Appendix — Deaton v. United States

Supreme Court brief2004

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S,

FILED

: 03 ZVOLNOV 117°

“ene |

OFFICE OF Ti& CiER.

No.

In The

Supreme Court of the United States

JAMES S. and REBECCA DEATON,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Duane J. Desiderio

Thomas J. Ward Raymond S. Smethurst, Jr.

Felicia K. Watson Adkins Potts & Smethurst, LLP

National Association of One Plaza East, Suite 600

Home Builders 100 E. Main Street

1201 15" Street, NW Salisbury, MD 21801

Washington, DC 20005 (410) 749-0161

(202) 266-8200

Virginia S. Albrecht

Counsel of Record

Hunton & Williams, LLP

1900 K Street, NW

Washington, DC 20006

(202) 955-1500

(i)

TABLE OF APPENDICES

A. Opinion of the U.S. Court of Appeals for the 4”

CE Ne Bn SE si ereeiionipenibecaancietiainainiees la

B. Memorandum and Order of the U.S. District

Court, District of Maryland, January 29, 2002 ...... 27a

C. Remedial Order of U.S. District Court, District of

Maryland, February 4, 2002 ..............ccsssscccesesereeeeee 50a

D. Order of U.S. Court of Appeals for the 4" Circuit,

Denying Rehearing, Filed August 11, 2003............ 52a

E. Federal Statutes and Regulations .................:eeeeeees 53a

SRE TEE FINE snehntnnceintienticneeninnninaneiion 53a

Fe ee icici mincncninnninninin 53a

Section 101(a)-(b), 33 U.S.C. § 1251 (a)-(b)...... 57a

Section 301(a), 33 U.S.C. § 1311(a)................00 59a

Section 404(a), 33 U.S.C. § 1344(a)........ eee 59a

Section 502, 33 U.S.C.§ 1362 (excerpts) ........... 59a

IE iiciitesccerisenittinehatinentirsmencniannnis 6la

Fe ae: At ioconccaccoaeaenmcacebaia 6la

Fe ee ED sreintcnrncitgesrnemacemmananies 62a

PP i 6 FR itinmntiniininaaunnaninn 63a

F. State of Maryland, Statutes and Regulations .......... 64a

DERN CED sisi ccscsinesscnspetersccineseesnnnninavsnsnnvrens 64a

Md. Code Ann. Art. 8, § 603(b) (2003).............. 64a

Md. Code Ann. Art. 25, § 52 (2003) .................. 64a

Md. Code Ann. Art. 25, § 53 (2003) ......... eee 65a

EAI OGIO, assiisiccsisrnnsssiaseisatnacinescennevionss 66a

Md. Regs. Code tit. 15, § 20.01.01 (2003)......... 66a

(ii)

TABLE OF APPENDICES

(continued)

Sixth Affidavit of ‘Alexander G. Dolgos,

October 16, 2001 (w/o attachments) .................00008 67a

Second Stipulation of Facts,

October 12, 2001 (w/o attachments) ..................0066 70a

Depiction of Connections between Deaton Property

and Wicomico River, from Reply Brief of Appellants,

September 13, DOQZ....cinscnriconininasnmnsvaninsectancrnens 77a

Photograph of Roadside Ditch Next to Morris

Leonard Road, Attached to Affidavit of Amanda L.

Longfellow, October 15, 2001 ....cscsesesessnsvsssesssesenns 78a

APPENDIX A

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

JAMES S. DEATON; REBECCA DEATON,

Defendants-Appellants, No. 02-1442

THE CHESAPEAKE BAY FOUNDATION,

INCORPORATED; STATE OF MARYLAND,

DEPARTMENT OF THE ENVIRONMENT,

Amici Supporting Appellee. ‘

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, District Judge.

(CA-95-2140-MJG)

Argued: December 5, 2002

Decided: June 12, 2003

Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge Michael wrote the opinion, in

which Judge Wilkinson and Judge Luttig joined.

COUNSEL

ARGUED: Raymond Stevens Smethurst, Jr., ADKINS,

POTTS & SMETHURST, L.L-P., Salisbury, Maryland,

for Appellants. James Clarke Howard, Assistant United

States Attorney, Baltimore, Maryland, for Appellee.

ON BRIEF: Virginia S. Albrecht, Stephen M.

Nickelsburg, HUNTON & WILLIAMS, Washington,

D.C.; Duane J. Desiderio, Thomas Jon Ward,

NATIONAL ASSOCIATION OF HOME BUILDERS,

Washington, D.C., for Appellants. Thomas M. DiBiagio,

United States Attorney, Thomas L. Sansonetti, Assistant

Attorney General, Greer S. Goldman, Ethan G.

Shenkman, Environment & Natural Resources Division,

UNITED STATES DEPARTMENT OF JUSTICE,

Baltimore, Maryland, for Appellee. Roy A. Hoagland,

Denise Stranko, THE CHESAPEAKE BAY FOUNDA-

TION, INC., Annapolis, Maryland; Janice L. Goldman-

Carter, Edina, Minnesota, for Amicus Curiae Foundation.

J. Joseph Curran, Jr., Attorney General of Maryland,

Adam D. Snyder, Assistant Attorney General, Baltimore,

Maryland, for Amicus Curiae State.

OPINION

MICHAEL, Circuit Judge:

This is the second appeal by James and Rebecca

Deaton, who were sued by the government under the

Clean Water Act (sometimes, “the CWA” or “the Act’),

33 U.S.C. § 1251 et seq., for failing to obtain a permit

from the U.S. Army Corps of Engineers (the Corps)

before digging a ditch and depositing excavated dirt in

wetlands on their property. The Corps asserts jurisdiction

because the Deatons’ wetlands are adjacent to, and drain

into, a roadside ditch whose waters eventually flow into

the navigable Wicomico River and Chesapeake Bay. The

Deatons’ main argument is that the Corps has no authority

over the roadside ditch, and thus the agency cannot

regulate their wetlands. First, we hold that Congress’s

power under the Commerce Clause to protect navigable

aan a

Mas

waters allows it to regulate the discharge of pollutants that

flow into the ditch. Congress delegated part of this

authority to the Corps in the Clean Water Act. The Corps,

in turn, has promulgated a regulation, 33 C.F.R. §

328.3(a)(5), that extends CWA jurisdiction to tributaries

of navigable waters. This regulation represents a

reasonable interpretation of the CWA that is entitled to

deference. The Corps interprets its regulation to cover the

roadside ditch, and we also defer to that interpretation.

Second, we hold that the district court did not err when it

decided that the Corps used an appropriate indicator for

wetland hydrology (prescribed by its Wetlands

Delineation Manual) in designating parts of the Deatons’

Property as wetlands. Finally, we affirm the district

court’s remediation order, which requires the Deatons to

fill in the ditch and restore their wetlands to their pre-

violation condition.

