Petition for Writ of Certiorari — Pozsgai v. United States

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No 93- ack : rtd gi eg

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1993

JOHN POZSGAI and GIZELLA POZSGAIT,

Petitioners,

UNITED STATES OF AMERICA,

MERCER WRECKING & RECYCLING CORPORATION,

J. VINCH & SONS, INC.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

Daniel J. Popeo

Paul D. Kamenar

(Counsel of Record)

Washington Legal Foundation

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-0302

Counsel for Petitioners

Date: November 8, 1993

QUESTIONS PRESENTED"

1. Whether under the Commerce Clause, the U.S. Army

Corps of Engineers can excercise jurisdiction under Section 404

of the Clean Water Act, 33 U.S.C. § 1344, over wetlands

located above the headwaters --a category of wetlands which,

along with the category of isolated wetlands, the Corps

considers to have insignificant individual or cumulative effects

on the environment?

2. Assuming that the Corps can exercise jurisdiction over

wetlands above the headwaters, whether Section 404 of the

Clean Water Act, as applied to petitioners’ conduct, violates the

Commerce Clause where the mere placement of topsoii and

clean fill material onto such wetlands --regardless of the amount

of the fill, or whether such fill material has any actual or

threatened individual or cumulative impact or effect on the

environment or interstate commerce-- is deemed to constitute an

irrebutable presumption of an effect on interstate commerce,

especially where:

i) the Corps has asserted its jurisdiction over

petitioners’ property solely because of its geographical

nexus to a tributary of a waterway formerly used in

interstate commerce, rather than any waterway that is

currently used, or could be susceptible to use, in interstate

commerce; and

ii) the Corps itself is already required under 33 C.F.R.

§ 328.3(a)(3) to prove a current or future effect on

interstate commerce with respect to fill material placed on

isolated wetlands?

3. Whether, as a matter of statutory interpretation, 33

U.S.C. § 1362(6) of the Clean Water Act, which defines

"pollutants" as certain materials "discharged into water," can be

construed to mean the discharge of clean fill "near water" or

"ontc wetlands", an issue not addressed by this Court in United

States v. Riverside Bayview Homes?

All parties to the proceeding are listed in the caption. However,

respondents Mercer Wrecking & Recycling Corporation and J. Vinch & Sons,

Inc. were not parties in the appeal although they did enter an appearance.

See App. 6a, n.4.

TABLE OF CONTENTS

CRIES ENAGS PIGSEUERE 06 dae nant neaawe en

FIRED 6.85 Sk ae ey ee ae

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED ......

APPENDIX

TABLE OF AUTHORITIES

Cases: Page

American Tobacco Co. v. Patterson,

CE 20

Amoco Production Co. v. Village of Gambell,

Ajasma, 460 U.S. S31 (1967) .............. 21

Carlyle Compressor v. Occupational Safety & Health

Review Comm'n, 683 F.2d 673 (2d Cir. 1982) .... 22

Chevron U.S.A. v. Natural Resources Defense Council,

oo 21

Deal v. United States, 113 S.Ct. 1993 (1993) ....... 22

Fertilizer Inst. v. United States EPA,

ee ae eee Os, CO. OPED 2 ww we cee 21

Friends of Sakonnet v. Dutra,

739 F. Supp. 623 (D. R.I. 1990) ............ 22

Gibbons v. Ogden, 22 U.S. (9 Wheat. 1 (1824) ...... 8

Gregory v. Ashcroft, 111 S. Ct. 2395 (1991) ........ 8

Hodel v. Indiana, 452 U.S. 314 (1981) ......... 15, 16

Hodel v. Virginia Surface Mining &

Reclamation Ass’n, 452 U.S. 264 (1981) ..... 12, 13

Houchin v. Thompson, 438 F.2d 927 (6th Cir. 1970) ... 18

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)....... 20

McLain v. Real Estate Bd. of New Orleans, Inc..,

So on own kd cc eec cs ccas 18

National Labor Relations Bd. v. Clark,

oe wae Soe Gre Cor. 1972) . ww wc ee 18

New York v. United States, 112 S. Ct. 2408 (1992) ..... 8

NLRB v. Jones & Laughlin Steel Corp..,

Sa Cle 5 sg eee cs sees 13

Perez v. United States, 402 U.S. 146 (1971) ...... 13, 16

Preseault v. 1.C.C., 110 S. Ct. 914 (1990) ......... 16

Public Employees Retirement Sys. of Ohio v. Betts,

8 22

Quivara Mining Co. v. United States E.P.A.,

765 F.2d 126 (10th Cir. 1985) ........... 14, 15

Riverside Irrrigation Dist. v. Andrews,

Jae bomen wee treme Ge. ISG) ww. ww ce 4

Save Our Community v. U.S. E.P.A.,

ye bie 2. eR. 3

State of Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984) . 17

a EE As 20

United States v. Byrd, 609 F.2d 1204 (7th Cir. 1979) ..- 14

United States v. Critchley, 353 F.2d 358

ES i a re Ss ae ae ne ps 19

United States v. Elders, 569 F.2d 1020 (7th Cir. 1978) . 19

United States v. Lopez, 2 F.3d 1342 (Sth Cir. 1993) .... 8

United States v. Larkins, 852 F.2d 189 (6th Cir. 1988) . 10

United States v. Mennuti, 639 F.2d 107 (2d Cir. 1981) . 19

United States v. Monholland, 607 F.2d

roth. (o Ay. (See re 19

United States v. Mills, 817 F. Supp. 1546

8 ae 23

United States v. Perdue Farms, Inc..,

— f & peg (+ A. Aree 22

United States v. Riverside Bayview Homes,

og Fe 0 Se passim

United States v. Voss, 787 F.2d 393 (8th Cir. 1986) ... 19

Wickard v. Filburn, 317 U.S. 111 (1942) ........ 16, 17

United States Constitution

ee saa 5 ahs 5 an a ec oa ea aye passim

I I a gr a Cs ge na lim nn Gg bes kal ote ee ae 8

Statutes:

ee Rena eee 19

ET a. ok do ap bw 6 A 6 oh eae 8

es on cc pw ee ee see eae 19

EE os: “o''a-0 @ oly kaw a 0b bb wae 2

es oo Sos eb ee ae 5

ee os be eh oe ees 5

ee Son gk wg Ve wae we eee 5

on we he de ee ee 4, 20

ss cg ck wg ae bd Oe Ow ee eS 5

ED gn vn Ke kes he ee 8 ewe 2

ee oe 6 eo ba -e a weet 15

a es we a wenn Ls

ss kw he eo eae eb ee 5

nae ele sb alee oe uw a leeCN 4

ee on a sg yeas te he a eee passim

ee Eo oe os a Kak kk ok bh ee ee 20

Regulations

p fot 2 ee Fog ae ere ie 14

pie Ee Bee eee rerr eT 4

Se re EE gc 5. co 6 6 0 8 6 oe ee 8 8D 4

pope SS ll errr rr ee eee ee 5, 14

p Dat OR el err eer eee a 7

Pp opet ll eee errr passim

a & = y 2 ee rere ee oe 2, a0

Miscellaneous:

ees 8 S00 ere ererer re re ree roe 6

, * ieee ees re eo 7

ge p ) &e er eee ee 9

Br. of U.S. in Opp. Cert.,

United States v. Pozsgai, No. 89-1735 .......... 7

Reply Br. of U.S. in

U.S. v. Riverside Bayview Homes ............ 10

Transcript, Oral Argument in

U.S. v. Riverside Bayview Homes ...........-. 10

No. 93-

IN THE

SUPREME COURT OF THE UNITED STATES

Octoser Term, 1993

JOHN POZSGAI and GIZELLA POZSGAI,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

MERCER WRECKING & RECYCLING CORPORATION,

J. VINCH & SONS, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioners, John Pozsgai and Gizella Pozsgai, petition for a

writ of certiorari to review the judgment of the United States

Court of Appeals for the Third Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-27a) is reported

at 999 F.2d 719 (3d Cir. 1993). The order of the district court

dated Jan 8, 1990 is unreported and reproduced at App. 34a

The order of the district court dated June 17, 1991, denying the

— for reconsideration is unreported and reproduced at App.

JURISDICTION

The judgment of the court of appeals was entered on June 25,

1993 (App. 1a). On August 10, 1993, the court of appeals

issued an order construing petitioners’ letter request of July 8,

1993 as a timely motion to amend the judgment as well! as a

petition for rehearing and denied both. App. 39a. On

September 16, 1993, Associate Justice David Souter extended

the time for filing a petition for a writ of certiorari to and

including November 8, 1993. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

The Commerce Clause of the U.S. Constitution, Art. 1,

Sec. 8, Cl. 3, provides: "Congress shall have Power ... To

regulate Commerce with foreign Nations, and among the several

States, and with the Indian Tribes."

"Pollutant" is defined in the Clean Water Act at 33 U.S.C.

1362(6) as follows:

The term "pollutant" means dredged spoil, solid waste,

incinerator residue, sewage, garbage, sewage sludge,

munitions, chemical wastes, biological materials, radioactive

materials, heat, wrecked or discarded equipment, rock,

sand, cellar dirt and industrial, municipal, and agricultural

waste discharged into water.***

Other provision of the Clean Water Act and regulations

pertinent to this case are 33 U.S.C. §§ 1311(a), 1319(c)(2),

1344(a), (e); the regulatory definition of "waters of the United

States" under 33 C.F.R. § 328.3(a); the regulation of isolated

wetiands and those above the headwaters under 33 C.F.R. §

330.5(aj(26); and the regulatory definition of pollutant under 40

C.F.R. § 230.3(0). These statutory and regulatory provisions

are reproduced in the Appendix at App. 46a-48a.

STATEMENT OF THE CASE

Petitioner John Pozsgai, a 60-year old Hungarian emigre,

is a self-employed truck mechanic who lives with his wife,

Gizella, co-petitioner herein, and family in Morrisville,

Pennsylvania, where he has worked seven days a week in his

small garage behind his house--except for approximately a two-

year period of incarceration as a result of the criminal

proceedings stemming from the facts in this case.’ Across the

street from his home is a 14-acre lot which, prior to petitioners’

purchase of the property in early 1987, had been used for some

? When used in the singular, “petitioner” refers to John Pozsgai.

thirty years as a dump site for various types of old fill and junk,

including auto body parts and thousands of old tires. The

property is zoned for light industrial use, and is bordered on the

north by Bridge Street, on the south by a four-lane

superhighway (U.S. Route 1), an auto salvage yard on the west,

and a tire repair/dealership on the east. Petitioner saw the

property not as a dumpsite, but as an opportunity. By cleaning

up the eyesore, removing the old tires, and filling and leveling

a small portion of the property, he could fulfill his dream of

building a larger garage so he could expand his truck repair

business from its cramped quarters. The government saw the

matter differently.

A field agent of the U.S. Corps of Engineers (Corps)

visited the property beginning in April 1987 and claimed that

because of the presence of such vegetation as "skunk cabbage,"

a common weed, and "sweet gum trees," a common tree

endemic to the Eastern third of the United States, portions of the

property contained "wetlands." The site, however, is not a

marsh, swamp, or bog, nor was the area listed as a wetland on

the Department of the Interior’s National Wetland Inventory

Map. Placing fill on certain wetlands is not a prohibited activity

but a regulated one under the Clean Water Act. 33 U.S.C. §

1344. Petitioner believed, however, that tires strewn throughout

the tiny drainage stream (about three-feet wide and a few inches

deep that trickles along the edge of the property) had a damming

effect, causing a portion of the site to flood occasionally during

heavy rains. By removing the tires, the property would drain

properly and lose its apparent wetland vegetation characteristics.’

Petitioners completed the purchase of the property in June

1987 and Mr. Pozsgai continued the laborious process of

cleaning up the property by removing the thousands of tires and

junk parts, and allowing clean fill (non-toxic, non-hazardous,

material such as topsoil, earth, bricks and inorganic materials)

to be placed on portions of the upland as well as what the

government claims were "wetland" portions of the property

along Bridge Street. He did, however, obtain a Bucks County

soil erosion permit in May 1988 and maintained a protective silt

Skirt fence along the small stream, making sure nothing was

placed into the tiny stream.

Draining a wetland so that it no longer comes under the Corps’

jurisdiction is not prohibited under the Clean Water Act. See Save Our

Community v. U.S. E.P.A., 971 F.2d 1155 (Sth Cir. 1992).

The Corps conceded below that the wetlands on petitioners’

property were "above the headwaters," that is, that they

belonged to a class or category of wetlands that were essentially

isolated, being adjacent to a small stream that has a flow rate of

less than five cubic feet per second. 33 C.F.R. § 330.5(a)(26).

Under Corps regulations, filling of such minor wetland areas are

covered by nationwide permits under 33 U.S.C. § 1344(e), and

accordingly, “an application for a DA [Department of Army]

permit does not have to be made." 33 C.F.R. § 320.1(c)

(emphasis added). This particular Nationwide Permit No. 26

permits the filling of up to 10 acres of “above the headwaters"

wetlands (well within the acreage involved in this case), as well

as totally isolated wetlands. 33 C.F.R. § 330.5(a)(26).*

While the Corps and EPA informally advised appellant to

refrain from further filling activity and seek an after-the-fact

permit, for reasons best known to the government, they never

issued any formal cease and desist order as they do in other

cases and as required by their own regulations. 33 C.F.R. §

326.3(c)(1), (3). Nor did any Corps officials believe the threat

to the environment of the clean fill was so great that they felt it

necessary to order or even inform the haulers, respondents

Vinch and Mercer, who were the ones actually discharging the

fill dirt over a period of a year or so, to stop their activity.

On August 18, 1988, special agents of the Environmental

Protection Agency installed a secret video surveillance camera

in a private home across the street from the property. In

addition, aerial surveillance photographs were being taken of the

property. On August 24, 1988, the government filed this civil

action alleging in its complaint that petitioners and the haulers

had violated the § 301 of the Clean Water Act, 33 U.S.C. §

1311(a) by discharging “pollutants” without an individual fill

permit under Section 404 of the CWA, 33 U.S.C. § 1344(a),

* As one court accurately noted:

A nationwide permit is one covering a category of activities

occurring throughout the country that involve discharges of dredge

or fill material that will cause only minima! adverse effects on the

environment when performed separately and that will have only

minimal cumulative effects. See 33 U.S.C. § 1344(e) (1). Such

a permit is automatic in that if one qualifies, no application is

needed before beginning the discharge activity.

Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 511 (10th Cir. 1985)

(emphasis added).

into wetlands that are adjacent to a "unnamed tributary of the

Pennsylvania Canal" which the government alleged in its

complaint was a "’water of the United States’ as defined by the

Department of the Army regulations at 33 C.F.R. §

328.3(a)(1).". The complaint sought the imposition of fines,

preliminary and final injunctive relief. Jurisdiction in the

district court was predicated on 28 U.S.C. §§ 1331, 1345, 1355,

and 33 U.S.C. § 1319(b). At the same time, the government

applied for and received a Temporary Restraining Order issued

prohibiting the "discharging [of] fill material onto the site"

App. 45a. On September 2, 1988, an Order To Show Cause

was issued by at the request of the government to hold petitioner

in civil contempt for allegedly violating the TRO. App. 44a.

It is undisputed that all filling activities on the property

ceased by September 3, 1988, and a hearing on both the

contempt and the preliminary injunction was held on September

9, 1988 before the district court and was continued until

September 16, 1988. In the meantime, on September 12, 1988,

although no further filling activities had taken place, federal

agents arrested Mr. Pozsgai, handcuffed him, and booked him

for violating the Clean Water Act by allowing clean fill (non-

toxic, non-hazardous material such as earth, bricks, topsoil) to

be placed on his property without first obtaining government

permission in the form of an individual permit under 33 U.S.C.

§ 1344(a).

At the conclusion of the September 16, 1988 hearing, the

court found that it was "more probable than not" that Mr.

Pozsgai was the person on the machine for 10 or 15 minutes

levelling the fill, and that he approved the filling activity. App

Sa, 25a. The district court, rather than warning him of possible

penalties should the TRO be violated, ordered petitioner to pay

$5,000 "in 48 hours or Mr. Pozsgai goes to jail." App. 5a. The

court also granted the government’s preliminary injunction.

On December 16, 1988, a final hearing on the matter was

heard by the civil court." The government witnesses testified

* In the meantime, Mr. Pozsgai was required to defend himself in parallel

criminal proceedings, and was convicted on 40 counts of placing clean fill on

his property without a permit on December 30, 1988. Invoking then-President

Bush’s "no net-loss of wetlands" pledge, the prosecutor asked for and received

2 three-year unsuspended prison term for the pre-Guideline counts, 27-months

for the post-Guideline counts, a $200,000 fine, and 5-years probation. That

unprecedented sentence and fine was one of the longest unsuspended prison

terms in the history of the United States for any environmental offense, and

(continued...)

that the property contained wetlands based on the three-

parameter approach: vegetation, hydrology, and hydric soils.

Petitioners’ primary defense was that while the property may

have exhibited certain wetland characteristics such as vegetation,

the removal of the tires and the draining of the property changed

the hydrology component of the site, and that the purported

wetland area was not sufficiently adjacent to the stream to come

within the jurisdiction of the Corps.

On January 8, 1990, over a year later, the district court

issued a permanent injunction in favor of the government. App.

