Petition for Writ of Certiorari — Rapanos v. United States
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JUNE CARABELL; KEITH CARABELL;
HARVEY GORDENKER; FRANCES GORDENKER,
PETITIONERS
v.
UNITED STATES ARMY CORPS OF ENGINEERS;
UNITED STATES ENVIRONMENTAL AGENCY
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
TIMOTHY A. STOEPKER
Counsel of Record
DENNIS W. ARCHER
PAUL R. BERNARD
DICKINSON WRIGHT PLLC
500 Woodward Avenue
Suite 4000
Detroit, MI 48226-3425
Telephone: (313) 223-3500
Facsimile: (313) 223-3598
Attorneys for Petitioners
CURRY & TAYLOR @ WAS? O.C. ¢ (202) 223-3160 ¢ USSCINFO.COM
i
QUESTIONS PRESENTED
1. Does the Clean Water Act extend to
wetlands that are hydrologically isolated from any of
the “waters of the United States?”
2. Do the limits on Congress’ authority to
regulate interstate commerce preclude an
interpretation of the Clean Water Act that would
extend federal authority to wetlands that are
hydrologically isolated from any of the “waters of the
United States?”
— — — —
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED. ...... be. i
TABLE OF CONTENTS. . ...... ...... ... ...... ii
TABLE OF AUTHORTTIES. ...... ...... iv
OPINIONS BELOW. ...... .... ... ..... ...... 1
e 1
CONSTITUTIONAL STATUTORY AND REGULATORY
PROVISIONS AT ISSUE. ...... ...... ...... 2
eee 4
STATEMENT OF THE CASE. ...... ...... .... 6
A. THE ADMINISTRATIVE DECISIONS. .. . 7
B. THE DISTRICT COURT DECISION ..... 7
C. THE SIXTH CIRCUIT OPINION. . 8
REASONS FOR GRANTING THE PETTTION ...... ...a. 9
1 THERE IS A CONFLICT AMONG THE
CIRCUITS ABOUT WHETHER FEDERAL
AUTHORITY UNDER SECTION 404(A) OF
THE ACT EXTENDS TO WETLANDS THAT
LACK ANY HYDROLOGICAL CONNECTION
TO A NAVIGABLE WATER OR A
TRIBUTARY OF A NAVIGABLE WATER. . esse 9
II THE EXTENSION OF FEDERAL
JURISDICTION UNDER § 404% TO ANY
WETLAND THAT IS ONLY PHYSICALLY
__________gsviyih
PROXIMATE TO A FEDERAL WATER IS
INCONSISTENT WITH THIS COURT'S
HOLDING IN SWANCC AND WITH THE
LIMITS OF FEDERAL AUTHORITY UNDER
2 . —
III THE EXTENSION OF FEDERAL
JURISDICTION UNDER 540400 TO ANY
WETLAND THAT IS ONLY PHYSICALLY
PROXIMATE TO A FEDERAL WATER IS
PROHIBITED BY THE LIMITS ON
CONGRESSIONAL AUTHORITY
ESTABLISHED BY THE COMMERCE
6 — — — ee:
CONCLUSION..
APPENDIX
CIRCUIT COURT OPINION (09/27/04)
CIRCUIT COURT JUDGMENT —
DISTRICT COURT DECISION (03/27/03) ....
ORDER DENYING REHEARING (01/10/05).
DISTRICT COURT REPORT AND
RECOMMENDATION (02/28/03)
ADMINISTRATIVE APPEAL DECISION (03/05/01) .......
MEMORANDUM FOR RECORD ( —
LETTER OF RICHARD J. POLO JR TO MR. & MRS.
CARABELL (11/05/00)...
11111
TABLE OF AUTHORITIES
Page
CASES
BACCARAT FREMONT DEVELOPERS V. UNITED
STATES ARMY CORPS OF ENG’RS, 327 F. Supp. 2D
1121 (N.D. CAL. 2003) 14
CHEVRON U.S. A., INC. V. NATURAL RESOURCES
DEFENSE COUNCIL, INC., 467 U.S. 837 (1984) 8, 23
HEADWATERS, INC. V. TALENT IRRIGATION DIST.,
243 F.3D 526 (9™ CIR. 2001) 13
IDAHO RURAL COUNCIL v. BOSMA, 143 F. SuPP. 2D
1169 (D. IDAHO 2001) 13
IN RE NEEDHAM, 354 F.3D 340 (5™ Cir. 2008)........... 14, 15, 21
NORTHERN CALIFORNIA RIVER WATCH V. CITY OF
HEALDSBURG, 2004 WL 201502, *9 (N.D. CAL.
JAN. 23, 2004) 14
RICE v. HARKEN EXPLORATION CO., 250 F.3D 264
(5TH CIR. 2001) passim
SOLID WASTE AGENCY OF NORTHERN COOK CTY v.
UNITED STATES ARMY CORPS OF ENG’RS, 531
U.S. 159 (2001) passim
TREACY V. NEWDUNN Assocs., L.L.P., 344 F.3D 407
(4TH CIR. 2003), CERT. DENIED, 541 U.S. 972 (2004)... 11, 20
UNITED STATES v. BANKS, 115 F.3D 916 (11™ Cir.
1997), CERT. DENIED, 522 U.S. 1075 (1998) 12, 20
UNITED STATES V. BUDAY, 138 F. SuPP. 2D 1282 (D.
MONT. 2001) * 12. 20
*
UNITED STATEs v. DEATON, 332 F 3p 698 (4™ Cir.
2003), CERT. DENIED, 541 U.S. 972 (2004)... -- 11,20
UNITED STATEs v. LEE Woop CONTRACTING, INC.,
529 F. Supp. 119 (E.D. MICH. 1981). — 12. 20
UNITED Srars v. LOPEZ, 514 U.S. 549 — 25, 26
UNITED STATES v. MORRISON, 529 U.S. 598 (2000) 2⁵
UNITED STATEs v. RAPANOS, 339 F 3p 447 (2003),
CERT. DENIED, 541 U.S. 972 (2004) — 12,20
UNITED STATEs v. RAPANOS, 376 F.3D 629 (004) 11, 12, 20
UNITED STATEs v. RIVERSIDE BAYVIEW HOMEs,
INC., 474 U.S, 121 (1985)... —9, 16, 17, 18
UNITED States v. TILTON, 705 F. 20 429 (11™ Cir.
1983). — 12,20
WICKARD v. FILBURN, 317 U.S. 11] (1942)... —25
STATUTES
28 U.S.C. § 1254. =
33 U.S.C. § 1251. ~ 5, 10, 20
33 U.S.C. § 1311... 2
33 U.S.C. 5134. w 2, 4,7
. BUSC. § 1862. =
REGULATIONS
33 CF. R. § 328.3. —4. 8,14
US. Const. art. I, § 8, el. 3 2. 24
OTHER AUTHORITIES
Michael J. Gerhardt, Federal Environmental
Regulation in a Post-Lopez World: Some
Questions and Answers, 30 ENVTL. L. REP. 10980
(2000) : 25
1
PETITION FOR WRIT OF CERTIORARI
June Carabell, Keith Carabell, Harvey
Gordenker and Frances Gordenker 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 391 F.3d 704 (6" Cir. 2004), Appendix 1a-13a. The
order of the district court, Appendix 15a-17a, which
adopts and _ incorporates the report and
recommendation of the magistrate judge, Appendix
20a-57a, was reported at 257 F. Supp. 2d 917 (E. D.
Mich. 2003). The decision of the United States Army
Corps of Engineers (the Corps) on Petitioners’
administrative appeal was not published but is attached
as Appendix 58a-68a. The Corps’ initial administrative
decision was not published but is attached as Appendix
69a-76a.
JURISDICTION
The judgment of the Court of Appeals for the
Sixth Circuit was entered on September 27, 2004. That
court’s denial of the Petition for Rehearing En Banc
was entered on January 10, 2005, Appendix 18a-19a.
This Court has jurisdiction under 28 U.S.C. § 1254(1).
2
CONSTITUTIONAL, STATUTORY AND
REGULATORY PROVISIONS AT ISSUE
The United States Constitution provides that
Congress has the authority to “regulate commerce
among the several states.” Art. I, § 8, cl. 3.
The Clean Water Act (CWA) provides, in
relevant 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 material into the navigable waters at
specified disposal sites.
33 U.S.C. § 1344(a) (CWA § 404(a)).
(7) The term “navigable waters”
means the waters of the Untied States,
including territorial seas.
33 U.S.C. § 1362(7) (CWA § 502(7)).
Federal regulations define “waters of the United
States” as:
(1) All waters which are currently
used, or were used in the past, or may be
3
susceptible to use in interstate or foreign
commerce, including all waters which are
subject to the ebb and flow of the tide;
(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) Tributaries of waters identified in
(a)(1) through (4) of this section;
4
(6) The territorial seas;
(7) Wetlands adjacent to waters (other
than waters that are themselves
wetlands) identified in paragraphs (a)(1)
through (6) of this section.
33 C. F. R. § 328.3(a).
INTRODUCTION
In Solid Waste Agency of Northern Cook Cty v.
United States Army Corps of Eng’rs, 531 U.S. 159
(2001) (SWANCC), this Court held that federal
authority under § 404(a) of the Clean Water Act (CWA
or Act), 86 Stat. 884, as amended, 33 U.S.C. § 1344(a),
extends only to waters or wetlands that have a
“significant nexus” with the navigable waters of the
United States. SWANCC, 531 U.S. at 167. Since that
decision, federal courts have struggled to define the
precise nature of that “significant nexus,” especially
with respect to wetlands that are adjacent to waters
covered by the Act. In this case, the Sixth Circuit has
issued an opinion defining the scope of federal authority
over adjacent wetlands that fundamentally departs
from the principle that this Court set forth in
SWANCC, as well as from the decisions of the
overwhelming majority of federal circuit and district
courts.
Petitioners own a parcel of land (the Property)
that includes a wetland, which has no surface or ground
water connection with any “waters of the United
States.” The lower courts held that the Property was
subject to federal authority, rejecting Petitioners’
contention that a “significant nexus” between a water
5
and a wetland exists where there is, at a minimum, a
hydrological connection.
The lower courts rulings’ conflict with the
overwhelming majority of federal courts, which have
held that that there is no “significant nexus” between a
wetland and a navigable water in the absence of a
hydrological connection. In SWANCC, this Court
emphasized that the scope of federal authority under
the Act was ultimately defined by the Act’s expressed
purpose of restoring and maintaining “the chemical,
physical and biological integrity of the Nation’s
waters.” 33 U.S.C. § 1251(a) (quoted in SWANCC, 531
U.S. at 166). On this basis, SWANCC held that the Act
could not be interpreted to support a regulation, the
“Migratory Bird Rule,” that purported to extend
federal authority over isolated, intrastate ponds. The
majority of federal courts have recognized that, under
this principle, the Act cannot be extended to
hydrologically isolated wetlands.
In the alternative, to the extent that the Corps’
interpretation of the intended scope of the Act is
correct, this Court's recent Commerce Clause
jurisprudence prohibits such an expansive exercise of
federal authority. Allowing federal jurisdiction over
isolated intrastate wetlands significantly intrudes upon
the states’ traditional position as the primary source of
authority for the regulation of land and water use, and
this Court should hold that the Act exceeds Congress’
authority under the Commerce Clause insofar as it
permits the regulation of hydrologically isolated
wetlands, such as the wetland on the Property.
6
Resolving the conflict in this case by explicating
the concept of “significant nexus” will also contribute to
the resolution of another conflict among the circuits
regarding whether the “significant nexus” requirement
limits federal authority to wetlands that are adjacent to
navigable waters or to wetlands, such as the one in this
case, that are adjacent to a non-navigable tributary of a
navigable water. See Appendix at 10a (citing cases).
When the conflict created in this case is viewed in light
of this other, conceptually similar conflict about federal
authority over “adjacent wetlands,” it is clear that the
federal courts require this Court’s further guidance
about the precise nature of the “significant nexus”
requirement described in SWANCC.
STATEMENT OF THE CASE
The Property is 19.6 acres of land in Chesterfield
Township, Macomb County, Michigan, about a mile
from Lake St. Clair. See Appendix at Za.
Approximately fifteen acres of the Property are
forested wetlands. Jd. A drainage ditch is located on
an adjacent parcel and is near one of the borders of the
Property. Appendix at 2a-3a. A berm runs along the
side of the ditch, forming a barrier between the
Property and the ditch and preventing water from the
Property from draining into the ditch. Appendix at 3a.
The berm was apparently formed more than fifty years
ago by the side casting of spoils during the excavation
of the ditch. Appendix at 62a. There is no dispute in
the administrative record that surface water does not
flow between the Property and the ditch. See
Appendix at 3a. Similarly, there is no dispute that
there is no groundwater connection between the
Property and the ditch. See Appendix at 52a. The ditch
7
intersects with the Sutherland-Oemig Drain, which
empties into Auvase Creek, which flows into Lake St.
Clair. Appendix at 3a. Petitioners seek to use the
Property for the construction of a condominium
complex. Appendix at 2a.
A. The Administrative Decisions
After the Michigan Department of
Environmental Quality (MDEQ) issued a permit
authorizing Petitioners’ project, Respondent United
States Environmental Protection Agency (EPA), acting
pursuant to § 404(a) of the Clean Water Act, 33 U.S.C.
§ 1344, objected to the issuance of the state permit and
required Petitioners to file an application for a federal
permit to fill the wetland. Appendix at 4a. The EPA
also authorized the Corps to rule on the application. Id.
The Corps denied the application, finding that the
wetland on the Property was part of the Lake St. Clair
watershed and therefore that the wetland was
governed by the Act. Appendix at 69a-76a. This
decision was affirmed through the Corps’ internal
administrative appellate process. Appendix 58a-68a.
B. The District Court Decision
Petitioners challenged the Corps’ decision in the
district court. Ruling on the parties’ cross-motions for
summary judgment, the district court adopted the
report and recommendation of a magistrate judge and
ruled that the Corps was correct in asserting
jurisdiction over the wetland. Appendix at 20a-57a.
The district court acknowledged that, in Solid Waste
Agency of Northern Cook Cty. v. United States Army
Corps of Eng’rs, 531 U.S. 159 (2001) (SWANCC), this
8
Court had ruled that the Act regulated only those
waters that had a “significant nexus” with the “waters
of the United States, and it concluded that the wetland
on the Property had such a “significant nexus” and that
the Property “is in fact not isolated, and is subject to
the jurisdiction of the [Clean Water Act]. Appendix at
49a. But the district court did not identify what
constituted the “significant nexus” in this case, nor did
it address the significance, if any, of the undisputed fact
that the wetland lacked any hydrological connection
with any of the “waters of the United States.”
C. The Sixth Circuit Opinion
On appeal, the Petitioners reiterated their
argument that the Property was not subject to federal
jurisdiction under the Clean Water Act because it did
not have a significant nexus with a federal water. The
Sixth Circuit rejected this argument by concluding that
the physical adjacency of the Property to a tributary of
a federal water was sufficient to create federal
jurisdiction. Appendix at 12a. The Sixth Circuit began
its analysis by noting that the Corps’ interpretation of
its own regulations was entitled to deference under
Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Appendix at 6a-7a.
Applying 33 C.F.R. §328.3(a)(7), the Sixth Circuit
reasoned that the existence of the berm separating the
Property from the drainage ditch did not prevent
federal jurisdiction because, under that regulation, the
definition of “adjacent wetlands” includes a wetland
that is separated by a berm or man-made barriers from
a tributary of federal waters. Appendix at 9a. The
Sixth Circuit then noted that this reading of
§ 328.3(a)(7) was not affected by this Court’s decision in
9
SWANCC. Appendix at 10a. According to the Sixth
Circuit, most federal circuit courts, with the exception
of the Fifth Circuit, have held that SWANCC should be
narrowly applied, only precluding federal jurisdiction
over isolated waters. Id. (citing cases). Thus, the
Sixth Circuit concluded that this Court’s decision in
SWANCC did not alter the broad definition of
“adjacent wetlands” that the Sixth Circuit found in
United States v. Riverside Bayview Homes, Inc., 474
U.S. 121, 135 (1985). Appendix at 10a-12a. Under that
definition, the Sixth Circuit held that the district court
did not err in finding that the Property did not contain
isolated wetlands and that it had a “significant nexus”
with federal waters. Appendix at 12a. In reaching this
holding, the Sixth Circuit, like the district court, did
not, however, precisely explain what characteristic of
the Property provided this “significant nexus.” See id.
REASONS FOR GRANTING THE PETITION
I
THERE IS A CONFLICT AMONG THE CIRCUITS
ABOUT WHETHER FEDERAL AUTHORITY
UNDER SECTION 404(a) OF THE ACT EXTENDS
TO WETLANDS THAT LACK ANY
HYDROLOGICAL CONNECTION TO A
NAVIGABLE WATER OR A TRIBUTARY OF A
NAVIGABLE WATER
The Sixth Circuit’s decision in this case creates a
new conflict among the circuit courts and deepens an
existing conflict, both of which relate to the scope of
federal authority over “adjacent wetlands” under
§ 404(a) of the Clean Water Act. As the Corps
conceded here when it moved for the publication of the
10
Sixth Circuit’s opinion, the decision here makes new
law; it is the first decision by any circuit court
concluding that the federal authority created by
§ 404(a) extends to a wetland despite the absence of any
direct or indirect hydrological connection establishing
the “significant nexus” between that wetland and any
navigable water. The conflict created in this case
overlays an existing conflict between the Fifth Circuit
and other circuits, regarding whether this Court’s
decision in SWANCC requires that federal jurisdiction
over wetlands is restricted to those wetlands that are
adjacent to waters that are actually navigable. These
conflicts require that this Court grant a writ of
certiorari and clarify the scope of federal jurisdiction
under § 404 with respect to adjacent wetlands.