The Delmarva Peninsula separates the Chesapeake Bay

from the Atlantic Ocean. Since 1989 the Deatons have

owned an undeveloped, twelve-acre parcel of land located

roughly in the center of the peninsula, near Parsonsburg in

Wicomico County, Maryland. The parcel slopes gently

downhill toward a county road, Morris Leonard Road. A

drainage ditch runs alongside the road between the

pavement and the Deatons’ property. The Deatons call the

ditch the “Morris Leonard Road ditch,” while the Corps

calls it the “John Adkins Prong of Perdue Creek.” We will

call it the “roadside ditch.” The parties agree that surface

water from the Deatons’ property drains into the roadside

ditch. They disagree about how much water flows through

the ditch, and how consistent the flow is, but they agree

on the ditch’s course. Water from the roadside ditch takes

a winding, thirty-two-mile path to the Chesapeake Bay. At

the northwest edge of the Deatons’ property, the rcadside

ditch drains into a culvert under Morris Leonard Road. On

the other side of the road, the culvert drains into another

ditch, known as the John Adkins Prong of Perdue Creek.

Perdue Creek flows into Beaverdam Creek, a natural

watercourse with several dams and ponds. Beaverdam

Creek is a direct tributary of the Wicomico River, which

is navigable. Beaverdam Creek empties into the

Wicomico River about eight miles from the Deatons’

property. About twenty-five river miles further

downstream, the Wicomico River flows into the

Chesapeake Bay, a vast body of navigable water.

The Deatons bought the twelve-acre parcel for the

purpose of developing a small (five-lot) residential

subdivision. There was a problem, however, because

much of the property was poorly drained. In particular,

there was a large, low, wet area in the middle where water

stood in the winter months and after heavy rainfall.

Because of the drainage problem, the Wicomico County

Health Department denied the Deatons’ application for a

sewage disposal permit. The Deatons then decided to dig a

drainage ditch across the property. A technician from the

U.S. Soil Conservation Service (SCS) advised Mr.

Deaton, however, that a large portion of the property

contained nontidal wetlands and that he would need a

permit from the Corps before undertaking any ditching

work. In early 1990 the Deatons, without seeking a Corps

permit, hired a contractor who dug a 1,100-foot ditch that

crossed the areas of the property identified as wetlands by

the SCS technician. The contractor piled the excavated

dirt on either side of the ditch, a practice known as

sidecasting.

The Corps learned about the Deatons’ ditching project

in July 1990 and promptly initiated regulatory action. The

details are discussed in our prior opinion, United States v.

Deaton, 209 F.3d 331, 333 (4th Cir. 2000). In short, the

Corps issued a stop-work order to the Deatons, warning

them that their placement of fill material in a wetland

violated § 404(a) of the Clean Water Act, 33 U.S.C. §

1344(a), and that no further work should be done without

a permit. After a period of lengthy, but unsuccessful,

negotiations with the Deatons, the government in 1995

filed a civil complaint alleging that the Deatons had

violated the Clean Water Act by discharging fill material

into regulated wetlands without a permit. The district

court ultimately concluded in the first round that

sidecasting did not constitute the discharge of a pollutant

under the Act and granted summary judgment to the

Deatons. We reversed, holding that “the Clean Water

Act’s definition of discharge as ‘any addition of any

pollutant to navigable waters’ encompasses sidecasting in

a wetland.” Deaton, 209 F.3d at 337 (referring to 33

U.S.C. § 1362(12)). We remanded the case for further

proceedings.

Not long after our remand order, the Supreme Court

decided Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 531 U.S. 159

(2001) (SWANCC). SWANCC held that the Corps

exceeded its statutory authority under § 404(a) of the

Clean Water Act when it interpreted the Act (through 33

C.F.R. § 328.3(a)(3) and the Migratory Bird Rule, 51 Fed.

Reg. 41,217 (1986)) to cover an isolated, intrastate gravel

pit that was filled with water and used by migratory birds.

Id. at 162-63, 174. Because SWANCC provides new

guidance for analyzing the Corps’s jurisdiction under the

Clean Water Act, the Deatons filed a motion on

September 10, 2001, asking the district court to reconsider

the issue of CWA jurisdiction in this case.

niente

The Deatons argued that under SWANCC the Clean

Water Act cannot be read to extend Corps jurisdiction to

their wetlands or the roadside ditch and that if the Act

does extend that far, Congress exceeded its authority

under the Commerce Clause, U.S. Const. Art. I, § 8, cl. 3.

On January 29, 2002, the district court entered an order

denying the motion to reconsider, holding (1) that the

Deatons’ wetlands are adjacent to the roadside ditch,

which is a tributary of navigable waters, (2) that

“[bJecause there is a hydrologic connection between the

Deaton wetlands and navigable waters,” SWANCC does

not bar CWA jurisdiction, and (3) that protecting the

Deatons’ wetlands is reasonably related to Congress’s

authority under the Commerce Clause to protect navigable

waters as channels of commerce. Five days later, on

February 4, 2002, the district court entered a remediation

order directing the Deatons to restore their property “‘to its

pre-violation condition and elevation.” The Deatons

appeal these orders.

II.

The Deatons’ appeal of the district court’s order

denying their motion to reconsider Clean Water Act (or

Corps) jurisdiction presents a question of law that we

review de novo. See Meekins v. United Transp. Union,

946 F.2d 1054, 1057 (4th Cir. 1991). We begin with the

statutory and regulatory framework for Corps jurisdiction

in this case. Section 404(a) of the Clean Water Act

requires a permit issued by the Secretary of the Army,

through the Corps of Engineers, for the discharge of fill

material into “navigable waters.” 42 U.S.C. § 1344(a), (d).

The Act defines “navigable waters” as “waters of the

United States, including the territorial seas.” 42 U.S.C. §

1362(7). The Corps’s jurisdictional regulations define

“waters of the United States” to include, among others, (i)

traditional navigable waters, that is, “waters which are

currently used, or were used in the past, or may be sus-

ceptible to use in interstate or foreign commerce,” 33

C.F.R. § 328.3(a)(1), (ii) tributaries of covered waters,

including traditional navigable waters, id. § 328.3(a)(5),

and (iii) wetlands adjacent to covered waters, including

tributaries, id. § 328.3(a)(7). The Corps asserts

jurisdiction over the Deatons’ wetlands because they are

adjacent to the roadside ditch, which is a tributary of the

Wicomico River, a traditional navigable water.

In United States v. Riverside Bayview Homes, 474 U.S.

121 (1985), the Supreme Court upheld Corps regulations

“requir[ing] permits for the discharge of fill material into

wetlands adjacent to the ‘waters of the United States.’” Jd.

at 139. Several courts have held that SWANCC limited this

holding to wetlands adjacent to traditional navigable

waters. E.g., Rice v. Harken Energy Co., 250 F.3d 264,

268-69 (Sth Cir. 2001); United States v. RGM Corp, 222

F.Supp. 2d 780, 785-86 (E.D. Va. 2002); United States v.

Newdunn Assocs., 195 F. Supp. 2d 751, 763, 767-68 (E.D.

Va. 2002), appeal pending sub nom. Treacy v. Newdunn

Assocs., No. 02-1480(L) (4th Cir.); United States y.

Rapanos, 190 F.Supp. 2d 1011, 1015-16 (E.D. Mich.

2002). The Deatons do not press for that limitation here.

