop there. To further
illustrate the importance of this factor, this Court stated, as a
matter of historical fact, that it had upheld federal regulation of
intrastate activity based o.: its “substantial effects” on interstate

commerce only when the regulated activity was economic in
nature. /d. at 611, 613.

Next, this Court determined the Violence Against Women
Act did not contain an express “jurisdictional element”
establishing that Congress was attempting to regulate interstate
commerce. /d. at 613. Rather than limit its reach to a discrete
set of gender-motivated violent crimes that had an explicit
connection with or effect on interstate commerce, this Court
found section 13981 was drawn too broadly and included purely
intrastate violent crime. Jd. This Court concluded, therefore,
that the language of the Act did not support the conclusion that
section! 3981 was adequately tied to interstate commerce. Jd.

Unlike the situation in Lopez, however, this Court did find
that the Violence Against Women Act was supported by
congressional findings that gender-motivated violence affects
interstate commerce. Jd. at 614. Among others, those effects
included deterring victims from traveling interstate or engaging

eo ao ed ot a a a Re ale AR Da lta ll st adlindasine aren Beanies
mmr

21

in interstate business. Jd. at 615. Diminishing national
productivity, increased medical costs, and a decrease in the
supply and demand of interstate goods were also cited. Id. But
this Court did not believe these findings were sufficient to
uphold the Act under the Commerce Clause: “[S]imply
because Congress may conclude that a particular activity
substantially affects interstate commerce does not necessarily
make it so.” Jd. at 614. That determination, this Court stated,
is for the courts to decide. Jd.

Because Congress followed the but-for causal chain from
the original violent act to every remote effect upon interstate
commerce, this Court decided that Congress’ findings were
faulty and relied on a “method of reasoning” that obliterates the
distinction between what is national and what is local and
which this Court had already rejected in Lopez. Id. at 615. This
Court was simply unwilling to allow Congress to regulate
noneconomic activity, such as gender-motivated acts of
violence, based only on that activity’s attenuated effects on
interstate commerce. Jd. at 617. Therefore, this Court held that
Congress did not have authority under the Commerce Clause to
enact section 13981 of the Violence Against Women Act. Jd.
at 619.

B. The Extension of CWA Jurisdiction
over Any Water with a Hydrological

Connection to a Navigable Water Fails
the Lopez Standard for “Substantial Effects

Both Lopez and Morrison strongly affirmed that federal
power under the Commerce Clause is limited in order to
prevent the federal government from becoming a government
of general powers, like the states. Lopez, 514 U.S. at 559-68;
Morrison, 529 U.S. at 617-19. These cases recognized that the
Constitution prohibits the federal government from regulating
noneconomic intrastate activities like the filling of remote,

22

nonnavigable, intrastate wetlands in this case, that have only an
attenuated connection to interstate commerce and obliterate the
“distinction between what is truly national and what is truly
local.” Lopez, 514 U.S. at 567-68. A faithful application of the
Lopez standard to the facts in this case demonstrates that the
regulation of the Rapanos’ land-clearing activities exceeds the
commerce power and is invalid.

As expressed by this Court, four factors contributed to its
decision in Lopez. The first factor was that the statute, by its
terms, had nothing to do with commerce or an economic
enterprise; that is, the Act did not purport to regulate an
economic activity. See Morrison, 529 U.S. at 610. The second
factor was that the Act contained “no express jurisdictional
element which might limit its reach to a discrete set of firearm
possessions that additionally have an explicit connection with
or effect on interstate commerce.” /d. at 611-12. This factor
was important to establish that the Act was in “pursuance of
Congress’ regulation of interstate commerce.” Jd. The third
factor was that neither the statute “nor its legislative history
contain[ed] express congressional findings regarding the effects
upon interstate commerce” of the regulated activity. Id. at 612.
And, the fourth factor was that the connection between the
regulated activity and a substantial effect on interstate
commerce was attenuated. /d.

The first factor is the most telling and focuses on the
express language of the Act. As this Court observed in Lopez,
Ҥ 922(q) is a criminal statute that by its terms has nothing to
do with ‘commerce’ or any sort of economic enterprise,
however broadly one might define those terms.” 514 U.S. at

516. As interpreted by the government and the court below, the
CWA fares no better. ‘

The CWA provides that “the discharge of any pollutant by
any person shall be unlawful,” unless approved by the federal

23

government. 33 U.S.C. § 1311(a) (CWA § 301(a)). ‘The Act
provides further that: “The Secretary may issue permits oe for
the discharge of dredged or fill materials into the navigable
waters at specified disposal sites.” 33 U.S.C. § 1344(a) (CWA
§ 404(a)). The term “navigable waters” is defined simply as
“waters of the United States.” 33 U.S.C. § 1362(7) (CWA
§ 502(7)). It was under these statutory provisions that the
Rapanos were cited for filling wetlands without a permit.

Like the statutes in Lopez and Morrison, the CWA
prohibition on the discharge of fill material into navigable
waters by any person, does not, by its terms, have anything to
do with commerce or an economic activity or enterprise
however broadly those terms are defined. The prohibition
applies to all discharges, whatever the source. Whether the.
discharge is caused by a child playing with a pail of sand or by
the operation of a backhoe, it is the same. The text of the Act
gives no indication that Congress intended to regulate
commerce by prohibiting discharges to remote wetlands. Under
Lopez and Morrison, this alone is sufficient to invalidate federal
regulation of the wetlands in this case: “[T]hus far in our
Nation’s history our cases have upheld Commerce Clause
regulation of intrastate activity only where that activity is
economic in nature.” Morrison, 529 U.S. at 613.

Only one exception applies. If the Act does not, by its
terms, purport to regulate economic activity, then the provision
may be upheld as a proper Commerce Clause enactment if the
provision contains an express “jurisdictional element which
would ensure, through case-by-case inquiry that the [regulated
activity] affects interstate commerce.” Lopez, 514 U.S. at 561.
This is the second Lopez factor. But in this case, the statutory
definition of “navigable waters” as “waters of the United
States,” does not contain any reference to interstate commerce.
There is no jurisdictional statement. Moreover, the Sixth
Circuit held in this case it is enough if the regulated wetlands

24

have a mere hydrological connection with a navigable water.
Therefore, the statutory definition of “navigable waters” in this
case suffers from the same problem as the provisions
challenged in Lopez and Morrison; it is too broad and sweeps
in waters that have no actual effect on interstate commerce. See
Morrison, 529 U.S. at 613. :

The third Lopez factor involves a consideration of the
legislative history to determine if Congress was pursuing its
power to regulate interstate commerce and to allow the court to
consider the legislative judgment that the regulated activity
substantially affects interstate commerce. See Morrison, 529
U.S. at 612. In SWANCC, the government argued the
legislative history of the CWA supported its view that Congress
intended to exercise its commerce power to its full extent. But,
this Court disagreed, noting the legislative history does not
indicate that Congress intended to exercise any Commerce
Clause authority over remote wetlands:

Respondents refer us to portions of the legislative
history that they believe indicate Congress’ intent to
expand the definition of “navigable waters.”
Although the Conference Report includes the
statement that the conferees “intend that the term
‘navigable waters’ be given the broadest possible
constitutional interpretation,” S. Conf. Rep. No. 92-
1236, p. 144 (1972), U.S. Code Cong. & Admin.
News 1972 pp. 3668, 3822, neither this, nor anything
else in the legislative history to which respondents
point, signifies that Congress intended to exert
anything more than its commerce power over
navigation. Indeed, respondents admit that the
legislative history is somewhat ambiguous.

SWANCC, 531 U.S. at 168 n.3.

25

As in Lopez, neither the statute nor the legislative history
contains “express congressional findings regarding the effects
upon interstate commerce” of the filling of remote, intrastate
wetlands. See Morrison, 529 U.S. 612.

The fourth and final Lopez factor involves a determination
as to whether the regulated activity is so removed from any
substantial impact on interstate commerce that to allow such
regulation would obliterate the distinction between what is
national and what is local. Jd. at 615. This determination
appears to be foregone when the court finds the other three
factors do not support the enactment, as here.

In this case, neither the statutory definition of “navigable
waters” nor the prohibition on discharges to “navigable waters”
without a permit has, by its terms, anything to do with
economic activity and there is no express jurisdictional element
to limit the Act to a “discrete set of [discharges] that
additionally have an explicit connection with or effect on
interstate commerce” as the Lopez standard requires. Lopez,
514 U.S. at 562. There are also no express findings in the
legislative history to support the regulation of remote, intrastate
wetlands as a regulation of commerce. These factors suggest
the connection to interstate commerce is attenuated and that no
“rational basis existed for concluding that [the] regulated
activity sufficiently affected interstate commerce.” Jd. at 557.
Moreover, it is axiomatic that to allow federal regulation of any
water that has a mere hydrological connection to a navigable
water would “completely obliterate the Constitution’s
distinction between national and local authority.” Morrison,
529 U.S. at 615. So long as a federal permit is required to fill
such waters, the federal government has a virtual veto power
over local land and water use. If the federal government can
regulate all waters hydrologically connected to a navigable
water, no matter how tenuous or remote the connection, there

26

is virtually nothing the government could not regulate under the
commerce power.

Under the Lopez standard, the regulation of the filling of
remote, nonnavigable, intrastate wetlands utterly fails as a valid
exercise of the Commerce Clause power. Therefore, the
decision below should be overturned.