Since this Court’s opinion in SWANCC, the
overwhelming majority of federal circuit and district
courts have held that § 404(a) extends federal authority
over wetlands when there is, at a minimum, a
hydrological connection between those wetlands and
federal waters. This jurisdictional principle is perfectly
consistent with the fundamental purpose of the Act, as
expressed in the Act itself and as recognized by this
Court in SWANCC. SWANCC, 531 U.S. at 166 (citing
33 U.S.C. § 1251(a)). A wetland will have an effect on
the “chemical, physical, and biological integrity” of the
waters of the United States only when water from that
wetland actually mingles with the waters of the United
States through a hydrological connection. In the
absence of such a connection, the wetland is isolated
from federal waters and will not have any direct causal
effect on the integrity of the waters of the United
States. Consequently, the wetland on the Property is
11
not properly subject to the federal authority created by
the Act.
The Fourth Circuit has repeatedly held that
federal authority under the Act is limited to adjacent
wetlands that have a hydrological connection to federal
waters. In United States v. Deaton, 332 F.3d 698 (4"
Cir. 2003), cert. denied, 541 U.S. 972 (2004), the Fourth
Circuit considered whether there was a “significant
nexus” between a wetland and navigable waters via a
surface-water connection between the wetland and non-
navigable tributaries of Chesapeake Bay. The Fourth
Circuit answered this question in the affirmative, even
though the hydrological connection was effected
intermittently through man-made roadside ditches as
well as through natural bodies of water. Despite its
tenuous character, the hydrological connection itself
was the foundation of the Fourth Circuit’s conclusion
that federal authority could lawfully be extended over
the wetland. The Fourth Circuit reached an essentially
identical conclusion on the basis of essentially identical
reasoning in Treacy v. Newdunn Assocs., L. L. P., 344
F.3d 407 (4% Cir. 2008), cert. denied, 541 U.S. 972 (2004).
In two opinions issued before the opinion at
issue even the Sixth Circuit indicated that finding a
hydrological connection between wetlands and
navigable waters is the crucial factor in determining
whether those wetlands have the requisite “significant
nexus” to warrant federal jurisdiction under § 404(a).
See United States v. Rapanos, 376 F.3d 629 (2004),
United States v. Rapanos, 339 F.3d 447 (2003), cert.
A petition for a writ of certiorari was filed in this case on January
28, 2005. It is docketed in this Court as Case No. 04-1034.
12
denied, 541 U.S. 972 (2004). These two cases, one civil
and one criminal, arose from a property owner's
decision to drain wetlands on his property, which was
located at least eleven miles from the nearest navigable
water but was connected to that water by the flow of
surface water through several different non-navigable
bodies of water. In the erminal case, which was
decided first, the Sixth Circuit pointed out that It he
evidence presented in this case suffices to show that the
wetlands on Rapanos’s land are adjacent to the
Labozinski Drain, especially in view of the hydrological
connection between the two.” Rapanos, 339 F.3d at
453. Similarly, in the civil case, which was decided
slightly more than two weeks before this case was
argued in the Sixth Circuit, the court rejected the
property owner’s argument that “direct abutment” was
required to invoke CWA jurisdiction, holding that
“(njon-navigable waters must have a hydrological
connection or some other ‘significant nexus’ to
traditional navigable waters in order to invoke [Clean
Water Act] jurisdiction.” Rapanos, 376 F.3d at 642.
Other courts, ruling before and after SWANCC,
have concluded that the Act extends to wetlands that
have, at the very least, a hydrological connection to the
“waters of the United States. See, e.g., United States v.
Buday, 138 F. Supp. 2d 1282, 1291-92 (D. Mont. 2001);
United States v. Banks, 115 F.3d 916 (11" Cir. 1997),
cert. denied, 522 U.S. 1075 (1998); United States v.
Tilton, 705 F.2d 429, 431 (11% Cir. 1983); United States
v. Lee Wood Contracting, Inc., 529 F. Supp. 119, 120-21
(E.D. Mich. 1981).
In addition to the cases that directly address the
question of federal authority over wetlands, there are
13
that federal authority under the Act extends to only to
those waters that have a hydrological connection with
one of the “waters of the United States.” In
— 1 Inc. v. Talent Irrigation Dist., 243 F 3d
526 (9 Cir. 2001), the Ninth Circuit concluded that
agricultural irrigation canals were not isolated because
they exchanged water with tributaries of navigable
waters. Headwaters, 243 F.3d at 533. In Idaho Rural
Council v. Bosma, 143 F. Supp. 2d 1169 (D. Idaho 2001),
the district court conducted an essentially identical
analysis, concluding that a non-navigable tributary was
subject to federal authority under the Act by virtue of
the fact that it had a hydrological connection with a
navigable water, even though that connection involved
the flow of surface water over a pasture.
The Sixth Circuit’s opinion in this case marks a
dramatic departure from the manner in which all of
these federal courts have understood the meaning of
“significant nexus.” Instead of focusing its
jurisdictional analysis whether there was a hydrological
connection between the Property and any navigable
water or tributary of a navigable water, the Sixth
Circuit focused instead on the Property’s physical
proximity to the drainage ditch that was connected to
non-navigable tributaries of Lake St. Clair. Appendix
at 9a. Although the Sixth Circuit recognized that the
identification of a “significant nexus” was essential to
the definition of the scope of federal authority, the
court presumed that such a nexus could be established
simply by physical proximity. Appendix at 9a-12a. In
so doing, the Sixth Circuit did not address the fact that
so many other courts had concentrated on the
centrality of a hydrological connection or on the fact
14
that, in the Rapanos cases, the Sixth Circuit itself
defined the scope of federal authority in terms of the
existence of a hydrological connection.
Only one other court has held that federal
jurisdiction under § 404 may be found over an adjacent
wetland despite the absence of a hydrological
connection and solely on the basis of physical proximity.
In Baccarat Fremont Developers v. United States
Army Corps of Eng’rs, 327 F. Supp. 2d 1121 N. D. Cal.
2003), the district court held that a wetland would still
be considered adjacent to federal waters if it was
separated from those waters by a man-made barrier. It
concluded that SWANCC was not directly relevant to
the construction of the concept of adjacency, and that
there was no need to find the existence of a
hydrological connection as a basis for concluding that a
wetland was “adjacent” for the purposes of 33 C. F. R.
§ 328.3(aX(7). Baccarat Fremont Developers, 327 F.
Supp. 2d at 1127-28; see also Northern California River
Watch v. City of Healdsburg, 2004 WL 201502, *9 (N.D.
Cal. Jan. 23, 2004) (asserting that “SWANCC did not
impose a rule of ‘hydrological connection’ . . . ).
courts regarding the scope of federal authority over
adjacent wetlands is related to a similar conflict
between different circuits about the consequences of
SWANCC. That conflict turns on the question whether
federal authority over adjacent wetlands is limited to
wetlands adjacent to bodies of navigable water. In both
Rice v. Harken Exploration Co., 250 F.3d 264 (5" Cir.
2001) and In re Needham, 354 F.3d 340 (5" Cir. 2003),
the Fifth Circuit primarily addressed a question of the
scope of federal authority under the Oil Pollution Act,
15
but, in so doing, it also made clear conclusions about the
scope of federal authority under the CWA. The Fifth
Circuit looked to SWANCC for general guidance about
the scope of federal authority to regulate an oil spill
into the non-navigable tributaries of navigable waters,
and it concluded that the fundamental principies set
forth in SWANCC limited federal authority generally
to navigable waters or to bodies of non-navigable water
that were immediately adjacent to navigable waters.
Rice, 250 F.3d at 269; Needham, 354 F.3d at 345-46. In
particular, the Rice court focused upon this Court’s
assertion in SWANCC that “in order to rule for [the
Corps] here, we would have to hold that the jurisdiction
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.“ Rice, 250 F.3d at 269
(quoting SWANCC, 531 U.S. at 168)). As explained by
the Sixth Circuit in this case, the Fifth Circuit’s holding
is directly contrary to holdings by the Fourth and Sixth
Circuits, both of which have held that federal authority
under the Act can be extended to wetlands that are
adjacent to non-navigable tributaries of navigable
waters. Appendix at 10a (citing Deaton and Rapanos,
supra).
All of these divergent rulings by the federal
district and circuit courts demonstrate that there is
substantial confusion about how this Court’s opinion in
SWANCC has generally affected the analysis of the
scope of federal authority under §404(a) and, in
— about what precisely constitutes the
“significant nexus” that is required for the exercise of
federal authority under the Act. By issuing a writ of
certiorari in this case, and by ruling on the question
whether a hydrological connection is essential to finding
16
a “significant nexus,” this Court can resolve this
confusion and clarify the meaning and proper
application of SWANCC.
THE EXTENSION OF FEDERAL JURISDICTION
UNDER § 404(a) TO ANY WETLAND THAT IS
ONLY PHYSICALLY PROXIMATE TO A FEDERAL
WATER IS INCONSISTENT WITH THIS COURT’S
HOLDING IN SWANCC AND WITH THE LIMITS
OF FEDERAL AUTHORITY UNDER THE ACT
This Court’s decision in SWANCC established
that the Act only provided federal authority for the
purpose of restoring and maintaining the chemical,
physical, and biological integrity of the Nation's
waters“ and that the federal regulation of isolated,
intrastate waters does not serve this purpose. When a
wetland lacks a hydrological connection with any
navigable water or tributary of a navigable water, it is
isolated precisely as the man-made ponds in SWANCC
were. Because the extension of federal authority to an
isolated wetland will not advance the statutory
purposes of the Act, such a wetland cannot be regulated
by the Act.
This Court first addressed the general question
of how wetlands fit into the bounds of regulatory
authority under the Act in United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121 (1985). There, this
Court began by noting the most fundamental purpose
of the Act: maintaining and improving water quality.
Riverside Bayview, 474 U.S. at 132. In light of this
purpose, this Court acknowledged that, as the Corps
had concluded in drafting its regulations, federal
17
authority under the Act must extend beyond navigable
waters and include wetlands that are “integral parts of
the aquatic environment.” Riverside Bayview, 474 U.S.
at 135. To decide what constituted an “integral part of
the aquatic environment,” the Court cited certain
regulations promulgated under the Act, which
identified three crucial functions for wetlands: (1)
filtering and purifying water that drained into adjacent
bodies of water; (2) slowing the flow of surface water
runoff into lakes, rivers, and streams, as a means of
preventing flooding and erosion; and (3) serving
significant biological functions, including food chain
production, habitat and nesting. Riverside Bayview,
474 US. at 134 (citing 33 C. F. R. § 320.4(b)(2)). Thus,
this Court concluded that federal authority under the
Act extended to any wetlands that were adjacent to
navigable waters because such wetlands would serve
these functions. Riverside Bayview, 474 U.S. at 135.
But this conclusion was limited. This Court specifically
pointed out that it was not ruling on the question
whether federal authority under the Act extended to
wetlands that were not adjacent to bodies of open
water. Riverside Bayview, 474 U.S. at 131 n. 8.
Although Riverside Bayview identified
fundamental principles that were necessary to
determining whether and to what extent the Act
covered wetlands adjacent to non-navigable waters, its
holding was modified by this Court’s decision in
SWANCC, which clarified the scope of federal
authority under the Act. In SWANCC, this Court
considered the legality of one of the regulations
promulgated by the Corps under the Act, the so-called
“Migratory Bird Rule.”
18
The Migratory Bird Rule defined “waters of the
United States” to include any water that served or that
might serve as a habitat for migratory birds or
endangered species. SWANCC, 531 U.S. at 164
(discussing 51 Fed. Reg. 41217). The Corps defended
this regulation as being properly within the scope of the
Act’s authority because the protection of such habitats
was necessary for the preservation of the ecological
integrity of aquatic ecosystems. See id. The Corps also
contended that Congress had acquiesced in the Corps’
interpretation of the scope of the Act’s authority.
SWANCC, 531 U.S. at 168-69. In this respect, the
Corps’ position was consistent with the assertion in
Riverside Bayview that the Act purported to regulate
waters for ecological purposes, particularly the
protection of food chain production and biological
habitats. See Riverside Bayview, 474 U.S. at 134-35.
This Court rejected the Corps’ position that the
Act permitted the regulation of intrasiate waters solely
for the purpose of protecting ecological connections
between those intrastate waters and waters of the
United States, and, therefore, it held that the Corps’
promulgation of the Migratory Bird Rule exceeded the
authority created by the Act. SWANCC, 531 U.S. at
171-72. The foundation of this Court’s reasoning was
that the animating purpose of the Act was to protect
waters and aquatic ecosystems, including wetlands,
that had a “significant nexus” with navigable waters.
SWANCC, 531 U.S. at 167. Consequently, this Court
held that wetlands were subject to regulation under the
Act to the extent that they were “inseparably bound
up““ with the “waters of the United States.” Id.
(quoting Riverside Bayview, 474 U.S. at 134).
19
In so holding, this Court limited the holding of
Riverside Bayview to the extent that Riverside
Bayview held that federal jurisdiction could be based
upon a purely ecological connection between a wetland
and a navigable water. Indeed, in his dissenting
opinion, Justice Stevens concluded that the majority’s
opinion in SWANCC had precisely this effect on the
holding of Riverside Bayview. See SWANCC, 531 U.S.
at 176 n. 2 (Stevens, J., dissenting). After SWANCC,
this Court’s opinion in Riverside Bayview can only be
read to hold that wetlands are subject to regulation
under the Act to the extent that they are “inseparably
bound up” with the “waters of the United States.”
The wetlands that meet this condition are those
that, at a minimum, have a hydrological connection with
the waters of the United States. A wetland that lacks
such a hydrological connection, such as the one at issue
in this case, has precisely the same relationship to the
waters of the United States as the man-made ponds in
SWANCC, which were found to be outside of the scope
of the Act’s authority. If there is pollution in a wetland
that has a hydrological connection to those waters, the
waters of the United States may be affected, and,
therefore, the federal government has a legitimate
interest in controlling such pollution. By contrast,
however, there can be no legitimate federal interest in
- wetlands that lack any hydrological connection with
waters of the United States because the condition of
such wetlands is a purely intrastate matter. Indeed,
the federal regulation of hydrologically isolated
wetlands would disturb the states’ power to be the
primary source of authority over the use and
development of land and water resources, which, as this
Court recognized, the Act expressly recognized and
20
preserved. SWANCC, 531 U.S. at 174 (quoting 33
U.S.C. § 1251(b)).
As noted in the previous section, the
overwhelming majority of federal courts have
concluded that, in light of SWANCC, the federal
authority to regulate wetlands under the Act extends
only to wetlands that have a hydrological connection
with the waters of the United States. In all of these
cases, courts have focused on finding the existence of
such a connection as a prerequisite for determining
federal jurisdiction. See, e.g., United States v. Deaton,
332 F.3d 698 (4 Cir. 2003), cert. denied, 541 U.S. 972
(2004); Treacy v. Newdunn Assocs., L.L.P., 344 F.3d
407 (4% Cir. 2003), cert. denied, 541 U.S. 972 (2004);
United States v. Rapanos, 376 F.3d 629 (2004); United
States v. Rapanos, 339 F.3d 447 (2003), cert. denied, 541
U.S. 972 (2004); United States v. Buda, 138 F. Supp. 2d
1282, 1291-92 (D. Mont. 2001). Even in cases decided
before SWANCC, the overwhelming majority of courts
conducted the same analysis as a basis for determining
the scope of federal authority over wetlands. See, e. g.,
United States v. Banks, 115 F.3d 916, 920-21 (11% Cir.
1997), cert. denied, 522 U.S. 1075 (1998); United States
v. Tilton, 705 F.2d 429, 431 (11 Cir. 1983); United
States v. Lee Wood Contracting, Inc., 529 F. Supp. 119,
121 (E.D. Mich. 1981).
The Fifth Circuit has gone further than these
courts in its understanding of how this Court’s opinion
in SWANCC limited the scope of federal authority
under the Act. It has held that SWANCC limited
federal authority to wetlands that are adjacent to
navigable waters. Rice v. Harken Exploration Co., 250
F.3d 264, 269 (5 Cir. 2001); In re Needham, 354 F.3d
21
340 (5% Cir. 2003). The Fifth Circuit expressed the
principle this way: “a body of water is subject to
regulation under the [Clean Water Act] if the body of
water is actually navigable or is adjacent to an open
body of navigable water.” Rice, 250 F.3d at 269. Even
though this reading of SWANCC imposes a more
restrictive interpretation of the Act, it is nevertheless
consistent with the proposition that SWANCC
eliminated an ecological connection as a basis for
defining the limits of federal authority and required an
immediate connection between wetlands and waters of
the United States, such that pollution in the wetlands
would have a direct effect on the quality of federal
waters.
The Sixth Circuit’s opinion in this case is
contrary to all of this federal authority, and, most
importantly, to this Court’s opinion in SWANCC
because it concluded that the Property was within the
Corps’ jurisdiction under the Act without finding that
there was a hydrological connection between the
Property and any other body of water, navigable or
non-navigable. Indeed, the record in this case made it
impossible for the Sixth Circuit to find the existence of
a hydrological connection. There was no evidence of
any hydrological connection between the Property and
any tributary of Lake St. Clair, and, in making its own
findings, even the Corps determined that the Property
„is not part of the ([Sutherland-Oemig Drain]
watershed.“ Appendix at 52a (quoting the Corps’
evaluation of Petitioners’ permit application).