They argue instead that the roadside ditch is not covered

by the Clean Water Act, which means that their wetlands

are not adjacent to any covered water. As a result, the

Deatons say, they did not need a permit to discharge fill

material into their wetlands. It is undisputed that the

Deatons’ wetlands are adjacent to the roadside ditch.

Thus, if the ditch is covered, so are the wetlands. Our

analysis, then, will focus on whether the Corps has

jurisdiction over the roadside ditch.

The Deatons first argue that the Corps’s tributaries

regulation, which interprets the Clean Water Act to reach

the roadside ditch, pushes the limits of Congressional

authority under the Commerce Clause and thereby raises a

serious constitutional question. According to the Deatons,

Congress did not give a clear indication that it intended

the Act to reach tributaries so far from navigable waters,

and therefore we should avoid the question of whether

regulation of the ditch is constitutional by holding that

Congress did not authorize it under the Act. The Deatons

argue in the alternative that even if Congress authorized

the Corps’s regulation of the roadside ditch under the

CWA, that authorization is invalid because it exceeds

Congress’s power under the Commerce Clause. The

Corps, of course, contends that its assertion of CWA

jurisdiction over the roadside ditch through its tributaries

regulation, 33 C.F.R. § 328.3(a)(5), represents a proper

exercise of power granted to Congress by the Constitution

and delegated to the Corps. For the reasons that follow,

we hold that the CWA, as implemented by the Corps’s

regulation, fits comfortably within Congress’s authority to

regulate navigable waters.

The regulation reflects the Corps’s interpretation of the

CWA, and the Deatons’ arguments require us to undertake

a somewhat complicated analysis. The Deatons begin their

first argument by saying that the Corps’s regulation

cannot survive the threshold analysis required by

SWANCC: when “an administrative interpretation of a

statute invokes the outer limits of Congress’ power,” the

interpretation is not entitled to deference under Chevron

U.S.A. v. Natural Resources Defense Council, 467 U.S.

837 (1984), unless Congress gave “a clear indication that

[it] intended that result.” SWANCC, 531 U.S. at 172

(citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. and Constr. Trades Council, 485 U.S. 568, 575

(1988)). This requirement, the Court said, stems from a

“prudentia! desire not to needlessly reach constitutional

issues and [an] assumption that Congress does not

casually authorize administrative agencies to interpret a

Statute to push the limit of congressional authority.” Jd. at

172-73. Moreover, “[t]his concern is heightened where the

administrative interpretation alters the federal-state

framework by permitting federal encroachment upon a

traditional state power.” Jd. at 173. “Thus, ‘where an

otherwise acceptable construction of a statute would raise

serious constitutional problems, [courts] will construe the

statute to avoid such problems unless such construction is

plainly contrary to the intent of Congress.’” Id. at 173

(quoting DeBartolo, 485 U.S. at 575).

SWANCC and DeBartolo must be read in light of Rust v.

Sullivan, 500 U.S. 173 (1991). See Williams v. Babbitt,

115 F.3d 657, 661-63 (9th Cir. 1997) (comparing

DeBartolo and Rust). In Rust the Supreme Court

proceeded to decide the constitutionality of an agency’s

regulations because, while the constitutional arguments

against the regulations had “some force,” the arguments

did not “raise the sort of grave and doubtful constitutional

questions” that would require a clear indication from

Congress that it intended to authorize the agency’s inter-

pretation. Rust, 500 U.S. at 191 (internal quotation marks

and citation omitted). Thus, the Court said, it did not have

to “invalidate the regulations in order to save the statute

from unconstitutionality.” Jd. In sum, when “we do not

face the sort of serious constitutional questions ‘that

would lead us to assume Congress did not intend to

authorize [the regulation’s] issuance,’” we may decide the

constitutional question and proceed to the Chevron

analysis. Republican Nat’l Comm. v. Fed. Election

10a

Comm'n, 76 F.3d 400, 409 (D.C. Cir. 1996) (quoting Rust,

500 U.S. at 191).

Our initial task is to determine whether the

constitutional question - does the Commerce Clause give

Congress authority over the roadside ditch - is serious

enough to warrant rejection of the Corps’s regulation. The

Commerce Clause of our Constitution grants Congress

authority over three distinct spheres: “[1] the use of the

channels of interstate commerce .. . [2] the

instrumentalities of interstate commerce, or persons or

things in interstate commerce . . . [and 3] those activities

having a substantial relation to interstate commerce.”

United States v. Lopez, 514 U.S. 549, 558-59 (1995). The

activities regulated under the third category must be

“economic in nature.” United States v. Morrison, 529 U.S.

598, 613 (2000). See also GDF Realty Invs., Inc. v.

Norton, 326 F.3d 622, 633-36 (5th Cir. 2003). Congress

enacted the Clean Water Act under “its traditional

jurisdiction over waters that were or had been navigable in

fact or which could reasonably be so made.” SWANCC,

531 U.S. at 172. See also id. at 168 n.3. The power over

navigable waters is an aspect of the authority to regulate

the channels of interstate commerce. Gibbs v. Babbitt, 214

F.3d 483, 490-91 (4th Cir. 2000) (including “navigable

rivers, lakes, and canals” among the channels of

commerce) (citation omitted); United States v. Ballinger,

312 F.3d 1264, 1269 (11th Cir. 2002).

Congress’s power over the channels of interstate

commerce, unlike its power to regulate activities with a

substantial relation to interstate commerce, reaches

beyond the regulation of activities that are purely

economic in nature. The power to regulate channels of

interstate commerce allows Congress to make laws that

protect the flow of commerce. See Heart of Atlanta Motel,

lla

Inc. v. United States, 379 U.S. 241, 257 (1964) (upholding

congressional power to bar racial discrimination in hotels

because this discrimination had a “disruptive effect .. . on

commercial intercourse”); United States v. Darby, 312

U.S. 100, 114-15 (1941) (upholding congressional power

to forbid interstate commerce in goods made by child

labor because traffic in such goods encourages

“competition . . . injurious to the commerce”). Some of

the power exercised by Congress in enacting the Clean

Water Act is grounded in the authority to protect the flow

of commerce in “navigable waters as channels or

instrumentalities of interstate commerce.” United States v.

Wilson, 133 F.3d 251, 256 (4th Cir. 1997). See also

United States v. Ashland Oil & Transp. Co., 504 F.2d

1317, 1325-26 (6th Cir. 1974) (noting hazards to

navigation posed by pollution).