+
CONCLUSION

This case raises a question of immense federal
importance—the scope of federal authority over “waters of the
United States.” The lower courts are starkly divided on that
question. Whereas the Fourth, Sixth, Seventh, and Ninth
Circuits have broadly interpreted the CWA to cover all waters
with a hydrological connection to a navigable water, no matter
how tenuous or remote the connection, the Fifth Circuit has
expressly rejected that interpretation as “unsustainable” under
this Court’s precedents. This conflict alone warrants Supreme
Court review. But there is more. The Sixth Circuit decision in
this case not only authorizes federal regulation of wetlands in
excess of statutory authority but beyond constitutional limits as
well. Review by this Court is, therefore, necessary to a
resolution of these issues.

27

For these reasons, this Court should grant the Rapanos’
petition for writ of certiorari.
DATED: January, 2005.
Respectfully submitted,

M. REED HOPPER
Counsel of Record

ROBIN L. RIVETT

GREGORY T. BRODERICK
Of Counsel
Pacific Legal Foundation
3900 Lennane Drive, Suite 200
Sacramento, California 95834
Telephone: (916) 419-7111
Facsimile: (916) 419-7747

Counsel for Petitioners

Appendix Al
No. 03-1489

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES of America, ) Argued June 9, 2004

) Decided and Filed

Plaintiff-Appellee, ) July 26, 2004

)
v. ) Rehearing En Banc

) Denied Nov. 2, 2004
John A. RAPANOS; Judith A.
Nelkie Rapanos; Prodo, Inc.;
Rolling Meadows Hunt Club;
Pine River Bluff Estates, Inc.,

ee ee a a a

Defendants-Appellants.

OPINION
REEVES, District Judge.

Plaintiff-Appellee United States brought suit against the
Defendants pursuant to the Federal Water Pollution Control Act
Amendments of 1972, Pub.L. No. 92-500, 86 Stat. 817, as
amended 33 U.S.C. § 1251 et seg., commonly known as the
Clean Water Act (“CWA”). Defendants-Appellants John
Rapanos, Judith Rapanos, Prodo, Inc., Rolling Meadows Hunt
Club, and Pine River Bluff Estates, Inc. appeal the district
court’s entry of judgment in favor of the United States. Prodo,
Inc., Rolling Meadows Hunt Club, and Pine River Bluff
Estates, Inc. are wholly owned by John and Judith Rapanos.
For the reasons discussed below, we AFFIRM the judgment of
the district court.

Appendix A2
BACKGROUND

The Rapanos, through their wholly-owned companies,
owned various parcels of land in Bay, Midland, and Saginaw
Counties in Michigan. These parcels are known as the
Salzburg, Hines Road, Pine River, Freeland, Mapleton, and
Jefferson Avenue sites. The Rapanos were charged with
illegally discharging fill material into protected wetlands at
_ these sites between 1988 and 1997. The United States alleges
that the Rapanos attempted to fill these wetlands to make the
land more conducive to development.

I. The Salzburg Site

Before filling wetlands subject to CWA jurisdiction, a
landowner must first obtain a permit from the Army Corps of
Engineers (“Corps”). 33 U.S.C. § 1344. In December 1988,
John Rapanos asked the state to inspect the Salzburg site in
hope of obtaining a permit to construct a shopping center at this
location. The state informed him that the site was likely a
regulated wetland and sent him an application for the necessary
permits. A state representative toured the site in March 1989,
noting that the site probably contained wetlands but could be
developed if the necessary permits were issued. Mr. Rapanos
hired a consultant, Dr. Goff, to prepare a report detailing the
wetlands on the Salzburg site. Dr. Goff concluded that there
were between 48 and 58 acres of wetlands on the site,
presenting his findings in the form ofa report and a map. Upset
by the report, Mr. Rapanos ordered Dr. Goff to destroy both the
report and map, as well as all references to Mr. Rapanos in Dr.
Goff's files. However, Dr. Goff was unwilling to do so. Mr.
Rapanos stated he would “destroy” Dr. Goff if he did not
comply, claiming that he would do away with the report and
bulldoze the site himself, regardless of Dr. Goff's findings.

Appendix A3

In April 1989, workers began leveling the ground, filling
in low spots, clearing brush, removing stumps, moving dirt, and
dumping sand to cover most of the wetland vegetation. This
activity caused Dr. Goff to note that the site now looked “like
nothing move than a beach.” In August 1989 the state
attempted to inspect the Salzburg site, but was denied access.
Three months later, authorities from the state returned, armed
with a search warrant.

In 1991, a state representative returned to the Salzburg site,
noting that the site had been “tiled” to drain subsurface water.
When Mr. Rapanos refused to comply with an administrative
compliance order issued by the Environmental Protection
Agency (“EPA”) (requiring him to immediately cease his filling
of the Salzburg site), the EPA referred the matter to the

Department of Justice.

Il. The Hines Road Site

The Defendants undertook to expand drains, build roads,
and fill the wetlands at the Hines Road site. However, in July
1992, the state issued a cease and desist letter to stop the ©
ongoing activity. Mr. Rapanos did not reply to this letter.
Thereafter, the state conducted an examination of the site
pursuant to a search warrant in June 1994. In June 1997, the
state returned to the site and noted that fill had been added to
certain areas since the 1994 search. Accordingly, the EPA
issued an administrative compliance order. The EPA alleges
that Mr. Rapanos did not comply with this order.

III. The Pine River Site

Mr. Rapanos also hired contractors at the Pine River site to
construct ditches, spread dirt and sand, construct roads, and
clear vegetation. The state sent Mr. Rapanos a cease and desist
order after an official observed that portions of the wetlands had

Appendix A4

been filled. The EPA issued an administrative compliance
order in September 1997 after Mr. Rapanos refused to comply
with the cease and desist order. The EPA alleges that Mr.
Rapanos also did not comply with the administrative order.

IV. The Criminal Proceedings

Criminal charges were brought simultaneously with the
instant civil action. In July 1994, the district court declared a
mistrial in Mr. Rapanos’ criminal trial. The trial was moved to
Flint, Michigan and, on March 7, 1995, the jury in the second
trial returned a guilty verdict on two counts. United States v.
Rapanos, 895 F. Supp. 165, 166 (E.D. Mich.1995). Following
trial, the district court granted Rapanos’ motion for a new trial,
finding that the court had improperly allowed the United States
to pursue a line of questioning that was prejudicial to the
defendant. /d. at 169-70. This court, however, determined that
the line of questioning was not improper and reversed the
district court’s grant of a new trial and remanded for sentencing.
United States v. Rapanos, 115 F.3d 367, 374 (6th Cir. 1997).
The district court sentenced Rapanos to three years probation
and ordered him to pay a $185,000 fine. On appeal, this court
affirmed the conviction but remanded for resentencing. United
States v. Rapanos, 235 F.3d 256, 261 (6th Cir. 2000).

The Supreme Court granted Rapanos’ request for a writ of
certiorari, vacating and remanding this court’s order in light of
Solid Waste Agency of Northern Cook County v. United States
Army Corps of Engineers, 531 U.S. 159, 121 S. Ct. 675, 148 L.
Ed.2d 576 (2001) (“SWANCC “). Rapanos v. United States,
533 U.S. 913, 121 S. Ct. 2518, 150 L. Ed.2d 691 (2001).
Following remand from the Supreme Court, this court
remanded the case to the district court for further consideration.
United States v. Rapanos, 16 Fed. Appx. 345 (6th Cir. 2001).
On remand, the district court set aside the conviction, finding
that the United States lacked jurisdiction in the wake of the

Appendix A5

Supreme Court’s ruling in SWANCC. United States v.
Rapanos, 190 F. Supp.2d 1011 (E.D. Mich.2002). On appeal,
this court reversed the order of the district court, reinstated the
previous conviction and remanded to the district court for
resentencing. United States v. Rapanos, 339 F.3d 447, 454 (6th
Cir. 2003). A panel of this court determined that, despite the
Supreme Court’s decision in SWANCC, the United States
retained jurisdiction over the wetlands at issue by virtue of the
CWA.!' Recently, the Supreme Court denied Rapanos’ petition
for a writ of certiorari. Rapanos v. United States, --- U.S. ----,
124 S. Ct. 1875, 158 L. Ed.2d 467 (2004).

V. The Civil Proceedings

The United States initiated this civil action in February
1994, confining its scope to the Salzburg site and naming only
Mr. Rapanos as a defendant. In June 1996, the United States
added Mrs. Rapanos to the complaint, as well as Prodo, Inc., a
company owned by Mr. Rapanos. In February 1998, the United
States amended its complaint to add allegations concerning the
Hines Road and Pine River sites. Pine River Bluffs Estates was
also added as a defendant.

Following a 13-day bench trial, the district court concluded
that Rapanos had filled 22 of 28 acres of protected wetlands at
the Salzburg site, 17 of 64 acres of protected wetlands at the
Hincs Road site, and 15 of 49 acres of protected wetlands at the
Pine River site. The district court concluded that the
government had established that 54 of the filled acres fit the

' Tue land at issue in the criminal trial was the Salzburg site.
The Salzburg site in the criminal trial is somewhat different
than the Salzburg site involved in this proceeding.

Appendix A6

three parameters for wetlands, i.e., vegetation, soils, and
hydrology. In addition, the court found that the United States
did not meet its burden regarding the existence of wetlands at
the Freeland and Mapleton sites. The district court entered
these findings and conclusions on March 22, 2000.”