Nevertheless, the Sixth Circuit concluded that, because
the Property was physically adjacent to a drainage
ditch that was a tributary to a navigable water, the
22
Property met the regulatory definition of “adjacent
wetland.” Id.
Given the record upon which its decision rested,
the Sixth Circuit’s ruling can be interpreted in one or
both of two ways, neither of which is consistent with
this Court’s decision in SWANCC. First, it may reflect
the conclusion that an ecological (as opposed to a
hydrological) connection between a wetland and a
navigable water is a sufficient basis for federal
authority under the Act. In its own fact-finding and
decision-making at the administrative level, the Corps
devoted substantial attention to the ecological
importance of the wetland on the Property. For
example, in its decision letter, the first reason that the
Corps gave for denying Petitioners’ permit application
was that “[yJour parcel is primarily a forested wetland
that provides valuable seasonal habitat for aquatic
organisms and year round habitat for terrestrial
organisms.” Appendix at 73a. In addition, the Corps
asserted that Petitioners’ permit should be denied
because “[t]he minimization of impacts to these
wetlands is important for conservation and the overall
ecology of the region.” Appendix at 74a. It is not
surprising that the Corps should have concentrated so
intently on ecological considerations because its
decision was made in October 2000, before this Court’s
decision in SWANCC. But such an emphasis on
ecological factors as a foundation for federal authority is
simply inconsistent with the reasoning that supported
this Court’s invalidation of the Migratory Bird Rule.
Second, the Sixth Circuit’s decision may be
interpreted to reflect the conclusion that physical
proximity alone is sufficient to establish the “significant
23
nexus” required by SWANCC. The Sixth Circuit’s
decision was based upon its conclusion that it was
required to defer to the Corps’ interpretation and
application of its own regulations in accordance with
Chevron, U.S.A. v. Natural Resources Defense Council,
467 U.S. 837 (1984). Appendix at 6a-7a. Given this
deference, the Sixth Circuit apparently decided that it
was only required to determine whether the Property
fit within the regulatory definition of “adjacent
wetland” and that it was not required to examine
whether that regulatory term and the Corps’
application of it were consistent with the authority
conferred by the Act. This approach conflicts with this
Court’s decision in SWANCC, where this Court pointed
out that Chevron deference is not warranted when
there is a question about whether an agency has
exceeded the scope of the statutory authority under
which it operates. SWANCC, 531 U.S. at 172. Because,
as demonstrated above, physical proximity is not
enough, in itself, to satisfy SWANCC’s “significant
nexus” requirement, the Sixth Circuit erred in basing
its jurisdictional analysis solely on its finding that the
Property was adjacent to a tributary of a navigable
water. |
By correcting the Sixth Circuit’s errors and
reversing its judgment, this Court can clarify the
precise nature of what constitutes a “significant nexus”
between wetlands and the waters of the United States.
Given this Court’s ruling in SWANCC, and given the
overwhelming weight of federal authority since that
ruling, this Court should conclude that a “significant
nexus” between a wetland and the waters of the United
States requires, at a minimum, a_ hydrological
connection between them. This construction of the
24
“significant nexus” requirement is consistent with the
Act’s objectives of controlling pollution in the waters of
the United States and of preserving the traditional
federal-state balance regarding the regulation of land
and water. Moreover, this construction will not only
resolve the conflict among the circuit courts that was
created by the Sixth Circuit’s decision here; it will also
resolve the conflict between the Fifth Circuit and the
other circuit courts regarding whether federal
authority under the Act extends only to wetlands
adjacent to navigable waters.
III
THE EXTENSION OF FEDERAL JURISDICTION
UNDER § 404(a) TO ANY WETLAND THAT IS
ONLY PHYSICALLY PROXIMATE TO A FEDERAL
WATER IS PROHIBITED BY THE LIMITS ON
CONGRESSIONAL AUTHORITY ESTABLISHED
BY THE COMMERCE CLAUSE
In addition to being inconsistent with the
fundamental purposes of the Act, the Sixth Circuit’s
reading of § 404(a) and its attendant regulations is also
inconsistent with the limitations on federal legislative
power that are established by the Commerce Clause of
the United States Constitution, Art. I, § 8, el. 3. As this
Court suggested in SWANCC, the extension of federal
authority to isolated, intrastate waters upsets the
traditional balance between the state and federal
governments regarding the regulation of land and
water. Consequently, regardless of what Congress may
have purported with respect to the Act, the Act cannot
be interpreted or applied to provide for the federal
25
regulation of wetlands that lack any substantial effect
on interstate commerce.
Because Congress enacted the Clean Water Act
pursuant to its Commerce Clause authority, the scope
of jurisdiction under the Clean Water Act is limited to
waters that have some substantial connection to
interstate commerce. In other words, the Clean Water
Act regulates aquatic ecosystems that have an effect on
interstate waters. See SWANCC, 531 U.S. at 172. In
United States v. Lopez, 514 U.S. 549 (1995) and its
progeny, including United States v. Morrison, 529 U.S.
598 (2000), this Court reaffirmed conceptions of what
constitutes a substantial connection to interstate
commerce. Thus, the Lopez line of cases is crucially
relevant to the determination of when and to what
extent 2 wetland can ever be found to have a
substantial effect on interstate commerce. See Michael
J. Gerhardt, Federal Environmental Regulation in a
Post-Lopez World: Some Questions and Answers, 30
ENVTL. L. REP. 10980 (2000).
As this Court reaffirmed in Lopez, the core
principle that defines the scope of congressional
authority under the Commerce Clause is that such
authority only extends to matters having a “‘substantial
economic effect’ on interstate commerce. Lopez, 514
U.S. at 556-57 (quoting Wickard v. Filburn, 317 U.S.
111, 125 (1942)). Accordingly, this Court has repeatedly
held that the Commerce Clause authorizes Congress to
regulate “three broad categories of activity:” (1) the
use of the channels of interstate commerce; (2) the
instrumentalities of interstate commerce, or persons
and things in interstate commerce, even though the
threat may come only from intrastate activities; and (3)
26
the power to regulate those activities having a
substantial relation to interstate commerce. Lopez, 514
U.S. at 558-559. In order to determine which activities
fall within the last category, a court must further
examine (a) whether the statute controls a commercial
activity or some activity necessary to the regulation of
commercial or economic activity; (b) whether the
statute’s language includes a jurisdictional requirement
ensuring that the regulated activity affects interstate
commerce; and (c) how far the rationale for upholding
the statute extends. Lopez, 514 U.S. at 563-64. These
standards purport to assure that the federal
government’s powers will not become co-extensive with
the general regulatory powers of the states, and
legislation must not be interpreted or applied to
compromise these standards. See SWANCC, 531 U.S.
at 172.
The Sixth Circuit’s reading of the scope of
federal authority under § 404(a) is inconsistent with
these limitations on federal authority under the
Commerce Clause. The regulation of wetlands, such as
the wetlands on the Property, obviously does not
involve a regulation of the channels or instrumentalities
of interstate commerce. There is no suggestion that the
wetland on the Property is used in any way as a
medium of interstate commerce. Consequently, the
regulation of wetlands can only be justified to the
extent that such wetlands have a substantial effect on
interstate commerce. But wetlands that lack any
hydrological connection to the waters of the United
States do not have a substantial connection to
interstate commerce in terms of the three factors
identified in Lopez. First, the drainage or filling of
wetlands does not relate to an economic activity.
27
Under § 404(a), it is unlawful to drain or fill a wetland
for any reason or in connection with any activity,
economic or not. Second, there is nothing in § 404(a) or
the regulations promulgated under it constituting a
“jurisdictional element which would ensure, through
case-by-case inquiry, that the [regulated activity]
affects interstate commerce.” Nothing in the Act itself
or in its attendant regulations would give the Corps or
any other federal agency a method for distinguishing
between wetlands that would have an effect on
interstate commerce and wetlands that would not.
Finally, there is no rationale for permitting the
extension of federal authority under the Act to
wetlands without any hydrological connection to the
waters of the United States. As noted above, such
regulation will not protect the integrity of waters of the
United States because the absence of a hydrological
connection assures that any harmful effects to the
wetland will not be communicated to the waters of the
United States. In short, wetlands without a
hydrological connection to the waters of the United
States are isolated from federal waters and, therefore,
are not properly the subject of federal regulation.
Allowing the Act to extend to hydrologically
isolated wetlands would also intrude upon the states’
primary power to regulate land and water use, which,
and this Court has noted that the Act cannot be
interpreted to permit such an intrusion. SWANCC, 531
U.S. at 172. Indeed, this case precisely demonstrates
how a conflict between federal and state regulation can
emerge. Before the Corps ever considered exercising
its authority over the Property, the Michigan
Department of Environmental Quality (MDEQ) had
granted Petitioners’ state-law application to develop
28
the Property. In making its decision, the MDEQ
evaluated a variety of ecological factors, particularly
whether and to what extent the filling of the wetland on
the Property might affect the Lake St. Clair watershed.
After this consideration, it was the judgment of state
government that Petitioners’ use of the Property would
not adversely affect any of the state’s interests. Given
that the Property has no demonstrable connection to
any interstate water or to anything else that would
substantially affect a federal interest, it is inconsistent
with the fundamental principles underlying the
Commerce Clause for the federal government to
regulate the Property, or any other wetland that lacks
a hydrological connection to the waters of the United
States.
CONCLUSION
In SWANCC, this Court held that the Corps
could not regulate an isolated intrastate water under
the Clean Water Act. In this case, Petitioners own a
wetland that is isolated in precisely the same way as
the man-made ponds at issue in SWANCC. Just as it
was unlawful for the Corps to regulate such ponds, so
should it be unlawful for the Corps to regulate
Petitioners’ wetland. According to their established
case law, the overwhelming majority of federal courts
would prohibit the regulation of a hydrologically
isolated intrastate wetland, but the Sixth Circuit has
departed from all of this authority and has ruled that
the Corps may regulate Petitioners’ property, even
though there was never any finding at any stage of this
case of whether or how the development of Petitioners’
property would substantially affect any federal
interest. This Court should take jurisdiction of this
case to resolve the conflict created by the Sixth
Circuit’s decision here and to generally clarify the law
regarding the scope of federal authority to regulate
wetlands under the Act.
For these reasons, this Court should grant
Petitioners’ petition for a writ of certiorari.
Respectfully Submitted,
TIMOTHY A. STOEPKER
Counsel of Record
DENNIS W. ARCHER
PAUL R. BERNARD
Dickinson Wright PLLC
500 Woodward Avenue
Suite 4000
Detroit, MI 48226-3425
Telephone: (313) 223-3500
Facsimile: (313) 223-3598
Attorneys for Petitioners
la
(Any footnotes trail end of each document)
No. 03-1700
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
June Carabell; Keith Carabell; Harvey Gordenker;
Frances Gordenker,
Plaintiffs-Appellants,
V.
United States Army Corps of Engineers; United States
Environmental Protection Agency,
Defendants-Appellees.
August 11, 2004, Argued
Decided and Filed: September 27, 2004, Filed*
COUNSEL: ARGUED: Paul R. Bernard,
DICKINSON, WRIGHT, PLLC, Detroit, Michigan, for
Appellants.
Todd S. Kim, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees.
ON BRIEF: Paul R. Bernard, Timothy A. Stoepker,
DICKINSON, WRIGHT, PLLC, Detroit, Michigan, for
Appellants.
Todd S. Kim, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees.
2a
M. Reed Hopper, PACIFIC LEGAL FOUNDATION,
Sacramento, California, for Amicus Curiae.
JUDGES: Before: BATCHELDER and GIBBONS,
Circuit Judges; STAFFORD, District Judge**.
OPINION BY: STAFFORD
OPINION: STAFFORD, District Judge. Plaintiffs
appeal the summary judgment for the defendants in
this action to review final agency action under the
Clean Water Act (“CWA”), 33 U.S.C. §§1251-1387. We
affirm.
I.
Plaintiffs, June Carabell, Keith Carabell, Harvey
Gordenker, and Frances Gordenker (collectively,
“Carabells”), own 19.61 acres of property in
Chesterfield Township, Macomb County, Michigan. In
prehistoric times, this property was submerged under
Lake St. Clair. As the lake receded over time, some
areas of the Carabells’ property remained covered by
wetlands. Today, the property--located approximately
one mile northwest of Lake St. Clair--encompasses
15.96 acres of wooded wetlands, constituting one of the
last remaining large forested wetland parcels in
Macomb County.
The Carabells want to construct a large multi-family
condominium development on their property. The
property is shaped like an inverted right triangle, the
hypotenuse of which runs from the southwestern
corner of the parcel at a 45 degree angle to the
northeast corner. Following the hypotenuse and
3a
separating the Carabells’ property from the adjacent
property is an unnamed ditch. When the ditch was
excavated, the spoils w2re cast to either side of the
ditch, creating upland berms approximately four feet
wide along the banks of the ditch. The berm edging the
Carabells’ property serves to block immediate drainage
of surface water out of the parcel into the ditch.
Wooded conditions exist up to the upland rim of the
ditch. At the northeastern corner of the property, the
ditch connects to the Sutherland-Oemig Drain, which
empties into the Auvase Creek, which empties into
Lake St. Clair, which is part of the Great Lakes
drainage system. Although the record does not
establish the direction of water flow in the ditch, the
ditch empties either into the Sutherland-Oemig Drain
at the northeastern corner of the property, or into
ditches at the southwestern corner of the property
that--like the Sutherland-Oemig Drain--outlet into
Auvase Creek and eventually into Lake St. Clair.
In 1993, the Carabells applied to the Michigan
Department of Environmental Quality (““MDEQ”) for a
permit to fill 15.9 acres of the forested area of their
property for construction of a 130-unit condominium
complex. The MDEQ initially denied their application
after the United States Environmental Protection
Agency (“EPA”) and the United States Fish and
Wildlife Service filed comments opposing the
application. The denial was based on findings that “the
proposed activity would have a significant adverse
impact on the natural resources, public interest and
public trust held in the subject wetlands.” J.A. at 667.
On appeal, a state administrative law judge (“ALJ”)
ordered the MDEQ to issue the Carabells a state
permit for a II2- unit alternative condominium
4a
development with on-site wetland enhancement.
Consistent with the ALJ’s order, a permit was issued in
November of 1998 over the EPA’s objections. The
permit specifically stated that “authority granted by
this permit does not waive any jurisdiction of the U.S.
Army Corps of Engineers or the need for a federal
permit.” J.A. at 49.
Soon after the permit was issued, the EPA notified the
MDEQ that the state-issued permit did not constitute
authority under the CWA for the permitted activities.
The EPA asserted its federal jurisdiction over the
Carrabells’ project under the CWA, and it advised the
MDEQ that the United States Army Corps of
Engineers (“Corps”) had the authority under the CWA
to process a federal permit application by the
Carrabells. Although the Carrabells contested federal
jurisdiction over their project, they nonetheless applied
to the Corps for a permit to place 57,437 cubic yards of
fill on the wetland. The application indicated that they
would disrupt 15.87 acres of wetland but would dredge
and replant 3.74 acres of wetland.
On September 11, 2000, after three site inspections, the
Corps issued its permit evaluation, stating that the
operation and use of the proposed activity would have
major, long term, negative impacts on water quality, on
terrestrial wildlife, on the wetlands, on conservation,
and on the overall ecology of the area. The Corps also
stated that issuance of the permit would have minor
negative impacts on downstream erosion and
sedimentation, on flood hazards and floodplain values,
and on aquatic wildlife. By letter dated October 5, 2000,
the Corps notified the Carabells that their application
5a
for a permit had been denied. In its letter, the Corps
stated:
Your parcel is primarily a forested wetland that
provides valuable seasonal habitat for aquatic
organisms and year round habitat for terrestrial
organisms. Additionally, the site provides water
storage functions that, if destroyed, could result in an
increased risk of erosion and degradation of water
quality in the Sutherland-Oemig Drain, Auvase Creek,
and Lake St. Clair. The minimization of impacts to
these wetlands is important for conservation and the
overall ecology of the region. Because the project
development area is a forested wetland, the proposed
project would destroy the resources in such a manner
that they would not soon recover from impacts of the
discharges. The extent of impacts in the project area
when considered both individually and cumulatively
would be unacceptable and contrary to the public
interest. J.A. at 519. The Corps further explained that
the denial was also based on the Carabells’ failure to
overcome the presumption that there were less
damaging practicable alternatives available.
The Carabells filed an administrative appeal of the
Corps’ decision denying their permit application. The
Carabells argued (1) that the Corps lacked regulatory
jurisdiction over the property because the wetlands
were purportedly isolated from all outside waters by a
spoil berm; (2) that the MDEQ’s permit issuance
decision barred the Corps from denying the Carabells a
permit; and (3) that the Corps should have issued the
Carabells a permit because their proposed activities
met all statutory and regulatory requirements. After a
site visit by the appeal review officer and an appeal
6a
conference, the Carabells were notified that all of their
grounds for appeal lacked merit and that their appeal
had been denied.