The Deatons argue that the power over navigable waters

is limited to legislation aimed at protecting or encouraging

navigation and the flow of commerce. However, the

Supreme Court cases discussing congressional power over

channels of interstate commerce make clear that this view

is too narrow. Congressional power to regulate the use of

commercial channels goes further: “the authority of

Congress to keep the channels of interstate commerce free

from immoral and injurious uses has been frequently

sustained . . . .” Caminetti v. United States, 242 U.S. 470, |

491 (1917) (quoted in Lopez, 514 US. at 558). In |

Caminetti the Supreme Court held that the Mann Acct, |

which barred the transport of “any woman or girl” in |

interstate channels for an “immoral purpose” was within

congressional authority, even though the defendant’s

conduct - transporting a woman across state lines to “be

and become his mistress and concubine” - was entirely

noncommercial. Jd. at 483, 485; see also Perez v. United

States, 402 U.S. 146, 150 (1971) (acknowledging

;

12a

congressional power to regulate “the use of channels of

interstate . . . commerce which Congress deems are being

misused”’); Heart of Atlanta Motel, 379 U.S. at 256 (citing

Caminetti); cf. Ballinger, 312 F.3d at 1270 (“Congress

may regulate any instrumentality or channel of interstate

commerce... .”); United States v. Horton, 321 F.3d 476,

481 n.3 (4th Cir. 2003) (reading federal kidnapping statute

as exercise of congressional power to prevent “misuse” of

channels of commerce by a kidnapper trying “to cover up

his trail by moving evidence of his crime into a different

State’s jurisdiction”). But cf. United States v. Abdullah,

162 F.3d 897, 901 (6th Cir. 1998) (suggesting that a

statute enacted under this authority must have as its

purpose “to keep open the very avenues by which inter-

state commerce is transacted”). The Deatons are correct

that many cases concerning the power over navigable

waters focus on congressional authority to regulate in aid

of navigation. E.g., Gilman v. Philadelphia, 70 U.S. (3

Wall.) 713, 724-25 (1866); United States v. Appalachian

Elec. Power Co., 311 U.S. 377, 404-05 (1940). But there

is no reason to believe Congress has less power over

navigable waters than over other interstate channels such

as highways, which may be regulated to prevent their

“immoral and injurious use[ ].” Caminetti, 242 U.S. at

491.

Congress’s authority over the channels of commerce is

thus broad enough to allow it to legislate, as it did in the

Clean Water Act, to prevent the use of navigable waters

for injurious purposes. See Caminetti, 242 U.S. at 491;

Lopez, 514 U.S. at 558. For example, Congress may

outlaw the use of navigable waters as dumping grounds

for fill material. The power over navigable waters also

carries with it the authority to regulate nonnavigable

waters when that regulation is necessary to achieve

Congressional goals in protecting navigable waters. See

13a

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313

U.S. 508, 525-26 (1941); United States v. Rio Grande

Dam Irrigation Co., 174 U.S. 690, 708-09 (1899); see

also United States v. Grand River Dam Auth., 363 U.S.

229, 232 (1960). Any pollutant or fill material that

degrades water quality in a tributary of navigable waters

has the potential to move downstream and degrade the

quality of the navigable waters themselves. Indeed, the

principle that Congress has the authority to regulate

discharges into nonnavigable tributaries in order to protect

navigable waters has long been applied to the Clean Water

Act. See, e.g., Ashland Oil, 504 F.2d at 1325-29; cf.

United States v. Hartsell, 127 F.3d 343, 348-49 (4th Cir.

1997). The Deatons argue that their discharge (or

sidecasting of dirt) into wetlands adjacent to the roadside

ditch is too trivial to affect water quality in navigable

waters. Congress, however, may decide that the aggregate

effect of all of the individual instances of discharge, like

the discharge by the Deatons, justifies regulating each of

them. See Wickard v. Filburn, 317 U.S. 111 (1942). And

if Congress itself has the authority to make that decision,

it may delegate it to the Corps, as long as it provides an

“intelligible principle” _to guide the agency’s

decisionmaking. See, e.g., J. W. Hampton, Jr. & Co. v.

United States, 276 U.S. 394, 409 (1928); Skinner v. Mid-

Am. Pipeline Co., 490 U.S. 212, 218-24 (1989); see also

Darby, 312 U.S. at 120-21. Congress passed the Clean

Water Act “to restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters,” 33 U.S.C.

§ 1251(a), and gave the Corps, along with the

Environmental Protection Agency, the job of getting this

done. The Corps has pursued this goal by regulating

nonnavigable tributaries and their adjacent wetlands. This

use of delegated authority is well within Congress’s

traditional power over navigable waters.

14a

It follows that under the Corps’s interpretation, the

Clean Water Act does not invade an area of authority

reserved to the states. The power to protect navigable

waters is part of the commerce power given to Congress

by the Constitution, and this power exists alongside the

states’ traditional police powers. “Although States have

important interests in regulating . . . natural resources

within their borders, this authority is shared with the

Federal Government when the Federal Government

exercises one of its enumerated powers... .” Minnesota

v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172,

204 (1999). Cf. Gibbs, 214 F.3d at 499-501 (concluding

that the application of the Endangered Species Act to

private land does not unconstitutionally interfere with

local power over land use or wildlife); GDF Realty Invs.,

326 F.3d at 639 (same). The federal decision to regulate

the discharge of pollutants into tributaries of navigable

waters does not “significantly change[ ] the federal-state

balance.” See United States v. Bass, 404 U.S. 336, 349

(1971).

In sum, the Corps’s regulatory interpretation of the term

“waters of the United States” as encompassing

nonnavigable tributaries of navigable waters does not

invoke the outer limits of Congress’s power or alter the

federal-state framework. The agency’s interpretation of

the statute therefore does not present a_ serious

constitutional question that would cause us to assume that

Congress did not intend to authorize the regulation.

Indeed, as our discussion of Congress’s Commerce Clause

authority makes clear, the federal assertion of jurisdiction

over nonnavigable tributaries of navigable waters is

constitutional.

The thrust of the Deatons’ final argument about the

—————————EE

1Sa

Corps’s jurisdiction is this: even if the Corps could

regulate the roadside ditch without causing a

constitutional problem, neither the Clean Water Act nor

the Corps’s regulation extends coverage to the ditch. Here,

the Deatons make a two-part argument. First, they argue

that even if the Act authorizes the Corps to regulate the

nonnavigable tributaries of navigable waters, the roadside

ditch is not such a tributary. They Say that the ditch does

not meet the definition of “tributary” at all or, alter-

natively, it is not a tributary of a navigable water because

water flowing from the ditch must pass through several

other nonnavigable watercourses before reaching the

navigable Wicomico River. In short, the Deatons are

arguing here that the Corps is misinterpreting its own

regulation by using the tributaries provision, 33 C.F.R. §

328.3(a)(5), to assert jurisdiction over the roadside ditch.

Second, they argue that if the tributary regulation does

cover the ditch, the regulation is an unreasonable

interpretation of the CWA. We hold that we should defer

to the Corps’s interpretation of its regulation to include

the ditch and that the regulation, read this way, iS a

reasonable interpretation of the Clean Water Act.

This finally brings us to Chevron, and we analyze the

Deatons’ statutory and regulatory coverage arguments as

follows. We begin with the first step of the Chevron

analysis, see 467 U.S. at 842, and determine whether the

Ciean Water Act delegates authority to the Corps to

decide whether to regulate nonnavigable tributaries.