STANDARD OF REVIEW

[1] Following a bench trial, this court reviews the district
court’s findings of fact for clear error and reviews its
conclusions of law de novo. Pledger v. United States, 236 F.3d
315, 320 (6th Cir. 2000). Factual determinations of a trial court
are not clearly erroneous unless we are “left with the definite
and firm conviction that a mistake has been committed.” /d.
(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573,
105 S. Ct. 1504, 84 L. Ed.2d 518 (1985)). “If the district
court's account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not
reverse it even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.”
Anderson, 470 U.S. at 573-74, 105 S. Ct. 1504.

DISCUSSION

On appeal, Rapanos argues that the district court erred
when it (1) held that the disturbed wetlands were adjacent
wetlands because they had a surface connection to waters of the
United States; (2) failed to make subsidiary findings to support
its conclusion that the Salzburg, Hines Road, and Pine River

. On January 10, 2003, after the Supreme Court overturned the
“Migratory Bird Rule” as an excessive extension of jurisdiction
under the CWA in SWANCC, the district court amended its
findings to remove all references to the “Migratory Bird Rule”
as a basis for federal jurisdiction.

Appendix A7

sites had a hydrological connection to navigable waters; (3)
allowed plaintiff's expert Dr. Willard to testify, (4) failed to
consider Michigan’s definition of “wetland”; (5) collaterally
estopped Rapanos from denying liability at the Salzburg site;
and (6) relied on Dr. Willard’s testimony to determine the
extent of unauthorized filling.

I. The CWA

In 1972, Congress reacted to the problem of water
pollution by enacting the CWA. The CWA is viewed by some
as the federal government’s main weapon in its effort to protect
wetlands. David Dornak, A New Generation is Teeing Off: Is
Tiger Woods Making Divots on Environmentally Sound Golf
Courses?, 23 Colum. J. Envtl. L. 299, 324 (1998). Section 404
of the CWA requires landowners to obtain permits from the
Army Corps of Engineers (“Corps”) before discharging fill
material into wetlands adjacent to navigable bodies of water
and their tributaries. United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121, 123, 106 S. Ct. 455, 88 L. Ed.2d
419 (1985); see also 33 U.S.C. § 1344.

“Navigable waters” are defined as “waters of the United
States, including territorial seas.” 33 U.S.C. § 1362(7). The
Supreme Court and this court have noted that “Congress chose
to define waters covered by the Act broadly” in the CWA.
Riverside Bayview, 474 U.S. at 133, 106 S. Ct. 455; Rapanos,
339 F.3d at 450-51. Determining the precise boundary of
which waters are covered by the CWA has been difficult. It is
well-settled that the CWA covers more than what has come to
be known as “navigable in fact waters,” i.e., waters that can be
navigated in the traditional sense. See id. at 451. As the
Supreme Court has noted, CWA jurisdiction extends beyond
traditionally navigable waters because economic activities
affecting interstate commerce are susceptible to “congressional
regulation under the Commerce Clause irrespective ot whether

Appendix A8

navigation, or, indeed, water, is involved.” Kaiser Aetna v.
United States, 444 U.S. 164, 174, 100 S. Ct. 383, 62 L. Ed.2d
332 (1979).

The CWA’s broad reach, extending beyond traditionally
navigable waters, however, does not extend to all waters. The
Code of Federal Regulations contains the Corps’ interpretation
of which waters are properly considered “waters of the United
States.” 33 C.F.R. § 328.3. In the present case, the district
court relied on the Corps’ exercise of jurisdiction over
“wetlands adjacent to traditional navigable waters” as
supporting CWA jurisdiction for the Defendants’ lands. /d. at
§ 328.3(a)(7). It found that the wetlands were adjacent to
tributaries of traditional navigable waters. The Corps asserts
jurisdiction over such waters pursuant to the CWA. Jd. at § §
328.3(a)(5), 328.3(a)(7).

Determining which wetlands are considered “adjacent to”
traditional navigable waters or their tributaries has proved to be
a complication in defining CWA jurisdiction. The Code of
Federal Regulations states that “adjacent” means “bordering,
contiguous, or neighboring. Wetlands separated from other
waters of the United States by man-made dikes or barriers,
natural river berms, beach dunes and the like are ‘adjacent
wetlands.’” 33 C.F.R. § 328.3(c).

In order to invoke federal jurisdiction the wetlands must
bear some connection to navigable waters or interstate
commerce. Determining how much of a connection is
necessary has proven difficult. Unfortunately, the two leading
Supreme Court cases on the reach of the CWA have done little
to clear the muddied waters of CWA jurisdiction.

\

Appendix A9
A. Riverside Bayview

Riverside Bayview Homes owned 80 acres of low-lying,
marshy land near the shores of Lake St. Clair in Macomb
County, Michigan. It began filling part of the land with the
intention of constructing a housing development on the site.
The Corps determined that the land was an “adjacent wetland,”
thus falling under the ambit of the CWA. The district court
determined that the land on the site below 575.5 feet above sea
level was a wetland requiring the issuance of a permit before it
could be filled. Riverside Bayview, 474 U.S. at 125, 106 S. Ct.
455. This court reversed the district court, concluding that
adjacent wetlands only existed when the land was flooded by
adjacent navigable waters at a frequency sufficient to support
the growth of aquatic vegetation. United States v. Riverside
Bayview Homes, Inc., 729 F.2d 391 (6th Cir. 1984).

This court was largely motivated by Fifth Amendment
takings concerns, concluding that the CWA must be read
narrowly to avoid improper condemnation by the government.
A unanimous Supreme Court, however, held that the Tucker
Act, 28 U.S.C. § 1491, provides the owners of condemned land
with the right of compensation and thus concluded that this
court was not justified in reading the CWA’s jurisdiction so
narrowly. Riverside Bayview, 474 U.S. at 128, 106 S. Ct. 455.
Having disposed of the Fifth Am adment issue, the Court
concluded that “(t]he plain language of (33 C.F.R. § 323.2(c)]
refutes the Court of Appeals’ conclusion that inundation or
‘frequent flooding’ by the adjacent body of water is a sine qua
non of a wetland under the regulation.” Jd. at 129, 106 S. Ct.
455.

Appendix A1l0

Next, the Court addressed the issue of which waters could
be considered “adjacent to navigable waters.”

In determining the limits of its power to regulate
discharges under the Act, the Corps must necessarily
choose some point at which water ends and land
begins. Our common experience tells us that this is
often no easy task: the transition from water to solid
ground is not necessarily or even typically an abrupt
one. Rather, between open waters and dry land may
lie shallows, marshes, mudflats, swamps, bogs—in
short, a huge array of areas that are not wholly aquatic
but nevertheless fall far short of being dry land.
Where on this continuum to find the limit of “waters”
is far from obvious.

Id. at 132, 106 S. Ct. 455.

The Court concluded that to protect against pollution “at its
source, Congress sought to define coverage of the CWA
broadly. /d. at 133, 106 S. Ct. 455. It noted that even wetlands
that are not connected to adjacent bodies of water and are not
regularly inundated by flooding may still have a connection to
navigable waters because such water can drain into navigable
waters. /d. at 134, 106 S.Ct. 455. These adjacent bodies of
water can bring pollution to the navigable waters, resulting in
possibly disastrous effects on the habitat and food chain for the
native aquatic species. See id. at 134-35, 106 S. Ct. 455. Thus,
the Court wrote that

the Corps has concluded that wetlands adjacent to
lakes, rivers, streams, and other bodies of water may
function as integral parts of the aquatic environment
even when the moisture creating the wetlands does
not find its source in the adjacent bodies of water... .
[W]e cannot say that the Corps’ judgment on these

Appendix All

matters is unreasonable, and we therefore conclude
that a definition of “waters of the United States”
encompassing all wetlands adjacent to other bodies of
water over which the Corps has jurisdiction is a
permissible interpretation of the [CWA].

Id. at 135, 106 S. Ct. 455.
B. SWANCC

After upholding a broad view of the CWA’s jurisdictional
reach in Riverside Bayview, a divided Supreme Court
invalidated one of the Corps’ jurisdictional regulations in
SWANCC. The regulation at issue, known as “the Migratory
Bird Rule,” extended the definition of “waters of the United
States” to include isolated waters that were used as habitat by
migratory birds or endangered species. Final Rule for
Regulatory Programs of the Corps of Engineers, 51 Fed. Reg.
41206, 41217 (Nov. 13, 1986) (previously codified at 33 C.F.R.
§ 328.3). The disputed land was a 533 acre parcel straddling
the Cook and Kane County lines in northern Illinois. The land
was owned by the Solid Waste Agency of Northern Cook
County, a consortium of 23 Chicago cities that sought to
develop a garbage disposal site. SWANCC, 531 U.S. at 162-63,
121 S. Ct. 675. The Corps initially determined that it had no
jurisdiction over the land because it did not contain any
wetlands and did not support “vegetation typically adapted for
life in saturated soil conditions.” Jd. at 164, 121 S. Ct. 675
(citing 33 C.F.R. § 328.3(b)). However, after learning that
several migratory birds were observed at the site, the Corps
asserted jurisdiction under the Migratory Bird Rule. /d.

