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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1110

## Text

| HOV ~ B B38
No 93- ack : rtd gi eg
IN THE

SUPREME COURT OF THE UNITED STATES
Ocroser Term, 1993

JOHN POZSGAI and GIZELLA POZSGAIT,

Petitioners,
v.

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

i

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.

il
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

iv

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

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

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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
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ee Son gk wg Ve wae we eee 5
on we he de ee ee 4, 20
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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

2

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.

3

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.

s

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).

4

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).

5

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...)

6

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.

7

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

9

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

10

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).

10

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).

1]

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.

12

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

ri

13

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.

14

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

Ty

15

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...)

16

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).

17

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

a

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...)

19

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).

20

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).

TC

21

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).

17

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)

22

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).

23

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").

la

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 92-1454
UNITED STATES OF AMERICA

v.
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.

2a

I.

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).

3a

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

4a

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

ET

Sa

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.

6a

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

Ta

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.

A,

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

9a

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

B.

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

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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

A.

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.

B.

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).

V.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0734%3A1. Public record. Not legal advice.