Specifically, we ask “whether Congress has directly

spoken to the precise question at issue.” Jd. When

Congress has not spoken directly, but instead has been

“silent or ambiguous” on the issue, it has by implication

delegated authority to the agency charged with

administering the statute, allowing the agency to clarify

the ambiguity or fill the gap. Id. at 843-45. See also

l6a

Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735,

742 (1996). If we conclude that the statute is silent or

ambiguous, we normally move directly to the second step

in the Chevron analysis, see 467 U.S. at 843, and

determine whether the agency’s regulation reflects a

reasonable construction of the statute, id.

In this case, however, we are sidetracked by another

issue: the meaning of the regulation itself. The Corps

interprets its regulation to cover the roadside ditch, but the

Deatons contend that the Corps’s interpretation cannot be

squared with the words of the regulation. As a result of

this dispute, we must, before proceeding to Chevron’s step

two, determine what the regulation actually means.

Kentuckians for the Commonwealth v. Rivenburgh, 317

~ F.3d 425, 439 (4th Cir. 2003). We give “controlling

weight” to an agency’s interpretation of its own

regulation, “unless [the interpretation] is plainly erroneous

or inconsistent with the regulation.” Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410, 413-14 (1945). See also

Auer v. Robbins, 519 U.S. 452, 461 (1997); Kentuckians,

317 F.3d at 439; United States v. Hoechst Celanese Corp.,

128 F.3d 216, 221 (4th Cir. 1997). If the regulation is

unambiguous, then what is known as Seminole Rock

deference does not apply, and the regulation’s plain

language, not the agency’s interpretation, controls.

Christensen v. Harris County, 529 U.S. 576, 588 (2000).

Once we have determined what the regulation means, we

can move on to the second step of Chevron, 467 U.S. at

843, and decide whether the regulation is based on a

reasonable construction of the statute. See Kentuckians,

317 F.3d at 439-40 (combining use of Seminole Rock and

Chevron tests).

We turn to the initial question of whether the statute is

ambiguous. If Congress has “spoken to the precise

aaeieeiiaesteaeiimnaediaiieal

17a

question at issue,” there is no ambiguity and thus no room

for the agency interpretation. Chevron, 467 U.S. at 842-

43. The precise question here is whether the Clean Water

Act extends to distant, nonnavigable tributaries of

navigable waters. Section 404(a) of the CWA regulates

discharges into “navigable waters,” 42 U.S.C. § 1344(a),

and the Act defines “navigable waters” as “waters of the

United States,” id. § 1362(7). The Corps’s regulations

interpret the term “waters of the United States.” If Con-

gress had stopped with the basic term “navigable waters,”

the term used in § 404(a), 42 U.S.C. § 1344(a), many

years of judicial precedent would give us the following

clear meaning: “[waters] are navigable in fact when they

are used, or are susceptible of being used, in their ordinary

condition, as highways for commerce, over which trade

and travel are or may be conducted in the customary

modes of trade and travel on water.” The Daniel Ball, 77

U.S. (10 Wall.) 557, 563 (1871). See also Appalachian

Elec. Power Co., 311 U.S. at 404-10. In the Clean Water

Act Congress elected to redefine “navigable waters,”

moving away from the traditional definition. Its choice of

the expansive phrase “waters of the United States”

indicates an intent to “regulate at least some waters that

would not be deemed ‘navigable’ under the classical

understanding of that term.” Riverside Bayview, 474 U.S.

at 133.

SWANCC, of course, emphasizes that the CWA is based

on Congress’s power over navigable waters, suggesting

that covered nonnavigable waters are those with some

connection to navigable ones. See SWANCC, 531 U.S. at

167, 172. But we cannot tell from the Act the extent to

which nonnavigable tributaries are covered. The statutory

term “waters of the United States” is sufficiently

ambiguous to constitute an implied delegation of authority

to the Corps; this authority permits the Corps to determine

18a

which waters are to be covered within the range suggested

by SWANCC. See Chevron, 467 U.S. at 843 (‘The power

of an administrative agency to administer a _ con-

gressionally created . . . program necessarily requires. . .

the making of rules to fill any gap left . . . by Congress.””’)

(quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)).

We next look for the meaning of the regulation

promulgated under this delegated authority. Before

deferring to the agency interpretation under Seminole

Rock, we first decide whether the regulation is ambiguous.

Christensen, 529 U.S. at 588. The regulation, 33 C.F.R. §

328.3(a)(5), defines “waters of the United States” to

include tributaries of navigable waters. The Deatons argue

that it is wrong to read the regulation to reach all branches

of a system that eventually flow into a navigable

waterway. They contend that the term “tributary” in the

regulation refers only to a nonnavigable branch that

empties directly into a navigable waterway. Thus, they

say, the roadside ditch is not a tributary of the navigable

Wicomico River. We must decide whether this issue is

settled by the plain language of the regulation.

Webster’s Third New International Dictionary (1993)

defines “tributary” as (1) “providing with or serving as a

channel for supplies or additional matter” or (2) “‘one that

is tributary to another: as . . . a stream.” According to this

definition, “tributary” in the regulation would encompass

the entire feeder system for a navigable water because

even a stream many branches away eventually provides

“additional matter” for the navigable water. On the other

hand, Webster’s II New Riverside University Dictionary

(1988) defines tributary as “[a] river or stream flowing

into a larger river or stream.” Under this definition a

watercourse like the roadside ditch appears to be a tribu-

tary, but it is not clear that it would be a tributary of a

19a

larger river several branches downstream. It could be read

to mean that only streams flowing directly into a larger

river are the larger river’s tributaries. The dictionaries thus

agree that the roadside ditch is a tributary, but they do not

settle the question of whether it is a tributary of a naviga-

ble water (here, the Wicomico River), which is what the

regulation covers. “The existence of alternative dictionary

definitions of the word ‘[tributary],’ each making some

sense under the [regulation], itself indicates that the

[regulation] is open to interpretation.” Nat’ R.R.

Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407,

418 (1992). We conclude that the regulation is ambiguous

on the question of how far the coverage of tributaries

extends. We therefore turn to the agency’s interpretation.

The Corps asserts in its brief that “tributaries” in the

regulation means “all tributaries, “not just” ‘short’ or

‘primary’ tributaries.” Appellee’s Br. at 37. In the

preamble to a prior generation of CWA regulations, the

agency wrote that “Corps jurisdiction .. . would extend to

... all tributaries (primary, secondary, tertiary, etc) of navi-

gable waters.” 40 Fed. Reg. 31,320 (1975) (emphasis

added). As the Deatons point out, these old regulations cut

off Corps jurisdiction at the “headwaters” of a tributary,

defined by a minimum water flow that the roadside ditch

would not meet. /d at 31,321, 31,324. But we are

concerned here with the definition of the word “tributary.”

Although the Corps has not always chosen to regulate all

tributaries, it has always used the word to mean the entire

tributary system, that is, all of the streams whose water

eventually flows into navigable waters. Cf Headwaters,

Inc. v. Talent Irrigation Dist. 243 F.3d 526, 533 (9th Cir.

2001) (considering “tributary” to reach all branches of a

system without referring to Corps’s interpretation).

Because the Corps’s longstanding interpretation of the

word “tributary” has support in the dictionary and

a ee

20a |

elsewhere, it is not plainly erroneous. Nor is it incon-

sistent with the regulation. The interpretation is therefore

entitled to Seminole Rock deference. In short, the word

“tributaries” in the regulation means what the Corps says

it means.