38a. Petitioners filed a timely motion to reconsider on January

26, 1990, raising essentially three points: 1) that the government

did not prove the existence of federal jurisdiction over the

property because of the lack of showing a sufficient interstate

commerce connection to the activity; 2) that even if there were

federal jurisdiction over the property, the Clean Water Act only

prohibits the discharge of "pollutants" without a permit, which

are defined by statute as well as by an EPA regulation to mean

only certain substances discharged “into water," not "onto

wetlands"; and 3) that in any event, appellants were not required

to obtain a fill permit under Section 404(a) of the CWA as

alleged by the government, because their property was above the

headwaters and thus, was covered by a nationwide permit issued

under Section 404(e).

A year and half later, the district court denied the motion

on June 17, 1991, and issued a implementation order. App. 28a

A motion under Fed. R. Civ. Proc. Rule 60(b) seeking relief

of that order was denied by the court on February 25, 1992, and

on April 1, 1992, final judgment was entered in this case, and

a timely appeal was filed.

On June 25, 1993, the court of appeals, after having failed

in the criminal case to give petitioner any oral argument or an

opinion, issued its decision in this case affirming the Judgment.

Writing for the court, Judge Anthony Scirica’ rejected

* (...continued)

the largest individual fine. Even toxic polluters that have caused serious

damage to the environment or even injured people, were given probation,

modest fines, or a few months in prison. Petitioner’s sentence was also

greater than that given to most criminals in the federal system for many drug

offenses, robbery, arson, extortion, and other malum in se crimes.

* Judge Scirica was the only common member of the panels in both the

criminal and civil, and was the judge who summarily affirmed the criminal

appeal for the court.

petitioners’ argument that they did not discharge “pollutants”

"into water" as that term is defined in 33 U.S.C. § 1362(6)

because this Court in United States v. Riverside Bayview Homes,

474 U.S. 121 (1985), had interpreted a different Statutory

provision, namely “waters of the United States" to include

certain wetlands. Therefore, the Statutory term “into water"

can be interpreted to mean “onto wetlands."

The court also rejected petitioners’ argument that under the

Commerce Clause, there was no showing or nexus of

petitioners’ property to interstate commerce by taking judicial

notice under Fed. R. Evid. 201 that the canal was used to

transport coal in the 1800’s, and thus concluding that the

Pennsylvania Canal "was used in interstate commerce, which

satisfies the terms of [33 C.F.R.] § 328.3(a)(1)." (emphasis

added). That regulatory section defines "waters of the United

States as those waters "which are currently used, or were used

in the past, or may be Susceptible to use in interstate or foreign

commerce...." Jd. (emphasis added).’ The court of appeals

rejected petitioners’ claim that the government failed how

petitioners’ property affects any interstate commerce, stating that

such jurisdiction is irrebuttably presumed because “[uJnder the

[Corps’] regulation, the requisite interstate commerce nexus was

established because the wetlands were adjacent to a tributary of

a waterway formerly used in interstate commerce." App.*

No such judicial notice was taken in the criminal case, nor could it since

Fed. R. Evid. 201 prohibits the taking of judicial notice in criminal trials tried

to a jury. Furthermore, petitioners argued that the government, in recycling

its appellate brief from the criminal appeal to the district court in the civil case

on petitioners’ rehearing motion, recycled a misrepresentation to the district

court that the aerial photographs in the case show that the stream on

petitioners’ property “flows into the Pennsylvania Canal." That

attention by then-Solicitor General Kenneth Starr who conceded that "that

rep 1 » was inaccurate. U.S. v. Pozsgai,

No. 89-1735, U.S. Opp. Cert. Brief at 9, n.6 (emphasis added). In the court

of appeals decision in the case at bar, the court stated that the "government

* The court also rejected petitioners’ other arguments on other issues in the

case which are not the subject of this petition and therefore need not be

discussed.

REASONS FOR GRANTING THE PETITION

Congress no doubt has broad powers to legislate under the

Commerce Clause; however, that power is not without its limits

as both this Court and numerous courts of appeals have

steadfastly recognized. Gibbons v. Ogden, 22 U.S. (9 Wheat.

1 (1824); Wickard v. Filburn, 317 U.S. 111, 125 (1942)(local

activity may be regulated if "it exerts a substantial economic

effect on interstate commerce")(emphasis added). Recently, the

Fifth Circuit had occasion to remind us of James Madison’s

words from Federalist No. 45:

*The powers delegated by the proposed Constitution to the

federal government are few and defined. Those which are

to remain in the State governments are numerous and

indefinite.” * * * It is easy to lose sight of all this in a day

when Congress appropriates trillion-dollar budgets and

regulates myriad aspects of economic and social life.

United States v. Lopez, 2 F.3d 1342, 1345 (Sth Cir. 1993).”

If the Third Circuit opinion in this case is allowed to stand,

the Commerce Clause will have lost all meaning, for any

activity, however local or remote from any nexus to interstate

commerce, can be federalized (and, as this case starkly

illustrates, criminalized). Indeed, the court of appeals’ fig leaf

for the federal government’s Commerce Clause jurisdiction over

petitioners’ property is most remarkable: the alleged nexus to

interstate commerce is not predicated upon any allegation by the

government that the placement of clean fill on petitioners’

property hundreds of yards from a drainage stream does exert,

or can reasonably be expected fo exert, an effect on interstate

commerce; rather, the nexus arises solely from the geographical

and historical fact that petitioners’ property is adjacent to

drainage ditch or stream that is a tributary of a waterway that

was used in interstate commerce in the 1800’s.

* The Lopez court, relying heavily on Justice O’Connor’s observation on

dual sovereignty between the States and Federal Government under the Tenth

Amendment in Gregory v. Ashcroft, 111 S. Ct. 2395, 2399 (1991) and New

York v. United States, 112 S. Ct. 2408 (1992), id. at 1346, unanimously

dismissed an indictment brought under 18 U.S.C. § 922(q) which prohibits the

possession of a handgun within a school zone, because there was no allegation

or showing of any nexus of that activity to interstate commerce, anymore than

the possession of "lead pencils, ’sneakers,’ Game Boys, or slide rules." /d.

at 1367.

center

Under this radical theory of historical interstate commerce,

the federal government could exercise jurisdiction over a

person’s back yard if it were shown that a rail line once ran

through or near the property, or that the property was near an

old pony express route. Surely such expansive federal authority

cannot be based even under the most elastic reading of the

Commerce Clause, nor can it be tolerated by this or other

federal courts of limited jurisdiction. For if the court of appeals

is correct that a federal government agency can regulate local

activity merely because of its geographical nexus to historical

channels of interstate commerce, the federal government could,

a fortiori, easily exercise jurisdiction over any and all activity

and conduct of every person or household that happens to be

geographically connected to a current interstate highway system

via their driveways or sidewalks.

This case thus presents the Court with an extremely

important constitutional issue on the reach of federal jurisdiction

under the Commerce Clause which has grave consequences on

the thousands of private property owners whose back yards, or

one-quarter acre lots, found to contain wetlands, are subjected

to strict and overly burdensome federal land use controls under

the Clean Water Act without so much as a whiff of any impact

On interstate commerce. Furthermore, the Third Circuit has

seriously misconstrued this Court’s opinion in United States v.

Riverside Bayview Homes, 474 U.S. 121 (1985), both with

respect to its reach under the Commerce Clause as well as the

Statutory interpretation of the term "pollutant" which was not

even an issue in that case.'°

1. In Riverside Bayview Homes, the property owner

challenged the Corps’ definition of "waters of the United States"

that included the developer’s property which this Court

acknowledged was part of a wetland that "actually abuts on a

navigable waterway." Id. at 135.(emphasis added) This Court

said that it may be one thing for Congress in 1972 to have

intended when it enacted the Clean Water Act to regulate at

least "some waters that would not be deemed ‘navigable’ under

the classical understanding of that term," that is, those "which

might not satisfy traditional tests of navigability," {e.g, non-

navigable rivers or streams], but it was quite another thing to

The importance of this case to the public and regulated community is

further underscored by the widespread public interest it has generated. See,

e.g., U.S. Law Week, New Court Decisions: Digests of Significant Opinions

Not Yet Generally Reported, 62 LW 2024 (July 13, 1993).

interpret "waters" to include wetlands "adjacent to waters as

more conventionally defined." Id. at 133. (emphasis added).

Thus, the "classical", "traditional" and "conventionally defined"

waters were those considered "navigable". This Court deferred

only to the Corps’ determination that wetlands "adjacent to

navigable waters do as a general matter" play a role in water

quality. Id. (emphasis added). The Court was not faced with a

situation such as this one, and numerous other situations like it,

where the Corps seeks to regulate wetlands not adjacent to a

navigable waterway as traditionally defined, but, adjacent to a

tribuiary (the small drainage stream) of an undisputed non-

navigable waterway (the Pennsylvania Canal). As one circuit

judge has aptly noted, to read Riverside as sanctioning the

Corps’ jurisdiction over all wetlands adjacent to any stream, no

matter how small, would impermissibly:

detach[ ] and untie[ ] the ’wetlands’ jurisdiction of the

Corps from any concept of ’open waters’ or navigable

waters. A farmer’s low lying farmland or a

homeowner’s low lying backyard-adjacent to a small

stream or creek but many miles from any navigable

waterway-has apparently been converted into

government property no longer subject to control or

improvement by the owner without government

permission. A statute that does not mention ’wetlands’

has apparently been read to include simply "moist land

adjacent to a creek."

United States v. Larkins, 852 F.2d 189, 193-94 (6th Cir. 1988)

(Merrit, J., concurring). As Judge Merritt’s opinion correctly

Suggests, wetlands such as those in the case at bar are

essentially isolated ones, and the Supreme Court "d[id] not

express any opinion on that question." Riverside Bayview, 474

U.S. at 131, n.8."

a. Even under a broad interpretation of Riverside Bayview,

the Corps’ definition of various categories of adjacent wetlands

cannot be considered a reasonable interpretation of the Clean

'' Indeed, in Riverside, the government was careful both in its brief and

at oral argument to emphasize to this Court that the property in question

actually abutted a navigable waterway. See United States Reply Br. at 8

("wetlands adjacent to large areas of open water such as Lake St. Clair"

perform important environmental functions")(emphasis added); Transcript of

Oral Argument 16, Oct. 16, 1985 (Gov’t counsel: property in question is “not

a low lying back yard" but "an adjacent wetland, adjacent--by adjacent, | mean

it is immediately next to, abuts, adjoins, borders, whatever other adjective you

might want tq use, navigable waters of the United States")(emphasis added).

Water Act unless the Corps were able to determine that "in the

majority of cases, [those categories of] adjacent wetlands have

significant effects on water quality and the aquatic ecosystem."

Id. at 135, n.9 (emphasis added). It must be remembered that

the Clean Water Act was never intended to be a Wetlands

Protection Act, and that the regulation of certain wetlands is

merely a means to an end, not an end in and of itself. Thus, as

the rps itself recognized, and as Riverside Bayview

acknowledged, the concern is not so much with the effect of fill

material on the wetlands themselves, but the effect that fill has

on "the water quality of the other waters" within the aquatic

system. /d. at 134.

Thus, Riverside Bayview did not hold that every aspect or

proviso of the Corps’ regulatory program was beyond a

Commerce Clause challenge, either on its face or as applied.

Indeed, neither the Court nor the parties directly addressed the

Commerce Clause issue in that case; none of the Court’s

Commerce Clause cases were even cited in its opinion. Rather,

Riverside Bayview addressed the narrower issue raised by the

petitioner: whether the Corps’ definition of “waters of the

United States" to include certain wetlands was a reasonable

interpretation of the statute. It is one thing to conclude that an

agency's interpretation of a statutory term is reasonable; it is

quite another to determine whether such an interpretation

implicates the Commerce Clause, and, if so, what burden the

government must constitutionally satisfy when invoking the

injunctive powers of federal courts over what has traditionally

been thought to be a matter of local land use control. The court

of appeals apparently believes that the government is not even

be required to pay lip service to the Commerce Clause because

its jurisdiction is automatic and unrebuttable.

Petitioners contend, however, that their property containing

wetlands above the headwaters are functionally and legally

equivalent to isolated wetlands, a category of wetlands which

this Court expressly did not address in Riverside. 474 US. at

131, n.8. The Corps has conceded, and lower courts have

acknowledged, that as a general matter, such wetlands have

little, if any, effect on water quality.’ Accordingly, there can

be no showing that in a "majority" of those kinds of wetlands,

the placement of fill on them would have "significant effects" on

water quality or interstate commerce, either singly or

? See note 4, infra.

cumulatively. See Riverside Bayview, 474 U.S. at 135, n.9.

Under this Court’s Commerce Clause jurisprudence, the

government has thus exceeded its powers because no rational

basis has been established by the agency to justify regulating

this category of wetlands, namely, these essentially isolated

wetlands above the headwaters. Viewed another way, if the

impact of water pollution on interstate commerce was the

perceived evil Congress sought to address, the means chosen

here by the agency to address that problem --the regulation of

clean fill material on wetiands above the headwaters-- are not

reasonably adapted to that end, and therefore, exceed the

authority granted by the Commerce Clause.

At a minimum, the government must show a demonstrable

or reasonably threatened impact of the fill material on interstate

commerce (as it currently does for isolated wetlands), rather

than presume a metaphysical one before invoking injunctive

powers of federal courts over the property. Other circuit courts

have found it necessary to do so in the context of other statutes

that Congress has enacted which, like the Clean Water Act,

were enacted the full extent of its powers under the Commerce

Clause.

b. The court of appeals, while citing in passing to this

Court’s decision in Hodel v. Virginia Surface Mining &

Reclamation Ass’n, 452 U.S. 264 (1981), seriously misapplied

the reasoning in that case. In Hodel, an association of coal

producers raised a commerce clause challenge to the "steep

slope" provisions of the Surface Mining Act (SMA) that

required, inter alia, coal companies to restore mined land to

original contours. The Court reiterated its traditional two-part

test to determine whether the provision on its face, in a pre-

enforcement challenge (unlike the as applied, post-enforcement

challenge here), is a valid exercise of Congress’ Commerce >

Clause power: (1) that Congress must have a rational

evidentiary basis in concluding that an activity has an effect on

interstate commerce; and, (2) the means selected by Congress to

address those effects must be reasonable and appropriate. /d. at

2360. The Hodel Court concluded that "in light of the evidence

before Congress and the detailed consideration that the

legislation received, we cannot say that Congress did not have

a rational basis for concluding that surface coal mining has

substantial effects on interstate commerce." Hodel, 452 U.S. at

2360 (emphasis added).'? The Court then analyzed the means

selected and concluded that the district court was correct in

finding that the specific provisions of the SMA being challenged

in that case were "all" reasonably “necessary to deal with the

interstate commerce effects of surface coal mining." /d. at

2364. Thus, the Court did not consider and sanction every

regulatory measure found in the SMA, but focused on the "steep

slope" requirement before it.

In his concurrence, then-Associate Justice Rehnquist

surveyed the Court’s Commerce Clause jurisprudence and was

careful to note the limits that clause places on the Congress:

[I]t would be a mistake to conclude that Congress’

power to regulate pursuant to the Commerce Clause is

unlimited. Some activities may be so private or local

in nature that they simply may not be in commerce.

Nor is it sufficient that the person or activity reached

have some nexus with interstate commerce. Our cases

have consistently held that the regulated activity must

have a substantial effect on interstate commerce. E.g.,

NLRB v. Jones & Laughlin Steel Corp., 301 U.S., at

37, 57 S. Ct., at 624 (local activities may be regulated

if they have a “close and substantial relation to

interstate commerce"). Moreover, simply because

Congress may conclude that a particular activity

substantially affects interstate commerce does not

necessarily make it so. Congress’ findings must be

supported by a "rational basis" and are reviewable by

the courts. Cf. Perez v. United States, 402 U.S., at

157, 91 S. Ct., at 1363 (STEWART, J., dissenting).

In short, unlike the reserved police powers of the

States, which are plenary unless challenged as violating

some specific provision of the Constitution, the

connection with interstate commerce is itself a

jurisdictional prerequisite for any substantive

legislation by Congress under the Commerce Clause.

'* The Hodel Court also found support ii in the fact that "coal is a

commodity that moves in interstate commerce" and that Congress determined

that it was necessary to "protect interstate commerce from the adverse effects

that may result from that activity." 452 U.S. at 281. The skunk cabbage and

other vegetation on petitioners’ property are not articles of commerce; nor was

there any allegation or finding that petitioners’ property, located as it is in the

middle of an industrial and urban area, supports fish and wildlife used in

interstate commerce.

Id. at 310-11 (1981) (Rehnquist, J., concurring) (footnote

omitted) (emphasis in original and supplied); see also id. at 305

(Burger, C.J., concurring) ("law enacted by Congress under the

Commerce Clause must be based on a substantial effect on

interstate commerce”).

Notably, the majority opinion in Hodel, as well as the court

of appeals in this case, cited United States v. Byrd, 609 F.2d

1204 (7th Cir. 1979) with approval. App. 22a. In Byrd, the

Seventh Circuit, in an as applied challenge, examined the

particular wetland area in question and made a finding of fact

that the destruction of those particular wetlands adjacent to Lake

Wawasee could likely have a “substantial economic effect on

interstate commerce” because the Lake attracts interstate

travelers for fishing and swimming. /d. at 1210 (emphasis

added). The Seventh Circuit then made the following legal

conclusion:

We conclude that Congress constitutionally may extend its

regulatory control of navigable waters under the Commerce

Clause to wetlands which adjoin or are contiguous to

intrastate lakes that are used by interstate travelers for

water-related recreational purposes as defined by 33 C.F.R.