On July 26, 2001, the Carabells filed this action in
federal district court. The case was referred to a
magistrate judge, who held a hearing on the parties’
cross-motions for summary judgment. The magistrate
judge recommended that the Carabells’ motion for
summary judgment be denied and that the defendants’
motion for summary judgment be granted. Among
other things, the magistrate judge concluded that
“because Plaintiffs’ property is adjacent to neighboring
tributaries of navigable waters and has a significant
nexus to ‘waters of the United States,’ it is in fact not
isolated, and is subject to the jurisdiction of the CWA.”
J.A. at 849. The magistrate judge also found that the
denial of the Carabells’ permit application was rational
based on the Corps’ conclusions regarding the likely
effects of the Carabells’ proposed project and on the
Carabells’ failure to demonstrate the absence of less
damaging practicable alternatives. After the Carabells
filed objections to the magistrate judge’s report and
recommendation, the district court entered an order
and judgment accepting the magistrate judge’s
recommendations and entering the report and
recommendations as the court’s own findings and
conclusions. This timely appeal ensued.
II.
We review the district court’s summary judgment
order de novo. Sierra Club v. Slater, 120 F.3d 623, 632
(6th Cir. 1997). Where, as here, the district court’s
order is based on its review of an administrative
7a
‘agency’s final decision, our review is governed by the
Administrative Procedure Act (“APA”). Id. The APA
provides that a court shall set aside an agency’s
decision only if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). This standard of review is highly
deferential, and the court is “not empowered to
substitute its judgment for that of the agency.” Citizens
to Preserve Overton Park v. Volpe, 401 U.S. 402, 416,
28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). An agency’s
factual findings are conclusive if supported by
substantial evidence, and an agency’s interpretation of
its own regulations is entitled to substantial deference
and will be upheld unless plainly erroneous or
inconsistent with the regulatory text. 5 U.S.C. § 706
(2)(E); Bowles v. Seminole Rock & Sand Co., 325 U.S.
410, 414, 89 L. Ed. 1700, 65 S. Ct. 1215 (1945); United
States v. Cinemark USA, Inc., 348 F.3d 569, 578 (6th
Cir.2003).
III.
On appeal, the Carabells maintain that the distriet
court erred when it (1) held that the Corps had CWA
jurisdiction over the Carabells’ property; and (2)
affirmed the Corps’ decision to deny the Carabells’
permit application.
A.
The CWA requires landowners to obtain permits from
the Corps before they discharge fill material into
“navigable waters.” 33 U.S.C. § 1344(a). Congress has
defined “navigable waters” as “waters of the United
States, including the territorial seas.” 33 U.S.C. §
8a
1362(7). The EPA and the Corps have defined “waters
of the United States” to include:
(1) All waters which are currently used, or were used in
the past, or may be susceptible to use in interstate or
foreign commerce, including all waters which are
subject to the ebb and flow of the tide;
(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...
(4) All impoundments of waters otherwise defined as
waters of the United States under the definition;
(5) Tributaries 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) (Corps)
(emphasis added); see also 40 C. F. R. § 122.2 (EPA). The
Corps defines “adjacent” to mean “bordering,
contiguous, or neighboring.” 33 C. F. R. § 328.3(c).
“Adjacent wetlands” include “wetlands separated from
other waters of the United States by man-made dikes
or barriers, natural river berms, beach dunes and the
like.” Id.
9a
‘In this case, the district court determined that the
Carabells’ property contains wetlands adjacent to
neighboring tributaries of navigable waters of the
United States. Specifically, the magistrate judge,
whose report was accepted by the district court, found
that:
Plaintiffs’ property in this case is not isolated. It is
undisputed that the property is adjacent to an unnamed
ditch, and that the ditch connects to the Sutherland-
Oemig Drain. The Drain, which neighbors a corner of
the property, connects to Lake St. ClairJ.A. at 847.
Having concluded that the Carabells’ property is not
isolated from waters of the United States but instead
constitutes “adjacent wetlands” within the meaning of
the CWA, the district court decided that jurisdiction
under the CWA existed. We agree with that decision.
The record here establishes that the unnamed ditch
running along the hypotenuse of the Carabells’ triangle-
shaped property is separated from wetlands only by a
man-made berm or barrier. At its northeastern end, the
ditch is connected to the Sutherland-Oemig Drain, a
drain that empties into the Auvase Creek, which, in
turn, empties into Lake St. Clair, which connects to
Lake Huron and Lake Erie. At its southwestern end,
the ditch is connected to other ditches, which-like the
Sutherland-Oemig Drain--outlet into the Auvase Creek
and eventually into Lake St. Clair. The ditch, then, is
connected on either end to tributaries of “waters of the
United States” as defined in the regulations. Whether
water in the ditch flows northeasterly or
southwesterly, the ditch is necessarily a tributary of
“waters identified in paragraphs (a)(1)-(6) of...section
[328.3(a)].” Because the wetlands on the Carabells’
10a
property are separated from a tributary of “waters of
the United States” only by a man-made berm or
barrier, they are considered “adjacent wetlands” under
§ 328.3(a)(7). As such, the wetlands at issue in this case
fall within the jurisdiction of the Corps for purposes of
the CWA.
The Supreme Court’s decision in Solid Waste Agency of
Northern Cook County v. United States Army Corps of
Engineers, 531 U.S. 159, 148 L. Ed. 2d 576, 121 S. Ct.
675 (2001) (““SWANCC”), does not persuade us
otherwise. Before SWANCC, the Corps had defined its
jurisdiction under the CWA as extending to intrastate
waters that provide habitat for migratory birds. In
rejecting the Corps’ “Migratory Bird Rule,” the
SWANCC Court made clear that isolated intrastate
waters cannot be subject to the Corps’ jurisdiction
under the CWA. Id. at 166.
A minority of courts have read SWANCC broadly to
limit the Corps’ jurisdiction under the CWA to
navigable waters and non-navigable waters that
directly abut navigable waters. See, eg., In re
Needham, 354 F.3d 340, 345-46 (5th Cir. 2003).
Conversely, a majority of courts, including this court,
have narrowly interpreted SWANCC as holding only
that the CWA does not reach isolated waters--in
SWANCC, an abandoned, isolated gravel pit--having no
connection with navigable waters. See, e.g., United
States v. Rapanos, 339 F.3d 447, 452-53 (6th Cir. 2003)
(adopting a limited reading of SWANCC and
concluding that the CWA reached a roadside ditch and
its adjacent wetlands), cert. denied, 158 L. Ed. 2d 467,
124 S. Ct. 1875 (2004); United States v. Deaton, 332
F.3d 698, 702 (4th Cir. 2003) (same).
lla
‘In United States v. Riverside Bayview Homes, Inc., 474
US. 121, 135, 88 L. Ed. 2d 419, 106 S. Ct. 455 (1985), the
Supreme Court upheld the Corps’ “adjacent wetlands”
jurisdiction. Noting that Congress chose to define the
waters covered by the CWA broadly, the Court wrote:
Of course, it may well be that not every adjacent
wetland is of great importance to the environment of
adjoining bodies of water. But the existence of such
cases does not seriously undermine the Corps’ decision
to define all adjacent wetlands as “waters.” If it is
reasonable for the Corps to conclude that in the
majority of cases, adjacent wetlands have significant
effects on water quality and the aquatic ecosystem, its
definition can stand. That the definition may include
some wetlands that are not significantly intertwined
with the ecosystem of adjacent waterways is of little
moment, for where it appears that a wetland covered
by the Corps’ definition is in fact lacking in importance
to the aquatic environment--or where its importance is
outweighed by other values--the Corps may always
allow development of the wetland for other uses simply
by issuing a permit.
Id. at 135 n.9. In SWANCC, moreover, the Court did
not alter the Riverside-Bayview holding. Indeed, while
noting Congress’s “unequivocal acquiescence to, and
approval of, the Corps’ regulations interpreting the
CWA to cover wetlands adjacent to navigable waters,”
SWANCC, 531 U.S. at 167, the SWANCC Court did
not decide any issue with regard to “adjacent wetlands”
under 33 C.F.R. § 328.3(aX(7). The SWANCC Court
instead addressed the application of the Corps’
Migratory Bird Rule to isolated ponds defined as
12a
“waters of the United States” under § 328.3(a)(3). 531
U.S. at 174.
Since SWANCC, this court has noted:
In Riverside Bayview the Supreme Court concluded
that the Corps regulation extending jurisdiction to
adjacent wetlands was a reasonable interpretation in
part because of what [Solid Waste] 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 Clean Water Act.
Rapanos, 339 F.3d at 452 (quoting Deaton, 332 F.3d at
712); see also United States v. Rapanos, 376 F.3d 629,
639 (6th Cir. 2004) (explaining that CWA jurisdiction
over “adjacent wetlands” requires a significant nexus
between the wetlands and navigable waters, “which can
be satisfied by the presence of a hydrological
connection”). Consistent with both Rapanos cases, the
district court in this case determined that there is a
“significant nexus” between the wetlands on the
Carabells’ property and the adjacent nonnavigable
ditch abutting their property, a ditch that flows one
way or another into other tributaries of navigable
waters of the United States. We find no error in the
district court’s decision.
13a
B.
The Carabells contend that, even if CWA jurisdiction
exists over their property, the district court
nonetheless erred by failing to overrule the Corps’
decision on the merits of their permit application. Based
on its review of the relevant regulations and the Corps’
evaluation of the Carabells’ permit application, the
district court concluded that the Corps provided a
rational basis for its decision. Because we agree that
the Corps’ decision was neither arbitrary nor
capricious, we find no basis for disturbing the district
court’s determination.
IV.
For the foregoing reasons, we AFFIRM the district
court’s decision granting summary judgment to the
defendants. ;
Footnotes
* This decision was originally issued as an “unpublished
decision” filed on September 27, 2004. On November 15,
2004, the court designated the opinion as one
recommended for full-text publication.
** The Honorable William Stafford, United States
District Judge for the Northern District of Florida,
sitting by designation.
l4a
No. 03-1700
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
June Carabell; Keith Carabell; Harvey Gordenker:
Frances Gordenker,
_ Plaintiffs-Appellants,
V.
United States Army Corps of Engineers; United States
Environmental Protection Agency,
Defendants-Appellees.
Filed: September 27, 2004, Filed
Before: BATCHELDER and GIBBONS, Circuit
Judges; STAFFORD, District Judge.
JUDGMENT
On Appeal from the United States District Court for
the Eastern District of Michigan at Detroit
THIS CAUSE was heard on the record from the
district court and was argued by counsel.
IN CONSIDERATION WHEREOPF, it is ORDERED
that the judgment of the district court granting
summary judgment to the defendants is AFFIRMED.
ENTERED BY THE COURT
Leonard Green, Clerk
15a
CASE NO. 01-72797
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION
JUNE CARABELL, and individual, KEITH
CARABELL, an individual, HARVEY
GORDENKER, an individual, and FRANCES
GORDENKER, an individual,
Plaintiffs,
-Vs-—
THE UNITED STATES ARMY CORPS OF
ENGINEERS and THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Defendants.
March 27, 2003, Decided
March 27, 2003, Filed
ORDER (1) ACCEPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION, (2)
GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT, AND (3) DENYING
PLAINTIFFS’ MOTION FOR SUMMARY
JUDGMENT
COUNSEL: For JUNE CARABELL, KEITH
CARABELL, HARVEY GORDENKER, FRANCES
GORDENKER, plaintiffs: Timothy A. Stoepker, Peter
H. Webster, Paul R. Bernard, Jennifer P. Fitzgibbons,
Dickinson Wright, Detroit, MI.
16a
For UNITED STATES ARMY CORPS OF
ENGINEERS, ENVIRONMENTAL PROTECTION
AGENCY, defendants: Geneva S. Halliday, Eastern
District of Michigan, U.S. Attorney’s Office, Detroit,
MI. Laurel A. Bedig, U.S. Department of Justice,
Environmental Defense Section, Washington, DC.
JUDGES: PAUL D. BORMAN, UNITED STATES
DISTRICT JUDGE.
OPINION BY: PAUL D. BORMAN
OPINION:
The Court has reviewed the magistrate judge’s Report
and Recommendation, filed on February 28, 2003. The
Court has also reviewed the Plaintiffs’ Objections to the
Report and Recommendation, which was filed on March
14, 2003.
IT IS ORDERED that the Report and
Recommendation (Docket # 22) is accepted and entered
as the findings and conclusions of this Court, that
Plaintiffs’ motion for summary judgment is DENIED,
and that Defendants’ motion for summary judgment
is GRANTED.
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
DATED: MAR 27 2003
Detroit, Michigan
17a
JUDGMENT
On this date, the Court accepted the Report and
Recommendation of Magistrate Judge Wallace Capel.
Therefore a judgment shall be entered in favor of the
Defendants, The United States Army Corps of
Engineers and the United States Environmental
Protection Agency and against the Plaintiffs, June
Carabell, Keith Carabell, Harvey Gordenker, and
Francis Gordenker.
DATED: 3/27/03
18a
No. 03-1700
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JUNE CARABELL, ET AL.,
Plaintiffs-Appellants,
V.
UNITED STATES ARMY CORPS OF ENGINEERS,
ET AL.,
Defendants-Appellees.
Filed: January 10, 2005
ORDER
BEFORE: BATCHELDER and GIBBONS, Circuit
Court Judges; and STAFFORD*, District Judge.
The court having received a petition for rehearing en
banc, and the petition having been circulated not only
to the original panel members but also to all other
active judges of this court, and no judge of this court
having requested a vote on the suggestion for
rehearing en banc, the petition for rehearing has been
referred to the original panel.
The panel has further reviewed the petition for
rehearing and concludes that the issues raised in the
petition were fully considered upon the original
submission and decision of the case. Accordingly, the
petition is denied.
19a
- ENTERED BY THE COURT
Leonard Green, Clerk
Footnotes
* Hon. William H. Stafford, Senior, United States
District Judge for the Northern District of Florida,
sitting by designation.
20a
Case No.: 01-CV-72797-DT
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION
JUNE CARABELL, et. al.,
Plaintiffs,
vs.
THE UNITED STATES ARMY CORPS OF
ENGINEERS and THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Defendants.
February 28, 2003, Decided
February 28, 2003, Filed
REPORT AND RECOMMENDATION
COUNSEL: For JUNE CARABELL, KEITH
CARABELL, HARVEY GORDENKER, FRANCES
GORDENKER, plaintiffs: Timothy A. Stoepker, Peter
H. Webster, Paul R. Bernard, Jennifer P. Fitzgibbons,
Dickinson Wright, Detroit, MI.
For UNITED STATES ARMY CORPS OF
ENGINEERS, ENVIRONMENTAL PROTECTION
AGENCY, defendants: Geneva S. Halliday, Eastern
District of Michigan, Detroit, MI.
For UNITED STATES ARMY CORPS OF
ENGINEERS, ENVIRONMENTAL PROTECTION
AGENCY, defendants: Laurel A. Bedig, U.S.
Department of Justice, Washington, DC.
2la
JUDGES: WALLACE CAPEL, JR., UNITED
STATES MAGISTRATE JUDGE. HON. PAUL D.
BORMAN.
OPINION BY: WALLACE CAPEL , JR.
OPINION:
I. INTRODUCTION
This matter is before the Court on the parties’ cross-
Motions for Summary Judgment filed on April 12, 2002,
and May 31, 2002. Both Motions concern the denial of a
404 Permit by the Army Corps of Engineers (“COE”),
to fill wetland on Plaintiffs’ property. At issue is
whether the COE has jurisdiction over Plaintiffs’
property, and if so, whether the decision to deny the
Permit was arbitrary and capricious.
II. PLAINTIFFS’ STATEMENT OF FACTS
A. The Carabell Property
Keith and June Carabell own a 19.6-acre parcel of land
located in Chesterfield Township, Macomb County,
Michigan. The property is shaped roughly like an
inverted right angle, with one leg running along a
north-south line, and the other leg running along an
east-west line. (See Site Location Maps, attached to
Carabell’s Application for Permit to Army Corps and
MDEQ, DNR File No. 93-14-0602). The hypotenuse of
the triangle runs along a northeast-southwest line, and
a ditch for a county drain, the Sutherland-Oemig Drain,
follows the hypotenuse for 1,800 feet. (Id). The ditch is
no wider than four feet, and the water in it is no deeper
than six inches.
22a
An upland ridge runs along the west side of the drain; it
was apparently formed by the sidecasting of spoils
during the excavation of the ditch. (MDEQ Proposal for
Decision, 8/12/99, at 11). This clay ridge prevents water
from the forested area cf the property from draining
into the ditch. Another small amount of upland, less
than four acres, is located in the southwest corner of
the parcel. (See Site Location Maps, supra). The
property is forested predominantly with swamp oak
and cottonwood trees, and includes no man-made
structures. (Leighton Testimony, 10/27/97 at 357).
The property retains an undetermined amount of water
for an undetermined period, and it has not been
established in the record whether the property retains
this water on an annual basis or less frequently. (See
Administrative Appeal Decision, 3/5/2001 at 3). The
record evidence is uncontroverted on one point: the
property does not retain water at all times. (MDEQ
Proposal for Decision, 8/12/99 at 11). Moreover, it is also
undisputed that the property does not have a surface
water connection to any adjacent property or any
adjacent body of water. (Id). In short, the water that is
periodically present in the forested portion of the
property does not drain to the Sutherland-Oemig drain
or to any body of water; it remains on the property
until it is absorbed by the soil and vegetation.
The property abuts Donner Road, which runs along its
north-south side, and it is near Interstate 94, which
passes to its northwest. (See Site Location Maps,
supra). A large subdivision of single-family homes is
between the property and the freeway. (Id). To the
north of the property is 23 Mile Road, and, between
that road and the property are a vacant field and
23a
several condominium and apartment complexes. (Id).