The Seventh Circuit concluded that the federal government
had the authority to use the Migratory Bird Rule, relying on the
cumulative impact doctrine to conclude that, in toto, the impact
on migratory birds from disturbing wholly intrastate,

Appendix A12

non-navigable waters had a substantial impact on interstate
commerce. Solid Waste Agency of N. Cook County v. United
States Army Corps of Engineers, 191 F.3d 845, 850 (7th Cir.
1999). A majority of the Supreme Court disagreed, however,
holding that the Migratory Bird Rule was not supported by
Congress’ intent in passing the CWA and thus concluding that
it was unnecessary to determine whether the Migratory Bird
Rule fell within the broadest reach of Congress’ commerce
powers. SWANCC, 531 U.S. at 167, 121 S. Ct. 675.

In doing so, the Court first reaffirmed the holding in
Riverside Bayview, pointing out that in Riverside Bayview

we noted that the term “navigable” is of “limited
import” and that Congress evidenced its intent to
regulate at least some waters that would not be
deemed “navigable” under the classical understanding
of that term. But our holding was based in large
measure upon Congress’ unequivocal acquiescence to,
and approval of, the Corps’ regulations interpreting
the CWA to cover wetlands adjacent to navigable
waters. We found that Congress’ concern for the
protection of water quality and aquatic ecosystems
indicated its intent to regulate wetlands inseparably
bound up with the “waters” of the United States.

It was the significant nexus between the wetlands and
“navigable waters” that informed our reading of the
CWA in Riverside Bayview Homes. Indeed, we did
not express any opinion on the question of the
authority of the Corps to regulate discharges of fill
material into wetlands that are not adjacent to open
bodies of water. In order to rule for respondents here,
we would have to hold that the jurisdiction of the
Corps extends to ponds that are not adjacent to open

Appendix Al3

water. But we conclude that the test of the statute will
not allow this.

SWANCC, 531 U.S. at 167-68, 121 S. Ct. 675 (citations
omitted) (emphasis in original).

The Court also refused to extend Chevron deference to the
Corps’ interpretation of its authority under the CWA. See
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed.2d 694 (1984). It
reasoned that such deference was inappropriate where the Corps
was infringing upon a power usually reserved to the states, i.e.,
the authority to regulate land and water use. SWANCC, 531
U.S. at 172-74, 121 S. Ct. 675. Therefore, the Court concluded
that Congress had not envisioned extending CWA jurisdiction
to isolated, intrastate, non-navigable “ponds” simply by virtue
of the fact that they were occasionally the home for migratory
birds, despite the Corps’ contrary interpretation of its authority.
Id. at 171-72, 121 S. Ct. 675.

C. Putting Riverside Bayview and SWANCC in Context

The Court in SWANCC noted that even reading the CWA
through a restrictive lens demonstrates that Congress “wanted
to include all waters adjacent to ‘navigable waters,’ such as
nonnavigable tributaries and streams” in its definition of
“waters of the United States.” SWANCC, 531 U.S. at 171, 121
S. Ct. 675. Lower courts have disagreed over the extent to
which SWANCC limited Riverside Bayview’s holding.
SWANCC only specifically addressed the Migratory Bird Rule,
and in fact specifically held that it was not overruling any
aspect of Riverside Bayview, yet its language has been seen by
some as justification for a wide-ranging reduction of the
CWA’s jurisdiction. A minority of courts have done so,
reading SWANCC broadly to limit the CWA to navigable waters
and non-navigable waters that directly abut navigable waters.

Appendix Al4

In re Needham, 354 F.3d 340, 345-46 (5th Cir. 2003); FD & P
Enterprises, Inc. v. U.S. Army Corps of Engineers, 239 F.
Supp.2d 509, 516 (D.N.J.2003). Conversely, the majority of
courts have interpreted SWANCC narrowly to hold that while
the CWA does not reach isolated waters having no connection
with navigable waters, it does reach inland waters that share a
hydrological connection with navigable waters. Rapanos, 339
F.3d at 453; Treacy v. Newdunn Assoc., LLP, 344 F.3d 407, 415
(4th Cir. 2003); United States v. Deaton, 332 F.3d 698, 702 (4th
Cir. 2003), cert. denied, --- U.S. ----, 124 S. Ct. 1874, 158 L.

Ed.2d 466 (2004); United States v. Rueth Dev. Co., 335 F.3d
598, 604 (7th Cir. 2003), cert. denied, --- U.S. ----, 124 S. Ct.

835, 157 L. Ed.2d 699 (2003); Headwaters v. Talent Irrigation

District, 243 F.3d 526, 533-34 (9th Cir. 2001); Carabell v.

United States Army Corps of Engineers, 257 F. Supp.2d 917,

930(E.D. Mich.2003); United States v. Interstate Gen. Co., 152

F. Supp.2d 843, 847 (D. Md.2001).

The Fifth Circuit has adopted the more expansive reading
of SWANCC and thus the more limited interpretation of the
CWA’s jurisdiction. Needham, 354 F.3d at 345-46. The
Needham court disagreed that water exhibiting a hydrological
connection with “navigable water” should be considered part of
the “waters of the United States,” instead finding that the water
must be “truly adjacent to navigable waters,” or at least have a
“significant measure of proximity” to navigable waters. Jd. at
345, 347, n. 12. In reaching this conclusion, the Fifth Circuit
relied heavily on SWANCC, disagreeing with holdings from the
Fourth, Seventh, and Ninth Circuits, as well as this court, that
have adopted a limited interpretation of SWANCC. Rapanos,
339 F.3d at 453 (finding that the SWANCC court merely
invalidated the Migratory Bird Rule and did not deal with the
Corps’ “adjacent waters” jurisdiction); Treacy, 344 F.3d at 415
(noting that SWANCC reaffirmed the holding in Riverside
Bayview and did not abridge the Corps’ authority over “adjacent
waters”); Deaton, 332 F.3d at 702 (holding that SWANCC did

Appendix A15

not disavow any of the Corps’ interpretations of the CWA, save
for the Migratory Bird Rule); Rueth Dev. Co., 335 F.3d at 604
(“it is clear that SWANCC did not affect the law regarding the
government’s alternative asserted basis for jurisdiction
adjacency under [the “adjacent water” rule]. The Corps

adjacency jurisdiction is well-established; it was upheld by the
Supreme Court in [Riverside Bayview], and was reaffirmed in

SWANCC” ); Headwaters, 243 F.3d at 533-34 (holding that

SWANCC did not impact its conclusion that waters flowing
into navigable waters are within the CWA’s jurisdiction);
Carabell, 257 F. Supp.2d at 930 (concluding that SWANCC’s
holding was narrow and did not require a body of water to
directly abut navigable water in order to fall under the
jurisdiction of the CWA); Interstate Gen. Co., 152 F. Supp.2d
at 847 (“[b]ecause the Supreme Court only reviewed 33 CFR §
328.3(a)(3), it would be improper for this Court to extend the
SWANCC Court’s ruling any further than they clearly
intended”); but see FD & P Enterprises, 239 F. Supp.2d at 516
(“it is the view of this court that the ‘hydrological connection

test is no longer the valid mode of analysis”).

In Rapanos’ criminal trial, a panel of this court adopted the
limited reading of SWANCC criticized in Needham. Adopting
the Fourth Circuit’s reasoning in Deaton, this court held that

because we find the Fourth Circuit’s reasoning
persuasive, we disagree with the broad interpretation
of [SWANCC ] taken by the district court in this case
and, instead, agree with Deaton. Although the
[SWANCC ] opinion limits the application of the
Clean Water Act, the Court did not go as aot
R s argues, restricting the Act’s coverage to only
ualients directly abutting navigable water. Instead,
the [SWANCC ] Court, in a narrow holding,
invalidated the Migratory Bird Rule as exceeding the
authority granted to the [Corps] by the [CWA],

Appendix A1l6

because it found “nothing approaching a clear
statement from Congress that it intended [the CWA]
to reach an abandoned sand and gravel pit.”

Rapanos, 339 F.3d at 453 (citations omitted).

This court further adopted the holding in Deaton, that
“adjacent waterways” include any branch of a
tributary system that eventually flows into a navigable
body of water. Rapanos, 339 F.3d at 452-53. This
court concluded that the wetlands were adjacent
because “[a]ny contamination of the Rapanos
wetlands could affect the Drain, which, in turn could
affect navigable-in-fact waters.” /d.

Thus, the primary difference between the conclusion
reached by the Fifth Circuit and that reached by the Fourth,
Sixth, Seventh, and Ninth Circuits, concerns the “adjacency”
requirement. The Fifth Circuit requires that the non-navigable
water be “truly adjacent to navigable waters” in order to qualify
for CWA jurisdiction. The majority of courts, including this
one, however, construe Riverside Bayview and SWANCC to
hold that, whii. a hydrological connection between the
non-navigable and navigable waters is required, there is no
“direct abutment” requirement.

[2] What is required for CWA jurisdiction over “adjacent
waters,” however, is a “significant nexus between the wetlands
and ‘navigable waters,” SWANCC, 531 U.S. at 167, 121 S. Ct.
675, which can be satisfied by the presence of 2 hydrological
connection. Rapanos, 339 F.3d at 453; see also Deaton, 332
F.3d at 711-12 (CWA jurisdiction extends to those waters
adjacent to any branch of a tributary system that eventually
flows into a navigable water, because these waters effect the
water quality of navigable waters and thus there is a
“substantial nexus” between the tributaries and the navigable

ES Ca eae, ke

Appendix A1l7

waters); Headwaters, 243 F.3d at 533 (“Because the canals
receive water from natural streams and lakes, and divert water
to streams and creeks, they are connected as tributaries to other
‘waters of the United States’”). Waters sharing a hydrological
connection are interconnected, sharing a symbiotic relationship.
As Congress acknowledged when passing the CWA, “[w]ater
moves in hydrological cycles and it is essential that discharge
of pollutants be controlled at the source.” Rapanos, 339 F.3d
at 451 (citing S. Rep. No. 92-414, at 77 (1972), reprinted in
1972 U.S.C.C.A.N. 3668, 3742).