§ 209.120(d) (2) (i) (g) and (h) (1977).

Id. (emphasis added). The court then performed the second-part

of the Commerce Clause analysis by considering whether the

means chosen were a reasonable measure towards Congress’

goal of maintaining water quality (not of the wetland, but “of

the lake") and concluded that it did. Jd. No such factual

findings or analysis were made in the case at bar.

The court of appeals’ reliance on Quivara Mining Co. v.

United States E.P.A., 765 F.2d 126, 130 (10th Cir. 1985), App.

18a, is similarly misplaced. In Quivara, pollutants from uranium

mining operations were discharged directly into two creeks;

substantial evidence existed showing that there was a direct

surface and underground connection between those two creeks

and “navigable-in-fact" streams, id. at 130, [i.e., 33 C.F.R. §

328.3(a) (1) waters], suggesting that the pollutants were

transported to the interstate waterway. Only under those

circumstances was this particular “impact on_ interstate

commerce . . . sufficient enough to satisfy the commerce

clause." /d. at 130. Furthermore, Quivara did not involve the

Section 404 permit program, but the National Pollution

Discharge Elimination System program under Section 402, 33

U.S.C. § 1342 involving discharges of pollutants directly into

waterways, and which is the primary statutory and regulatory

scheme for controlling the amount of pollutants discharged into

our nation’s waterways.

In Quivara and similar cases, unlike the case at bar, there

were direct impacts by the polluting activity on interstate

commerce. In the case at bar, no fill material was placed into

the adjacent drainage stream. In fact, petitioners removed

hundreds of tires and rubbish from the stream and property, and

placed a silt skirt protective fence along its banks, such that the

stream runs clearer due to petitioners’ clean-up efforts.

Furthermore, there was no evidence at trial that any of the clean

fill placed on the property, hundreds of yards away from the

tiny stream, would ever end up in the stream. The case law

thus suggests that an actual or likely effect on interstate

commerce must be found, not some sort of hypothetically

remote possibility as is the case here.

Hodel v. Indiana, 452 U.S. 314 (1981), the companion

case to Hodel v. Virginia, is more instructive to the case at bar.

That case involved a commerce clause challenge against the

“prime farmland" provisions of the Surface Mining Act and 15

other separate substantive provisions. The court made a careful

analysis of the evidence presented before the Congress

concerning the impact of surface mining on prime farmland, and

found that Congress had a "rational basis for finding that surface

coal mining on prime farmland affect interstate commerce in

agricultural products." Jd. at 326. As for the second prong of

the test, the Court then found that each of the specifically

challenged provisions of the Act were reasonably related to the

legitimate goal “of protecting interstate commerce from adverse

effects attributable to surface coal mining." Jd. at 329.

In the case at bar, if one substitutes “non-prime wetlands"

(i.e., those wetlands adjacent to waters above the headwaters)

for “prime farmlands", it becomes quite evident that Congress

not only lacked any evidenti basis for regulating such

wetlands in 1972 or even in 1977--let alone a rational one--but

also that the agency itself recognized the preservation of such

wetlands, as a class or category of wetlands, to be insignificant

in relation to water quality and interstate commerce.

Accordingly, they are not an integral part to achieving

Congress's primary goal of restoring water quality."* In short,

‘Significantly, in Hodel v. Indiana, Congress expressly enacted into law

the regulations of the Department of Agriculture defining the term “prime

farmland," which further evidences Congress’ intent. 452 U.S. at 452, n.1.

(continued...)

the regulation of these wetlands fails to satisfy either the rational

basis or reasonable means tests because there is simply no

record evidence showing that impacts on interstate commerce

through water pollution are attributable to placing clean fill on

these essentially isolated wetland areas.

c. The lower court also seriously misconstrued this Court’s

decisions in both Wickard v. Fillburn, 317 U.S. 111 (1942) and

Perez v. United States, 402 U.S. 146 (1971) with respect to the

reach of federal jurisdiction under the Commerce Clause. The

activities sought to be regulated in both Wickard and Perez were

economic activities: in Wickard, the withdrawal from the wheat

market of those potential buyers who consume their home

grown wheat, and in Perez, the high economic cost attributable

to loan-sharking that Congress found to be a $350 million dollar

a year activity. Thus, this Court necessarily aggregated the

activity in order to assure itself that the conduct sought to

regulated had a “substantial effect" on interstate commerce.

Obviously, if the problem were found to be a minor one, or

localized wholly within one state, federal jurisdiction would be

lacking.

The instant case, on the other hand, does not involve any

conduct that can be characterized as constituting economic or

commercial activity, or one that can be nationally aggregated.

The court of appeals simply assumed that the Corps has made

a determination that “discharge into wetlands above the

headwaters. . . increases water pollution" when in fact, the

Corps has suggested that such discharges have little, if any,

effect on water quality, and hence, even less so on interstate

commerce, by issuing Nationwide Permit No. 26 under 33

C.F.R. 330.5(a)(26). Thus, minor or trivial discharges of fill

onto wetlands above the headwaters in one aquatic system

cannot be aggregated with trivial discharges in another aquatic

system. Nothing times nothing is still zero; whereas in Perez

and Wickard, the cumulative impact on the national economy

(and hence interstate commerce) was arguably demonstrable.

(...continued)

In this case, Congress has not adopted any definition of wetland, and it is

unlikely Congress would consider “non-prime wetlands" to be of importance;

Cf. Preseault v. 1.C.C., 110 S. Ct. 914, 926 (1990) (rejecting Commerce

Clause facial challenge to National Trails System Act converting abandoned

rails to hiking trails where Congress believed that “every [rail] line is a

potentially valuable national asset that merits preservation.") (emphasis added).

As for the discharge of fill on wetlands above the

headwaters within the same aquatic system as petitioners, that

activity may very well,- as a factual matter, be properly

subjected to an aggregation analysis as the court of appeals

suggested; but the Corps has never indicated what that aggregate

impact may be. Indeed, Nationwide Permit 26 itself recognizes

that minor filling of such wetlands as a class do not individual,

or cumulatively impact negatively on water quality. Hundreds

of companies in petitioners’ aquatic system near industrialized

Philadelphia are permitted by the government under Section 402

to discharge millions of gallons of waste and chemicals directly

into the water; the cumulative impact of petitioners’ activity of

placing clean fill on land far from any water has about as much

cumulative impact on water quality in this aquatic system as

would the discharge of a handful of sand in the ocean. Under

the court of appeals’ rationale, the EPA could promulgate a

regulation under the Clean Air Act to limit air pollution by

requiring individuals to apply for a federal permit if they desired

to prune a tree in their backyard because each branch has leaves

on it, which in turn may help to trap air pollutants.

2. If regulation of these essentially isolated areas are, as a

general matter, a valid exercise of Commerce Clause power,

and the means chosen proper to implement the law are

reasonable, petitioners nevertheless submit that as a matter of

law, the agency has the burden of proving an interstate

commerce impact just as it does in the analogous context of

totally isolated waters. At a minimum, the presumption of

interstate commerce must be a rebuttable one.

The Corps’ historical parallel and equal treatment of

effectively or essentially isolated waters (waters and adjacent

wetlands above the headwaters), with actually isolated waters

and intrastate wetlands, see, 33 C.F.R. §§ 330.5(a) (26) (i) and

(ii), is compelling evidence that both should also be treated the

same with respect to the burden of proof that an agency must

bear on a case-by-case basis regarding the impact of the wetland

area On interstate commerce. It is illogical to recognize that the

Corps has the burden of proving an interstate commerce impact

with respect to fill material dumped directly into Utah Lake

(State of Utah v. Marsh, 740 F.2d 799 (10th Cir, 1984)), yet it

can hide behind an irrebuttable presumption that a sufficient

interstate commerce impact exists from the placement of topsoil

or clean fill on a marginal wetland hundreds of yards from a

trickling stream that eventually reaches a non-navigable canal

once used in interstate commerce in the 1800s. The Commerce

i i |

18 \

Clause may be elastic, but it is not silly putty to be stretched by

government agencies to impose federal authority over any

activity that the agency feels should be in its domain. At a

minimum, both categories of wetlands should be treated the

same for Commerce Clause purposes.

Indeed, the court of appeals seriously departed from the

teachings of this Court and the practice of its sister circuits by

failing to analyze what affect, if any, on interstate commerce is

caused by the petitioners’ placement and maintenance of clean

fill material on their property. In McLain v. Real Estate Bd. of

New Orleans, Inc., 444 U.S. 232 (1980), for example, this

Court ruled that with respect to a Sherman Act violation:

[I]t is not sufficient merely to rely on identification of a

relevant local activity and to presume an interrelationship

with some unspecified aspect of interstate commerce. To

establish jurisdiction a plaintiff must allege the critical

relationship in the pleadings and if these allegations are

controverted must proceed to demonstrate. . . either that

the defendants’ activity is itself in interstate commerce or,

if it is local in nature, that it has an effect on some other

appreciable activity demonstrably in interstate commerce *

* * * [T}t would be sufficient for petitioners to demonstrate

a substantial effect on interstate commerce generated by

respondent’s brokerage activities.

444 U.S. at 242 (emphasis added).

Other circuits similarly require a showing of at least a de

minimis effect or nexus to interstate commerce, a burden which

admittedly may easily be satisfied in most cases, but

nevertheless, a pre-requisite to the exercise of federal

jurisdiction under the Commerce Clause. For example, in

National Labor Relations Bd. v. Clark, 468 F.2d 459 (5th Cir.,

1972), the Fifth Circuit, while noting that, "in passing the

National Labor Relations Act, Congress intended to provide the

Board with the fullest jurisdictional power constitutionally

permissible under the Commerce Clause," nevertheless concluded

in that case that there was no evidence that the nursing home’s

activities affected interstate commerce.”

'S See also Houchin v. Thompson, 438 F.2d 927 (6th Cir. 1970) (Fair

Labor Standards Act not applicable to certain workers who were not engaged

in interstate commerce, but at best "inconsequential incident of interstate

commerce happens to result from the general conduct of intrastate activity")

United States v. Elders, 569 F.2d 1020 (7th Cir. 1978) (no nexus shown

(continued...)

The court of appeals attempts to dismiss all of these cases

out of hand because Congress explicitly placed the Commerce

Clause connection in those particular statutes, whereas in the

Clean Water Act, the Corps (not even the Congress) has

allegedly made an across-the-board determination that all

wetlands adjacent to "tributaries of waters usable or formerly

used in interstate commerce themselves affect interstate

commerce." App. 22a (emphasis added). Apparently,

Congress could learn something from the Corps and simply cure

the shortcomings in the federal arson, bribery, and other laws

and make prosecutions a lot easier by simply,declaring that

Congress finds that all arson, all briberies, all (fill-in-the blank

undesirable activity), affect interstate commerce. Clearly, the

Commerce Clause prerequisites are to be read into any federal

statute (unless, of course, if the legislation is supported by some

other Article 1 or constitutional power), although many statutes

codify that requirement. In fact, the Corps has never made any

express determination that the class of wetlands involved in this

case, let alone those on petitioners’ property, affects interstate

commerce as the lower court suggested that it had; indeed, the

Corps has indicated quite the opposite, declaring that such

wetlands have little, if any, effect on water quality. And to the

extent that the Corps had made any finding that wetlands

adjacent to waterways formerly used in interstate commerce has

a current effect on interstate commerce, such a finding is per se

unreasonable.

'S (...continued)

between kickbacks and interstate commerce); United States v. Voss, 787 F.2d

393, 397 (8th Cir. 1986) (a federal arson statute, enacted by Congress "to

exercise its fullest, constitutionally permissible jurisdictional reach" was

unconstitutionally applied where the government was unable to show a nexus

between the property and its use in interstate commerce, and that the purchase

of fire insurance from an interstate carrier was not even a de minimis impact

on interstate commerce.) United States v. Mennuti, 639 F.2d 107 (2d Cir.

1981) (bombing of residential home not shown to have any effect on interstate

commerce); United States v. Monholland, 607 F.2d 1311, 1316 (10th Cir.

1979)(18 U.S.C. § 844(i) does not reach conspiracy to bomb truck used by

state judge to go to work because vehicle is wholly immaterial to what judge

does at work, and it is not “at all clear that what [state judge] does even

resembles commerce" and therefore, "it is impossible to say that the truck

affects commerce." United States v. Critchley, 353 F.2d 358 (3d Cir. 1965)

(insufficient evidence to show a violation by the defendant who extorted money

from a roofing trade organization under the Hobbs Act, 18 U.S.C. § 1951,

which prohibits certain acts that "in any way or degree. . . affects” interstate

commerce; the evidence did not show how particular bribe affected interstate

commerce).

3. Finally, this Court should grant the petition because the

lower court departed from fundamental teachings of this Court

regarding statutory interpretation by interpreting the definition

of “pollutant” in 33 U.S.C. § 1362(6) which includes the

Operative phrase "discharged into water" to mean discharged

"onto wetlands." This is an important question of statutory

interpretation which has never been addressed by this Court nor

any other court.

While it is true as the court of appeals found that this Court

in Riverside Bayview Homes held that the statutory term "waters

of the United States" under 33 U.S.C. 1362(7) included certain

adjacent wetlands for purposes of determining the extent of the

Corps’ geographical jurisdiction, nevertheless, the Court did not

address the question as to what conduct or activity therecn is

covered by the Act.

The operative section of the Clean Water Act is found in

33 U.S.C. § 1311 which states:

Section 1311. Effluent limitations

(a) Illegality of pollutant discharges except in com-

pliance with law. Except as in compliance with this

section and Sections 302, 306, 307, 318, 402, and 404

of this Act [33 U.S.C.S. §§ 1312, 1316, 1317, 1328,

1342, 1344], the discharge of any pollutant by any

person shall be unlawful. (emphasis added).

Accordingly, the government was required to prove that the

petitioners illegally discharged pollutants. "Pollutant" is defined

in 33 U.S.C. § 1362(6) as follows:

(6) The term "pollutant" means dredged spoil, solid

waste, incinerator residue, sewage, garbage, sewage

sludge, munitions, chemical wastes, biological mater-

ials, radioactive materials, heat, wrecked or discarded

equipment, rock, sand, cellar dirt and industrial,

municipal, and agricultural waste discharged into

water. (emphasis added).

The cardinal principle of statutory construction is that the

language chosen by the Congress be given its plain meaning.

American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982);

TVA v. Hill, 437 U.S. 153 (1978); INS v. Cardoza-Fonseca,

480 U.S. 421, 447-48 (1987). If the statutory language is clear,

"that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed intent

of Congress....". Chevron U.S.A. v. Natural Resources Defense

Council, 467 U.S. 837, 842-43 (1984).

The term "pollutant" is defined in terms of specific

substances being discharged "into water." The language is clear

and unambiguous. It does not read “discharged into waters of

the United States," or "navigable waters," or "wetlands," or

“moist soil," or "dry land that the Corps determines to be

water," but "water," as that term is commonly understood: the

liquid state of H,O.'* The definition also uses the prepositional

phrase "into water," not "near water" or "adjacent to water" or

“onto wetlands." Both words, "into" and "water," singly and

as a phrase, have a clear and unambiguous meaning that does

not include placing fill dirt onto wetlands. Admittedly, top soil

and earth were placed onto petitioners’ property, but is putting

"earth" onto other "earth" or "wetlands" what Congress meant

by a discharging a "pollutant" “into water"? Clearly not. Nor

does the Corps of Engineers or the EPA have any other

regulatory definition of the term "pollutants" or "water." "

Accordingly, interpreting the words “into water" to mean

exactly that, is the only permissible judicial construction of

those two words, as courts in the following analogous cases

have so held."

The court of appeals concluded that the term "water" can

be interpreted to mean "wetlands" because this Court had

interpreted "waters of the United States" in Riverside Bayview

Homes to include certain wetland areas. This Court held only

‘© "Water" is defined as “the liquid of which seas, lakes, and rivers are

composed and which falls as rain and issues from springs. When pure it is

transparent, colourless (except as seen in large quantity, when it has a blue

tint), tasteless and odourless." 2 Oxford English Dictionary 3701 (Compact

Ed. 1971).

The Corps has no regulatory definition of "pollutant"; the EPA which

exercises jurisdiction over wetlands under the Clean Water Act also defines

“pollutant” as certain materials “discharged into water." 40 C.F.R. 230.3(0).

Accordingly, no Chevron deference is due to either of these two agencies for

any other interpretation of “pollutant” than the one found in the statute.

'* See, e.g., Amoco Production Co. v. Village of Gambell, Alaska, 480

U.S. 531 (1987)(in interpreting the meaning of the term "in Alaska," this

Court unanimously rejected the Ninth Circuit’s ruling that the term "in Alaska"

should be interpreted “in a general, ‘nontechnical’ sense to mean the

geographic region of Alaska); Fertilizer Inst. v. United States EPA, 935 F.2d

1303 (D.C. Cir. 1991) ( the term "release" in CERCLA was statutorily

defined as discharging, dumping, or disposing hazardous wastes "into the

environment"; hence, EPA regulation defining a "release" as the placement

of a substance into a facility that is "exposed to the environment" (emphases

added) must be struck down as violative of plain language)

that the statutory phrase, "waters of the United States" can be

interpreted by the Corps to include “shallows, marshes,

mudflats, swamps, bogs" and similar areas. 474 U.S. at 132

Yet many of these areas, like the swamps, bogs, Everglades,

bayous, etc., have standing water on them, and hence, the

placement of fill material on such aquatic sites would still be

regulated by the Corps under the Clean Water Act even if “into -

water" is given its plain meaning.