To the southeast of the property, on the other side of
the Sutherland-Oemig Drain, is another subdivision of
residential homes, and this subdivision borders Lake
St. Clair. (Id). To the east of the property is a vacant
woodlot, several more residential subdivisions and then
a large woodlot, which is slated for development into a
residential subdivision. (Id).
B. Proceedings Before the MDEQ and Issuance of a
Permit to Plaintiffs.
In 1993, the Carabells applied to the MDEQ for a
permit to fill 15.9 acres of the forested area of the
property for the purpose of building 130 condominium
units, along with the associated roads and utilities. In
March 1994, the EPA filed written objections to the
Carabell’s application. The MDEQ then denied the
application.
The Carabell’s then filed an alternative plan, seeking to
fill only 12.2 acres and build 112 condominium units.
(MDEQ Application, supra). The alternative plan also
proposed to construct retention ponds on 3.74 acres of
the property; these ponds would filter any water
draining across the property as a result of the
development. nl (See MDEQ Proposed Decision,
8/12/99).
The MDEQ then conducted a contested case hearing
before an administrative law judge. The Carabells and
the MDEQ submitted extensive testimonial and
documentary evidence to the ALJ, who issued a
proposed decision in August 1998 that recommended
the issuance of the permit. Crucial to the ALJ’s ruling
24a
was the fact that the property was isolated from any
body of water:
This opinion is premised on the fact the wetland does
not have a surface water connection to adjacent
properties or any body of water, and the property to
the immediate north is isolated by a retention pond.
Furthermore, the drainage ditch along Donner Road
prevents a discharge of water both to and from the site,
and the Sutherland-Oemig drain is bermed, which
prevents the discharge of water either into it or from
the drain.
(Id. at Ii emphasis added).
A final Determination and Order embodying the
proposed decision was issued on September 30, 1998.
(MDEQ Final Determination and Order, 9/30/99). This
order mandated that the Carabells be granted a permit
allowing them to develop the property according to
their alternative plan.
C. Intervention by the EPA and Corps.
In November 1998, acting pursuant to 33 U.S.C. § 1344,
the EPA notified the MDEQ that it objected to the
issuance of the permit to Plaintiffs, and it asserted
federal jurisdiction over the case on the ground that the
property was a wetland that was adjacent to the
navigable waters of the United States. Also pursuant to
§ 1344, the EPA authorized the Corps to determine
whether a federal permit should issue to allow the
proposed development. Although the Carabells
contested federal jurisdiction, they nevertheless
submitted a permit application to the Corps.
25a
The Corps initially conducted a Permit Evaluation,
which was based upon three site inspections.
(Devartment of Army Permit Evaluation, 9/11/2000). In
the Permit Evaluation, the Corps found that the
property must be part of the Lake St. Clair watershed
because other property in a roughly similar location
was a part of the watershed. In the words of the Permit
Evaluation: “due to the fact that the influence of Lake
St. Clair has been documented on the nearby Salt River
over a mile up the reaches of the river (to 23 Mile
Road), it is likely that the same influence is realized on
the Auvase Creek, and continuing up the Sutherland-
Oemig Drain that distance in the landscape, as well.”
(Id. at 6e mphasis added). The Permit Evaluation also
noted that the drainage ditch along the hypotenuse of
the property drained into the Sutherland-Oemig Drain,
but, in making this finding, the Corps did not cite any
particular observation or other evidence. (Id). The
finding seems to be based upon its assessment of the
probability that the property was part of the Lake St.
Clair watershed.
Indeed, the speculative character of the Corps’s entire
fact-finding is confirmed by its description of the
relationship of the property to the tributary system of
Lake St. Clair. According to the Corps, the “ditch ...
along the southeast portion of the property” runs into
the Sutherland-Oemig Drain, which runs into Auvase
Creek, which runs into Lake St. Clair. (Id). This is
simply a factual error. The “ditch ... along the southeast
portion of the property” is the Sutherland-Oemig
Drain. This error demonstrates the haphazardness of
the Corps’s own factual inquiry.
26a
The Corps denied that application on October 5, 2000.
(Letter from Lt. Col. Richard J. Polo, 10/5/2000
(“Decision Letter“). In this Decision Letter to the
Carabells, the Corps’s District Engineer, Lt. Col.
Richard J. Polo, Jr., noted that the property was a
valuable seasonal habitat for aquatic organisms and a
year-round habitat for terrestrial organisms and that
the property “provides water storage functions that, if
destroyed, could result in an increased risk of erosion
and degradation of water quality in the Sutherland-
Oemig Drain, Auvase Creek, and Lake St. Clair.” (Id. at
1) In an accompanying Memorandum for the Record,
Lt. Colo. Polo found that projects like the one proposed
by the Carabells were “resulting in increases in flood
duration and frequency and a contribution to the
degradation of water quality in the Lake St. Clair
watershed.” (Memorandum for the Record at 1). This
impact on the water quality of the Lake St. Clair
watershed was a crucial factor in Lt. Col. Polo’s
assessment of the public interests associated with the
project. (Id. at 2).
In light of these characteristics of the property and in
light of the Corps’s assessment of the relative public
and private interests, the decision letter concluded that
it was necessary fur the Carabells to identify feasible
alternatives, such as the use of different parcels of
upland property for the development or the changed
use of the property to make the maximum possible use
of the upland along Donner Road. (Decision Letter at
2). Whether or not such alternatives were feasible, Lt.
Col. Polo concluded that the Carabells would have to
mitigate any development of the property by providing
“the complete functional replacement of the forested
wetlands” on the property. (Decision Letter at 2).
27a
On December 1, 2000, the Carabells submitted a
request for an appeal to the Corps. (Request for
Appeal). They argued that the Corps did not have
jurisdiction over the property, that the MDEQ’s
decision to grant a permit precluded any action by any
federal agency, and that the Corps erred in the merits
of its decision. A Corps hearing officer conducted a brief
visit to the property on January 30, 2001, and, later that
day, conducted a hearing on the Carabells’ appeal.
At the hearing, the Corps asserted that its jurisdiction
was derived from § 1344 and 33 C. F. R. § 328.3(a)
because the property was a wetland that was adjacent
to the waters of the United States. (Transcript of
1/30/2001 at 18-19). The Corps disclaimed jurisdiction
under any other statue, including the migratory bird
act. (Id.). In discussing the factual basis for federal
jurisdiction, the Corps evaded an inquiry into whether
the property was part of the Lake St. Clair watershed:
MR. STOEPKER: The question I have is can you cite
to me where it says natural tributary system in the
rules or statutes? I’m aware it says navigable. We were
there today and there is nothing navigable here. A
sailboat could not move up and navigate this. Does the
drain flow north or south based upon the changes? Does
it, in fact, flow into Lake St. Clair?
MS. CHUBB: [the Corps’ Administrative Appeal
Officer): I think that is a separate question that will
probably be answered in the appeal decision.
MR. STOEPKER: I guess my question to you, Mr.
Guathier, where does it say tributary?
28a
MS. CHUBB: Tributary to the navigable water, is that
what you're asking?
MR. STOEPKER: Right.
MS. CHUBB: That is really a question for the division.
It is not a question for the district. It may end up that
way, but initially this is a division process.
(Id. At 20-21). Following in their pattern of avoidance,
both the administrative hearing officer and the Army
Corps evaded questions regarding the substantial
effect of the Sutherland-Oemig Drain of the Carabell
wetlands on interstate commerce, as neither would
answer the questions posed by the Carabell’s counsel:
MR. STOEPKER: Okay. I’m looking at a section of the
regulations where it talks about interstate wetlands.
All other water such as interstate lakes, rivers,
streams, including intermittent streams, wetlands mud
flats, sand flats, then which could effect interstate or
foreign commerce, including such waters which are or
could be used by interstate or foreign travelers for
interstate or other purposes from which fishing or
shellfish could or would be taken from interstate
commerce.
Does anybody find any shellfish with in the Oemig
Drain? Are any fish at all in the interstate commerce, is
that the position you’re taking? The next qualification -
I mean is that answer yes or no? I need to know.
MS. CHUBB: This is not an inquisition here. It is more
of your presentation. Their record stands alone as it
currently is. Whatever is in here is their position. That
is the best they can do at this time.
29a
(Id. at 21). These passages demonstrate that the Corps
had no meaningful evidence to establish the directional
flow of the Sutherland-Oemig Drain, its navigability, or
its effect on interstate commerce.
The Corps denied the Carabells’ appeal on March 5,
2001. In the Administrative Appeal Decision, the Corps
continued to avoid making a conclusive finding
regarding the connection between the property and the
Lake St. Clair watershed. The Decision acknowledged
that there was evidence directly contradicting the
Permit Evaluation’s findings regarding the flow of the
Sutherland-Oemig Drain. Indeed, the Decision
acknowledged that the Corps itself had not made a
conclusive finding:
One confusing aspect of the ditch is the direction of
water flow. The appellant’s wetland consultant believed
it flowed in a southwesternly direction away from the
Sutherland-Oemig Drain while the District project
manager (PM) observed it flowing northeasterly during
a site visit. The PM remarked during the appeal site
visit that he thought the drainage was more “feathery”
(diffuse, less defined) to the southwest. A review of the
spot elevations on Sheet 1 of the appellant’s grading
plan, dated 12 August 1999, does not clarify the issue.
(Administrative Appeal Decision at 3). Moreover, the
Decision rejected the idea that facts about the influence
of Lake St. Clair on the Salt River could have any
bearing on the question whether the property was part
of the Lake St. Clair watershed:
This District suggests that Section 10 jurisdiction from
Lake St. Clair may extend upstream on its tributaries
30a
(Auvase Creek and the Sutherland-Oemig Drain) to 23-
Mile Road as it does on the Salt River, an established
federally navigable water. The administrative record
does not support this statement.
(Id). (emphasis added). Notwithstanding all of this
uncertainty, the Decision concluded that the property
was part of the watershed and was within federal
jurisdiction because “the appellant has not presented
any information to refute the District’s evaluation.” (Id.
at 2-3).
The Decision also cursorily rejected the Carabells’
arguments regarding the preclusion of federal agency
action and the merits of the Corps’ decision. In
particular, the Decision’s ruling regarding the merits of
the permit application was derivative of its
jurisdictional ruling. Because the property was
identified as part of the Lake St. Clair watershed, the
Decision regarded Lt. Col. Polo’s evaluation of the
merits of the application as correct. n2
III. DEFENDANT’S STATEMENT OF FACTS
A. Description of the Property
The property at issue contains one of the last remaining
large forested wetlands in the whole of Macomb
County. AR Vol. 1, Doc. 55. at 13; Doc. 75. The Corps
determined in the permitting process that building in
these wetlands would have a major, long term
detrimental impact on water quality, terrestrial biota,
wetlands, conversation and overall ecology, and would
permanently destroy the forested wetlands on the
3la
property. AR Vol. 1, Doc. 55, at 10, 14, 15, 16 and 21.
See also Docs. 75, 76 and 89.
The property is located approximately one mile from
the shoreline of Lake St. Clair and consists of
approximately 19.6 acres, of which 15.96 acres were
delineated as wetland by the Carabells in their permit
application. See AR Vol. 1, Doc. 2 and Doc. 55, at 6. The
Corps’ inspection of the property confirmed that the
property contains mostly forested wetlands. AR Vol. 1,
Doc. 55, at 6; Doc. 70, at 1-2. These wetlands are the
prehistoric remnant of Lake St. Clair. AR Vol. 1, Doc.
55, at 5. The property is triangular shaped and a ditch
has been excavated along the southeast portion of the
property (the hypotenuse of the triangle). AR Vol. 1,
Doc. 55, at 6. This unnamed ditch runs into the
Sutherland-Oemig Drain (“Drain”) at the northeastern
corner of the property. n3 The Drain empties into
Auvase Creek which flows into Lake St. Clair. Id.; AR
Vol. 1, Doc. 71. These drainage patterns were derived
by the Corps based in part on the Corps’ analysis of the
United States Geological Survey’s topographical
quadrangle for New Haven, Michigan, which showed
elevation contour lines descending down the Drain past
the subject property to the point where the Drain and
Harms Drain combine to form Auvase Creek, which is a
connecting water with Lake St. Clair. See USGS
Quadrangle Map for New Haven, Michigan cited at AR
Vol. 1, Doc. 55, at 27.
The property contains a berm dat runs along both
sides of the ditch. The man-made berm was created
from sidecast spoil as a result of the construction of the
ditch. Id. at 7. The ditch appears to have been dug in
wetland. AR Vol. 1, Doc. 89, at 2-3.
32a
B. The Corps’ Determination of Regulatory Jurisdiction
The Corps’ Statement of Findings concerning the
Carabell application based regulatory jurisdiction over
the subject wetlands on the fact that the wetlands are
“adjacent to a drain which empties directly into [Lake
St Clair], a Section 10 water.” n4 AR Vol. 1, Doc. 75, at
1. The District Project Manager documented the
adjacency of the wetlands to the Drain during his site
inspection on May 5, 2000. AR Vol. 1, Doc. 71.
Moreover, in the course of the appeal of the permit
denial to the Corps’ Great Lakes and Ohio River
Division (“Division”), the Division found that the
Carabell wetlands are also adjacent to the unnamed
ditch. AR Vol. 1, Doc. 89, at 2-3. Thus, the wetlands are
adjacent to both the Drain and the unnamed ditch. n5
C. The Carabells’ Application to the Corps for a Permit
On August 23, 1999, the Corps received a permit
application from the Carabells. n6 AR Vol. 1, Doc. 2.
The Carabells proposed to discharge approximately
57,500 cubic yards of material within a 15.97 acre
wetland area for construction of a 112-unit townhouse
condominium development. AR Vol. 1, Doc 55, atl. As
mitigation, the Carabells proposed to dredge and
replant 3.74 acres of the remaining wetlands on the
parcel. Id.
The Corps conducted three site inspections on the
property. The first inspection occurred on October 12,
1999, for permit evaluation purposes; the second on
May 5, 2000, for migratory bird use documentation; and
the third on August 1, 2000, to determine if the area
33a
contained Indiana Bat habitat. Id at 6; AR Vol. 1, Does.
70, 71, 72. The report summarizing the findings of the
May 5, 2000 inspection included a determination of
adjacency to the Sutherland-Oemig Drain and stated
that the Drain flowed continuously into Auvase Creek
which flows into Lake St. Clair. AR Vol. 1, Doc. 71; see
also AR Vol. 1, Doc. 76, at 6.
On February 8, 2000, the Corps issued a Joint Public
Notice for the proposed development. AR Vol. 1, Doc.
56. EPA, USFWS, the Macomb County Prosecutor’s
Office and the Lake St. Clair Advisory Committee all
strongly objected to the proposed development. AR
Vol. 1, Docs. 16, 17, 19, and 11, respectively. The
USFWS specifically noted that wetlands of the type at
issue here “are becoming increasingly scarce” (AR Vol.
1, Doc. 17) as did the Macomb County Prosecutor’s
Office (“this parcel is one of the last remaining sizeable
areas of forested wetland in Chesterfield Township.”)
AR Vol. 1, Doc. 19.
The Corps prepared a 27-page Permit Evaluation dated
September 11, 2000, which consisted of the Corps’
Environmental Assessment, Public Interest review
summary, and factual and compliance determinations
according to the 404(b)(1) guidelines. AR Vol. 1, Doc.
55. On October 5, 2000, the Corps sent the Carabells a
letter denying the permit and enclosing the Corps’
Statement of Findings as well as a copy of the
September 11, 2000 Permit Evaluation. AR Vol. 1, Doc.
76. The denial letter stated in part:
Your parcel is primarily a forested wetland that
provides valuable seasonal habitat for aquatic
organisms and year around habitat for terrestrial
34a
organisms. Additionally, the site provides water
storage functions that, if destroyed, could result in an
increased risk of erosion and degradation of water
quality in the Sutherland-Oemig Drain, Auvase Creek,
and Lake St. Clair. The minimization of impacts to
these wetlands is important for conservation and the
overall ecology of the region. Because the project
development area is a forested wetland, the proposed
project would destroy the resources in such a manner
that they would not soon recover from impacts of the
discharges. The extent of impacts in the project area
when considered both individually and cumulatively
would be unacceptable and contrary to the public
interest.
AR Vol. 1, Doc. 76, at 1.
In addition to its determination that the proposed
project was contrary to the public interest, the Corps’
decision to deny the permit was also based upon the
presumption in the 404(b)(1) guidelines that there are
less damaging practicable alternatives available. Id. at
1-2. The Carabells did not overcome that presumption
and, therefore, the project did not comply with the
guidelines. Id.
D. The Carabells’ Administrative Appeal of the Permit
Denial N
In a letter dated December 1, 2000, the Carabells
appealed the Corps’ denial of their permit application to
the Division. The Carabells alleged that: (1) the Corps
did not have regulatory jurisdiction over the wetlands;
(2) the Corps was barred by res judicata (based on the
prior holding in the State administrative appeal of the
35a
permit denial by MDEQ and MDEQ’s subsequent
issuance of a permit) from denying the permit; and (3)
the Carabells had demonstrated that the permit was
issuable under the applicable laws and regulations. AR
Vol. 1, Doc. 80.