Unlike the absence of Congressional support for the
Migratory Bird Rule discussed in SWANCC, Congress clearly
envisioned that CWA jurisdiction would extend to bodies of
water exhibiting a hydrological connection to traditional
navigable waters. As this court previously recognized

[i]n Riverside Bayview the Supreme Court concluded
that the Corps regulation extending jurisdicticn to
adjacent wetlands was a reasonable interpretation in
part because of what [SWANCC ] described as “the
significant nexus between the wetlands and ‘navigable
waters.”” There is also a nexus between a navigable
waterway and its nonnavigable tributaries .... This
nexus, in light of the “breadth of congressional
concern for protection of water quality and aquatic
ecosystems,” is sufficient to allow the Corps to
determine reasonably that its jurisdiction over the -
whole tributary system of any navigable waterway is
warranted. The regulation, as the Corps reads it,
reflects a reasonable interpretation of the Cizan Water
Act.

Rapanos, 339 F.3d at 452 (quoting Deaton, 332 F.3d at 712).

Appendix A18
D. Chevron Deference

[3] The doctrine of “administrative deference,” also
known as “Chevron deference,” provides an alternative ground
for affirming the Corps’ authority over waters adjacent to
tributaries of navigable waters. When Congress delegates
authority to enforce a statute to a governmental agency, while
leaving some ambiguity in how the agency is to enforce the
Statute, courts should assume that Congress impliedly delegated
the authority to interpret the ambiguity to the agency charged
with administering the statute. Chevron, 467 U.S. at 843-45,
104 S. Ct. 2778. The agency is thus in the position to “fill the
gaps” left by Congress. Unless the agency’s interpretation-of
the statute is “arbitrary, unreasonable, or manifestly contrary to
the statute,” the agency interpretation should be applied. /d. at
843-44, 104 S. Ct. 2778.

In Chevron, a unanimous Supreme Court pointed out that
deferring to agency interpretations, rather than requiring judicial
interpretation, served the interests of democracy, noting that

Judges are not experts in the field, and are not part of
either political branch of the Government. Courts
must, in some cases, reconcile competing political
interests, but not on the basis of the judges’ personal
policy preferences. In contrast, an agency to which
Congress has delegated policymaking responsibilities
may, within the limits of that delegation, properly rely
upon the incumbent administration’s views of wise
policy to inform its judgments. While agencies are
not directly accountable to the people, the Chief
Executive is, and it is entirely appropriate for this
political branch of the Government to make such
policy choices—resolving the competing interests
which Congress itself either inadvertently did not
resolve, or intentionally left to be resolved by the

se

wR

is ee ee Nee

Appendix A19
agency charged with the administration of the statute
in light of everyday realities.

When a challenge to_an agency construction of a
statutory provision, fairly conceptualized, really
centers on the wisdom of the agency’s policy, rather
than whether it is a reasonable choice within a gap left
open by Congress, the challenge must fail. In such a
case, federal judges—who have no constituency—
have a duty to respect legitimate policy choices made
by those who do. The responsibilities for assessing
the wisdom of such policy choices and resolving the
struggle between competing views of the public
interest are not judicial ones: Our Constitution vests
such responsibilities in the political branches.

Id. at 865-66, 104 S. Ct. 2778 (citation omitted).

Before according deference to agency interpretations,
a federal court “need not find that [the agency’s
interpretation] is the only permissible construction .-
. but only that [its] understanding of this . . . statute is
a sufficiently rational one to preclude a court from
substituting its judgment for that of [the agency.]”
Chem. Mfrs. Ass'n v. Natural Resources Defense
Council, 470 U.S. 116, 125, 105 S. Ct. 1102, 84 L.
Ed.2d 90 (1985) (citation omitted). In SWANCC the
Supreme Court refused to accord Chevron deference
to the Corps’ Migratory Bird Rule. Noting that
“where an otherwise acceptable construction of a
statute would raise serious constitutional problems,
the Court will :onstrue the statute to avoid such
problems unless such construction is plainly contrary
to the intent of Congress,” the Court concluded that
the Migratory Bird Rule infringed on the state’s
“traditional and primary power over land and water

Appendix A20

use,” and thus was not entitled to Chevron deference.
Id. at 173-74, 121 S. Ct. 675 (citation omitted). In
Riverside Bayview, however, the Supreme Court
accorded Chevron deference to the Corps’ conclusion
that “waters of the United States” included wetlands
adjacent to navigable waters. 474 U.S. at 134-35, 106
S. Ct. 455. As the SWANCC Court recognized,
deference was appropriate in Riverside Bayview given
the significant nexus between the adjacent waters and
navigable waters that was not present in the
“nonnavigable, isolated, intrastate ponds” at issue in
SWANCC whose only connection to interstate
commerce was the fact that they were occasionally
home to migratory birds.

[4] In Deaton, after conducting a thorough review of the
CWA, the Fourth Circuit accorded Chevron deference to the
Corps’ construction of the CWA that granted it authority over
“distant, nonnavigable tributaries of navigable waters.”
Deaton, 332 F.3d at 709. In Rapanos, this court agreed with the
Fourth Circuit’s holding in Deaton. Rapanos, 339 F.3d at
452-53. Because waters containing a hydrological connection
to tributaries of navigable waters bear a “significant nexus” to
navigable waters, as in Riverside Bayview and unlike the waters
in SWANCC, Chevron deference is appropriate. The Corps’
interpretation of “waters of the United States” to include those
waters adjacent to tributaries of navigable waters, that share a
hydrological connection with those tributaries, is neither
“arbitrary, unreasonable, or manifestly contrary to the statute.”

Chevron, 467 U.S. at 843-44, 104 S. Ct. 2778.

E. Application to this Case

The Defendants argue that this court should impose a
“direct abutment” requirement to CWA jurisdiction over

Appendix A21

non-navigable water. In response, the United States asserts that
the Defendants waived a defense based on SWANCC by not
raising it before the district court. It claims that, while the
Defendants argued that the CWA does not extend to “isolated
waters,” they did not make the current argument that the CWA
does not extend to “wetlands adjacent to nonnavigable
tributaries.” However, the United States is splitting hairs, as
this is simply part and parcel of the “isolated waters” argument
the Defendants made before the district court. Alternatively,
the Defendants’ current claim falls under the exceptions to the
traditional rule that appellate courts will not entertain arguments
raised for the first time on appeal because this argument
involves a question of law and the factual record has been fully
developed below. Taft Broadcasting Co. v. United States, 929
F.2d 240, 244 (6th Cir. 1991).

[5] [6] As discussed supra, Rapanos’ argument regarding
SWANCC has previously been adjudicated by this court, in a
published disposition, and its conclusion is entitled to stare
decisis. See Rapanos, 339 F.3d at 453. Indeed, Rapanos
acknowledged as much during oral arguments. Further, this
court’s reasoning in that case is supported by the majority of
circuits, by the policy of deferring to agency interpretations, and
by a careful examination of the relevant Supreme Court cases.
There is no “direct abutment” requirement in order to invoke
CWA jurisdiction. Non-navigab'e waters must have a
hydrological connection or some other “significant nexus” to
traditional navigable waters in order to invoke CWA
jurisdiction. Unlike the isolated waters in SWANCC, these
waters are interconnected with traditional navigable waters.

Next, the Defendants’ argument that the district court did
not find that there was a “significant nexus” between the
wetlands and the navigable waters is similarly misplaced. The
district court found that all three sites contained a hydrological
connection to navigable waters and thus fell within the

Appendix A22

jurisdiction of the CWA. Specifically, the district court found
that

the Salzburg wetlands have a surface water
connection to tributaries of the Kawkawlin River
which, in turn, flows into the Saginaw River and
ultimately into Lake Huron. Dr. Willard testified that
the wetlands at the Salzburg site had a surface
connection to the waters of the United States. In
1994, Hal Harrington verified that a surface water
connection exists between the Salzburg site and
Saginaw Bay.

Further, Hal Harrington, Chief of the Michigan
Department of Environmental Quality’s Great Lakes
Submerged Lands Unit, testified that there was a
surface water connection between the Salzburg site
and the Saginaw Bay. In 1994 he visited the site.
During this visit, he observed carp spawning in a
roadside stream on the north side of the property. He
followed the flow of the water and “each road
crossing with this surface water connection to
Saginaw where it entered . . . the river entering
Saginaw Bay north of the Bay City State Park [the
Kawkawlin River].” An expert for Rapanos, Dr.
Straw, testified that water left the site through the

Appendix A23

Regarding the Hines Road site, the district court noted that

Dr. Willard testified that the wetlands at the Hines
Road site have a surface water connection to the Rose
Drain which, in turn, has a surface water connection
to the Tittabawassee River. Dr. Willard also
described the nature of the surface water connection
between the wetlands at Hines Road and the Rose
Drain. In October 1994, Dodgers and Zbiciak . . .
demonstrated that the interior wetlands have a
hydrologic connection with the Rose Drain.