When Congress enacted the Clean Water Act in 1972, there

was no mention at all of wetlands in either the legislation or its

legislative history; therefore, Congress’ definition of "pollutant"

as being the discharge of certain substances "into water" makes

perfect sense. Interpreting "water" as a liquid would certainly

allow the government to continue regulating the discharge of

pollutants into our nation’s territorial seas, bays, lakes, ponds,

reservoirs, rivers, and streams under Section 402, the primary

method of controlling water pollution. This interpretation would

also allow regulation of the discharge of fill materia! into

familiar wetlands under Section 404 such as estuaries, swamps,

bayous, everglades, and marshes which usually are covered with

water. If, however, the government fears that the plain

meaning of the statute would limit the reach of the Clean Water

Act to only 95 percent of the “waters of the United States" that

the Corps and EPA wish to regulate, those agencies should at

least amend their regulations or, more appropriately, have

Congress amend the CWA, as many courts have suggested is

the proper course in cases of this kind.” Indeed, as this Court

has repeatedly made it clear, "no deference is due to agency

interpretations at odds with the plain language of the statute

itself. Even contemporaneous and longstanding agency interpre-

tations must fall to the extent they conflict with statutory

language." Public Employees Retirement Sys. of Ohio v. Betts,

109 S.Ct. 2854, 2863 (1989).

'9 See, e.g., Friends of Sakonnet v. Dutra, 739 F. Supp. 623 (D. R.I.

1990) (it is the responsibility of Congress, not the courts, “to correct any

defects that may be present in the [Clean Water Act]"); United States v.

Perdue Farms, Inc., 680 F.2d 277, 285 (2d Cir. 1982) (literal reading of

environmental statute must be followed and "inequitable" results or “alleged

drafting error[s] are for Congress, not the courts, to resolve"); Carlyle

Compressor v. Occupational Safety & Health Review Comm’n, 683 F.2d 673,

675-76 (2d Cir. 1982) ("agency does not have carte blanche . . . to interpret

regulations or standards to achieve desired result;. . . proper course. . .

would be to amend” regulations).

Thus, it is one thing to assert that Congress intended to

“abandon traditional notions of ‘waters’ (of the United States)"

to include certain wetland areas, Riverside Bayview Homes,

474 U.S. 121, 133 (1985); it is quite another to conclude that

Congress intended to abandon the traditional notion of "water"

to include land, whether dry or moist.” Accordingly, the lower

court seriously erred by rewriting the statutory phrase "into

water" to mean "onto wetlands." To paraphrase this Court’s

observation in Deal v. United States, 113 S.Ct. 1993 (1993),

"to say that ["into water"] means the same thing as ["onto

wetlands"] requires a degree of verbal know-nothingism that

would render government by legislation quite impossible." Jd.

at 1998.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

Daniel J. Popeo

Paul D. Kamenar

(Counsel of Record)

Washington Legal Foundation

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-0302

Counsel for Petitioners

Date: November 8, 1993

*® Cf. United States v. Ocie Mills, 817 F. Supp. 1546. 1554 (N.D. Fla.

1993)("doubtful that the Supreme Court realized that the Corps’ definition

extends to land that appears to be dry, but which may have some saturated soil

vegetation. . . or that it would define the elements of a felony offense").

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 92-1454

UNITED STATES OF AMERICA

JOHN POZSGAI, GIZELLA POZSGAI,

MERCER WRECKING & RECYCLING CORPORATION,

J. VINCH & SONS, INC.,

John Pozsgai and Gizella Pozsgai,

Appellants

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 88-06545)

Argued January 8, 1993

Before: HUTCHINSON and SCIRICA, Circuit Judges

and STANDISH, District Judge”

(Filed June 25, 1993)

SCIRICA, Circuit Judge.

In this civil enforcement action, John and Gizella Pozsgai

appeal the district court’s judgment finding them strictly liable

for discharging fill material into wetlands on their property in

violation of the Clean Water Act. Defendants also appeal various

orders granting the government injunctive relief, finding John

Pozsgai in contempt of the injunction, and denying the Pozsgais’

motion for relief from judgment. We will affirm.

” The Honorable William L. Standish, United States District Judge for the

Western District of Pennsylvania, sitting by designation.

In April 1987, the U.S. Army Corps of Engineers received

information that fill material was being dumped into wetlands on

a 14-acre site in Morrisville, Pennsylvania. The Corps

investigated the site, determined that nearly the entire property

constituted wetlands, and found that concrete rubble, earth, and

building scraps had been dumped onto one-half to three-quarters

of an acre of the wetlands portion of the property. Corps

biologist and field investigator Martin Miller described the site

as “a forested wetland dominated by arrowwood" and noted

"areas of standing water were scattered throughout the site," and

"a stream flows along the east border of the property and

wetland and is a tributary to the Pennsylvania Canal." Miller

also observed several species of vegetation on the site which

require a saturated environment to survive, including skunk

cabbage, sensitive fern, red maple, sweet gum, ash, and aspen.

Soil borings taken by Miller and other Corps biologists

confirmed the initial determination of wetlands, revealing water

either at or within one inch of the surface of the soil. This

so-called hydric soil takes 100 years or more to develop.

Unpermitted discharge of dredged or fill materials into certain

wetlands' violates a regulation promulgated under the Clean

Water Act, 33 U.S.C. § 1251 et seq. (1988). Miller’s field

report stated that "the violation consists of the placement of fill

(concrete rubble, earth, and building scraps) in three portions of

the wetland for the purpose of raising the elevation for

construction of a garage." The report identified the violator as

John Pozsgai.

At the time of the Corps investigation, John and Gizella

Pozsgai were considering purchasing the property to expand

their truck repair business. John Pozsgai planned to build a

garage on the property, a project which would require filling a

significant amount of the area. In preparation for this purchase,

Pozsgai hired the engineering firm of J.G. Park Associates to

examine the suitability of the property for building. On

December 12, 1986, J.G. Park President Nicholas Moran

advised Pozsgai by letter of the results of its site investigation

of the property. The letter stated:

' The regulations only cover wetlands adjacent to tributaries of waters used

in interstate commerce and nonadjacent wetlands which may affect interstate

commerce. 33 C.F.R. § 328.3(a)(3), (7) (1992).

Based upon this investigation, it is my professional opinion

that the entire site meets the criteria set forth by the Army

Corps of Engineers as "wetlands." This is based upon soils,

hydrology and vegetation.

Please be advised that any further development that might

be considered on this site would have to be approved and

reviewed by the Army Corps of Engineers, and it has been

our experience in the past that the Corps is most reluctant

to issue permits for sites that have conditions such as this.

This advice turned out to be accurate. Corps biologist Miller

spoke to Pozsgai by telephone and advised him not to place fill

in the wetlands until he had obtained a permit. Pozsgai told

Miller a previous prospective buyer was responsible for at least

some of the filling but that Pozsgai planned to fill enough area

to build a garage. Pozsgai also agreed to stop his filling

activities until he had complied with the permit requirements and

said his engineer would call Miller to discuss these

requirements.

Pozsgai continued his efforts to purchase the property.

Apparently dissatisfied with J.G. Park’s opinion, Pozsgai hired

a second engineer, Ezra Golub, to evaluate the property. Golub,

too, advised Pozsgai the property was wetlands and the Corps

would have to approve any building. Seeking yet a third

opinion, Pozsgai hired Majors Engineers, who concurred in the

views expressed by the previous two engineers.

After receiving the engineers’ reports, Pozsgai renegotiated

the sale contract for the property. The Original sale contract, for

a purchase price of $ 175,000, made the sale contingent on

Pozsgai obtaining building permits for his proposed garage. The

revised contract replaced the contingency provision with an "as

is" clause and included a $ 32,000 reduction in the purchase

price, from $ 175,000 to $ 143,000. Under this revised sale

contract, Pozsgai purchased the property on June 19, 1987.

In the meantime, Corps investigator Miller continued to

monitor activities at the property. Following his April 1987

visit, Miller had several telephone conversations with Pozsgai.

Each time, Miller told Pozsgai to stop his filling activities and

explained the permit requirements. Additionally, the Corps

issued a cease and desist letter to the Cassalias, the prior owners

of the property. The Cassalias responded by letter, stating they

had sold the property to Pozsgai but had never given him

permission to place fill on the property. Miller returned to the

site in August 1987 and observed that fill had been piaced on an

additional two acres of the property. He reiterated to Pozsgai

that he would need a permit to discharge the fill and indicated

the Corps would issue a cease and desist order if Pozsgai did

not stop filling the wetlands. Pozsgai told Miller that township

officials and the police had visited him and shown him the cease

and desist letter sent to the Cassalias. He also told Miller he had

stopped work on the property.

On September 3, 1987, the Corps sent John and Gizella

Pozsgai a cease and desist letter. The letter stated fill was being

placed on the Pozsgais’ property in federally regulated wetlands

without a permit in violation of the Clean Water Act and

directed the Pozsgais to stop “conducting, contracting, or

permitting any further work of this nature." In response, the

Pozsgais’ counsel wrote the Corps on September 24, reporting

that John Pozsgai had conferred with engineers regarding the

cease and desist letter and expressing Pozsgai’s opinion that the

site did not "naturally" contain wetlands but had only become

saturated as a result of construction of an overpass near the

property. ee

Miller visited the site again on October 6 and observed

additional fill. On this visit, Miller determined almost the entire

property constituted wetlands. He ordered Pozsgai not to do any

more filling on the property. Pozsgai said he believed the area

was not wetlands because he had excavated the stream on the

property. Miller returned to the site in November, again

observing new fill since his last visit. Miller reiterated the need

for Pozsgai to obtain a permit. On December 17, the Corps sent

the Pozsgais a second cease and desist letter, directing them to

stop filling, and offering them two options to resolve the

violation -- removing all fill material and restoring the site to its

former condition, or obtaining a Water Quality Certification

from the Pennsylvania Department of Environmental Resources.

In May 1988, the Corps again discovered that John Pozsgai

was continuing to fill the wetlands. Subsequent investigation

revealed Pozsgai had received several hundred truckloads of fill

from at least five different hauling companies. On August 18,

1988, following a complaint from a neighbor about the

dumping, the U.S. Environmental Protection Agency installed

a video camera in the neighbor’s house. The video camera

recorded dumping on the property.

On August 24, 1988, the United States filed a civil complaint

in federal district court, alleging that John and Gizella Pozsgai,

and two of the hauling companies hired by the Pozsgais, had

violated the Clean Water Act by filling the wetlands on the

Pozsgais’ property without a permit. * The government sought

an order to restore the property to its original state, as well as

civil penalties. It simultaneously moved for a temporary

restraining order and a preliminary injunction to stop further

discharge. The district court entered the TRO. Two days later,

on August 26, the video camera recorded 25 truckloads of dirt

dumped on the site, and a man, identified by witnesses as John

Pozsgai, operating a bulldozer leveling the fill.

On September 2, the government obtained an Order to Show

Cause why Pozsgai should not be held in contempt for violating

the TRO. The district court held a hearing on the contempt

proceeding and the preliminary injunction on September 9 and

September 16. After the hearing, the court granted the

preliminary injunction and held Pozsgai in contempt, ordering

him to pay $ 5,000 within 48 hours.

In the meantime, the government initiated a parallel federal

criminal proceeding against John Pozsgai. On December 30,

1988, a jury convicted Pozsgai of 40 counts of unpermitted

discharge. The district judge sentenced him to three years for

the pre-Sentencing Guideline counts and twenty-seven months

for post-Guideline counts, to run concurrently, placed him on 5

years probation, and fined him $ 200,000. We affirmed the

conviction. United States v. Pozsgai, 897 F.2d 524 (3d Cir.),

cert. denied, 498 U.S. 812, 111 S. Ct. 48, 112 L. Ed. 2d 24

(1990).

On January 8, 1990, the district court granted a permanent

injunction in the government's civil action. The court found the

property contained wetlands subject to the Corps’ jurisdiction

and held the Pozsgais and the haulers strictly liable for the

unpermitted discharge. It further ordered defendants to

implement the plan developed by the Corps to restore the

property. The Pozsgais filed a motion to reconsider which the

district court denied.

On June 18, the court implemented its restoration order and

directed the defendant haulers to restore the property by

removing fill from the wetland areas and depositing it in other

* The district court had jurisdiction under the civil enforcement provision

of the Clean Water Act, 33 U.S.C. § 1319(b) (1988).

* No criminal action was brought against Gizella Pozsgai.

non-wetland areas of the property. * The Pozsgais filed a Fed.

R. Civ. P. 60(6) motion for relief from this order, objecting to

the locations where the haulers placed the fill and requesting the

court to order the haulers to remove the fill from the Pozsgais’

property altogether. The court denied the motion, ruling that the

Pozsgais had no "veto power" over the restoration process and

that it would be inequitable to require the haulers to move the

fill a second time when the Pozsgais had improperly disposed of

" in the first place. The court entered final judgment on April

, 1992. The Pozsgais appealed. °

II.

In furtherance of its purpose to "restore and maintain the

chemical, physical, and biological integrity of the Nation’s

waters," 33 U.S.C. § 1251(a), the Clean Water Act prohibits

the discharge of pollutants into navigable waters without a

permit. 33 U.S.C. § 1311; United States v. Riverside Bayview

Homes, 474 U.S. 121, 123 (1985). The Act defines the

operative terms of this prohibition broadly. The term

"pollutants" includes fill material such as "dredged spoil, . . .

rock, sand, [and] cellar dirt," 33 U.S.C. § 1362(6), and

"navigable waters" means “the waters of the United States," id.

§ 1362(7). In so defining the term "navigable waters," Congress

expressed a clear intent "to repudiate limits that had been placed

on federal regulations by earlier water pollution control statutes

and to exercise its powers under the Commerce Clause to

regulate at least some waters that would not be deemed

‘navigable’ under the classical understanding of that term."

Riverside Bayview Homes, 474 U.S. at 133 (citing S. Conf.

Rep. No. 92-1236, p. 144 (1972); 118 Cong. Rec. 33756-57

(1972) (statement of Rep. Dingell)).

* The haulers, having completed their work, are not parties to this appeal.

* We have jurisdiction under 28 U.S.C. § 1291 (1988). We exercise plenary

review over the district court’s interpretation of the Clean Water Act and its

regulations, which are questions of federal law. United States v. Gordon, 961

F.2d 426, 429 (3d Cir. 1992). We review the court’s factual findings under

a clearly erroneous standard. Fed. R. Civ. P. 52(a); Sheet Metal Workers Int'l

Ass'n Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1278 (3d Cir. 1991). We

review the court’s grant of injunctive relief, its contempt order, and its’ denial

of the Pozsgais’ motion for relief from the judgment for abuse of discretion.

Delaware Valley Citizens’ Council v. Pennsylvania, 755 F.2d 38, 41 (3d Cir.),

cert. denied, 474 U.S. 819 (1985).

ae TT A

The Corps of Engineers has by regulation interpreted the term

“waters of the United States" to include "wetlands," defined as

“areas that are inundated or saturated by surface or ground

water at a frequency or duration sufficient to support, and that

under normal circumstances do support, a prevalence of

vegetation typically adapted for life in saturated soil conditions,

[and] generally includes swamps, marshes, bogs, and similar

areas." 33 C.F.R. § 328.3(b) (1992). The regulation extends the

Corps’ authority to wetlands "adjacent" to tributaries of waters

presently or formerly used, or susceptible to use, in interstate

commerce. /d. The Supreme Court has upheld this regulation as

a reasonable interpretation of the Clean Water Act. Riverside

Bayview Homes, 474 U.S. at 135.

Section 404 of the Act authorizes the Corps of Engineers to

issue permits for "the discharge of dredged or fill material into

the navigable waters. . . ." 33 U.S.C. § 1344(a). The permit

program is the central enforcement tool of the Clean Water Act.

The program reflects the Act’s strategic shift in water pollution

policy, which previously had employed only water quality

standards. These standards proved unsuccessful in controlling

pollution because the Corps had difficulty linking the quality of

the water to discharges from a particular source. The Act sought

to avoid this problem by focusing pollution control efforts at the

point of discharge. See EPA v. California ex rel. State Water

Resources Control Board, 426 U.S. 200, 204 (1976). The

Environmental Protection Agency implemented that strategy in

part by establishing national effluent standards. The permit

system translates these standards into site-specific limitations to

accommodate individual circumstances and ease enforcement. Jd.

at 205. Unpermitted discharge is the archetypal Clean Water Act

violation, and subjects the discharger to strict liability. 33

U.S.C. § 1311(a) ("except as in compliance with [a permit], the

discharge of any pollutant by any person shall be unlawful").

If.

On appeal, the Pozsgais do not dispute they discharged fill

onto wetlands without a permit. They urge instead that this

conduct did not violate the Clean Water Act. The Pozsgais

contend that filling wetlands does not constitute discharge of

pollutants "into water" within the meaning of the Clean Water

Act, that their wetlands fall outside the Corps’ regulation and

permit requirements, and that the regulation as applied to them

violates the Commerce Clause.