Now that we know the meaning of the regulation -

jurisdiction extends to any branch of a tributary system

that eventually flows into a navigable body of water - we

can proceed to step two of the Chevron inquiry: is the

regulation “based on a permissible construction” of the

Clean Water Act. Chevron, 467 U.S. at 843. The Deatons

rely on a passage from SWANCC to assert that the Corps’s

current jurisdictional interpretation cannot be reasonable.

In SWANCC the Supreme Court said that the Corps had

“put forth no persuasive evidence that [it] mistook

Congress’ intent” when it promulgated the first set of

CWA regulations in 1974, shortly after the Act was

passed. SWANCC, 531 U.S. at 168. The first regulations

were narrow, reaching only navigable waters. See 39 Fed.

Reg. 12,115, 12,119 (1974).

We do not read SWANCC to hold that the 1974

regulations represent the only permissible interpretation of

the Ciean Water Act. Those regulations captured what

SWANCC holds to be Congress’s general intent in

enacting the CWA, that is, to exercise its power over

navigable waters for the purpose of protecting their

chemical, physical, and biological integrity. See

SWANCC, 531 U.S. at 166, 172 (citing 33 U.S.C. §

1251(a)). In the case before us, however, our conclusion

in step one of the Chevron inquiry - that the CWA is

ambiguous when it comes to jurisdictional coverage -

shows that Congress intended to delegate authority to the

Corps to decide how far coverage must extend in order to

protect the navigable waters. We defer to an agency’s

2la

reasonable interpretation not because the agency is in a

better position to know what Congress really wanted, but

“because of a presumption that Congress, when it left

ambiguity in a statute meant for implementation by an

agency, understood that the ambiguity would be resolved,

first and foremost, by the agency, and desired the agency

(rather than the courts) to possess whatever degree of

discretion the ambiguity allows.” Smiley, 517 U.S. at 740-

41. Over the years, the Corps’s understanding of the best

way to exercise its discretion under the CWA has evolved.

See Newdunn Assocs., 195 F. Supp. 2d at 759-62 & n.8

(detailing changes to Corps’s CWA jurisdictional regula-

tions through revisions and interpretations in 1974, 1975,

1977, 1982, 1986, and 1990).

To conclude that the Corps’s current interpretation is

reasonable, “we need not find that [its interpretation] is

the only permissible construction . . . but only that [the

agency’s] understanding of this . . . statute is a sufficiently

rational one to preclude a court from substituting its

judgment for [the agency’s].” Chem. Mfrs. Ass’n v.

Natural Res. Def: Council, Inc., 470 U.S. 116, 125 (1985)

(quotation marks omitted). An agency is allowed to

change its mind, so long as its new interpretation is

reasonable. Smiley, 517 U.S. at 742. In other words, “the

mere fact that an agency interpretation contradicts a prior

agency position is not fatal.” Id. See also Rust, 500 U.S. at

186-87; Chevron, 467 U.S. at 863-64; United States v.

Mead Corp, 533 U.S. 218, 247 (2001) (Scalia, J.,

dissenting) (“Where Chevron applies, _ statutory

ambiguities remain ambiguities subject to the agency’s

ongoing clarification.”); Piney Mtn. Coal Co. v. Mays,

176 F.3d 753, 766-67 (4" Cir. 1999); Mass. v. FDIC, 102

F.3d 615, 621 (1st Cir. 1996). There is no suggestion that

the Corps’s current interpretation represents a “[s]udden

and unexplained change” or that it “does not take account

22a

of legitimate reliance on prior interpretation.” Smiley, 517

U.S. at 742 (citing Motor Vehicle Mfrs. Ass’n of United

States, Inc v. State Farm Mut. Auto. Ins. Co, 463 U.S. 29,

46-57 (1983); United States v. Pa. Indus. Chem. Corp.,

411 U.S. 655, 670-75 (1973); NLRB v. Bell Aerospace

Co., 416 U.S. 267, 295 (1974)).

Accordingly, if the Corps’s current interpretation, 33

C.F.R. § 328.3(a)(5), is based on a_ reasonable

construction of the statute, we will defer to the Corps. We

conclude that deference is appropriate. In Riverside

Bayview the Supreme Court concluded that the Corps

regulation extending jurisdiction to adjacent wetlands was

a reasonable interpretation in part because of what

SWANCC described as “the significant nexus between the

wetlands and ‘navigable waters.’” SWANCC, 531 U.S. at

167. There is also a nexus between a navigable waterway

and its nonnavigable tributaries. The Corps argues, with

supporting evidence, that discharges into nonnavigable

tributaries and adjacent wetlands have a substantial effect

on water quality in navigable waters. The Deatons do not

suggest that this effect is overstated. This nexus, in light

of the “breadth of congressional concern for protection of

water quality and aquatic ecosystems,” Riverside Bayview,

474 U.S. at 133, is sufficient to allow the Corps to

determine reasonably that its jurisdiction over the whole

tributary system of any navigable waterway is warranted.

The regulation, as the Corps reads it, reflects a reasonable

interpretation of the Clean Water Act. The Act thus

reaches to the roadside ditch and its adjacent wetlands.

Ill.

The Deatons next argue that the district court erred

when it held that the Corps used a correct indicator for

wetland hydrology (taken from its Wetlands Delineation

Manual) in designating parts of their property as wetlands.

a a

23a

The Corps’s underlying wetlands regulation, which the

Deatons do not challenge, defines wetlands as “areas that

are inundated or saturated by surface or ground water”

and are home to “vegetation typically adapted for life in

saturated soil conditions.” 33 C.F.R. § 328.3(b). To assist

in applying this regulation, the Corps uses its Wetlands

Delineation Manual, known as the 1987 Manual. See

Waterways Experiment Station, Dep’t of the Army, Corps

of Engineers Wetlands Delineation Manual (1987).

According to the manual, wetlands have “general

diagnostic environmental characteristics” in the following

three categories: vegetation, soil classification (hydric),

and hydrology. 1987 Manual at 13-14. The Deatons do

not dispute that their property meets the vegetation and

soil criteria. However, they claim that their property lacks

the required hydrology.

The 1987 Manual lists several methods for determining

an area’s hydrology, ranking them by reliability. Jd. at 37-

41. Using recorded data on water levels, flooding, and soil

saturation is the most reliable method. Using field data is

next. Jd. Among the acceptable ways of gathering field

data, the second most reliable is “[v]isual observation of

soil saturation,” which involves digging a hole in the soil

and observing water levels. In order to influence the

characteristics of vegetation (and meet the wetlands

hydrology criterion), water must saturate the soil “within a

major portion of the root zone (usually within 12 inches of

the surface).” Jd. The Corps determined that the Deatons’

property met the hydrology requirement by using the

manual’s visual observation method and finding that the

soil was saturated to within twelve inches of the surface.