In addition, Mr. Zbiciak, a representative from the
State of Michigan, testified that the wetlands drained
into the Rose Drain, which runs along the western
side of the site and flows down to the Tittabawassee
River. A report by Charlie Dodgers, another
representative of the State of Michigan, indicated that
the site inspection revealed five locations where water
moved into the Rose Drain, as he testified at trial.
Rapanos claims that ditches he dug in 1992 were the
only cause of a surface water connection to the Rose
drain. However, Charlie Dodgers testified that
surface runoff occurred naturally “at least seasonally,”
and one of the United States’ exhibits demonstrated
surface connections to the Rose drain as early as 1975.

Hoppler Drain, which drains into the Hoppler Creek. Regarding the Pine River site, the district court noted that “Dr.
This drain is immediately north of the Salzburg site.’ Willard testified that the wetlands at the Pine River site have a
surface water connection to the Pine River, which flows into
Lake Huron.” The maps utilized by the United States showed

> In Rapanos’ criminal case, this court held that the evidence

demonstrated that “the wetlands on Rapanos’s land are adjacent

to the Labozinski Drain . . .” and noted that contamination of > (. continued)

that drain “could affect navigable-in-fact waters.” Rapanos, the H er

339 F.3d at 453 (discussing a slightly different parcei of land). °PP :

The Labozinski Drain discussed in the criminal case drains into
(continued...)

Appendix A24

that areas of wetlands on the site were in close proximity to the
Pine River (although they did not delineate the specific paths
these wetlands would have taken to drain into the river).

[7] Although the Defendants claim that the evidence did
not support these conclusions, the record demonstrates that
there were hydrological connections between all three sites and
corresponding adjacent tributaries of navigable waters. See
Rapanos, 339 F.3d at 453 (“Because the wetlands are adjacent
to the Drain and there exists a hydrological connection among
the wetlands, the Drain, and the Kawkawlin River, we find an
ample nexus to establish jurisdiction.”). Moreover, the
Defendants are certainly unable to show that the district court’s
conclusions were clearly erroneous. Pledger, 236 F.3d at 320.
The district court was in a far superior position to judge the
complicated facts of this case after presiding over the lengthy
proceedings and the bench trial. Further,

[t]he rationale for deference to the original finder of
fact is not limited to the superiority of the trial judge’s
position to make determinations of credibility. The
trial judge’s major role is the determination of fact,
and with experience in fulfilling that role comes
expertise. Duplication of the trial judge’s efforts in
the court of appeals would very likely contribute only
negligibly to the accuracy of fact determination at a
huge cost in diversion of judicial resources. In
addition, the parties to a case on appeal have already
been forced to concentrate their energies and
resources on persuading the trial judge that their
account of the facts is the correct one; requiring them
to persuade three more judges at the appellate level is
requiring too much. As the Court has stated in a
different context, the trial on the merits should be “the ©
‘main event’ .. . rather than a “tryout on the road.”
Wainwright v. Sykes, 433 U.S. 72, 90, 97 S. Ct. 2497,

Appendix A25

53 L. Ed.2d 594 (1977). For these reasons, review of
factual findings under the clearly-erroneous
standard—with its deference to the trier of fact—is
the rule, not the exception.

Anderson, 470 U.S. at 574-75, 105 S.Ct. 1504. The testimony
and evidence in the record support the district court’s findings.
Its conclusions of fact are entitled to substantial deference and
they are not “clearly erroneous.”

The Defendants also argue that the district court was
required to make “subsidiary findings” to support its conclusion
that the sites had a hydrological connection to navigable waters,
citing Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir.
1966). To the contrary, the district court’s opinion, along with
the expert testimony regarding the hydrological connection,
provides a sufficient basis to examine the district court’s
findings and supports the determination that its conclusions
were not clearly erroneous.

Il. Dr. Willard’s Testimony

At trial, the United States offered the expert testimony of
Dr. Daniel E. Willard. The district court found Dr. Willard to
be “eminently qualified” as an expert in wetlands and
concluded that his testimony was “highly credible.” The
Defendants argue that this testimony should have been stricken,
or the trial delayed, because Dr. Willard relied upon a
supplemental expert witness report that was not disclosed until
after trial was underway.

Dr. Willard revised the map he prepared for trial
delineating the areas of wetland on the Rapanos’ land. After
examining the soil analysis from the Defendants’ expert and
aerial photography, Dr. Willard revised his wetlands maps,
removing some of the areas he had previously marked as

Appendix A26

wetlands. He did so to be “as conservative and as accurate as
[he] could.” The new maps were produced in conjunction with
Will Bowman, a soils scientist with the Natural Resources
Conservation Service of the U.S. Department of Agriculture,
and were known as the “Bowman Supplemental Soils Maps.”
Accompanying the new maps was a five-page supplemental
report. The Defendants contend that this late report “made a
mockery of the Federal Rules of Civil Procedure,” specifically
complaining that the disclosure rules specified in Rule 26 were
violated. They claim that the district court’s denial of their
motion for Rule 37 sanctions, based on the failure to disclose,
requires remand for a new trial.

The United States points out that the new maps were based
on analysis from the Defendants’ experts contained in the
Pierce report. The version of Rule 26(e) in effect at the time of
the trial provided that a party was required to supplement its
disclosures “if the information disclosed is incomplete or
incorrect and if the additional or corrective information has not
otherwise been made known to the other parties during the
discovery process.” The data used in the supplemental report
and maps was known to the Defendants, as it was produced by
their experts. Because Dr. Willard’s previous expert report and
maps were available to the Defendants, it seems unlikely that
simply incorporating some of the data from the Defendants’
own experts, which reduced the computation of wetland areas,
qualifies under Rule 26’s mandatory disclosure requirements.

[8] [9] [10] Even if we assume that the United States was
required to disclose the supplemental results, exclusion of the
report and testimony was not the only remedy available to the
district court. Rule 37(c) provides sanctions for the failure to
comply with Rule 26, including exclusion of evidence. This
court reviews for abuse of discretion a district court’s ruling on
a motion to exclude an expert witness as a sanction under Rule
37 of the Federal Rules of Civil Procedure. Roberts ex rel.

Appendix A27

Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir.
2003); Toth v. Grand Trunk Railroad, 306 F.3d 335, 344 (6th
Cir. 2002). Rule 37 provides that the trial judge should not
exclude expert testimony unless the failure to disclose is both
unjustified and harmful. Roberts, 325 F.3d at 782; Fed. R. Civ.
P. 37(c)(1) 2000 advisory committee’s notes (“Even if the
failure [to disclose] was not substantially justified, a party
should be allowed to use the material that was not disclosed if
the lack of earlier notice was harmless.”). The non-disclosing
party bears the burden of proving that a disclosure was
harmless. Roberts, 325 F.3d at 782. The aggrieved party,
however, must show substantial prejudice before this court will
grant a new trial based on an alleged Rule 26(e) disclosure
error. Toth, 306 F.3d at 344.

[11] In this case, the failure to disclose seems harmless as
the Defendants were aware of the data used in the supplemental
reports and the revised reports reduced the amount of wetlands
found to exist at the sites. Thus, the only changes made
between the original disclosed report and the supplemental
report were beneficial to the Defendants. In summary, no
“substantial prejudice” has been demonstrated.

[12] Even ifa trial court determines that Rule 26 has been
violated, Rule 37 does not mandate exclusion of evidence.
Roberts, 325 F.3d at 783-84 (Rule 37(c)(1) “provides several
remedies to a district judge who is faced with violations of the
mandatory-disclosure provisions of Rule 26. The provision on
sanctions explicitly states in pertinent part that ‘in lieu of this
sanction [of total exclusion], the court, on motion and after
affording an opportunity to be heard, may impose other
appropriate sanctions.””). The district court, after noting its
concern with the failure to disclose the supplemental report,
concluded that

Appendix A28

the defense should be accommodated and [I] will do
so in several ways, [at] the option totally of the
defense. Number one is that at the conclusion of the
Government’s expert witness case, I would certainly
give the defense as much reasonable time as they need
in order to consult with their experts. I would be
more than happy to . . . so that your expert can be
prepared without having to order transcripts and so
forth, have him or her on a phone conference so that
they can hear all that testimony . . . so that you can be
prepared and also take some time and recess for as
long as you need in order to consult with your expert
for cross-examination and if it entails taking whatever
time it takes reasonably to be prepared. But I think
that we’ re here to seek the truth, and that’s—that’s the
whole idea of having a trial is to seek the truth. It’s
not... to ambush and everybody should be prepared
.... But I have to, I think, listen to the testimony to
see what really transpired here with the understanding
that we’re here to seek the truth and that I will give
the defense as much opportunity as they need since
it’s a bench trial and we can take time, and it’s
important, but not that important that you shouldn’t
have an opportunity to be able to use your right to
cross-examine, to seek the truth.

The district court properly considered the role of the
trial, the rights of the parties, and the considerations of
the Federal Rules of Civil Procedure in this side-bar.

The Federal Rules of Civil Procedure are not so monolithic
as to demand a single outcome for the widely varying
circumstances encountered in discovery and trial. They
properly recognize the discretion of the trial court to fashion
appropriate remedies, taking into account the facts of the case.
This case languished for more than five years between the filing

Appendix A29

of the Complaint and the 13-day bench trial. It involved
complicated factual and legal issues. It was within the district
court’s discretion to allow the evidence and it significantly
allayed any fears of undue surprise by granting the Defendants
“as long as they needed” to review Dr. Willard’s supplemental
report so that they could discuss it with their experts.