We first address the Pozsgais’ argument that they did not

discharge pollutants “into water" within the meaning of the

Clean Water Act, 33 U.S.C, § 1362(6), They contend that the

fill materials deposited on their property were not "pollutants,"

and that they discharged only into "wetlands," which are not

equivalent to "water,"

To assess these contentions, we look to the statute, The

operative section of the Clean Water Act is § 301, which

provides that absent a permit, "the discharge of any pollutant by

any person shall be unlawful." 33 U.S.C. § 1311(a). The Act

defines "pollutant" to mean "dredged spoil, rock, sand" and

other materials "discharged into water," id. § 1362(6), and

defines "discharge of a pollutant" to mean "any addition of any

pollutant to navigable waters from any point source," id. §

1362(12). The Act defines "navigable waters" to mean "the

waters of the United States." /d. § 1362(7). The Corps’

regulation upheld in Riverside Bayview defines "waters of the

United States" to include certain wetlands.

(1)

In ruling the Pozsgais’ fill material constituted "pollutants,"

the district court cited evidence that they placed "concrete

rubble" and "cinder block" on their property and cleared and

redeposited vegetation there. The court held each of these

qualified as "pollutants," defined to include "dredged spoil, solid

waste, . . . rock, sand, . . . municipal, and agricultural waste

...." 33 U.S.C. § 1362(6). On appeal, the Pozsgais stress the

absence of the words "fill material" in the definition of

"pollutant." They point to Congress’ use of the term "fill

material" in the Act’s permitting provision, id. § 1344, as

evidence Congress was aware of this phrase and chose not to

include it in the definition of "pollutant." This argument is

unconvincing. Because the term "pollutant" includes "dredged

spoil, rock, [and] sand," id. § 1362(6), which are the

constituents of the fill material used here, the materials

discharged by the Pozsgais constituted "pollutants."

(2)

The Pozsgais’ second contention is more sweeping. They argue

that the phrase "into water" in the definition of "pollutant"

forecloses application of the Clean Water Act to their activities,

which consisted only of depositing fill material into "wetlands."

Again, the district court disagreed, citing the Corps regulation

TT a

that defines "waters of the United States" to include "wetlands"

adjacent to waters used in interstate commerce, 33 C.F.R. §

328,3(a)(7), and to the Supreme Court's Riverside Bayview

Homes decision upholding this regulation as a reasonable

interpretation of the Act, 474 U.S, at 135,

The Pozsgais contend the district court misconstrued the Act.

In their view, the phrase "into water" in the definition of

"pollutant" is the critical limiting feature of the Act because this

phrase determines application of the Act's permit requirement.

They base this argument on the Act’s liability section, which

provides that without a permit, "the discharge of any pollutant

by any person shall be unlawful." 33 U.S.C. § 1311 (a). By

contrast, they contend, the phrase "waters of the United States"

-- and the Corps’ regulation interpreting that phrase to include

adjacent wetlands -- only define the Act’s geographic jurisdiction

and cannot alone support a finding of liability. Thus, the

Pozsgais maintain, the district court’s reiiance on these

provisions, and on Riverside Bayview’s interpretation of them,

was misplaced. They conclude that because neither Riverside

Bayview nor the Corps regulation address the definition of

"pollutant," these authorities do not obviate the statutory

obstacle to liability created by the requirement that materials

only constitute "pollutants" if they are discharged "into water."

The interpretive problem raised by the Pozsgais’ argument lies

in knitting together the various statutory provisions.

Incorporating the definition of "pollutant" in § 1362(6) into the

definition of "discharge of a pollutant" in § 1362(12) creates an

apparent redundancy, as the term "discharge of a pollutant" then

reads: "any addition of any ’dredged spoil . . . discharged into

water’ to navigable waters from any point source." The question’

then becomes how the phrase "into water" and the phrase "to

navigable waters" co-exist in this definition. The Pozsgais avoid

this problem by ignoring the definition of "discharge of a

pollutant," and focusing instead exclusively on the definition of

"pollutant" and the use of the word "pollutant" in the Act’s

liability section, § 1311. This reading is untenable because

although § 1311 contains the word "pollutant," it does so in the

context of expressly prohibiting “discharge of any pollutant."

We read this as a clear cross-reference to the definition of

"discharge of a pollutant" in § 1362(12).

At oral argument, the Pozsgais argued §§ 1362(6) and (12)

are not in conflict. They asserted that because the term

"discharge of a pollutant” itself includes the term "pollutant,"

the former definition, including its use of "navigable waters," is

10a

necessarily limited by the phrase “into water" in the definition

of "pollutant," The more natural reading of the definition of

"discharge of a pollutant" is that the phrase "navigable waters"

modifies the phrase "into water," and accordingly, that the

critical definition is that given the term "navigable waters." As

a textual matter, the word "navigable" is an adjective modifying

the word "water," Moreover, the statute contains numerous

references to the phrase "navigable waters," revealing that this

phrase, rather than "into water," is the focus of the Act's

coverage. The Act’s "Congressional declaration of goals and

policy” states; "it is the national goal that the discharge of

pollutants into the navigable waters be eliminated by 1985." 33

U.S.C. § 1251(a)(1). Section 404 provides that "the Secretary

[of the Army] may issue permits . . . for the discharge of

dredged or fill material into the navigable waters at specified

dispes sal sites." Id. § 1344(a). Additionally, the Act defines

“navigable waters" to mean "waters of the United States." Jd. §

1362(7).°

The legislative history also demonstrates the significance and

breadth of the term “navigable waters." The Conference Report

states: "the conferees fully intend that the term ‘navigable

waters’ be given the broadest possible constitutional

interpretation. . . ." S. Rep. No. 1236, 92d Cong., 2d Sess.

144, reprinted in | A Legislative History of the Water Pollution

Control Act Amendments of 1972 327 (1973); see also H.R.

Rep. No. 911, 92d Cong., 2d Sess. 131 (containing identical

language), in 1 Legislative History 818.

Moreover, the Senate Report makes clear it is the discharge

of materials constituting "pollutants" into "navigable waters" that

triggers the Act’s permit requirement. The Report provides:

* The Pozsgais further contend that subsection (12) seeks to limit subsection

(6) by adding the requirement that the discharge be from a “point source."

Assuming this is correct, it does not help them. The Act defines "point source"

to include “any discernible, confined and discrete conveyance, including but

not limited to any . . . container, rolling stock, concentrated animal feeding

operation, or vessel . . . from which pollutants are or may be discharged. .

." Id. § 1362(14). Courts have consistently held that dump trucks and

bulldozers, such as those used for depositing and spreading fill on

the Pozsgais’ property, qualify as “point sources." Avoyelles Sportsmen's

League, Inc. v. Marsh, 715 F.2d 897, 922 (Sth Cir. 1983); Matter of Alameda

County Assessor’s Parcel, 672 F. Supp. 1278, 1284-85 (N.D. Cal. 1987);

United States v. Tull, 615 F. Supp. 610, 622 (E.D. Va. 1983), aff'd, 769 F.2d

182 (4th Cir. 1985), rev’d on other grounds, 481 U.S. 412 (1987); United

States v. Weisman, 489 F. Supp. 1331, 1337 (M.D. Fla. 1980).

lla

For the first time the Committee would add to the law a

definition of the term pollutant. In order to trigger the

control requirements over addition of materials to the

navigable water, waters of the contiguous zone and the

ocean, it is necessary to define such materials so that

litigable issues are avoided over the question of whether the

addition of a particular material is subject to the control

requirements . . . . The control strategy of the Act extends

to navigable waters... .

S. Rep. No. 414, 92d Cong., Ist Sess. 77-78, in 2 Legislative

History 1494-95. This legislative history supports our view that

the phrase "navigable waters" rather than "into water" is the

critical statutory language. It also demonstrates the definition of

"pollutant" establishes the types of materials whose discharge

violates the Act rather than the locus of their discharge, further

undermining the significance of the "into water" phrase.

Our emphasis on "navigable waters" also comports with the

interpretation of the Clean Water Act by other courts, who have

reached the same conclusion without expressly considering the

"into water" portion of the definition of “pollutant.” In

upholding the Corps’ wetlands regulation in Riverside Bayview,

the Supreme Court stated simply: "the act prohibits discharges

into ‘navigable waters,’ see Clean Water Act §§ 301(a), 404(a),

502(12), 33 U.S.C. §§ 1311(a), 1344(a), 1362(12)." 474 U.S.

at 133. We find significant both the Court’s summary treatment

of this question and its citation only to the "discharge of a

pollutant" definition, § 1362(12), not to the “pollutant”

definition, § 1362(6). ’

The Pozsgais maintain the phrase "navigable waters," which

they note is defined as "waters of the United States," refers only

” Other courts considering wetlands filling cases have similarly interpreted

the Act to prohibit discharge of pollutants into navigable waters, thus ignoring

the "into water" component of the "pollutant" definition. See Town of Norfolk

v. U.S. Army Corps of Engineers, 968 F.2d 1438, 1445 (ist Cir. 1992);

Avoyelles Sportsmen's League, 715 F.2d at 922; United States v. Tull, 769

F.2d at 183; United States v. Larkins, 657 F. Supp. 76, 78 n.2 (W.D. Ky.

1987); United States v. Lambert, 589 F. Supp. 366, 371 (M.D. Fla. 1984),

aff'd, 852 F.2d 189 (6th Cir. 1988), se, denied, 489 U.S. 1016 (1989);

United States v. Bradshaw, 541 F. Supp. 880, 883 (D. Md. 1981) (all ruling

that discharge of fill material into wetlands violates the Clean Water Act).

nee

to the geographic jurisdiction of the Act. Therefore, they

contend, that definition does not modify the phrase "into water,"

which they read only to describe the conduct regulated by the

Act. This distinction is illusory. The purpose of extending the

Corps’ geographic jurisdiction to "waters of the United States,"

including adjacent wetlands, is precisely so the Corps can

control conduct occurring on these wetlands, i.e., the discharge

of pollutants. Indeed, such conduct has given rise to this action.

For the reasons we have outlined, we believe Congress

intended “navigable waters" to be the controlling phrase in

defining the scope of the Clean Water Act, and we believe this

phrase modifies the more general term "into water" appearing

in the definition of "pollutant." Accordingly, the Pozsgais’

wetlands filling activities constituted “discharge into water" and

fall within the statute. Our conclusion that the Act’s permit

requirement applies to pollutants discharged into "navigable

waters" does not, however, dispose of the Pozsgais’ second

statutory argument -- that the Corps’ wetlands regulation

represents an impermissible construction of the unambiguous

statutory term "water."

12a

In asserting the term "water" as used in the Clean Water Act

is unambiguous, the Pozsgais seek to bring this case within the

exception to the rule of deference to an agency’s statutory

interpretation established by Chevron U.S.A., Inc. v. Natural

Resources Defense Council, 467 U.S. 837, 81 L. Ed. 2d 694,

104 S. Ct. 2778 (1984). Under Chevron, courts should not defer

to an agency regulation where legislative language is

unambiguous because Congress has chosen to define precisely

the statutory meaning and has left no implicit or explicit gap in

statutory coverage for the agency to fill. 467 U.S. at 843-44.

Where, on the other hand, a statute is "silent or ambiguous with

respect to the specific issue, the question for the court is

whether the agency’s [regulation addressing the issue] is based

on a permissible construction of the statute." Jd. at 843. Thus,

Chevron commands a two-step approach. The court first

determines whether the statute is clear, and if it is unclear, the

court decides whether the agency’s construction is reasonable.

N.L.R.B. v. New Jersey Bell Telephone Co., 936 F.2d 144, 147

(3d Cir. 1991).

Applying Chevron in Riverside Bayview, the Supreme Court

squarely rejected the contention that "water" cannot mean

"wetlands." Like the Pozsgais, the defendant in Riverside

13a

Bayview sought to place fill materials on its property without a

Clean Water Act permit in preparation for a construction

project, and the Corps of Engineers obtained an injunction

against the filling. The defendant contended the Corps’

regulation extending the permit requirement to adjacent wetlands

exceeded the bounds of the Clean Water Act. Rejecting this

contention, the Court determined not only that the phrase

"water" lacked a fixed meaning, 474 U.S. at 132, but also that

the Corps "acted reasonably in interpreting the Act to require

permits for the discharge of fill material into wetlands adjacent

to the ’waters of the United States,’" id. at 139.

In urging Congress’ use of the term "water" forecloses

application of the Act to their activities, the Pozsgais insist the

word "water" means “the liquid state of H20," not "wetlands"

or “moist soil" or "dry land that the Corps determines to be

water." In Riverside Bayview, the Supreme Court took a

different view, stating:

On a purely linguistic level, it may appear unreasonable to

Classify "lands," wet or otherwise, as "waters." Such a

simplistic response, however, does justice neither to the

problem faced by the Corps in defining the scope of its

authority under § 404(a) nor to the realities of the problem

of water pollution that the Clean Water Act was intended

to combat. In determining the limits of its power to regulate

discharges under the Act, the Corps must necessarily

choose some point at which water ends and land begins.

Our common experience tells us that this is often no easy

task: the transition from water to solid ground is not

necessarily or even typically an abrupt one. Rather,

between open waters and dry land may lie shallows,

marshes, mudflats, swamps, bogs -- in short, a huge array

of areas that are not wholly aquatic but nevertheless fall far

short of being dry land. Where on this continuum to find

the limit of "waters" is far from obvious.

474 U.S. at 132.

Having determined the term "water" was ambiguous, the

Court then moved to Chevron’s second Step and considered

whether the Corps’ interpretation of the term to include adjacent

wetlands was reasonable. The Court noted that, in determining

"the landward limit of Federal jurisdiction under Section 404 [of

the Clean Water Act] must include any adjacent wetlands that

form the border of or are in reasonable proximity to other

waters of the United States," the Corps concluded that "water

l4a

moves in hydrologic cycles, and the pollution of [adjacent

wetlands] . . . will affect the water quality of the other waters

within that aquatic system." Riverside Bayview, 474 U.S. at 121

(quoting 42 Fed. Reg. 37128 (1977)). Upholding this

interpretation, the Court recognized “the evident breadth of

congressional concern for protection of water quality and aquatic

ecosystems" embodied in the Act, 474 U.S. at 133, and

determined: "we cannot say that the Corps’ conclusion that

adjacent wetlands are inseparably bound up with the ’waters’ of

the United States -- based as it is on the Corps’ and EPA’s

technical expertise -- is unreasonable," id. at 134.

The Pozsgais attempt to distinguish Riverside Bayview on the

ground that the Court based its ruling on the "navigable waters"

definition rather than the "into water" phrase. But as we have

shown, "navigable waters" is the operative phrase. Moreover,

as the quoted passage indicates, the Supreme Court’s analysis

dealt with a question common to both statutory phrases --

whether the Corps reasonably interpreted the term “water" to

include adjacent wetlands.

The rationales underlying Chevron apply with particular force

to the Corps’ application of the Clean Water Act to wetlands. In

Chevron, the Court defended deference to agency interpretations

on the grounds that unlike a court, an agency has specialized

knowledge of the relevant statutory area and is a politically

accountable body. 467 U.S. at 865 ("judges are not experts in

the field, and are not part of either political branch of the

Government"); see Cass R. Sunstein, Law and Administration

after Chevron, 90 Colum. L. Rev. 2071, 2086-87 (1990).

The Chevron Court indicated these rationales are particularly

powerful where "the regulatory scheme is technical and

complex." 467 U.S. at 865. Like the Clean Air Act in Chevron,

the Clean Water Act addresses a scientifically complicated

subject, and has an intricate regulatory structure. Thus, the

Supreme Court recognized in Riverside Bayview:

In view of the breadth of federal regulatory authority

contemplated by the Act itself and the inherent difficulties

of defining precise bounds to regulable waters, the Corps’

ecological judgment about the relationship between waters

and their adjacent wetlands provides an adequate basis for

a legal judgment that adjacent wetlands may be defined as

waters under the Act.

474 U.S. at 134; see also Arkansas v. Oklahoma, 112 S. Ct.

1046, 1061 (1992) (reversing Court of Appeals decision to

15a

invalidate Clean Water Act permit issued by EPA because that

court failed to defer to EPA’s interpretation of its water quality

regulation and therefore "made a policy choice that it was not

authorized to make"); Chemical Manufacturers Ass'n v. Natural

Resources Defense Council, 470 U.S. 116, 125, 84 L. Ed. 2d

90, 105 S. Ct. 1102 (1985) (deferring to EPA interpretation of

Clean Water Act because "EPA’s understanding of this very

‘complex statute’ is a sufficiently rational one to preclude a

court from substituting its judgment for that of EPA," and citing

Chevron).

The Chevron Court’s concern that agencies have political

accountability, which courts lack, also supports deference to the

Corps’ wetlands regulation. In articulating this rationale, the

Court reasoned:

[t]he arguments over policy that are advanced in the parties’

briefs create the impression that respondents are now

waging in a judicial forum a specific policy battle which

they ultimately lost in the agency and in the 32 jurisdictions

opting for the “bubble concept," but one which was never

waged in the Congress. Such policy arguments are more

properly addressed to legislators or administrators, not to

judges. . . . In such a case, federal judges -- who have no

constituency -- have a duty to respect legitimate policy

choices made by those who do.

467 U.S. at 864-66.

The regulation the Pozsgais challenge here represents the

product of a nearly twenty-year policy battle over the scope of

federal wetlands protection. The Corps initially interpreted the

term "navigable waters" to apply only to those waters "subject

to the ebb and flow of the tide,” the regulatory definition used

by the Corps under the River and Harbor Act of 1899. The

Environmental Protection Agency, which shared administrative

authority under the Clean Water Act with the Corps, believed

the Act should be construed to cover wetlands because of their

significance to water pollution control. This fight culminated in

a 1975 court decision ordering the Corps to revise and broaden

its regulation. Natural Resources Defense Council v. Callaway,

392 F. Supp. 685 (D.D.C. 1975). Following this decision, the

Corps revised its regulation, a process which lasted two years,

engendered more than 4,500 comments, and resulted in a final

rule defining the term “navigable waters" to include wetlands.