The Deatons conducted their own observations, using

twenty-two wells to monitor and record groundwater

levels for several months. According to the Deatons, their

study confirms that the areas in question were not

SS ————

24a

saturated to the surface for a sufficient time to be

considered wetlands. The Deatons rely on certain

language in the manual describing wetlands hydrology as

soil “saturation to the surface at some time during the

growing season.” 1987 Manual at 34. They therefore

argue that the observation-based data showing soil

saturation within twelve inches of the surface does not

permit a wetlands classification and that the Corps

misinterpreted the manual in making the classification.

The Corps’s wetlands classification, however, did not

involve an interpretation (or misinterpretation) of the

manual. The “within twelve inches” indicator is spelled

out in the manual, and the Corps simply found this

indicator to be present.

The analysis of the Deatons’ attack on the Corps’s

reliance on the “saturation within twelve inches of the

surface” indicator must begin with the Corps’s wetlands

regulation. Again, the regulation, 33 C.F.R. § 328.3(b),

defines wetlands to include areas that are “saturated by

surface or ground water.” The 1987 Manual interprets the

regulation. The manual states that areas with wetland

hydrology include those where “soils [are] saturated to the

surface at some time during the growing season.” 1987

Manual at 34. The manual also states that wetland

hydrology is present where the saturation has “an

overriding influence on characteristics of vegetation.” Jd.

Saturation to within twelve inches of the surface is usually

sufficient to have an overriding impact on vegetation,

according to the manual. /d. at 38. Finally, the presence or

absence of the “within twelve inches” indicator may be

determined by visual observation. Jd. Here, the Corps

simply used the manual’s prescribed criterion (the “within

twelve inches” indicator) and methodology (visual

observation) in determining that the Deatons’ property

had the required hydrology for wetlands designation. If

terre

it. itn tna owes ar. game

25a

the Deatons want to argue that the “within twelve inches”

criterion is inappropriate, they must argue that the manual

is a flawed interpretation of the regulation defining

wetlands. The Deatons, however, do not argue that the

manual “is plainly erroneous or inconsistent with” the

regulatory definition of wetlands. See Seminole Rock, 325

U.S. at 413-14. We are therefore bound to defer to the

manual’s interpretation of the regulation, id., especially

since the interpretation deals in a complex scientific field,

wetlands ecology and hydrology. Cf. Pauley v.

BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991)

(finding particular reason to extend Chevron deference

when an agency administers a “complex and highly

technical regulatory program”’).

IV.

Finally, the Deatons challenge the District Court’s

remedial order requiring them to fill in the ditch they dug

across their property. The Clean Water Act only regulates

the deposit of the material dug out of the ditch, not the

digging itself. Therefore, the Deatons argue, requiring

them to haul the deposited dirt to a non-wetland part of

the property is the proper remedy. According to the

Deatons, they would not have needed a permit if they had

hauled the dirt away when they dug the ditch, so the

remedy for their failure to get a permit should go no

further than requiring them to do what would have been

lawful in the first place.

We review the scope of a remediation order for abuse of

discretion. See Dixon v. Edwards, 290 F.3d 699, 718 (4th

Cir. 2002); see also Sasser v. Adm’r, United States EPA,

990 F.2d 127, 130 (4th Cir. 1993). In evaluating

remediation or restoration proposals, courts have

considered three factors: (1) whether the proposal “would

confer maximum environmental benefits,” (2) whether it

26a

is “achievable as a practical matter,” and (3) whether it

bears “an equitable relationship to the degree and kind of

wrong it is intended to remedy.” United States v.

Cumberland Farms of Conn., Inc., 826 F.2d 1151, 1164

(1st Cir. 1987). See also United States v. Sexton Cove

Estates, Inc., 526 F.2d 1293, 1301 (Sth Cir. 1976) (Rivers

and Harbors Act case); United States v. Bradshaw, 541 F.

Supp. 884, 885 (D. Md. 1982). Although the district court

did not consider each of these factors explicitly, it

generally covered them. The court found that allowing the

Deatons to haul the dirt away instead of filling the ditch

would let them benefit from their violation of the Clean

Water Act. Moreover, the court found it “doubtful that

[removing the sidecast dirt] could be done in an

ecologically harmless manner.” In other words, the district

court found that the Deatons’ remediation proposal would

likely compound the environmental damage they had

already done. In light of these findings and the Clean

Water Act’s goal of “restor[ing] and maintain[ing] the

chemical, physical, and biological integrity of the

Nation’s waters,” 33 U.S.C. § 1251(a), we conclude that

the district court did not abuse its discretion in entering

the remediation order.

We affirm the district court’s order of January 29, 2002,

denying the Deatons’ motion to reconsider the issue of

Clean Water Act jurisdiction and that court’s order of

February 4, 2002, requiring remediation.

AFFIRMED

27a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA °

Plaintiff °

VS. * CIVIL ACTION No. MJG-95-2140

JAMES S. DEATON, et al. .

Defendants a

* * * * * * * * * *

MEMORANDUM AND ORDER

The Court has before it the Defendants’ Post Remand

Motion to Reconsider the Issue of Clean Water Act

Jurisdiction, the remaining penalty and remedy issues, and

the materials submitted by the parties related thereto. The

Court has held a hearing, including a site observation

visit, and has had benefit of the arguments of counsel.

I. PROCEDURAL BACKGROUND

This action was brought by the United States (“the

Government”) against James and Rebecca Deaton (“the

Defendants” or “the Deatons”) under §§ 301(a) and 404 of

the Clean Water Act (“the Act”). 33 U.S.C. §§ 1311(a),

1344.

On September 27, 1997, this Court issued a

Corrected’ Memorandum and Order (“Corrected M&O”)

granting in part the Government’s Motion for Summary

Judgment. A critical issue presented was whether

sidecasting on jurisdictional wetlands constituted the

discharge of a pollutant into a water of the United States

' The parties’ agreed changes to a September 10, 1997

Memorandum and order were accepted by the Court.

28a

within the meaning of the Clean Water Act. The Court

decided that such sidecasting does amount to the

discharge of a pollutant under the Act.

On December 23, 1997, the United States Court of

Appeals for the Fourth Circuit decided United States v.

Wilson, 133 F.2d 251 (4" Cir. 1997), which addressed,

but did not resolve, the sidecasting issue. Judge Niemeyer,

who wrote the opinion for a three-judge panel, included in

his decision a section concluding that sidecasting on

jurisdictional wetlands did not constitute the addition of a

pollutant to a water of the United States. 133 F.3d 251,

258 (4th Cir. 1997). District Judge Payne expressly

disagreed, stating that in his view sidecasting did amount

to a discharge of pollution. The third judge on the panel,

Judge Luttig, did not address the issue at all.

On June 23, 1998, this Court issued a Memorandum

and Order Re: Impact of Wilson stating that it agreed with

Judge Payne, but predicted that the Fourth Circuit would

adopt the position expressed by Judge Niemeyer. Thus,

the Court held that sidecasting was not the discharge of a

pollutant and granted summary judgment to the

Defendants. Judgment was entered for the Defendants on

June 23, 1998. The Government timely appealed. The

Defendants cross-appealed, claiming that this Court

lacked jurisdiction over the case.

On April 7, 2000, the Fourth Circuit issued its

decision on the Government’s appeal. In United States v.