Finally, Dr. Willard notified the Defendants during his
deposition a few weeks before trial that he was in the process of
amending his findings based upon the Pierce report. The
Defendants apparently did not object to this until Dr. Willard
testified and they never made a motion pursuant to Rule
37(a)(2)(A) to compel discovery. In Roberts, this court noted
that such inaction by the “surprised” party suggests that the
failure to disclose should be considered harmless or justified.
Roberts, 325 F.3d at 783.

Considering all of the circumstances in this complicated
case, the district court’s failure to exclude Dr. Willard’s
supplemental reports cannot be said to be an “abuse of
discretion” and its solution for the disclosure problem was

entirely appropriate.
Ill. The Michigan Wetlands Program

The CWA permits states to develop their own water
protection permit program to enforce the provisions of the
CWA. 33 U.S.C. § 1344(g). This partial delegation provision
“gives a state the authority to render a comprehensive
federal/state wetland permit decision with the federal
government playing the role of the overseer in the consideration
of permit applications.” Michigan Peat v. United States Envtl.
Prot. Agency, 175 F.3d 422, 424 (6th Cir. 1999). Michigan,
along with New Jersey, has established such a permitting
program. 40 C.F.R. §§ 233.70-233.71.

Appendix A30

The Defendants claim that Michigan’s permitting
regulations contain slight variations to the federal statutes. In
particular, they cite Michigan’s Geomare-Anderson Wetlands
Protection Act, which has language defining wetlands that
differ somewhat from the Corps’ regulations. Mich. Comp.
Laws § 324.30301(p). Those wetlands that are not contiguous
to the Great Lakes, an inland lake or pond, or a river or stream,
and less than five acres in size, are net subject to Michigan’s
Wetlands Protection Act, unless it is certified that the area’s
preservation is necessary to protect the natural resources of the
state. Jd. § 324.30301(p)ii). This five-acre jurisdictional
limitation is not found in the CWA or the Code of Federal
Regulations. The Defendants argue that it was error for the
district court not to make findings of fact regarding the
Michigan statute’s five-acre limitation, instead focusing solely
on the federal regulations.

[13] [14] While the CWA grants states the authority to
establish their own clean water regulations, Congress clearly
intended for any state program to be at least as broad as the
federal program. See 33 U.S.C. § 1344(h)(1)(A)-(B). The
Geomare-Anderson Wetlands Protection Act is a state statute
separate from the CWA. The CWA’s provision for state
involvement in issuing CWA permits does not delegate
authority to the state to alter application of the CWA and the
Corps specifically notes that “[a]ny approved State Program
shall, at all times, be conducted in accordance with the
requirements of the Act and of this part. While States may
impose more stringent requirements, they may not impose any
less stringent requirements for any purpose.” 40 C.F.R. §
233.1(d). Moreover, contrary to the Appellant’s assertions,
permitting a state to issue CWA permits does not foreclose all
federal issuance of CWA permits. See Michigan Peat, 175 F.3d
at 427 (a case in which the Corps had ultimate authority to issue
permit when state permit did not address the concerns of the
federal government); 33 U.S.C. § 1344(g)(1) (Corps still issues

Appendix A31

permits for waters used in interstate commerce, including
adjacent wetlands).

[15] The CWA explicitly provides that, notwithstanding
the delegation of authority to the states, nothing in Section 1344
is meant to restrict the Corps’ authority to enforce the CWA.
33 U.S.C. § 1344(n). This court has recognized that Section
1344(n) allows the federal government to pursue an action
against an offender regardless of whether the state has instituted
its own enforcement program, noting that under “the CWA ...
the responsible federal agency retains oversight power to ensure
compliance with federal standards.” S. Ohio Coal Co. v. Office
of Surface Mining, Reclamation and Enforcement, 20 F.3d
1418, 1427-28 (6th Cir. 1994); see also United States v. City of
Rock Island, 182 F. Supp.2d 690, 693-94 (C.D. Ill. 2001);
United States v. Town of Lowell, 637 F. Supp. 254, 257 (N.D.
Ind. 1985). The CWA does not contain any language suggesting
that state implementation of the CWA is “in lieu of” federal
enforcement and thus any delegation of authority to the state in
the CWA does not end a citizen’s responsibility to abide by the
federal laws and regulations. Cf United States v. City of
Youngstown, 109 F. Supp.2d 739, 741 (N.D. Ohio 2000).

In short, there is nothing in the CWA to suggest that by
allowing Michigan to enforce portions of the CWA, the Corps
was delegating the authority to the state to determine the
limitations on CWA jurisdiction. Michigan does not gain the
authority to alter the CWA’s federal jurisdiction merely by
virtue of the fact that it is entitled to administer some portions
of the act. In fact, the statute and the accompanying regulations
make it clear that state enforcement programs cannot act to
weaken the CWA.

Finally, it should be noted that the Corps retains the
ultimate authority to deny a CWA permit, even if Michigan is
inclined to grant one under its delegation of authority.

Appendix A32

Michigan’s Administration of Section 404 at 2 (available at
http://www.deg.state.mi.us/documents/deq-lwm-wetlands-40
4admin.pdf); see also Michigan Peat, 175 F.3d at 427
(Michigan failed to issue a permit satisfying the federal
government’s reservations so the Corps retained the sole
authority to authorize the issuance of a permit). In certifying
Michigan’s 404 permitting scheme, Michigan’s Attorney
General wrote that

[t]he Water Resources Commission Act governing
discharge of pollutants into water of this state includes
within its ambit all waters of the State of Michigan.
It is, of course, clear that the . . . Wetlands Act
exclude from their purview certain lakes having an
area of less than 5 acres. Even this problem is, in fact,
of no practical matter for a number of reasons. First,
it is quite conceivable that a lake under 5 acres would
have an affect on interstate commerce so as to imbue
it with the distinction of being “water of the United
States” and thus subject to the federal permit program.

Thus, Michigan’s permitting program properly recognized
that a site not falling within the ambit of Michigan’s state
program could still be within the jurisdiction of the federal
program.

IV. Collateral Estoppel

The district court found that Mr. Rapanos should be
collaterally estopped from denying liability at the Salzburg site
based on the outcome in the criminal case. Both parties note
the confusion from relying upon collateral estoppel in this case
because (1) the “Salzburg site” referenced in the criminal trial
is not completely analogous to the Salzburg site in this case and
(2) when the district court entered its findings of fact in 2000,
Rapanos had been convicted in his trial and sentenced, but his

Appendix A33
appeal was pending, yet when the district court entered its final
judgment in February 2003, Rapanos’ conviction had been
vacated by the criminal trial court and the United States’ appeal
to this court was pending. The United States notes the
difficulty inherent in relying upon collateral estoppel when an
appeal is pending.

Regardless, the district court’s conclusion regarding
collateral estoppel was not necessary for its finding that the
Defendants were responsible for CWA violations at the
Salzburg site. As discussed supra, the district court concluded
that the Defendants had discharged fill into the Salzburg site
and that the Salzburg site was subject to CWA jurisdiction. A
judge may rely upon multiple alternative, but independent
rationales for his decision. See Nat’! Satellite Sports, Inc. v.
Eliadis, Inc., 253 F.3d 900, 909-10 (6th Cir. 2001) (discussing
the effects on collateral estoppel when a decision is based upon
two alternative, but independent rationales). In this case, it is
unnecessary to determine whether collateral estoppel was
appropriate because the district court provided alternate
rationales for its findings.

V. The Extent of Unauthorized Filling

Finally, the Defendants contend that substantial evidence
did not support the district court’s finding that 54 acres of
wetlands were illegally filled. They claim that some of the fill
used in the district court’s calculation was “incidental fallback.”
The district court concluded that the illegal fill was substantial
(covering 54 acres) and not the result of incidental fallback after
examining the evidence and hearing the relevant testimony.
This conclusion is supported by the evidence and is not clearly
erroneous.

Appendix A34
_ CONCLUSION

We AFFIRM the judgment of the district court.

nee

Appendix B1
No. 02-1377

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION
UNITED STATES OF AMERICA, Filed March 24,
2000
Plaintiff,
Civil Action No.
v. 94-CV-70788-DT

HON. BERNARD
A. FRIEDMAN

JOHN A. RAPANOS, JUDITH A.
NELKIE RAPANOS, PRODO,
INC., ROLLING MEADOWS
HUNT CLUB, and PINE RIVER
BLUFF ESTATES, INC.,

Defendants.

licen Senet) ies Said Neue tea? Mee Sue Sea? Nee eee ee ee a

FINDING OF FACT AND
CONCLUSIONS OF LAW

I. Introduction

Plaintiff alleges in this matter that defendants have violated
the Clean Water Act (“CWA”). Specifically, it is alleged that
defendants violated 33 U.S.C. § § 1311 and 1344 by cutting
down trees, destroying vegetation, moving and removing soil,
dumping sand, building roads and houses, dredging ditches,
installing drain tiles, and engaging in other construction
activities at six sites where protected wetlands are present (or
where protected wetlands were present before defendants

Appendix B2

destroyed them) without a permit.' Plaintiff also alleges that
defendant John Rapanos violated 33 U.S.C. § 1318(a) by failing
to respond to a request for information regarding one of the
sites; and that all of the defendants violated 33 U.S.C. § 1319(a)
by failing to comply with two administrative compliance orders.
Plaintiff seeks injunctive relief, civil penalties, and costs.