42 Fed. Reg. 37122 (1977).

radia -_

16a

Nonetheless, during the debate on the Clean Water Act of

1977, "because of the pressure of many farm, forestry and land

development groups, there were continued efforts to amend the

Act to redefine the term "navigable waters" in a more traditional

and restrictive sense . . . . None passed." Avoyelles Sportsmen’s

League, Inc. v. Alexander, 511 F. Supp. 278, 288 (W.D. La.

1981), aff'd, 715 F.2d 897 (Sth Cir. 1983). Thus, the Avoyelles

court corcluded, “wetlands is a jurisdictional term, the product

of the legislative process, of political pressure groups." 511 F.

Supp. at 288; see also Riverside Bayview, 474 U.S. at 138

(citing Congress’ refusal to limit the definition of "navigable

waters" in the 1977 Act as “additional support for a conclusion

that Congress in 1977 acquiesced in the Corps’ definition of

waters as including adjacent wetlands").

The Pozsgais acknowledge the Corps’ wetlands jurisdiction

continues to be the subject of heated political debate. They note

“numerous Congressional hearings have been held," and 52 bills

introduced in Congress, to address the regulation of wetlands.

Indeed, the dispute over the scope of federal wetlands regulation

has been at least as dominant a feature of the political landscape

as the debate over the "bubble concept" at issue in Chevron.

And like the plaintiffs opposed to EPA’s "bubble" regulation in

Chevron, the Pozsgais seek here to "wage in a judicial forum a

specific policy battle which [was] ultimately lost in the agency."

467 U.S. at 864. But as the Supreme Court stated last term, "it

is not our role . . . to decide which policy choice is the better

one, for it is clear that Congress has entrusted such decisions"

to the Corps of Engineers. Arkansas v.~Oklahoma, 112 S. Ct.

at 1061. Therefore, we hold that the Clean Water Act’s use of

the word "water," both as part of the “into water" phrase in the

definition of “pollutant" and in the phrase "navigable waters,"

pose no statutory obstacle to the Corps regulation under which

the district court found the Pozsgais liable.

IV.

The Pozsgais also contend the wetlands on their property fell

outside the scope of the Corps regulation prohibiting unpermitted

discharge on adjacent wetlands. In disputing application of the

regulation to their activities, the Pozsgais make two arguments,

one based on the evidence, the other based on the terms of the

regulation. In the evidentiary argument, the Pozsgais maintain

the government failed to prove their wetlands are "adjacent"

within the meaning of the regulation.

17a

The regulation grants the Corps jurisdiction over "waters of

the United States," defined in 33 C.F.R. § 328.3(a) to include:

"all waters which are currently used, or were used in the past,

or may be susceptible to use in interstate or foreign commerce,"

§ 328.3(a)(1); “tributaries of [these] waters," § 328.3(a)(5); and

"wetlands adjacent to [these] waters [or their tributaries]," §

328.3(a)(7). Applying this regulation, the district court found the

Pozsgais discharged into wetlands (§ (a)(7)), which were

"adjacent" to a stream on the Pozsgais’ property which was a

"tributary of the Pennsylvania Canal" (§ (a)(5)). The Canal, in

turn, flowed into the Delaware River, which, the court ruled,

satisfied the requirement that the Pennsylvania Canal is, was, or

could be used in interstate commerce (§ (a)(1)). We review these

factual findings under the clearly erroneous standard. Sheet

Metal Workers Int’l Assn. Local 19 v. 2300 Group, Inc., 949

F.2d at 1278.

The Pozsgais dispute the stream is a tributary of the

Pennsylvania Canal. In making this finding, the district court

relied on aerial photographs and testimony from Corps biologist

Miller. The government has since conceded the photographs are

inaccurate. But the government also introduced other evidence

which the Pozsgais have not contested. The eyewitness accounts

of two Corps biologists, Martin Miller and Michael Claffey,

recorded in Miller’s report of his investigation of the property

in April 1987, and in Claffey’s affidavit, confirm the stream is

a tributary of the Pennsylvania Canal. Given this uncontradicted

evidence, we believe the district court’s finding was not clearly

erroneous.

The Pozsgais also dispute that the Pennsylvania Canal is,

was, or could be used in interstate commerce. The district court

reached this conclusion by noting the Canal flowed into the

Delaware River, which it believed was enough to satisfy the

broad reach of the Clean Water Act. The Pozsgais argue that

this fact, without more, does not establish the Canal itself was,

is, or could be used in interstate commerce. Even if true, this

argument is unavailing, because the government has pointed to

other evidence supporting the conclusion the Canal in the past

was used in interstate commerce, which satisfies the terms

of § 328.3(a)(1).

The government requests that we take judicial notice of the

Canal’s historic significance as an interstate commerce route. It

cites Robert McCullough & Walter Leuba, The Pennsylvania

Main Line Canal (1960), and C.P. Yoder, Delaware Canal

18a

Journal (1972), two history books which discuss the Canal’s

nearly 100-year history as a shipping route for coal and other

commodities.

Under Fed. R. Evid. 201, we may take judicial notice of any

fact “not subject to reasonable dispute in that it is . . . capable

of accurate and ready determination by resort to sources whose

accuracy cannot be reasonably questioned." Fed. R. Evid.

201(a). Furthermore, because “judicial notice may be taken at

any stage of the proceeding,” Fed. R. Evid. 201(f), we may

take judicial notice of a fact although the district court did not.

The Pozsgais dispute neither that an appellate court may take

judicial notice nor that the history books cited by the

government are suitable sources for judicial notice. Instead, they

contend only that the books do not prove that the Pennsylvania

Canal was ever used in interstate commerce. We disagree.

A cursory review of The Pennsylvania Main Line Canal and

Delaware Journal reveals the Canal’s important role as

a shipping route carrying coal in interstate commerce. In the

middle of the century, the Canal consistently carried more than

half a million tons of coal per year, reaching its peak volume

with 792,000 tons of coal in 1866. Many of the coal barges

served the Philadelphia market. Others continued on to New

York City, after being towed by steam boats across the

Delaware River to Bordentown, New Jersey, where they reached

the Delaware and Raritan Canal. In 1939, the Delaware Division

Canal Company donated the entire canal property to the

Commonwealth of Pennsylvania, which established Roosevelt

State Park. In recognition of its vital role in “providing a

convenient and economic means of transporting coal to

Philadelphia, New York and the eastern seaboard," the Canal

was designated a National Historic Landmark in 1976. United

States Army Corps of Engineers, Preliminary Case Report for

Neshaminy Water Resources Authority, Point Pleasant Diversion

Project, Point Pleasant, Bucks County, Pennsylvania § 2.1 at 7

(1982).

This is at least as much evidence of an effect on interstate

commerce as that found to satisfy this jurisdictional requirement

in prior similar cases. See Quivira Mining Co. v. United States

E.P.A., 765 F.2d 126, 130 (10th Cir. 1985) (non-navigable

creeks and “arroyos" affect interstate commerce because during

times of “intense rainfall" there could be a surface connection

between these waterways and navigable streams), cert. denied,

474 U.S. 1055 (1986); United States v. Ashland Oil and

Transportation Co., 504 F.2d 1317, 1329 (6th Cir. 1974) (Act

: -

19a

constitutionally applies to discharge of oil into non-navigable

tributary three waterways removed from navigable river). In so

holding, these courts recognized Congress’ intent to give the

term “navigable waters" the “broadest possible constitutional

interpretation." Ashland Oil, 504 F.2d at 1317 (citing 118 Cong.

Rec. 33756-57 (1972) (statement of Representative Dingell));

Quivara Mining, 765 F.2d at 129. The Pozsgais maintain these

cases are distinguishable as both involved discharge into

waterways rather than wetlands. But this is a distinction without

a difference in light of the Corps’ regulation, which equates

adjacent wetlands with waterways.

The Pozsgais also contend the regulation does not apply

because the government failed to establish their discharge

affected interstate commerce. The regulations require proof of

an effect on interstate commerce, they argue, because their

wetlands are “essentially isolated." In coining the term

“essentially isolated," the Pozsgais seek to take this case outside

Riverside Bayview, where the Supreme Court expressly reserved

the question whether the Act authorized the Corps to regulate

wetlands not “adjacent to open bodies of water." /d. at 131 n.8.

They also use the term “essentially isolated" in an effort to bring

their wetlands within the section of the regulation governing

"isolated" wetlands. That section conditions application of the

permit requirement to "isolated" wetlands on a showing of a

site-specific impact on interstate commerce. 33 C.F.R. §

328.3(a)(3).

The Pozsgais assert their wetlands are “essentially isolated"

because they are “above the headwaters," the term "headwaters"

being defined as “the point on a non-tidal stream above which

the average annual flow is less than five cubic feet per second."

33 C.F.R. § 330.2(b). They note the regulation contains

Nationwide Permit 26, which exempts the "discharge of dredged

or fill materials" into wetlands above the headwaters from the

individual permit requirement provided the discharger meets

certain conditions. 33 C.F.R. § 330.5(a)(26). Establishment of

this nationwide permit, the Pozsgais claim, reflects the Corps’

policy judgment that these "essentially isolated" wetlands are the

functional equivalent of isolated wetlands. Therefore, they

conclude, an individualized showing of an interstate commerce

20a

effect is required to subject their “essentially isolated" wetlands

to the Clean Water Act. *

The Corps’ decision to establish a nationwide permit for

discharge of fill material into wetlands above the headwaters

apparently reflects the agency’s expert judgment that these

wetlands pose less of a water pollution concern than do certain

other wetlands. See 33 C.F.R. § 320. 1(a)(3) (justifying the

nationwide permit program as “the primary method’ of

eliminating unnecessary federal control over activities which do

not justify individual control or which are adequately regulated

by another agency"). But Nationwide Permit 26 hardly suggests

wetlands above the headwaters are environmentally insignificant,

as it conditions discharge on a water quality certification from

the state in which the wetlands are located, 33 U.S.C. §

1341(a)(1) and 33 C.F.R. §§ 330.5(6)(11), 330.9(6)(3), and

requires written notification to the Corps prior to discharge, 33

C.F.R. §§ 330.5(a)(26), 330.7(b).

Moreover, the Pozsgais’ contention that discharge into

wetlands above the headwaters may only be regulated upon the

showing of a specific effect on interstate commerce is foreclosed

by § 328.3, in which the Corps distinguished for interstate

commerce purposes between adjacent and isolated wetlands, and

did not treat separately wetlands above the headwaters. Where,

as here, the Pozsgais’ wetlands are both above the headwaters

and adjacent, only the latter characteristic matters for interstate

commerce purposes. An explanatory statement issued by the

Corps upon promulgation of the final regulation supports this

conclusion: "we emphasize that the "headwaters" concept used

in this new regulation . . . . is not to be construed as the point

beyond which a stream ceases to be a water of the United

States... .. " 47 Fed. Reg. 37129 (1977).

* The Pozsgais also rely on Nationwide Permit 26 as a separate defense to

their unpermitted discharge, arguing the nationwide permit obviated the need

for an individual permit. As did the district court, we reject this argument

because the Pozsgais did not ly with the required procedures for the use

of Nationwide Permit 26. Speci ly, they failed to obtain a water quality

certification from the State of Pennsylvania, as required by 33 U.S.C. §

1341 (a1) and 33 C.F.R. §§ 330.5(6)(11), 330.9(6)(3), and failed to provide

the Corps with ge notification for the use of Nationwide Permit 26

naeand by 33 C.F.R. §§ 330.5(a)(26), 330.7(b). The Pozsgais’ failure to

comply with the procedural requirements of Nationwide Permit 26 does not,

however, foreclose them from arguing that regulation of their wetlands is

permissible only upon the showing of an effect on interstate commerce.

21a

The Pozsgais’ claim that their wetlands are "essentially

isolated" thus reduces to an attack on the “adjacency” regulation

upheld in Riverside Bayview. But the use of the adjective

“essentially” cannot convert the Pozsgais’ "adjacent" wetland to

an "isolated" wetland. This transparent effort to rewrite the

regulation, like the Pozsgais’ argument that the term "water"

cannot mean "wetlands," is a policy question properly put to

Congress or the Corps. See Riverside Bayview, 474 U.S. at 134

("we cannot say that the Corps’ conclusion that adjacent

wetlands are inseparably bound up with the "waters" of the

United States -- based as it is on the Corps’ and the EPA’s

technical expertise -- is unreasonable"); Chevron, 467 U.S. at

866.

Accordingly, because the wetlands here qualify as "adjacent"

within the meaning of the regulation, the government was not

required to prove that "the use, degradation or destruction of

[the Pozsgais’ wetlands] could affect interstate commerce," 33

C.F.R. § 328.3(a)(3), in order to subject the Pozsgais to liability

under the Clean Water Act. ° Under the regulation, the requisite

interstate commerce nexus was established because the wetlands

were adjacent to a tributary of a waterway formerly used in

interstate commerce. 33 C.F.R. § 328.3(a)(1), (7).

We now consider the Pozsgais’ argument that the Corps’

adjacent wetlands regulation as applied to them violates the

Commerce Clause because the regulation does not require proof

of a specific effect on interstate commerce from the Pozsgais’

filling, and because wetlands above the headwaters, as a class of

wetlands, do not significantly affect interstate commerce. We

review challenges to Congress’ exercise of its Commerce Clause

power under a deferential standard. We will uphold application

of the law if there is a “rational basis" for the congressional

determination that the regulated activity "affects interstate

commerce," and if the means chosen to regulate the activity are

reasonable. Hodel v. Virginia Surface Mining & Reclamation

Ass’n, 452 U.S. 264, 276 (1981); United States v. Frame, 885

* As its text indicates, the regulation requires proof only that certain types

of events could affect interstate commerce if they occurred in the particular

isolated wetland, not, as the Pozsgais contend, proof that a particular discharge

into that wetland could affect interstate commerce.

22a

F.2d 1119, 1126 (3d Cir. 1989), cert. denied, 493 U.S. 1094,

(1990). '

In contending the Constitution requires an individualized

effect on interstate commerce, the Pozsgais rely on cases

construing other federal statutes -- the Sherman Act, the Hobbs

Act, the federal arson statute, and two federal labor statutes --

which do require an individualized showing. But these cases

demonstrate only that in those statutes, Congress chose to satisfy

the Commerce Clause by requiring an individualized interstate

commerce effect in each application of the law. The Clean

Water Act, by contrast, handles the interstate commerce nexus

differently. Under the Act, the Corps, acting under its statutorily

delegated authority to establish the permit program, 33 U.S.C.

§ 1344, has determined that wetlands which are adjacent to

tributaries of waters usable or formerly used in interstate

commerce themselves affect interstate commerce. Several other

Courts of Appeal have upheld this regulation against

constitutional attack on the ground that congressional regulation

of water pollution is permissible under the Commerce Clause,

United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979),

United Siates v. Tull, 769 F.2d at 185, United States v. Ashland

Oil, 504 F.2d at 1325, and the Supreme Court has upheld this

reasoning. Hodel, 452 U.S. at 282 ("we agree with the lower

federal courts that have uniformly found the power conferred by

the Commerce Clause broad enough to permit congressional

regulation of activities causing air or water pollution").

The Pozsgais seek to distinguish these cases, contending the

challenged activities in each of them involved "substantial

effects" on interstate commerce, and arguing the government

established no such effects here. But even a Congress’

Commerce Power is circumscribed by a_ "substantiality"

requirement, the Pozsgais misapp!y this standard, ‘a contending

their discharge activities did not have substantial effects on

interstate commerce, the Pozsgais ignore the well-settled

principle that "where the class of activities is regulated and that

class 1s within the reach of the federal [commerce] power, the

courts have no power ‘to excise, as trivial, individual instances’

’ This test also applies where a party challenges a regulation promulgated

by an agency acting under its statutorily delegated authority. See United States

v. Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979) (upholding Corps’ wetlands

regulation against Commerce Clause challenge).

> Pa ea

23a

of the class." Perez v. United States, 402 U.S. 146, 154 (1971)

(quoting Maryland v. Wirtz, 392 U.S. 183, 193 (1968)). The

Pozsgais claim this so-called "cumulative effect" principle is

inapplicable because wetlands above the headwaters, as a "class

of activities," do not substantially affect interstate commerce.

But the only evidence they offer in support of this argument is

the Corps’ decision to regulate these wetlands under Nationwide

Permit 26. As discussed above, however, by the regulation’s

terms, this classification has no significance for interstate

commerce purposes.

The Pozsgais also argue the cumulative effect principle has

no application to wetlands generally. In announcing this

principle to hold that federal production quotas could

constitutionally be applied to a farmer who grew wheat for his

own consumption in Wickard v. Filburn, 317 U.S. 111 (1942),

the Supreme Court stressed that in the aggregate, home

consumption of wheat competed with wheat grown for sale and

therefore affected interstate commerce. The Pozsgais contend

that discharge into wetlands cannot be similarly aggregated

because their filling activities cannot be added to filling activities

in California or Texas which involve other aquatic systems.