On the jurisdictional issue, the Carabells argued that
the wetlands are isolated and, therefore, based on the
decision in Solid Waste Agency of Northern Cook
County v. U.S. Army Corps of Engineers
(“SWANCC”), 531 U.S. 159, 148 L. Ed. 2d 576, 121 S.
Ct. 675 (2001), the Corps lacks regulatory jurisdiction.
n7 AR Vol. 1, Doc. 89, at 2.
As part of the appeal process, the Division conducted
an additional site inspection on January 30, 2001, which
was documented by the Detroit District project
manager. AR Vol. 1, Doc. 86. The participants in the
site visit discussed the direction of the flow of the
unnamed ditch. Mr. Leighton, the Carabells’ consultant,
believed that the ditch flowed southwest (away from
the Sutherland-Oemig Drain). Mr. Deroche, the District
project manager, stated that, in a previous site
inspection, he had observed the ditch flowing northeast
towards the Drain. AR Vol. 1, Docs. 87, 89.
On January 30, 2001, after the site visit, an appeal
conference with the parties was held. The conference
was transcribed (see AR Vol. 2, Doc. 9) and summarized
in writing by the Appeal Review Officer. AR Vol. 2,
Doc. 10.
On March 5, 2001, the Division issued its decision and
found that the three issues for appeal presented by the
Carabells lacked merit. AR Vol. 1, Doc. 89, at 5. First,
36a
the Division found that SWANCC was not relevant
because the wetlands were not isolated. Id. at 3.
Rather, the Division found that the wetlands are
adjacent “to a surface tributary system of a navigable
waterway, Lake St. Clair.” Id. at 1. In particular, the
Division found that:
The project manager observed that the onsive county
ditch flowed into the Sutherland-Oemig Drain, which
flows into Auvase Creek, which outlets into Lake St.
Clair. The ditch appears to have been excavated in
wetland based upon the adjoining onsite wetlands and
the identification of poorly drained hydric soils ... The
appellant’s wetland consultant delineated the ditch as
wetland. Spoil material from the excavated ditch was
sidecast into berms on both sides of the ditch. However,
the man-made spoil berm that separates the wetland
from the ditch does not exclude adjacency as described
above.
Id. at 2-3.
The Division further found that the Carabells had not
presented any information to refute this finding. Id. at
3.
Second, the Division also determined that res judicata
was not a legal principle applicable to the appeal and
did not bar the Corps from deciding against the
Carabells. Id. at 4.
Finally, the Division determined that the District
completed a fair and reasonable review of the
Carabells’ application in accordance with all applicable
laws and regulations. Id. at 2. Specifically, the Division
37a
found that the Carabells had not met their burden
under the 404(b\(1) guidelines because they had not
demonstrated that their proposal was the least
environmentally damaging practicable alternative, and
had not adequately demonstrated avoidance and
minimization of aquatic impacts. Id. at 4, 5.
This appeal followed.
IV. STANDARD OF REVIEW
Judicial review of the decision of the COE is governed
by the Administrative Procedure Act (“APA”). The
APA provides that a court shall set aside agency
“findings, conclusions, and actions” that are “arbitrary,
capricious, or an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). The party
asserting the challenge to the agency’s actions bears
the burden of demonstrating that these actions were
arbitrary, capricious, or otherwise not in accordance
with the law. See Sierra Club v. Marita, 46 F.3d 606,
616 (7th Cir. 1995). The standard of review is highly
deferential and the final agency action is “entitled to a
presumption of regularity.” Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 415, 91 S. Ct. 814,
823, 28 L. Ed. 2d 136 (1971). The scope of judicial
review “is narrow and the court is not to substitute its
judgment for that of the agency.” Motor Vehicle Mfrs.
Ass’n. of the United States, Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43, 108 S. Ct. 2856, 77 L. Ed.
2d 443 (1983). The reviewing court must carefully
“consider whether the decision was based on a
consideration of the relevant factors and whether there
has been a clear error in judgment.” Citizens to
Preserve Overton Park, 401 U.S. at 416. The reviewing
38a
courts duty is to hold the agency to “certain minimal
standards of rationality” and is not to inject its opinion
in place of that of the agency who, because of its
expertise has been entrusted with the decision making
power. Ethyl Corp. v. EPA, 176 U.S. App. D.C. 373, 541
F. 2d 1, 36 (D.C. Cir.) cert. denied, 426 U.S. 941, 96 S. Ct.
2662, 49 L. Ed. 2d 394, 96 S. Ct. 2663 (1976).
The court is not to serve as a “rubber stamp” to the
agency’s decision. Citizens Awareness Network, Inc. v.
U.S. Nuclear Regulatory Comm’n., 59 F.3d 284, 290 (Ist
Cir. 1995). The “agency must have examined tae
relevant data and have articulated a satisfactory
explanation for its action including a “rational
connection between the facts found and the choice
made.” Motor Vehicles Mfrs. Ass’n of the United
States, Inc., 463 U.S. at 43 (quoting Burlington Truck
Lines v. United States, 371 U.S. 156, 168, 83 S. Ct. 239,
245-246, 9 L. Ed. 2d 207 (1962)). The agency may not
rely on post-hoc rationalizations or justifications in
support of its decisions. Id. Nor “ignore evidence placed
before it by interested parties.” Consumer Union of the
U.S., Inc. v. Consumer Product Safety Commission, 491
F.2d 810, 812 (2nd Cir. 1974). If the agency’s
determination cannot be sustained based upon the
record, then it must be remanded for further
consideration. Camp v. Pitts, 411 U.S. 138, 143, 93 S. Ct.
1241, 1244, 36 L. Ed. 2d 106 (1973).
It is within this narrow scope of review that the
motions for summary judgment must be decided. Under
Fed.R.Civ.P. 56(c), summary judgment may be granted
“if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
the affidavits if any, show that there is no genuine issue
39a
as to any material fact that the moving party is entitled
to judgment as a matter of law.” In essence, Rule 56(c)
mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s
case, and on which that party will bear the burden of
proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The Court
must view the evidence in a light most favorable to the
nonmovant as well as draw all reasonable inferences in
the nonmovant’s favor. Bender v. Southland Corp., 749
F.2d 1205, 1210-1211 (6th Cir. 1984). However, the
Court is not permitted to judge the evidence or make
findings of fact. Ivy Street Corporation v. Alexander,
822 F.2d 1432, 1435 (6th Cir. 1987).
The movant bears the burden of demonstrating the
absence of all genuine issues of material fact. This
burden may be discharged by showing there is an
absence of evidence to support the nonmoving party’s
case. Celotex Corp., 477 U.S. at 325. Once the moving
party discharges this burden, it then shifts to the
nonmoving party to present specific facts showing a
genuine triable issue. Fed.R.Civ.P, 56(e). To create a
genuine issue of material fact, the nonmoving party
must produce evidence sufficient to require submission
of the issue to a jury. Lucas v. Leaseway Multi Transp.
Serv. Inc., 738 F. Supp. 214, 217 (E.D. Mich 1990).
V. DISCUSSION
Plaintiff contends that the COE has no jurisdiction over
the property because it is an isolated wetland that is
40a
unconnected to any navigable waters of the United
States or to any tributary or watershed of such waters.
Plaintiff argues that the COE must establish that the
Sutherland-Oemig Drain is navigable or that the Drain
is a tributary of the waters of the United States to
Court’s decision in Solid Waste Agency of Northern
Cook County v. United States Corps of Engineers, 531
U.S. 159, 121 S. Ct. 675, 148 L. Ed. 2d 576 (2001)
(“SWANCC”) reaffirmed that the scope of the Clean
Water Act (“CWA”) and its attendant regulations is
limited to the waters and wetlands that have some
tangible connection to the navigable waters of the
United States. Plaintiff asserts that the CWA only
applies to bodies of water of the United States by
surface water connections, ground water connections,
or both.
The Defendants argue that both the unnamed Ditch
and the Sutheriand-Oemig Drain are tributaries under
33 C. F. R. § 328.3(a)(5), and contend that SWANCC is
not apr’ able because Plaintiffs property is not
isolated, aud contends that SWANCC does not hold
that a direct hydrological connection is required to
establish jurisdiction based on adjacency. Section 404(a)
of the CWA, 86 Stat.884, as amended, 33 U.S.C. §
1344(a), regulates the discharge of dredged or fill
material into “navigable waters.” The statute defines
“navigable waters” as “the waters of the United States,
including the territorial seas.” 33 U.S.C. § 1362(7)
(2002).
The COE’s definition of waters of the United States is
found 33 C. F. R. & 328.3:
4la
_ (a) The term “waters of the United States” means
(1) All waters which are currently used, or were used in
the past, or may be susceptible to use in interstate or
foreign commerce, including all waters which are
subject to the ebb and flow of the tide;
(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) Tributaries of waters identified in paragraphs (a)(1)-
(4) of this section;
(6) The territorial seas;
42a
(7) Wetlands adjacent to waters (other than waters that
are themselves wetlands) identified in paragraphs
(a)(1)-(6) of this section.
Prior to SWANCC, a majority of courts held that the
jurisdiction of the CWA extended to wetlands which
were adjacent to non-navigable tributaries which
flowed into navigable waters. See United States v.
Pozsgai, 999 F.2d 719 (rd Cir. 1993); Quivira Mining
Co. v. EPA, 765 F.2d 126 (10th Cir. 1985) cert. denied,
474 U.S. 1055, 106 S. Ct. 791, 88 L. Ed. 2d 769 (1986);
United States v. TGR Corp., 171 F.3d 762 (2nd Cir.
1999); United States v. Ashland Oil and Transportation
Co., 504 F.2d 1317 (6th Cir. 1974).
In January of 2001, the Supreme Court issued its
decision in SWANCC. SWANCC involved a consortium
of twenty-three suburban Chicago cities and villages
that purchased an abandoned mining site to use for
disposal of baled nonhazardous solid waste. Because the
site required the filling of permanent and seasonal
ponds which existed on the property, a request was
made of the COE to determine whether a landfill
permit was required under § 404(a) of the CWA, 33
U.S.C. § 1344(a). The COE determined that the site
qualified as ‘waters of the United States’ and asserted
jurisdiction under the Migratory Bird Rule, 51
Fed.Reg. 41217 (1986), and denied SWANCC a § 404(a)
permit. SWANCC sued the COE arguing that the COE
had exceeded their statutory authority in interpreting
the CWA to cover non-navigable, isolated, intrastate
waters based upon the presence of migratory birds.
The Supreme Court held that 33 C. F. R. § 328.3(a)(3)
(1999), as clarified and applied to Plaintiff's balefill site
43a
_ pursuant to the “Migratory Bird Rule, 51 Fed. Reg.
41217 (1986), exceeds the authority granted to
respondents under § 404(a) of the CWA.
In reaching its decision, the Court evaluated the
meaning of § 404(a) and stated:
This is not the first time we have been called upon to
evaluate the meaning of S 404(a). In United States v.
Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S. Ct.
455, 88 L. Ed. 2d 419 (1985), we held that the Corps had
S 404(a) jurisdiction over wetlands that actually
abutted on a navigable waterway. In so doing, 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.” Id., at
133, 106 S. Ct. 455. 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.
See id., at 135-139, 106 S. Ct. 455. We found that
Congress’ concern for the protection of water quality
and aquatic ecosystems indicated its intent to regulate
wetland “inseparably bound up with the ‘waters’ of the
United States.” Id., at 134, 106 S. Ct. 455.
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 bodies of open water
Id., at 131-132, *168.
44a
In declining to extend its ruling in Riverside Bayview
Homes, the Court stated:
We thus decline respondents’ invitation to take what
they see as the next ineluctable step after Riverside
Bayview Homes: holding that isolated ponds, some only
seasonal, wholly located within two Illinois counties, fall
under S 404(a)’s definition of “navigable waters”
because they serve as habitat for migratory birds. As
counsel for respondents conceded at oral argument,
such a ruling would assume that “the use of the word
navigable in the statute .. does not have any
independent significant.” Tr. of Oral Arg. 28. We cannot
agree that Congress’ separate definitional use of the
phrase “waters of the United States” constitutes a basis
for reading the term “navigable waters” out of the
statute. We said in Riverside Bayview Homes that the
word “navigable” in the statute was of “limited import.”
474 U.S., at 133, 106 S. Ct. 455, and went on to hold that
S 404(a) extended to non-navigable wetlands adjacent
to open waters. But it is one thing to give a word
limited effect and quite another to give it no effect
whatever. 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.
See, e.g., United States v. Appalachian Elec. Power
Co., 311 U.S. 377, 407-408, 61 S. Ct. 291, 85 L. Ed. 243
(1940).
The ruling in SWANCC created a split among courts as
to how the ruling should be interpreted. Some courts
have interpreted SWANCC to limit jurisdiction under
the CWA. Courts adopting this interpretation take the
45a
position that a body of water is subject to regulation
under the CWA if the body of water is actually
navigable or is adjacent to an open body of navigable
water.” See Rice v. Harken Exploration Co., 250 F.3d
264, 269 (5th Cir. 2001); United States v. Rapanos, 190
F. Supp. 2d 1011 (E.D. Mich 2002; United States v. RGM
Corporation, 222 F. Supp. 2d 780 (E. D. Virginia 2002);
United States v. Newdunn Associates, 195 F. Supp. 2d
751 (E. D. Virginia 2002).
Other courts maintain that SWANCC has not altered
the jurisdiction of the CWA. They view the Court’s
ruling in SWANCC to be very narrow, and interpret
SWANCC as applying only to isolated waters which
have no hydrological connection to navigable waters.
See Headwaters, Inc. v. Talent Irrigation District, 243
F.3d 526 (9th Cir. 2001); United States v. Interstate
General Co., 152 F. Supp.2d 843 (D. Md. 2001); United
States v. Buday, 138 F. Supp.2d 1282 (D. Mont. 2001);
United States v. Lamplight Equestrian Center, Inc.,
2002 U.S. Dist. LEXIS 3694, 2002 WL 360652 (N. D. III.
2002).
Plaintiff urges the Court to adopt the interpretation of
the Fifth Circuit and other courts which find that no
jurisdiction exists under the CWA unless the body of
water is actually navigable or adjacent to an open body
of navigable water. I decline to do so because I am not
convinced that Plaintiff's interpretation of SWANCC is
correct. | am more persuaded by the reasoning of the
courts which have concluded that the Court’s ruling in
SWANCC was narrow, and did not substantially
narrow the jurisdiction of the COE under the CWA.
46a
In Lamplight Equestrian Center, Inc., Id., the Court
summarized the rulings of a number of courts that
declined to read SWANCC as a broad reduction of the
COE’s authority to regulate waters under the CWA.
The Court determined that the critical issue which ran
through this case was whether a nexus existed between
the property and the relevant interstate water. The
Court stated:
“This court finds the reasoning of the cases following
Headwaters persuasive, and agrees with those courts
that SWANCC did not effect so substantial a change in
the Corps’ jurisdiction. Much of the SWANCC opinion
has no direct relevance here because that case involved
isolated waters lacking a physicalſhydrological
connection to other navigable waters. The SWANCC
decision acknowledged that “it was the significant
nexus between the wetlands and ‘navigable waters’
that informed our reading of the [Act] in Riverside
Bayview Homes.” SWANCC, 531 U.S. at 167. Thus, in
this court’s view, the critical issue is whether there is a
“significant nexus” between the Property’s wetlands
and the Fox River.”
Plaintiffs’ property in this case is not isolated. It is
undisputed that the property is adjacent to an unnamed
ditch, and that the ditch connects to the Sutherland-
Oemig Drain. (Tr. 55-61). The Drain, which neighbors a
corner of the property, connects to Lake St. Clair. (Tr.
54).
The COE elaims jurisdietion over the property because
the Corps’ definition of waters of the United States”
includes “wetland adjacent” to other categories of
47a
waters of the United States, including tributaries. 33
C. F. R. & 328.3(a)(7).
Plaintiff claims that both the ditch and the Drain are
not tributaries because they are not navigable. Plaintiff
also argues that there is insufficient evidence that the
waters from the ditch flow into the drain, and therefore,
the ditch cannot be a tributary. Plaintiffs’ argument is
not supported by the case law, including SWANCC.
In United States v. Ashland Oil and Transportation,
504 F.2d 1317 (6th Cir. 1974), the court held that
Congress had constitutional authority under its
interstate commerce powers to prohibit discharge of
pollutants into non-navigable tributaries of navigable
streams.
In Headwaters, Inc., Id., the court quoted from the
Eleventh Circuit’s decision in United States v. Eidson,
108 F.3d 1336, 1342 (11th Cir. 1997) in holding that
ineqation canals were “waters of the United States,”
and thus subject to the CWA. In Eidson, the court
stated:
“Pollutants need not reach interstate bodies of water
immediately or continuously in order to inflict serious
environmental damage. It makes no difference that a
stream was or was not at the time of the spill
discharging water continuously into a river navigable in
a traditional sense. Rather, as long as the tributary
would flow into the navigable body [under certain
conditions], it is capable of spreading environmental
damage and is thus a “water of the United States”
under the Act.”
48a
Eidson, 108 F.3d at 1342.
The court in Headwater, Inc., Id., listed other decisions
reaching the same conclusions; Driscoll v. Adams, 181
F.3d 1285, 1291 (11th Cir. 1999)(small volume stream
running only intermittently is “navigable water“);
Quivira Mining Co. v. United States Envtl. Prot.
Agency, 765 F.2d 126, 130 (10th Cir. 1985) (creeks and
arroyos connected to streams during intense rainfall
are “waters of the United States”); United States v.
Interstate Gen. Co., 152 F. Supp.2d 843, 847 (D Md.