After a court-ordered special mediation failed to achieve a
settlement, the matter was tried to the bench. The central issues
at trial were the extent to which, if at all, protected wetlands
existed at the five sites; and the extent to which, if at all,
defendants unlawfully disturbed them. The court now submits
its findings of fact and conclusions of law in accordance with
Fed. R. Civ. 52. In short, the court concludes that plaintiffs
proved by a preponderance of the evidence that jurisdictional
wetlands existed at three of the five sites at the time defendants
engaged in their earth-moving and other construction activities.
Plaintiff also proved that defendants destroyed substantial
amounts of jurisdictional wetlands at these sites.

II. Relevant Statutes and Regulations

Under section 301(a) of the CWA, 33 U.S.C. § 1311(a), no
person may discharge any pollutant except in accordance with
restrictions established under other provisions of the act. The
term pollutant includes dredged spoil, biological materials,
rock, sand, and cellar dirt, and the phrase “discharge of a
pollutant” means any addition of any pollutant to navigable

' Throughout this litigation, the parties have referred to the six sites
as the Salzberg site; the Hines Road or Northwood site; the Pine
River site; the Freeland site; the Tittabawassee River or Mapleton
site; and the Jefferson Avenue site. Prior to trial, the court granted
summary judgment for defendants as to the Jefferson Avenue site.
All of the sites are located near Midland, Michigan, in Bay County,
which is within the Eastern District of Michigan.

Appendix B3

waters from a point source. See 33 U.S.C. § 1362 (6), (12).
Navigable waters are defined as “waters of the United States.”
See 33 U.S.C. § 1362 (7). Thus, plaintiff must prove by a
preponderance of the evidence that each site contains “waters
of the United States,” that “pollutants” were “discharged” into
those waters that the defendants are the “persons” responsible
for the discharge, and that the defendants lacked a permit.

The U.S. Army Corps of Engineers (“Corps”) and
Environmental Protection Agency (“EPA”) definitions of
“waters of the United States” include certain wetlands. See 40
C.F.R. § 230.3(s)(1)-(7). Wetlands are defined as “those areas
that are inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that under
normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions. Wetlands
generally include swamps, marshes, bogs and similar areas.” 33
C.F.R. § 323.2(c). Federal jurisdiction over wetlands is
permitted where the wetlands are “adjacent to” waters of the
United States, or where destruction of the wetlands has an
adverse effect on interstate commerce.

In addition to the proscription against addition of a
pollutant contained in section 301 of the CWA, 33 U.S.C.
§1319, the CWA also contains a requirement that the discharge
of dredged or fill material into waters of the United States be
permitted by the Secretary of the Army acting through the Chief
of Engineers (i.¢., the Corps). The Corps’ regulations define
“fill material” to mean “any material used for the primary
purpose of replacing an aquatic area with dry land or of
changing the bottom elevation of a waterbody.” 33 C.F.R. §
323.2(e).

The determination whether a particular area is a “wetland”
for purposes of the CWA is accomplished by using the U.S.
Army Corps of Engineers Wetlands Delineation Manual,

Appendix B4

Technical Report Y-87-1 (“1987”). The 1987 Manual presents
technical guidelines for identifying wetlands and distinguishing
them from non-wetlands, provides methods for applying the
technical guidelines, and provides supporting information
useful in applying the technical guidelines.

The 1987 Manual outlines a “three-parameter approach”
for identifying wetlands. This approach requires examination
of an area’s vegetation, soils and hydrology. The parties agree
that this approach must be used to identify and delineate
wetlands.

The wetland vegetation criterion is met when there is a
prevalence of vegetation typically adapted to survive in
conditions where the frequency and duration of inundation or
soil saturation produces saturated soil conditions that exert a
controlling influence on a plant species present. The
assessment of whether a given species of plant is typically
adapted for life in saturated soil conditions is made in part by
referring to the Wetland Plant List compiled by the U.S. Fish
and Wildlife Service. This plant list assigns an “indicator
status” to each species of plants. The wetland Plant List uses
indicator status categories of “obligate wetland” (“OBL”),
“facultative wetland” (“FACW”), “facultative” (“FAC”)
“facultative upland” (“FAC-UP), and “upland” (“UP”). These
categories reflect biological assessments of the probability of a
given plant occurring in a given environment. Thus, an obligate
wetland plant is defined as a plant that almost always occurs in
wetlands, under natural conditions, but may also occur in non-
wetlands. To be classified as an obligate wetland plant, its
estimated probability of occurring in wetlands is greater than
99%, with an estimated probability of occurring in non-
wetlands of less than 1%. A “facultative wetland” plant is one
which usually occurs in wetlands, but also occurs in non-
wetlands (estimated probability of occurrence in wetlands of
67%-99% and estimated probability in non-wetlands of 1%-

Appendix B5

33%). A “facultative” plant is sometimes found in wetlands
(estimated frequency of 34%-66%), but is also found in non-
wetland areas. A “facultative upland” plant is one that is
seldom found in wetlands (estimated frequency in wetlands of
1-33%). An “upland” plant has an estimated probability of
occurring in wetlands of less than 1%.

To meet the vegetation criterion of the three-parameter test,
one determines what plants are prevalent. The 1987 Manual
indicates that wetlands vegetation is prevalent in an area when
more than 50% of the dominant species comprising the plant
community or communities are obligate, facultative wet, or
facultative, i.e. typically adapted for life in saturated soil

The 1987 Manual also requires an examination of the soils
present on a site to determine whether they are “hydric.”
Hydric soils are soils that are saturated, flooded, or ponded long
enough during the growing season to become anaerobic, or
lacking in oxygen, in the upper part. Soils are characterized and
their color, structure, and texture are evaluated. Certain
features of the soil help to determine whether a given soil
sample is hydric. Hydric soils can be either peat/muck, mineral,
or sandy. Mineral hydric soils are subjected to periodic
saturation sufficient to exhibit specific soil colors. These colors
are defined and standardized in the Munsell Soil Chart.

The third parameter of the three-parameter test is the
hydrology of the land. The 1987 Manual states at pages 39-40
that “[t]he term ‘wetland hydrology’ encompasses all
hydrologic characteristics of areas that are periodically
inundated or have soils saturated to the surface at some time
during the growing season. . . . Hydrology is often the least
exact of the parameters, and indicators of wetland hydrology are
sometimes difficult to find in the field. However, it is essential
to establish that a wetland area is periodically inundated or has

Appendix B6

saturated soils during the growing season.” The 1987 Manual
also indicates that an area has wetland hydrology if it is
inundated or saturated to the surface continuously for at least
five percent of the growing season in most years. Indicators of
wetland hydrology include saturation, flooding, or ponding of
the area, as well as indirect evidence such as watermarks on
trees. Wetland hydrology can be demonstrated by surface water
inundation or flooding or groundwater saturation within twelve
inches of the surface during the growing season.

III. Facts Relevant to All Defendants

There is no dispute as to the following facts: Defendant
John A. Rapanos (“Mr. Rapanos”) is the president and sole
shareholder of defendant Prodo, Inc. (“Prodo”), and has been
since at least since 1980. Defendant Judith A. N. Rapanos
(“Mrs. Rapanos”) is the president and sole shareholder of
defeadant Pine River Bluff Estates, Inc. (“PRBE”). None of the
defendants had a permit issued to it under the CWA to
discharge pollutants into any water of the United States.

IV. Findings of Fact as to the Sites at Issue in this Case
A. The Salzburg Site

In a criminal proceeding, defendant John Rapanos was
convicted of violating section 301(a) of the CWA, 33 U.S.C. §
1311(a), for knowingly discharging pollutants into waters of the
United States without a permit at the Salzburg site during the
time periods of December 1988 to November 1989, and
December 1989 to October 1991. He was sentenced on
December 2, 1998, and the judgment was entered on that date.
See United States v. Rapanos, 93-CR-20023-DT (E.D. Mich.).
Although the criminal conviction did not include a jury
determination of the number of acres of wetlands Mr. Rapanos

Appendix B7

filled, he is collaterally estopped from denying his liability at
the Salzburg site.

1. Vegetation

The presence of wetland vegetation at the Salzburg site
was established by lay testimony, expert testimony, photographs
and other scientific evidence. Steve Sadewasser, and employee
of the State of Michigan who is trained in wetland
identification, reported the presence of hydrophytic vegetation
at the Salzburg site in 1989. The locations of this vegetation
were noted by a survey crew. Sadewasser found areas with
remnant vegetation, and used aerial photography, soil boring
data, the county soil survey, and hydrological observations to
determine that the remnant areas were representative of broader
areas on the site.

Hal Harrington, an employee of the State of Michigan
trained in wetland identification, also observed what appeared
to be a scrub/shrub wetland in the “superstructure” portion of
the site in March 1989.’

Charles Dodgers, an employee of the State of Michigan
trained in wetland identification, found that the dominant plant
species in July 1989 were sedges, rushes, and water plaintain.
Dodgers observed aquatic milkweed, an OBL plant, in August
1989.

Dr. Daniel E. Willard was plaintiff's wetlands expert
witness. He is eminently qualified in this area and his
testimony was highly credible. Dr. Willard reviewed and relied
upon the vegetation data gathered by Sadawasser in 1989 and

? The “superstructure” is a forty acre portion of the Salzburg site
bounded on the east by Flajole Road, and

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A02. Public record. Not legal advice.