This reasoning is factually and legally flawed. In factual

terms, it ignores that discharge by other property owners into

wetlands above the headwaters within the same aquatic system

as the Pozsgais clearly should be aggregated with the Pozsgais’

discharge to determine the amount of pollution in that system.

As a legal matter, we find no language in Wickard or its

progeny requiring a showing of local or regional aggregation.

Indeed, it would be illogical to impose such a requirement on

the Corps of Engineers in the course of making national water

pollution policy, The regulation reflects the Corps’ expert

determination that, in the aggregate, discharge into wetlands

above the headwaters which are adjacent to tributaries of waters

used or usable in interstate commerce, increases water pollution, ''

" The regulations reveal the Corps gave serious consideration to this issue.

The interim final regulation issued on July 25, 1975, excluded waters and

wetlands above the headwaters from the category of “waters of the United

States" and therefore from the Act’s coverage, except upon the District

Engineer's specific determination that regulation of these waters "was

necessary to protect water quality." 42 Fed. Reg. 37129. In the final

regulations, issued two years later, in response to "comments and criticisms

. concerning . . . the legality of excluding waters in rivers and streams

(continued...)

)

24a

It matters not whether the increase is substantial in a particular

region, or just in the nation as a whole. Compare Perez v.

United States, 402 U.S. at 155 (finding Wickard applies to loan

sharking, a $ 350 million per year national business, without

discussing cumulation of particular transactions in regional or

local credit markets). For these reasons, we hold that application

of the Corps’ wetlands regulation to the Pozsgais’ discharge

activities did not violate the Commerce Clause.

VI.

We now turn to the Pozsgais’ appeal from various orders

entered by the district court during the course of this litigation.

The Pozsgais contend the district court’s contempt order was

defective because, although labeled as "civil" contempt, ihe

order was in fact "criminal" contempt. The two types of

contempt differ in important respects. Civil contempt is remedial

in nature, serving to coerce compliance with a court order or to

compensate the other party for losses sustained due to

noncompliance. By complying with the order, a civil contemnor

can purge the contempt. Criminal contempt, by contrast, is a

punitive sanction, designed to vindicate the court’s authority for

the contemnor’s past non-compliance with a court order, and

therefore cannot be cured by the contemnor. Hicks on Behalf of

Feiock v. Feiock, 485 U.S. 624, 631-32 (1988); 11 Charles A.

Wright and Arthur R. Miller, Federal Practice and Procedure

§ 2960 at 583-85 (1973).

The purpose and nature of the sanction, rather than the label

attached to it, determine whether it is civil or criminal. Hicks,

"' (,, continued)

above the headwaters from the definition of waters of the United States," the

Corps decided to regulate waters and wetlands above the headwaters — =

the nationwide permit mechanism rather than by excluding them from the

definition of covered waters, /d, We cannot say the Corps did not have a

rational basis for this determination, Cf. Riverside Bayview, 474 U.S, at 134

(Corps’ determination that “waters of the United States" include adjacent

wetlands was reasonable because it was based on Corps’ and EPA's technical

expertise),

" In view of our disposition on the merits of the Pozsgais’ , we need

not and do not reach the government's contention that John Pozsgai is

collaterally estopped from raising these issues because they were resolved

against him on his criminal conviction.

25a

485 U.S. at 631. The two types of contempt also have different

burdens of proof. Civil contempt must be proved by "clear and

convincing" evidence, Quinter v. Volkswagen of America, 676

F.2d 969, 974 (3d Cir. 1982), while criminal contempt must be

proved beyond a reasonable doubt, Hicks, 485 U.S. at 632. To

be valid, a criminal contempt proceeding must comport with

Federal Rule of Criminal Procedure 42(b), which requires such

proceedings to be "prosecuted on notice . . . stating the time

and place of hearing, allowing a reasonable time for the

preparation of the defense, . . . stating the essential facts

constituting the criminal contempt, and describing it as such."

Here, the district court found Pozsgai in contempt for his

past violations of the TRO against filling on the property, and

ordered him to pay $ 5,000 within 48 hours or be put in jail.

Although the order contains aspects of civil contempt, two

significant features convince us it qualifies as criminal contempt.

First, it was retroactive in nature, seeking to penalize previous

violations. Second, it was punitive rather than remedial, because

it did not compensate the government, but rather sought to

vindicate the authority of the Court to enjoin Pozsgai from

continuing his filling activities.

We believe the court afforded Pozsgai the protections

necessary for a valid finding of criminal contempt. The Pozsgais

contend the district court’s failure to label the contempt as

criminal in the hearing notice violated Rule 42(b), that this error

was compounded by the government’s request for "civil"

contempt in its petition for an order to show cause, and that

these errors render the proceeding invalid. We disagree. The

government’s petition for an order to show cause specifically

enumerated past violations for which it sought contempt

sanctions. Additionally, the government expressly requested not

only that Pozsgai be incarcerated until he complied with the

TRO, a civil contempt sanction, but also requested that he be

incarcerated five days for each prior violation and fined $

25,000 for each continued violation. Because the government

sought a retroactive sanction, we believe its petition put Pozsgai

on notice of the criminal nature of the contempt proceeding.

Additionally, we do not believe Pozsgai was prejudiced by

the timing of the notice. The Supreme Court has held a district

court’s failure to label a contempt proceeding as criminal in the

hearing notice is grounds for reversal only when the failure

causes "substantial prejudice" to the defendant resulting from his

lack of awareness that the proceeding is criminal. United States

v. United Mine Workers of America, 330 U.S. 258, 297-98

26a

(1946). Pozsgai has not argued, nor presented any evidence, that

"a more explicit motion . . . would have aided him in the

preparation of his defense." United States v. Partin, 524 F.2d

992, 999 (Sth Cir. 1975), cert. denied, 425 U.S. 904 (1976).

His defense consisted entirely of testimony denying he had

violated the TRO. The court chose not to believe him, expressly

finding "beyond any doubt whatsoever" not only that Pozsgai

knew of the post-TRO dumping but also that it occurred with his

approval. The videotape recording this activity provided

overwhelming support for this conclusion. '’ Accordingly, we

will affirm the district court’s order of contempt.

The Pozsgais’ final claims concern the district court’s

restoration order, which directed removal of fill material from

the wetlands portion of the Pozsgais’ property and redeposit of

the material on the non-wetlands portion of the property. The

Pozsgais object to the order on three grounds: (1) that it violates

Fed. R. Civ. P. 65(d)’s standards for injunctive remedies

because it fails to describe specifically the area of the property

to be restored; (2) that the order itself was an abuse of

discretion given the small degree of harm caused by the

discharge and his financial inability to comply with it; and (3)

that the court was wrong to deny the Pozsgais’ Fed. R. Civ. P.

60(b) motion for relief from the restoration order seeking

control over where on their property the restoration of the fill

would take place.

With respect to the particularity of the restoration order, we

note the injunction anticipated further negotiation between the

Pozsgais and the government regarding the restoration plan, and

that such negotiation has taken place, most recently in the

parties’ August 15, 1991 stipulation to a new map detailing the

'’ We note the government’s petition and the court’s order to show cause

provided Pozsgai with the essential facts underlying its request for contempt

sanction. United States v. Onu, 730 F.2d 253, 257 (Sth Cir.), cert. denied,

469 U.S. 856 (1984). The order to show cause gave Pozsgai notice of the time

and place of the hearing, and the court scheduled a hearing a week after the

order, which was a reasonable time to prepare a defense. United Mine

Workers, 330 U.S. at 296 (order to show cause can serve notice function of

Rule 42(b)); United States v. Powers, 629 F.2d 619, 625 (9th Cir. 1980)

(five-day notice period allowed for hearings in Fed. R. Crim. P. 45(d)

adequate preparation time for purposes of Rule 42(b)).

27a

wetland areas to be restored. ' We reject the Pozsgais’

contention that the restoration order was inequitable because of

the small degree of harm caused by their discharge and their

financial inability to comply with the order. The undisputed facts

demonstrating the Pozsgais’ repeated noncompliance with the

Act and with the Corps’ directives to stop filling foreclose any

such equitable argument.

Finally, we consider the Pozsgais’ motion for relief from

judgment, in which they seek control to determine the location

on the property where the material is redeposited. Denying the

motion, the district court found it would be inequitable to give

the Pozsgais such veto power -- particularly now that the haulers

have completed their work -- because the Pozsgais caused the

improper filling and refused to remedy the condition. We agree

fully with this reasoning. Accordingly, we believe the district

court did not abuse its discretion in fashioning the restoration

order.

VII.

For the foregoing reasons, we will affirm the judgment of

the district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

‘* In the same vein, the Pozsgais appeal the temporary restraining order,

arguiny the court failed to "set forth reasons" as required by Fed. R. Civ. P.

65(c). The TRO states it was “upon consideration of the government’s

motion,” and states that defendants “are immediately ordered to cease and

desist trom discharging fill material onto the site" and “ordered to cease and

desist their further violation of the Clean Water Act, 33 U.S.C. § 1311(a)."

We believe that under the circumstances of this case, the court’s statement

gave the Pozsgais adequate notice of the grounds for the TRO.

“

28a

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

JOHN POZSGATI et al.

Civil Action No. 88-6545

June 17, 1991, Decided

June 18, 1991, Filed

OPINION: MEMORANDUM AND ORDER

The United States instituted this action alleging that the

defendants discharged fill, without a permit, into protected

wetlands in violation of the Clean Water Act, 33 U.S.C. §

1311(a). The site in question is a fourteen acre tract of land

located in Bucks County, Pennsylvania owned by defendants

John and Gizella Pozsgai. On August 24, 1988, I issued a

temporary restraining order against further dumping at the site

and granted the government’s motion for a_ preliminary

injunction on September 16, 1988. After a final hearing on

December 16, 1988, I issued a memorandum and order

containing findings of fact and conclusions of law on January 8,

1990. I found the Pozsgais strictly liable for the discharge of fill

material without a permit into protected wetlands located on

their site.

Presently pending is the Pozsgais’ motion for reconsideration

of and to vacate my January 8, 1990 order, or for a new trial.

The defendants essentially raise three grounds for relief. First,

the Pozsgais contend that the evidence is insufficient to support

a finding that their site contains protected wetlands. Second,

they assert that the evidence is insufficient to prove that they

discharged "pollutants" into "water." Finally, they argue that

their wetlands were eligible for filing under a nationwide permit.

The government, in response, contends that the court’s January

8, 1990 findings of fact and order should stand without

modification. The government notes that the defendants’ three

arguments were litigated in a separate criminal action against

John Pozsgai. His conviction was affirmed without opinion by

the United States Court of Appeals for the Third Circuit on

January 12, 1990. In its response to the Pozsgais’ motion, the

29a

government incorporates the arguments set forth in its appellate

brief.

a. protected wetlands

The Pozsgais initially contend that there is insufficient

evidence to support a finding that the small stream on their

property is a tributary of the Pennsylvania Canal and. that the

Pennsylvania Canal is used in interstate commerce. Thus, the

Pozsgais argue, the wetlands on their property cannot be

considered "waters of the United States" within the jurisdiction

of the Clean Water Act [CWA]. I found that the " Pozsgai site

. . . Is adjacent to an unnamed tributary of the Pennsylvania

Canal, which flows into the Delaware River." Memorandum and

order at 1.

The CWA bars the discharge of any pollutant into "navigable

waters" absent a permit. 33 U.S.C. §§ 1311(a), 1344(a).

Navigable waters are defined as "waters of the United States.

"33 U.S.C. § 1362(7). Federal regulations define "waters of the

United States" as all waters that "are currently used, or were

used in the past, or may be susceptible to use in interstate or

foreign commerce." 33 C.F.R. § 328.3(a)(1). The regulations

also define waters as “wetlands adjacent to" waters used in

interstate commerce. Id. § 328.3(a)(7). Adjacent is defined as

meaning “bordering, contiguous, or neighboring." Jd. §

328.3(c).

There is sufficient evidence to show that the unnamed tributary

on the Pozsgais’ land flows into the Pennsylvania Canal. Martin

Miller from the Corps of Engineers testified that the unnamed

tributary flowed into the "Delaware Canal which eventually

reached the Delaware River." 9/9/88 Transcript at 15-16. The

defendants make much of the fact that the witness used the

phrase "Delaware Canal" instead of "Pennsylvania Canal."

However, it is obvious from the context of his testimony that the

witness was speaking of the Pennsylvania Canal. Further, the

aerial photographs introduced into evidence support the finding

that the unnamed tributary flows into the Pennsylvania Canal.

See 9/9/88 Transcript at 36-38, 43 (testimony of M. Claffey).

Second, the Pozsgais argue that there is no evidence the

Pennsylvania Canal is used in interstate commerce. The

government merely states that "it cannot be seriously disputed

that the Pennsylvania Canal is a navigable waterway within the

meaning of 33 C.F.R. § 328.3(a)(1)." Government’s appellate

brief at 27 n.19.

30a

The reach of the CWA has been broadly construed. The

Army Corps of Engineers jurisdiction under the Act has also

been construed broadly. United States v. Akers, 651 F. Supp.

320, 323 (E.D. Cal. 1987). For example, it has been held that

Congress intended the CWA to reach non-navigable, man-made

mosquito canals. United States v. Holland, 373 F. Supp. 665,

673 (M.D. Fla. 1974). As one court explained:

while there is nothing in this record to show the effect on

interstate commerce of this unnamed tributary, without question

it is within the intended coverage of the [CWA]. It was flowing

a small amount of water at the time of the spill.

Whether or not the flow continued into the [river] at that time,

it obviously would during a significant rainfall.

United States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th

Cir. 1979). The fact that the Pennsylvania Canal flows into the

Delaware River is enough to satisfy the interstate commerce

requirement. Quivira Mining Co. v. E.P.A., 765 F.2d 126, 130

(10th Cir. 1985), cert. denied, 474 U.S. 1055 (1986).

Therefore, defendants’ argument is without merit.

b. discharge of pollutants into water

The Pozsgais second argument is that the evidence is

insufficient to show that they discharged “pollutants” into

"water." I found that the Pozsgais were discharging "fill

material" onto their property, which is protected wetlands,

without a permit. Memorandum and order at 1, 2. The Pozsgais

assert that the phrase "fill material" does not appear in the

definition of pollutant at 33 U.S.C. 1362(6). The defendants also

argue that the term "wetlands" does not appear in the CWA, so

that there is no evidence they discharged into "water."

The CWA provides that "the discharge of any pollutant by

any person" without a permit shall be unlawful. 33 U.S.C. §

1311(a). "Pollutant" is defined as "dredged spoil, solid waste .

. . biological materials . . . rock, sand . . . municipal, and

agricultural waste discharged into water." Id. § 1362(6).

First, it is clear that defendants discharged a pollutant in

violation of § 1311(a). Fill material or dirt dumped on wetlands

are pollutants under § 1362(6). Hanson v. United States, 710

F. Supp. 1105, 1108 (E.D. Tex. 1989); Matter of Alameda Co.

3la

Assessor’s Parcels, 672 F. Supp. 1278, 1284 (N.D. Cal. 1987);

United States v. Weisman, 489 F. Supp. 1331, 1337 (M.D.

Fla. 19890). Furthermore, the evidence shows that the defendants

placed "concrete rubble" and "cinder block," which are covered

by the express terms of § 1362, on their wetlands. 9/9/88

Transcript at 40, 56. There was also evidence that the property

hed been cleared of most of its vegetation. Id. at 16-17, 42:

12/16/88 Transcript at 27. The clearing of vegetation from

wetlands and the redeposit of that waste on the wetlands is the

discharge of a pollutant into water. Avoyelles Sportmen’s

League, Inc. v. Marsh, 715 F.2d 897, 922-925 (Sth Cir. 1983).

Second, it is clear that "water" includes wetlands. The

defendants argue that the term "wetlands" appears no where in

the CWA, and thus § 1311(a) does not apply to the deposit of

"earth on other earth."

Federal regulations have defined "water" as including

"wetlands." 33 C.F.R. § 328.3(a). The Supreme Court has

upheld the treatment of adjacent wetlands as waters of the

United States. United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 129-30 (1985).

The Pozsgais unconvincingly attempt to distinguish Riverside.

They assert that Riverside only addressed the "regulation of

wetlands adjacent to open bodies of water and expressly left

open the question as to whether regulation of isolated wetlands"

is permissible. The Pozsgais are correct in that Riverside did not

consider the regulation of nonadjacent wetlands. Id. at 131 n.8.

Thus, it appears the Pozsgais are arguing their wetlands are

isolated. However, their wetlands are adjacent to the stream on

their property which flows into the Pennsylvania Canal.

Specifically, "wetlands separated from other waters of the

United States by man-made dikes or barriers, natural river

berms, beach dunes and the like are ’adjacent wetlands.’" 33

C.F.R. § 328.3(c). Thus, the courts have broadly construed the

adjacency requirement to find that the wetlands in question are

covered by the CWA even when the wetlands were separated by

some distance or by barriers from the waterbody. E.g., United

States v. Ciampitti, 583 F. Supp. 483, 494 (D.N.J. 1984),

rhe’ 772 F.2d 893 (3d Cir. 1985), cert. denied, 475 U.S. 1014

(1986).

Therefore, this ground is meritless.

c. nationwide permit

32a

The defendants’ final contention is that Nationwide Permit No.

26, set forth at 33 C.F.R. § 330.5(a)(26), applies to their

property, ee |

Nationwide Permit 26 permits discharges “except those which

cause the loss or substantial adverse modification of 10 acres or

more of such waters of the United States. " 33 C.F.R.