2001)(describing SWANCC as a narrow holding
“limited to the Migratory Bird Rule and not affecting
regulations defining “non-navigable tributaries and
streams” as waters of the United States.”).
Even the decision in SWANCC lends no support to
Plaintiffs argument. In his dissenting opinion, Justice
Stevens stated:
“In its decision today, the Court draws a new
jurisdictional line; one that invalidates the 1986
Migratory Bird regulation as well as the Corps’
assertion of jurisdiction over all waters except for
actually navigable waters, their tributaries, and
wetlands adjacent to each.” SWANCC, 531 U.S. at 176.
He went on to state that:
“Even if the majority were correct, that Congress did
not extend the Corps’ jurisdiction in the 1972 CWA to
reach beyond navigable waters and their non-navigable
tributaries. Congress’ rejection of the House’s efforts in
1977 to cut back on the Corps’ 1975 assertion of
49a
_ jurisdiction, clearly indicates congressional
acquiescence in that assertion. Id., at 184.”
Justice Stevens also stated:
“But the Court ignores the provisions legislative
history, which makes clear that Congress understood §
404(g)(1) - and therefore, federal jurisdiction - to
extend, not only to navigable waters and non-navigable
tributaries, but also to “isolated” waters, such as those
at issue in this case. Id., at 187.
It is clear from Justice Stevens dissent that the court
was not negating the Corps’ jurisdiction over non-
navigable tributaries of navigable waters.
In Riverside Bayview Homes, Inc., 474 U.S. at 134, the
court stated:
“In short, 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 on the adjacent bodies
of water. Again, we cannot say that the Corps’
judgment on these matters is unreasonable, and we
therefore conclude that the 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 Act.”
I conclude, therefore, that because Plaintiffs’ property
is adjacent to neighboring tributaries of navigable
waters and has a significant nexus to “waters of the
United States,” it is in fact not isolated, and is subject
to the jurisdiction of the CWA. Plaintiffs’ argument
50a
concerning the Commerce Clause, which is dependant
on the property being isolated, therefore is not
applicable.
Plaintiffs’ final argument is that the COE erred in
rejecting the application on the merits. Plaintiff argues
that in denying the permit, the Corps emphasized that
the property was an important part of the Lake St.
Clair watershed and fulfilled important functions in
drainage, filtering and flood control. Plaintiff maintains
that the property does not fulfill any of those functions.
Plaintiff also argues that the mitigation proposed by
the Plaintiffs as part of their application would actually
promote the drainage and filtering functions more
effectively than maintenance of the property in its
current form.
Plaintiff also takes issue with the Corps’ determination
that Plaintiff confine the construction of the
condominiums to the upland portion of the property, or
establish why they cannot purchase an alternative
parcel of land elsewhere in Macomb County. Plaintiff
claims that the administrative record demonstrates
that there is no appropriately zoned property available
in Macomb County, and suggests that it is unfeasible to
build a 112-unit condominium on less than four acres of
upland on the property.
The COE made the following relevant findings in its
permit evaluation of Plaintiff's property:
Shoreline Erosion and Accretion Effects:
The project would eliminate the potential ability of the
wetland to act as a sediment catch basin. Increased
5la
runoff due to the filling of the wetlands and creation of
impervious surfaces, i.e., condominiums, driveways,
roads, etc., could increase erosion and/or sedimentation
in the S-O Drain, Auvase Creek, and Lake St. Clair.
The proposed deforestation and removal of two to three
feet of wetland soils to create an emergent wetland
within the 3.74 acres of remaining existing forested
wetlands (the proposed mitigation) may provide some
storm water retention; however, the storm water
detention basin proposed for the center of the complex
would empty into these significantly smaller areas,
quickly overtopping them. These wetlands would then
empty into the drain and most functions served by the
existing forested wetlands would not be replaced. The
project would contribute to increased runoff and would
likely result in increased erosion and accretion along
the drain and further downstream in Auvase Creek.
In summary, the project will have minor, long term,
negative impacts on erosion/accretion. The cumulative
impacts of numerous such projects would be major and
negative as fewer and fewer wetlands remain in
Chesterfield Township to function as sediment basins
resulting in greater flooding events of local drains and
streams thereby increasing erosion and/or accretion
problems.
The negative impacts would be avoided if the permit
were denied. A modified permit which minimized the
fill area and offset runoff detention may decrease
impacts to downstream erosion/accretion; however,
when taking into consideration the cumulative impacts
of similar activities which have occurred in this
watershed, such a modified permit would require a
52a
significant reduction in the area of fill to reduce those
impacts to a minor level.
Effects on Flood Hazards and Floodplain Values:
The proposed project would aid in the prevention of
flooding for the applicant and authorization of such a
project would encourage the applicant to invest in a
parcel that shows evidence of flooding/standing water
conditions. Because there is limited acreage remaining
in the Chesterfield Township area which provides for
storm water storage and delayed release of these
waters, it is likely that the downstream areas will see
an increase in possible flooding magnitude and
frequency. This is due to the fact that there will be a
net increase in runoff since the parcel is not currently a
part of the S-O Drain watershed. Construction of the
project and similar projects could have detriments to
downstream residents.
The proposed deforestation and removal of two to three
feet of wetland soils to create an emergent wetland
within the 3.74 acres of remaining existing forested
wetlands (the proposed mitigation) may provide some
storm water retention; however, the storm water
detention basin proposed for the center of the complex
is proposed to empty into these significantly smaller
areas, which will quickly exceed their storage capacity.
These wetlands would then empty into the drain and
the functions of water storage (from precipitation)
served by the existing forested wetlands to would not
be replaced (See drawing Pages 4-8 of Enclosure 1).
In summary, the project will have minor, short term
and long term, negative impacts on flood hazards and
53a
. floodplain values. The cumulative impacts of numerous
such projects would be major and negative. The
negative impacts would be avoided if the permit were
denied.
The applicant did not adequately address avoidance of
wetlands, the first necessary sequence in the Section
404(b)(1) guidelines. As their alternative analysis, the
applicant submitted contested case hearing transcripts
indicating there is only one other parcel in Chesterfield
Township zoned for multi-family development. They did
not explain why they could not pursue use of this
parcel. They also failed to address the availability of
other upland parcels, the possibility of seeking and
being granted zoning variances within the Township,
the use of several smaller parcels instead of one large
parcel, or change in design to fit the available zoning.
This presumption must be overcome before moving to
the second hurdle in the Guidelines. n8
Section 404 of the CWA, authorizes the COE to issue a
permit to allow discharge of dredged or fill materials
into those waters governed by the Act. The Section 404
permit process is governed concurrently by COE
guidelines, 33 C.F.R., Parts 320-329, and by EPA
guidelines, 40 C. F. R. Part 230. Friends of the Earth v.
Hintz, 800 F.2d 822 (9th Cir. 1986).
Section 320.4 of 33 C. F. R. sets forth the general policies
that guide the COE in its evaluation of the permit
applications for fill activities. The regulations require
the COE to conduct a public interest review, balancing
the “benefits which reasonably may be expected to
accrue from the proposal against the reasonably
foreseeable detriments,” with consideration for the
54a
national concern for both protection and utilization of
important resources.“ Id., § 320.4(a)(1). A permit is to
be granted unless it is determined that issuance would
be contrary to the public interest. Id.
A Section 404 Permit must comply with relevant EPA
regulations. Id. EPA regulations provide that “no
discharge of dredged or fill material shall be permitted
if there is a practical alternative to the proposed
discharge which would have less adverse impact on the
aquatic ecosystem so long as the alternative does not
have other significant adverse environmental
consequences.” 40 C. F. R. § 230. 10(a).
Under 40 C. F. R. § 230. 10(a)( 3), where the activity
associated with a discharge which is proposed for a
special aquatic site, does not require access or
proximity to or sitting with the special aquatic site in
question to fulfill its basic purpose (i. e., is not “water
dependant”), practical alternatives that do not involve
special aquatic sites are presumed to be available,
unless clearly demonstrated otherwise. In addition,
where a discharge is proposed for a special aquatic site,
all practicable alternatives to the purposed discharge
which do not involve a discharge into a special aquatic
site are presumed to have less adverse impact on the
aquatic ecosystem unless clearly demonstrated
otherwise.
Plaintiffs’ proposed condominium project is not water
dependant, therefore, a practical alternative is
presumed to be available. The administrative record
establishes that Plaintiff never sought out, or
investigated that site. Although Plaintiffs’ witnesses’
testified as to no other property available other than
55a
that parcel, not one witness testified that an
investigation was undertaken to determine if the
available parcel was a suitable alternative. The COE
provided a rational basis for its decision regarding the
possibility of a practical alternative, and I cannot
conclude that the decision was arbitrary or capricious.
I also conclude that the COE provided a rational basis
for their decisions concerning shoreline erosion and
accretion effects, flood hazards, and floodplain values.
The Court is reminded that it is not to substitute its
own judgment for that of the agency; as long as the
agency provides a rational explanation for its decision.
Citizens to Preserve Overton Park, Inc., 401 U.S. at
416.
III. CONCLUSION
For the reasons stated above, it is respectfully
recommended that Plaintiffs’ Motion for Summary
Judgment be DENIED, and the Defendants’ Motion for
Summary Judgment be GRANTED.
Pursuant to Rule 72(b) of the Federal Rules of Civil
Procedure and 28 U.S.C. § 636(b)(1), the parties are
hereby notified that within ten days after being served
with a copy of this recommendation that they may
serve and file specific, written objections to the
proposed findings and recommendations. Further,
either party may respond to another party’s objections
within ten days after being served with a copy thereof.
The parties are further informed that failure to timely
file objections may constitute a waiver of any further
right of appeal to the United States Court of Appeals.
United States v. Walters, 638 F. 2d 947 (6th Cir. 1981).
56a
In accordance with the provisions of Rule 6(b) of the
Federal Rules of Civil Procedure, the Court, in its
discretion, may enlarge the period of time in which to
file objections to the report.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
Date: 2-28-03
Footnotes
nl To the extent that the development of the property
allowed water from adjacent areas to drain across the
property, the retention ponds would filter this water as
well. (MDEQ Proposed Decision at 10).
n2 Plaintiff's Statement of Facts is taken verbatim from
their Motion for Summary Judgment, pages 2-9.
n3 The Plaintiffs in their brief seem to have confused
the unnamed ditch with the Sutherland-Oemig Drain.
See, e.g., Carabell Brief at 2-3; 5-6. There are, in fact,
two bodies of water, and the wetlands are adjacent to
both. The unnamed ditch runs along the hypotenus - of
the triangular-shaped property and is part of the
property. It connects to the Sutherland-Oemig Drain,
which passes by the northeast corner of the property on
its way to Auvase Creek. —
n4 The Corps also administers Section 10 of the 1899
Rivers and Harbors Act for structures or work in or
affecting “navigable waters of the United States.”
These are waters that are, have been, or are susceptible
for use to transport interstate or foreign commerce. 33
57a
C. F. R. § 329.4. The Corps is required to keep a listing
of such waters (33 C.F.R. § 329.16) and Lake St. Clair
appears on this list.
n5 The District has also based jurisdiction on the
Commerce Clause because of the presence of migratory
birds on the property. Due to the decision in Solid
Waste Agency of Northern Cook County v. U.S. Army
Corps of Engineers (“SWANCC”), 531 U.S. 159, 148 L.
Ed. 2d 576, 121 S. Ct. 675 (2001), this basis of
jurisdiction is no longer applicable.
n6 In 1987, the Carabells originally applied to the
Michigan Department of Environmental Quality,
(“MDEQ”) for a permit to discharge fill material on the
property for construction of a 200 unit condominium
complex. However, the history and findings of the state
proceedings are immaterial to this action, which is
entirely based upon the administrative record
established after EPA sustained their objections to the
issuance of a State permit and Section 404 permit
authority was transferred from the State to the Corps
pursuant to CWA Section 404(j) and 40 C.F.R. §
233.50(j). AR Vol. 1, Doc. 89, at 1.
n7 SWANCC was decided on January 9, 2001,
subsequent to the October 5, 2000 permit denial.
ns Taken verbatim from the Permit Evaluation,
Administrative Record, Volume 2, Document 17, pgs.
10, 11, 23, and 24.
58a
ADMINISTRATIVE APPEAL DECISION
KEITH & JUNE CARABELL,
FILE NO. 99-250-002-1
DETROIT DISTRICT
MARCH 5, 2001
Review Officer: Suzanne L. Chubb, U.S. Army Corps of
Engineers, Great Lakes and Ohio River Division,
Cincinnati, Ohio.
Appellant Representative: Mr. Timothy A. Stoepker,
Dickinson Wright PLLC, 500 Woodward Avenue, Suite
4000, Detroit, Michigan 48226 -3425.
Permit Authority: Section 404 of the Clean Water Act
(33 USC 1344)
Receipt of Request For Appeal (RFA): December 4,
2000
Appeal Conference Date: January 30, 2001
Site Visit Date: Same
Background Information: The appellant proposes to
construct a 112-unit townhouse condominium
development on a 19.6-acre triangular-shaped parcel-
located in Chesterfield Township, Macomb County,
Michigan: A county drain follows the. hypotenuse side
of the property on a northeast-southwest alignment. A
small amount of upland is located in the southwest
corner of the parcel and along the ditch.” The appellant
59a
' proposes to place fill into approximately 15.9 acres of
wetland and convert approximately 3.7 acres of
forested wetland to emergent and open-water cover
types as mitigation (enhancement).
Following Michigan Department of Natural Resources
(MDNR) permit reviews in 1993 and 1994 with
subsequent permit denials; a Michigan Department of
Environmental-Quality (MDEQ) administrative law
judge ruled in favor of a modified project design in
September 1998 and ordered the issuance of a State
permit. The United States Environmental Protection
Agency (USEPA) sustained their objections to issuance
of a. permit and, pursuant to Section 404(j) of the Clean
Water Act and 40 CFR 233.50(j), Section 404 permit
authority was transferred from the MDEQ to the Army
Corps of Engineers (Corps).
The appellant subsequently filed an application dated
19 August 1999 with the Detroit District (District). The
District published a public notice (PN) on 8 February
2000 and conducted three site visits on 12 October 1999,
5 May 2000 and 2 August 2000. Following the review
period, the application was denied on 5 October 2000.
The appellant submitted a RFA to the Division on 4
December 2000.
Summary of Decision: I find that this RFA has no
merit. The onsite wetland is regulated because it is
adjacent to a tributary system of Lake St. Clair.
Further, under the Clean Water Act (CWA), the permit
issuance decision by the MDEQ administrative law
judge does not bar Federal review and jurisdiction.
The District completed a fair and reasonable review of
60a
the appellant’s application in accordance with all
applicable laws and regulations.
Appeal Evaluation, Findings and Instructions to the
Detroit District Engineer (DE):
Reason l.: The Corps has no jurisdiction over the land
at issue.
Finding: Reason I of this appeal has no merit.
Action: No action required.
Discussion: The appellant considers the onsite wetland
to be isolated and therefore non-jurisdictional based on
current USEPA and Corps regulations at 40 CFR
230.3(s) and 33 CFR 328.3 respectively and the recent
U.S. Supreme Court ruling in Solid Waste Agency of
Northern Cook County (SWANCC) v U.S. Arm Corns
of Engineers. The appellant also does not consider the
onsite ditch to be waters of the United States. The
appellant requested that the Corps identify the section
or provision of the Clean Water Act (CWA) that
provides for Corps jurisdiction of wetlands not directly
adjacent to navigable waters and for tributaries to
navigable waters.
Under the Federal Water Pollution Control Act
(FWPCA) amendments of 1972 (Public Law 92-500),
Congress extended Corps’ regulatory jurisdiction
beyond the traditional “navigable waters” to include
“all waters of the United States”, including wetlands
(33 U.S.C. 1362). In 1977, the FWPCA was further
amended and renamed the Clean Water Act. Title 33
U.S.C. 1344 (also known as Section 404) requires a
6la
permit from the Secretary of the Amy for discharges o£
dredged or fill material into “all waters of the United
States.” The statutory authorities under which the
Corps implements.its regulatory program are found at
33 CFR 320.2 and the policies, practices, and
procedures followed by the Corps in connection with
the review of permit applications to authorize the
discharge of dredged or fill material into waters of the
United States pursuant to Section 404 are found at 33
CFR 323.
“Waters of the U.S.” include traditional navigable
waters and their tributaries, adjacent wetlands and
isolated waters with an interstate commerce nexus.
“Adjacent” means bordering, contiguous or neighboring
and includes wetlands separated from other waters of
the U.S. by a man-made dike or barrier, natural river
berms, beach dunes and the like (83 CFR 328).
“Isolated waters” are defined as non-tidal waters of the
U.S. that are 1) not part of a surface tributary system
to interstate or navigable waters of the U.S.; and 2) not
adjacent to such tributary waterbodies (33 CFR 330.2).
A ditch excavated in a water of the U.S. (wetland or
stream) remains a regulated water of the U.S. provided
an Ordinary High Water mark is present. A ditch
constructed wholly within upland is generally not a
water of the U.S. (Preamble to 2000 Nationwide Permit
Regulations, 65 FR 12823).
In this case, the District determined that the onsite
wetland was adjacent to a surface tributary system of a
navigable waterway, Lake St. Clair. Specifically, the
proije manager observed that the onsite county ditch
floweu into the Sutherland-Oemig Drain, which flows
into Auvase Creek, which outlets into Lake St Clair.