330.5(a)(26). However, this permit is not applicable until the

Commonwealth issues a water quality certification for the

proposed action. 33 U.S.C. § 1341(a)(i); 33 C.F.R. §§

330.5(b)(11), 330.9(b)(3). Section 1341(a)(1) of the CWA

specifically provides that "any applicant for a Federal . permit

to conduct any activity . . . which may result in any discharge

into the navigable waters, shall provide the . . . permitting

agency a certification from the State." Federal regulations

specifically require such a certification for Nationwide Permit

26. 33 C.F.R. § 330.9(b)(3). For states that generally deny

certification for Nationwide Permit 26, the applicant must obtain

a water quality certification or a waiver of such on an individual

basis. Id. § 330.9(a). Finally, where the applicant has obtained

the water quality certification, if his proposed action impacts

more than one acre of wetlands, he must comply, before

discharge, with the notification procedure of 33 C.F.R. § 330.7.

33 C.F.R. § 330.5(a)(26).

The Pozsgais admit in their motion that they have not

complied with the water quality certification requirement.

Furthermore, the evidence shows that at least five acres of the

Pozsgais property was affected by their illegal discharge. Thus,

the Pozsgais should have complied with the notification

requirements of 33 C.F.R. § 330.7. Instead, the Pozsgais

merely contend, without any explanation or elaboration, that the

Corps of Engineers had predischarge notification. However, the

government, in its appellate brief, states that the Pozsgais are

asserting that the Corps had constructive notice. Constructive

notice is never satisfactory since the notice required by § 330.7

must be in writing. 33 C.F.R. § 330.7(b). Thus, this ground is

meritless since the Pozsgais did not comply with the water

quality certification requirement, and offer no proof that they

complied with the predischarge notification requirement.

An appropriate order follows.

33a

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

Vv.

JOHN POZSGAI et al.

Civil Action No. 88-6545

ORDER

AND NOW, this 17th day of June, 1991, it is ORDERED

that John and Gizella Pozsgai’s motion for reconsideration of

and to vacate this court's January 8 order, or for a new trial is

DENIED.

/s/John P. Fullam

Fullam, Sr. J.

34a

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

JOHN POZSGAI et al.

Civil Action No. 88-6545

January 8, 1990, Decided

January 8, 1990, Filed

Fullam, Ch.J.

MEMORANDUM AND ORDER

The United States brought this action under the Clean Water

Act, alleging that defendants discharged fill, without a permit,

into protected wetlands in violation of 33 U.S.C. § 1311(a). The

site in question, a 14-acre tract of land located in Bucks County,

Pennsylvania, is owned by defendants John and Gisella Posgai.

I issued a temporary restraining order against further dumping

at the site on August 24, 1988 and granted the government’s

motion for a preliminary injunction on September 16, 1988. A

final hearing was held on December 16, 1988.

FINDINGS OF FACT

1. Defendant Pozgai

1. The Pozsgai site, located on West Bridge Street between

Routes | and 1A in Falls Township, is adjacent to an unnamed

tributary of the Pennsylvania Canal, which flows into the

Delaware River. The site was and is protected wetlands, and as

such performs critical environmental functions.

2. In April 1987, the U.S. Army Corps of Engineers learned

that fill material was being discharged at the site without a

permit. At the time the Corps began its investigation, defendants

John and Gisella Pozsgai were prospective buyers of the

property, and Pozsgai had already arranged for the discharge

of fill onto the site. The Pozsgais became owners of record of

the property on June 19, 1987. Between April 1987 and

November 1987, The Corps repeatedly warned John Pozsgai,

both orally and by issuance of a cease and desist letter, not to

continue filling the site until he obtained the permits required by

the Clean Water Act. Each time the Corps biologist visited the

35a

site, he noted that substantial additional filling had taken place

since his previous visit.

3. On December 17, 1987, the Corps issued an administrative

directive instructing them to cease and desist the filling activity

and remove the fill within 45 days, or to cease and desist filling

and apply for an "after the fact" permit within 10 days. Pozsgai

did not apply for a permit and continued to fill the site through

1988.

4. I issued a temporary restraining order on August 24, 1988.

John Pozgai continued to have fill discharged at the site and to

use his bulldozer to level the fill. After a two-day hearing, I

held Pozsgai in contempt of court on September 16, 1988.

2. Defendant Vinch

5. J. Vinch & Sons, Inc. is a company that has been engaged

in the business of demolition, excavation and hauling since

1970. A part of Vinch’s daily operations is finding locations to

dispose of the debris generated by its

excavation and demolition activities.

6. Vinch owns and operates a state-licensed landfill in New

Jersey.

7. Vinch knew or should have known that local and state

permits are frequently required for the disposal of solid waste.

Vinch, which does business in Mercer County, New Jersey, also

knew or should have known that by county ordinance, all waste

from the county that it did not dispose of at its own landfill was

required to be disposed of at the Grows landfill in Falls

Township,

Pennsylvania.

8. Between May 1987 and August 1988, Vinch disposed of

340 loads of fill at the Pozsgai site. Each load contained 16 to

20 cubic yards of dirt and concrete, for a total of at least 6800

cubic yards of fill.

9. Vinch would have had to pay $ 22 per cubic yard to

dispose of fill at the Grows landfill, but was allowed by

Pozsgai to dispose of fill at a cost of $ 1 to $ 1.25 per cubic

yard ($ 20 per load), for a savings of at least $ 142,800.

10. Pozsgai told Vinch that the rear of his site contained

wetlands. Vinch did not have a permit to dispose of fill at the

Pozsgai site, nor did Vinch ask whether Pozsgai had any

permits.

11. Vinch also reached an agreement in principle with

Pozsgai to purchase five acres of the site, but only if there were

no environmental or permit problems.

36a

12. Vinch knew or should have known that discharging fill

onto the site was a violation of federal law.

3. Defendant Mercer

13. Mercer Wrecking and Recycling Corp. has been engaged

in the business of demolition and metal and concrete recycling

for three years.

14. In 1985, Mercer disposed of three of four truckloads of

bricks at the site at Pozsgai’s request.

15. On May 11, 1988, a Corps biologist called Mercer and

warned the company that the discharge of fill at the Pozsgai site

without a permit was a violation of the Clean Water Act.

16. By July 1988, Mercer had disposed of 25 loads of rock

and eight loads of stone at the site.

17. In June or July 1988, Mercer disposed of 50 loads (16

cubic yards each) of dirt at the site.

18. Pozsgai did not charge Mercer for dumping fiil material,

saving Mercer $ 22 per cubic yard (what Mercer would have

paid at the Grows landfill), for a total savings of at least $

30,262 (86 loads of 16 cubic yards each times $ 22 per load).

19. Mercer did not have a permit to dump at the Pozsgai site,

nor did Mercer ask Pozsgai whether he had any permits.

20. Mercer knew or should have known that discharging fill

onto the site was a violation of federal law.

4. The Restoration Plan

21. The Corps has submitted a feasible restoration plan to

remove the fill and restore the Pozsgai site to its wetlands

condition. This plan will confer maximum environmental

benefits consistent with its feasibility and its equitable

relationship to the degree and kind of harm perpetrated by the

defendants.

CONCLUSIONS OF LAW

1. The Pozsgai site contained and still contains protected

wetlands. See 33 U.S.C. §§ 1251-1376; 33 C.F.R. §§ 209.120,

323.2-3; 328.3.

2. The Clean Water Act imposes strict liability upon persons

who discharge fill into wetlands without obtaining an Army

Corps of Engineers permit. See 33 U.S.C. §§ 1311, 1344.

3. Defendants John and Gisella Pozsgai own the Pozsgai site

and are strictly liable for the discharge of fill material without

a permit into protected wetlands located on the site.

37a

4. Defendants J. Vinch & Sons, Inc. and Mercer Wrecking

and Recycling Corp. are also strictly liable for the discharge of

fill material without a permit into protected wetlands located on

the site.

5. The United States is entitled to a permanent injunction

against any further filling and to a restoration order.

An appropriate order follows.

38a

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

Vv.

JOHN POZSGATI et al.

Civil Action No. 88-6545

ORDER

AND NOW, this 8th day of January, 1990, it is ORDERED:

1. Defendants are PERMANENTLY ENJOINED from any

further filling at the Pozsgai site without first obtaining a permit

from the Army Corps of Engineers.

2. The restoration plan submitted by the Corps is amended as

follows: in numbered paragraphs 10 and 11 of the plan, "1990"

is substituted for "1989."

3. The restoration plan submitted by the Corps will be

implemented by all the defendants, each to bear a share of the

costs proportionate to his/its responsibility for the damage done

to the site. If the parties cannot agree upon the relative

responsibility of each defendant, they are directed to submit

their positions on this issue to the court within 15 days.

/s/John P. Fullam, Ch.J.

39a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 92-1454

UNITED STATES OF AMERICA

JOHN POZSGAI, GIZELLA POZSGAI,

MERCER WRECKING & RECYCLING

CORPORATION, J. VINCH & SONS,

INC.,

John Pozsgai and Gizella Pozsgai,

Appellants

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 88-06545)

Argued January 8, 1993

Before: HUTCHINSON and SCIRICA, Circuit Judges

and STANDISH, District Judge*

ORDER

The Court treats appellants’ counsel’s letter of July 8, 1993,

as a petition for panel rehearing and a motion to amend the

opinion dated June 25, 1993.

The motion to amend is denied, and the petition for panel

rehearing is denied.

BY THE COURT:

/s/Anthon irica

Circuit Judge

Dated: Aug. 10, 1993

* The Honorable William L. Standish, United States District

Judge for the Western District of Pennsylvania, sitting by designation.

40a

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

Vv.

JOHN POZSGAT et al.

Civil Action No. 88-6545

ORDER

AND NOW, this 30th day of March 1992, upon review of

the docket in this case and all outstanding matters, it is hereby

ORDERED as follows:

1) The United States’ Motion to Dismiss the Pozgais’

counterclaim in GRANTED and JUDGMENT is ENTERED on

the counterclaim against the Pozgais and in favor of the United

States in accordance with this Court’s prior Orders;

2) JUDGMENT is ENTERED on the cross-claim of J.

Vinch & Sons, Inc. against Vinch and in favor of the Pozgais in

accordance with this Court’s prior Orders;

3) The motions of the United States, Vinch, and Mercer

Wrecking and Recycling Corp. for reconsideration or to alter or

amend the judgment are DENIED;

4) FINAL JUDGMENT is entered in favor of the United

States and against the defendants Pozgai in accordance with the

Court Orders.

BY THE COURT:

/s/John P. Fullam

FULLAM, Sr. J.

4la

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

Vv.

JOHN POZSGAT et al.

Civil Action No. 88-6545

MEMORANDUM AND ORDER

FULLAM, Sr.J. FEBRUARY 25, 1992

This court’s Order of June 18, 1991, as amended August

15, 1991, included the following provision:

"12: Vinch and Mercer may deposit elsewhere on the

Pozgai property the fill material removed from their

respective areas,provided that such placement meets both of

the following two conditions: (1) that the fill removed by

Vinch and Merger not be deposited in any location which

the Corps has designated as wetlands; and (2) that such

placement of fill not violate any, federal state or local

statute, regulation, ordinance or requirement."

The two contractors, Vinch and Mercer, have completed their

work on the property, having deposited fill material removed

from the wetlands portion of the property to other portions of

the Pozgai property. Mr. and Mrs. Pozgai now seek relief from

judgment, in the form of an interpretation of the quoted

language as precluding the contractors, Vinch and Mercer, from

depositing fill om the balance of the property without the

Pozgais’ consent; it is the Pozgais’ contention that the

contractors should now be required to remove the fill which they

have deposited.

The motion will be denied. There is nothing in the order

which gives Mr. and Mrs. Pozgai veto power over the

restoration process, and it would plainly be inequitable at this

late date to impose that additional condition (the Pozsgais’

antecedent consent) nunc pro tunc.

A%o

42a

It must be remembered that it was the Pozgitfastly. be ot

the wetlands to be improperly filed, and who stea,;

to remedy the situation. If they are dissatisfied —o lanai

location of the fill materials, it is within their P% as they could

the situation by removing the fill elsewhere --jus first instance

have removed the fill from the wetlands in the 60(b) will he

Their motion for relief pursuant to F.R.Civ.P.

denied.

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UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

JOHN POZSGAI et al.

Civil Action No. 88-6545

ORDER

AND NOW, this 25th day of February, 1992, it is

ORDERED:

That the motion of defendants John and Gizella Pozgai for

relief from the court’s remedial order of June 18, 1991, under

Rule 60(b) of the Federal Rules of Civil Procedure is DENIED.

/s/ John P. Fullam

Sr.J.

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

Vv.

JOHN POZSGAI et al.

Civil Action No. 88-6545

ORDER TO SHOW CAUSE

Upon the motion of Edward S. F. Dennis, Jr., United

States Attorney for the Eastern District of Pennsylvania, it is

hereby

ORDERED that Defendant John Pozgai appear before the

United States District Court for the Eastern District of

Pennsylvania, in Courtroom 17, United States Courthouse, 601

Market Street, Philadelphia, Pennsylvania, on the 8th day of

September, 1988 at 9:30 A.M., to show cause why he should

not be held in contempt of the Temporary Restraining Order

signed by the Court on August 24, 1988, which was served that

date. It is further

ORDERED that a copy of this Order, the Motion, and the

supporting Memorandum be served upon the above-named

defendant by regular first-class mail on or before the 6th day of

September, 1988.

The facts constituting the alleged contempt are the failure

of defendant John Pozsgai to comply with the Temporary

Restraining Order entered and served on August 24, 1988, by

continuing the discharge and arranging for the discharge of fill

material into federally protected wetlands since that date.

/s/ Robert S. Gawthrop, III, J.

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UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

Vv.

JOHN POZSGAI et al.

Civil Action No. 88-6545

TEMPORARY RESTRAINING ORDER

AND ORDER SETTING HEARING

AND NOW, this 24th day of August, 1988, upon

consideration of the Government’s Motion for Temporary

Restraining Order pursuant to Rule 65 of the Federal Rules of

Civil Procedure, it is hereby

ORDERED

1. Defendants John Pozsgai, Gizella Pozsgai, Mercer

Wrecking & Recycling Corporation and J. Vinch & Sons, Inc.

are immediately ordered to cease and desist from discharging fill

material onto the site located at Tax Parcel 13-28-83, West

Bridge Street, Falls Township, Bucks County, Pennsylvania.

2. Defendants are ordered to cease and desist their further

violation of the clean Water Act, 33 U.S.C. §1311(a).

3. That a hearing shall be scheduled in this matter for 9:30

a.m. on September 8, 1988, in courtroom , 601 Market

Street, Philadelphia, PA.

SO ORDERED:

/s/ Franklin §. Van Antwerpren

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SS U.S.C. § @I3TI. EffTuemt Meatotions

(a) Ilegality of pollutant discharges except in

compliance with law. Except as in compliance with this section

and sections 302, 306, 307, 318, 402, and 404 of this act [33

USCS §§ 1312, 1316, 1317, 1328, 1342, 1344], the discharge

of any pollutant by any person shall be unlawful.

33 U.S.C. § 1319

(A) knowingly violates section 301, 302, 306,

307, 308, 318, or 405 of this Act [33 USCS § 1311,

1312, 1316, 1318, 1328, or 1345], or any permit

condition or limitation implementing any of such

sections in a permit issued under section 402 of this

Act [33 USCS § 1342] by the Administrator or by a

State, or any requirement imposed in a pretreatment

program approved under section 402(a)(3) or 402

(b)(8) of this Act [33 USCS § 1342(a)(3) or (b)(8)] or

in a permit issued under section 404 of this Act [33

USCS § 1344; by the Secretary of the Army or by a

State; or

x~* x *

shall be punished by a fine of not less than $5,000 nor

more than $50,000 per day of violation, or by

imprisonment for not more than 3 years, or by both. If a

conviction of a person is for a violation committed after a

first conviction of such person under this paragraph,

punishment shall be by a fine of not more than $100,000

per day of violation, or by imprisonment of not more than

6 years, or by both.

33 U.S.C. § 1344. Permits for dredged or fill

material

(a) Discharge into navigable waters at specified disposal

sites. 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.

Not later than the fifteenth day after the date an applicant

submits all the information required to complete an application

for a permit under this subsection, the Secretary shall publish

the notice required by this subsection.

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x *x* *

(e) General permits on State, regional, or nationwide

basis. (1) In carrying out his functions relating to the discharge

of dredged or fill material under this section, the Secretary may,

after notice and opportunity for public hearing, issue general

permits on a State, regional, or nationwide basis for any

category of activities involving discharges of dredged or fill

material if the Secretary determines that the activities in such

category are similar in nature, will cause only minimal adverse

environmental effects when performed separately, and will have

only minimal cumulative adverse effect on the environment.

Any general permit issued under this subsection shall (A) be

based on the guidelines described in subsection (b)(1) of this

section, and (B) set forth the requirements and standards which

shall apply to any activity authorized by such general permit.

33 U.S.C. § 1362. Definitions.

(6) The term "pollutant" means dredged spoil, solid waste,

incinerator residue, sewage, garbage, sewage sludge, munitions,

chemical wastes, biological materials, radioactive materials,

heat, wrecked or discarded equipment, rock, sand, cellar dirt

and industrial, municipal, and agricultural waste discharged into

water. ***

33 C.F.R. § 328.3. Definitions.

For the purpose of this regulation these terms are defined

as follows:

(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

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