62a
The ditch appears to have been excavated in wetland
based upon the adjoining onsite wetlands and the
identification of poorly drained hydric soils (Toledo silty
clay loam, 0-2% slopes) by the U.S. Department of
Agriculture, Natural Resources Conservation Service
(Macomb. County Soil Survey, 1971). The appellant’s
wetland consultant delineated the ditch as wetland.
Spoil material from the excavated ditch was sidecast
into berets on both sides of the ditch. However, the
man-made spoil berm that separates the wetland from
the ditch does not exclude adjacency as described
above. Construction of the ditch is thought to have
occurred some fifty to sixty years ago, prior to CWA
jurisdiction.
One confusing aspect of the ditch is the direction of
water flow. The appellant’s wetland consultant believed
it flowed in a southwesterly direction away from the
Sutherland-Oemig Drain while the District project
manager (PM) observed it flowing northeasterly during
a site visit. The PM also remarked during the appeal
site visit that he thought the drainage was more
“feathery” (diffuse, less defined) to the southwest. A
review of the spot elevations on Sheet 1 of the
appellant’s grading plan, dated 12 August 1999, does
not clarify the issue. The last bottom elevation of the
ditch at the southwest property corner is 584.50 feet
U.S. Geological Service (USGS) datum and 584.40 feet
at the northeast corner. The lowest elevation is 583-90
feet, noted at two locations along the ditch northeast of
its midpoint along the property line.
Although confusing, the appellant has not presented
any information to refute the District’s evaluation.
Furthermore, even if I assume that the ditch flows in a
63a
- southwesterly direction, the USGS topographical map,
New Haven quadrangle, appears to indicate. that the
ditch is connected to other ditches that outlet to Auvase
Creek and eventually Lake St. Clair. This decision does
not prevent the appellant from presenting new
information to the District for reconsideration of their
original determination.
The District also performed a site visit in May 2000
[Environmental Assessment (EA) enclosure 16] to
document migratory bird use and their connection to
interstate commerce: The recent U.S. Supreme Court
ruling (SWANNC v. Corps) negated use of the
Migratory Bird Rule to establish an interstate
commerce connection on isolated, intrastate waters.
The SWANNC decision is not relevant to this proposal
because the subject wetlands are not isolated.
Finally, although not raised in the RFA, during the
appeal conference the appellant questioned a statement
made by the District in the decision document. The
District suggests that Section 10 jurisdiction from Lake
St. Clair may extend upstream on its tributaries
(Auvase Creek and the Sutherland-Oemig Drain) to 23-
Mile Road as it does on the Salt River, an established
federally navigable waterway (EA paged). The
administrative record does not support this statement.
The Ordinary High Water elevation for Lake St. Clair
is 576.3 feet International Great Lakes Datum (IGLD),
1985, and the bottom elevation of the onsite ditch at the
northeastern end is 583.7 feet IGLD, 85 (converted
from 584.4 feet USGS Datum) This statement may be
supported by bottom elevations for the nearby
Sutherland-Oemig Drain but they are absent from the
administrative record. However, the Distriet's
64a
statement is irrelevant to the jurisdictional
determination made by the District and to the
discussion above.
Reason 2: The issues presented in the Carabell’s RFA
were already decided by the MDNR in favor of the
Carabells, so the Corps and the USEPA are barred by
res judicata from deciding against the Carabells.
Finding: Reason 2 of this appeal has no merit.
Action: No action required.
Discussion: The appellant believes that the State of
Michigan, while administering the Section 404 program,
was acting on behalf of the federal government. The
USEPA, pursuant to Section 404(g) and 40 CFR 233,
formally transferred administration of the Section 404
permit program to the State of Michigan through a
Memorandum of Agreement (MOA) signed in 1983.
However, under Section 404(j), the State must still
coordinate with the USEPA on certain classes and
categories of activities. Because theappellant's
proposed discharge of fill material exceeded 10,000
cubic yards, the subject application was not waived
from the requirements of Section 404(j). The USEPA
responded to the State’s public notice with a letter of
objection dated 4 March 1994. Regulations at 40 CFR
233.50(j) clearly state that if the State neither satisfies
EPA’s objections nor denies the permit, processing of
the Section 404 permit application reverts to the
Secretary of the Army, acting through the Chief of
Engineers.
65a
Following issuance of a State permit, pursuant to an
administrative court order, the USEPA sent a letter
dated 23 November 1998 that sustained their objections
to the project. This effectively transferred Section 404
permitting authority to the Corps pursuant to the
aforementioned regulations.
Res judicata is not an applicable legal principal here.
There has been no preceding decision or judgment
regarding this permit Application in a federal forum.
The State of . Michigan followed its own program
procedures by conducting an administrative hearing.
The USEPA objected to the result. When the USEPA
objects to the State’s issuance of a permit, and the
State does not revise the permit (or deny it) in
accordance with the stated objections, both Section
404(j) of the CWA and 40 CFR 233.50(j) require the.
Administrator of the EPA to turn over the permit
application to the Secretary of the Army so that the
Secretary can process the permit application. The MOA
between the State and the USEPA merely implements
the statute and regulation.
Reason 3: The Carabells have demonstrated that a
permit can be issued under the applicable laws and
regulations.
Finding: Reason 3 of this appeal has no merit.
Action: No action required.
Discussion: In the RFA, the appellant states that the
primary factors in the District’s denial decision are
valuable seasonal habitat and water storage functions
66a
from the public interest review. While the District’s 5
October 2000 letter does mention these factors, the
letter. also states that the denial is based on non-
compliance with the USEPA’s 404(b)(1) Guidelines.
The presence of potential habitat and use of the site by
the Indiana bat (Myotis sodalis) and possible
consultation with the United States Fish and Wildlife
Service (USFWS) pursuant to the Endangered Species
Act is also unresolved. Therefore, the appellant has not
shown compliance with all applicable laws and
regulations.
The District conducted a fair and adequate public
interest review. They published a PN, considered all
comments received and documented their evaluation of
the applicable public interest review factors. Besides
the effects on wildlife habitat and water quality, the
District also noted that the project would have a major,
long-term detrimental effect on wetlands, flood
retention, recreation and conservation and overall
ecology. The District did err when they stated that the
proposed storm water detention basin would outlet into
the proposed mitigation areas. The proposed project
drawings show that the detention basin would outlet to
the county ditch. This error is present under several
EA headings including Operational Impacts on Water
Quality, Shoreline Erosion and Accretion, Flood
Hazards and Floodplain Values, and Effects on
Wetlands, and is implied in Effects on Aquatic Biota.
However, although this misconception was a factor in
the District’s evaluation of the aforementioned public
interest factors, this error is harmless because it, alone,
is not the sole or overwhelming basis of the District’s
denial decision.
67a
The District acted appropriately in finding that the
appellant has not demonstrated that the proposal is the
least environmentally damaging practicable alternative.
A housing project is a non-water dependent activity
and does not require siting in a wetland.
During the State administrative hearing, Mr. Patrick
Meagher, the planning consultant for Chesterfield
township, stated that, besides the project site, another
undeveloped property is zoned RM-3 (multifamily
development) within Chesterfield township (Transcript
page 166). At the appeal conference, the appellant
stated that this parcel was not considered in their
alternatives analysis because it would mean
“abandoning” the project parcel. The appellant only
examined oh-site alternatives and those did not result
in. a measurable decrease in wetland impacts.
Additional properties may also be available if re-zoned
for RM-3 development. A permit cannot be issued when
a less environmentally damaging practicable
alternative exists or when insufficient information is
provided to determine compliance [40 CPR
230.12(a)(3)].
Although the appellant has not demonstrated avoidance
and minimization of aquatic impacts, the District also
determined that the proposed mitigation was
inadequate. They found that the conversion of 3.7 acres
of onsite forested wetland to emergent and open water
cover types would not replace the wetland functions
lost due to the proposed fill activities. Thd District did
not consider alternative mitigation proposals that may
be acceptable because earlier steps in the Guidelines
sequence (avoidance and minimization) had not been
68a
adequately addressed. The appellant bears the burden
of proof to demonstrate compliance with the Guidelines.
Conclusion: For the reasons stated above, I conclude
that the three reasons presented in this Request For
Appeal do not have merit.
ROBERT H. GRIFFIN
Brigadier General, U.S. Army
Commanding
69a
CELRE-ET-RG 99-250-002-1 (1145b) October 5, 2000
MEMORANDUM FOR Record
SUBJECT: Statement of Findings on Proposed
Discharge in wetlands at Chesterfield Township,
Michigan by Keith and June Carabell
1. Reference attached Environmental Assessment (EA)
on the proposed work.
2. Summary/Remarks:
The agent for the applicant went on record, on two
separate occasions as stating that the project is not
within a state, or federally-regulated wetland (See EA
Enclosures 12 (Pg. 2, Para. 2.a.) and 13 (Pg. 1, 2nd
Para.)). The record clearly establishes the site as being
used for interstate commerce (neo-tropical migratory
bird stopping point) and as adjacent to a drain which
empties directly into a Section 10 water (See Encl. 16).
The applicant offered an exchange of 3.74 acres of
forested wetlands with the same acreage of emergent
wetland as mitigation for the 15.87 acres proposed to be
eliminated through the discharge of fill material.
compensation is the final step in the sequence of
avoidance, minimization and compensation. Since the
presumption of avoidance has not been addressed and
satisfied, the offer of compensation is premature.
The project will destroy one of the last remaining
forested wetlands in Chesterfield Township, and one of
the last remaining large forested tracts of land in not
only the Township, but also in Macomb County. Areas
70a
such as this forested wetland provide invaluable habitat
for resident and neo-tropical migrant birds, as well as to
the dwindling populations of small and large mammals
in the area. Cumulatively, this and similar projects are
resulting in increases in flood duration and frequency
and a contribution to the degradation of water quality
in the Lake St. Clair watershed. Public recreation will
suffer through a reduction in populations of birds and
mammals, many of which are fed and/or photographed
by people in this highly developed area. Although one
of the applicant’s expert witnesses in the contested case
hearing states that a recent study reveals a need for
150 senior units within Chesterfield Township, at no
time during the processing of this permit application
did the applicant, or his agent, indicate the purpose of
the work was to construct senior housing. Regardless,
we presume that there is a less damaging alternative.
3. Conclusions and Determinations:
a. Compliance with the Section 404(b) (1)
Guidelines of the Clean Water Act: The proposed
discharge fails to comply with the Guidelines.
4. Public Interest Determinations.
I determined that the project would have minor, long-
term benefits to the economy of the area, as well as the
applicant, and to property ownership. I determined that
the project would have major, long-term detriments to
water quality, flood hazards, aquatic and terrestrial
biota, recreation, and conservation and overall ecology.
MDE has issued their respective permit, and this
reflects positively on the factor of land use.
71a
Weighing the minor benefit's that may be reasonably
expected to accrue from this project against its
reasonably foreseeable detriments, I determined that
the detriments greatly outweigh the benefits to the
overall public interest. Although MDEQ issued a state
permit, land use benefits are outweighed by the total
detriments to other national public interest factors. The
cumulative impacts of this, and other similar projects,
would impact wildlife habitat, and increase flood
hazards, as well as negatively impact the water quality
of the receiving water. These become issues of
overriding national importance and require a more
stringent evaluation of alternatives and of minimization
of impacts. The detriments of the project are therefore
significant issues of overriding importance since they
outweigh the benefits.
I have determined that the U.S. Department of the
Interior, Fish and Wildlife Service (FWS) request that
a survey to determine the presence of Indiana bat
(Myotis sodalis) or its potential habitat is unwarranted
at this time. Consultation must be completed when, as a
result of a federal action (in this case, issuance of a
Section 404 permit), the Corps of Engineers makes an
EFFECT determination. In this case, denial is
overwhelming, as issuance of the requested permit
would not be in the public interest. Therefore,
resolution of this issue is unnecessary. Should the
applicant provide compelling reason why a permit
should be issued, or submit a plan which significantly
reduces impacts to the aquatic environment to a
minimal level, the District will conduct consultation
with the FWS.
72a
5. Decision:
Review of this application has included all policies of
paragraph 320.4, “General Policies for Evaluating
Permit Applications.” I have concluded that the
determination as to denial of the requested permit is
within my authority as set forth in 33 CFR Part 325.8.
The proposal is contrary to the public interest and
denial of the permit is appropriate, even though this
decision is contrary to a state decision.
a. The requested permit is denied.
b. The applicant be notified of the decision.
RICHARD J. POLO JR.
LTC EN
Commanding
73a
DEPARTMENT OF THE ARMY
DETROIT DISTRICT CORPS OF ENGINEER
BOX 1027
DETROIT, MICHIGAN 48231-1027
October 5, 2000
IN RELPY REFER TO
Engineering & Technical Services
Regulatory Office
File No. 99-250-002-1
Keith and June Carabell
c/o Tim Stoepker
Abbott, Nicholson, Quilter, Esshaki
and Youngblood
300 River Place, Suite 3000
Detroit, Michigan 48207
Dear Mr. and Mrs. Carabell:
I have reached a decision on your application for a
Department of the Army permit to discharge fill
material for construction of a condominium
development in wetlands at Chesterfield Township,
Michigan. After due consideration of the record and the
appropriate regulations, I have determined that the
project is contrary to the overall public interest, and
have decided to deny your request for a permit.
Your parcel is primarily a forested wetland that
provides valuable seasonal habitat for aquatic
organisms and year round habitat for terrestrial
organisms. Additionally, the site provides water
74a
storage functions that, if destroyed, could result in an
inereased risk of erosion and degradation of water
quality in the Sutherland-Oernig Drain, Auvase Creek,
and Lake St. Clair. The minimization of impacts to
these wetlands is important for conservation and the
overall ecology of the region. Because the project
development area is a forested wetland, the proposed
project would destroy the resources in such a manner
that they would not soon recover from impacts of the
discharges. The extent of impacts in the project area
when considered both individually and cumulatively
would be unacceptable and contrary to the public
interest.
This decision was also based on an evaluation of the
project’s compliance with the 404(b)(1) Guidelines for
Specification of Disposal Sites for Dredged or Fill
Material. The Guidelines were developed by the U.S.
Environmental Protection Agency pursuant to the 1977
Clean Water Act, and they establish criteria for
evaluating proposed projects. The Corps of Engineers
is obligated to deny applications for discharges when
work does not comply with the Guidelines. One critical
threshold of the Guidelines is a thorough consideration
of less damaging practicable alternatives. For projects
such as yours, the Guidelines require that we presume
that less damaging alternatives are available unless
clearly demonstrated otherwise. You have not
overcome this presumption, and therefore your project
does not comply.
One apparent less damaging alternative would be to
purchase an upland, or primarily upland, parcel of
property elsewhere in the Chesterfield Township area
that maybe zoned or re-zoned for multi-family
75a
residential development. There may be other less
damaging alternatives, as well. If there prove to be
none, we would give favorable consideration to a
project that significantly reduces impacts to the
forested wetland on your property, such as construction
along Donner Road that utilizes the upland to the
maximum extent possible. We would also require the
mitigation to provide for the complete functional
replacement of the forested wetlands proposed for
development.
You are hereby notified that you and/or your
authorized agent(s) may appeal a denied individual
permit under the Corps of Engineers Administrative
Appeals Process. Should you wish to appeal this
decision, you must fill in and submit the enclosed
Request for Appeal (RFA) within 60 days of the date of
this letter. Your RFA must be submitted to the
division engineer at:
Brigadier General Robert H. Griffin
U.S. Army Corps of Engineers
Lakes & Ohio River Division
P.O. Box 1159
Cincinnati, Ohio 45201-1159
Should you have any questions, please contact Bob
Deroche at the above address or telephone (313) 226-
6813. Please refer to File Number: 99-250-002-1.
Sincerely,
Richard J. Polo Jr.
Lieutenant Colonel, U.S. Army
District Engineer
Enclosures
Copy Furnished:
MDEQ, Livonia (93-14-602)
Supresn eg
1 | n
In the Supreme Court ot the United States
JUNE CARABELL, ET AL., PETITIONERS
Vv.
UNITED STATES ARMY CORPS OF ENGINEERS
AND THE UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
PAUL D. CLEMENT
Solicitor General
Counsel of Record
KELLY A. JOHNSON
Acting Assistant Attorney
General
GREER S. GOLDMAN
Topp S. Kim
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
7
QUESTIONS PRESENTED
1. Whether the United States Army Corps of Engi-
neers acted reasonably in interpreting the term “waters
of the United States” as it appears in the Clean Water
Act (CWA), 33 U.S.C. 1362(7), to encompass a wetland
area that is separated from a tributary of a traditional
navigable water by a narrow man-made berm, where
evidence in the record reflected the presence of at least
an occasional hydrologic connection between the wet-
land and the adjacent tributary.
2. Whether the application of the CWA to the wet-
land at issue in this case is a permissible exercise of con-
gressional authority under the Commerce Clause.
(1)
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TABLE OF AUTHORITIES
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Hodel v. Virginia Surface Mining & Reel.
SED, Se EOD 644 See Sb deasccdccees
International Paper Co. v. Ouellette, 479 U.S.
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Kosak v. United States, 465 U.S. 848 (1984)
NCAA v. Smith, 525 U.S. 459 (1999)))9)9:;½ũ ũ
Needham, In ve, 354 F.3d 340 (Sth Cir. 2003)
Newdunn Assocs., LLP v. United States Army
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Rapanos v. United States, 541 U.S. 972 (2004) ..
Rice v. Harken Exploration Co
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