Deaton, 209 F.3d 331 (4" Cir. 2000), the appellate court

resolved the issue left open in Wilson and held that

sidecasting did amount to a discharge of pollution, that is

the addition of a pollutant. The appellate court decided, in

light of the decision on the sidecasting issue, that it would

remand the case for further proceedings and not address

the issues presented by the cross-appeal.

29a

On remand, the case proceeded with respect to

penalty and remedy issues. However, on January 9, 2001,

the Supreme Court issued its decision in Solid Waste

Agency of N. Cook County v. United States Army Corps

of Eng’rs (SSWANCC”), 531 U.S. 159 (2000), holding

that the Corps of Engineers had exceeded its jurisdiction

in seeking to regulate certain wetlands. The Defendants

filed the instant Motion to Reconsider to seek dismissal of

the case for lack of jurisdiction in reliance upon the

SWANCC decision.

The parties have presented further evidence, including

a site inspection before the Court, with regard to the

penalty and remedy issues remaining in the case.

II. JURISDICTION

A. Factual Summary

On June 1, 1989, Defendants James and Rebecca

Deaton purchased parcel 117 on Wicomico County Tax

Map 31 (“the Parcel”) for the purpose of developing a

small, residential subdivision. The Parcel is located on

Morris Leonard Road near Parsonsburg in Wicomico

County, Maryland. In 1990, James Deaton hired a

contractor to excavate a drainage ditch on the property.

The Defendants do not dispute that part of the Parcel on

which the excavation occurred contains wetlands. Nor do

they dispute that they conducted sidecasting, i.e.

redepositing excavated indigenous materials, on those

wetlands, which, if done on jurisdictional wetlands is

considered discharging a pollutant under the Act. See

Deaton, 209 F.3d 331. The Defendants do dispute,

however, that the Parcel includes wetlands that are

“waters of the United States” within the meaning of the

Act and regulations promulgated thereunder such that the

Corps has jurisdiction to regulate them.

30a

B. Discussion

Section 301 (a) of the Act prohibits the discharge of

any pollutant, including dredged or fill material, into

navigable waters. 33 U.S.C. § 1311(a). As discussed

herein, the terms “navigable waters” and “waters of the

United States”, which are used interchangeably in the

statute, are terms of art. Id. § 1362 (7). Under § 404, the

Army Corps of Engineers (“the Corps”) is authorized to

issue permits for discharges of fill material into waters of

the United States. Id. § 1344. A discharge without a

permit violates § 301(a). Id. § 1311(a). In the instant case,

the Defendants, by virtue of the sidecasting of materials

from the drainage ditch, discharged fill material into

wetlands on the Parcel without a permit. The question

presented is whether the wetlands on the Parcel are

“waters of the United States.”

The Corps’ regulations interpreting the Act define

“waters of the United States”, in pertinent part, as waters,

or tributaries of waters, which are used in interstate

commerce, including all waters which are subject to the

ebb and flow of the tide (“tidal waters”). 33 C.F.R. §

328.3(a)(1), (5). Also included in the definition of waters

of the United States are wetlands adjacent to tidal or

navigable waters or their tributaries. Id. § 328.3(a)(7).

Section (b) of the regulations defines wetlands and section

[BJordering, contiguous, or neighboring.

Wetlands separated from other waters of the

United States by man-made dikes or

barriers, natural river berms, beach dunes

and the like are “adjacent wetlands.”

Id. § 328.3(c).

3la

In the Corrected M&O issued September 27, 1997,

this Court held that the wetlands on the Deaton Parcel

were waters of the United States within the meaning of the

Act by virtue of being adjacent to navigable waters.

Corrected M&O at 21. The Court stated:

Ultimately, it is the surface water

connection between the Deaton Parcel and

the Chesapeake Bay that makes the

discharge of pollutants into wetlands on the

property a question of federal concern. It is

this surface connection that makes any

wetlands on the Deaton Property

contiguous with, and therefore adjacent to,

waters of the United States within the

meaning of 33 C.F.R. § 328.3.

Id.

Defendants contend that the Supreme Court decision

in SWANCC, 531 U.S. 159 (2001), restricting the Corps’

jurisdiction under the Clean Water Act warrants

reconsideration of this Court’s previous determination that

the Corps has jurisdiction over the Parcel. The Defendants

also contend that the Fourth Circuit’s decision in United

States v. Wilson, 133 F.3d 251 (4" Cir. 1997), insofar as it

refers to the jurisdictional issue, also requires

reconsideration of this Court’s decision. Finally, the

Defendants contend that United States v: Morrison, 529

U.S. 598 (2000), casts doubt on the Constitutionality of

the determination that the Corps has jurisdiction over the

Parcel.

1. SWANCC

In SWANCC, the Supreme Court examined 33 C.F.R.

§ 328.3(a)(3) and the Migratory Bird Rule, 51 Fed. Reg.

32a

41217 (1986). Section 328.3(a)(3) expands the definition

of navigable waters under the Clean Water Act, in

pertinent part, to include “[a]ll other waters such as

intrastate lakes, rivers .. . [and] wetlands .. . , the use,

degradation or destruction of which could affect interstate

or, foreign commerce.” Id. Pursuant to this provision, the

Corps developed the Migratory Bird Rule, which further

extended the definition of navigable waters to include

intrastate waters used as habitat by migratory birds. 51

Fed. Reg. 41217.

In SWANCC, the Corps sought to exercise

jurisdiction in reliance on this rule over wholly intrastate,

isolated ponds frequented by migratory birds. 531 U.S.

159. The Supreme Court held that the Migratory Bird

Rule exceeded the permissible reach of Congress’

jurisdiction under the Commerce Clause. Id. at 174.

Specifically, the SWANCC Court very narrowly held:

33 C.F.R. § 328.3 (a)(3)(1999), as clarified

and applied to petitioner’s balefill site

pursuant to the ‘Migratory Bird Rule,’ 51

Fed. Reg. 41217 (1986), exceeds the

authority granted to [the Corps] under §

404(a) of the CWA.

Id.

As the Defendants themselves point out, SWANCC

addressed only § 328.3(a)(3). Defs.” Mem. Supp. Recons.

at 11, n.9 (“Defs.” Mem.”). Unlike SWANCC, jurisdiction

over the Defendants’ Parcel in the instant action is

exercised pursuant to § 328.3 (a)(1), (5), and (7), (b), and

(c), which state, in pertinent part:

(a) The term “waters of the United States” means

(1) All waters which are currently

33a

used, or were used in the past, or

may be susceptible to use in

interstate or foreign commerce,

including all waters which are

subject to the ebb and flow of the

tide;

(5) Tributaries of waters identified in

paragraphs (a)(1)-(4) of this

section;

—————

(7) Wetlands adjacent to waters...

identified in paragraphs (a)(1)-

(6) of this section.

contiguous, or neighboring. Wetlands separated

from other waters of the United States by man-

made dikes or barriers, natural river berms, beach

dunes and the like are “adjacent wetlands.”

33 C.F.R. § 328.3. The essence of the Defendants’

argument seems to be their contention that the SWANCC

determination regarding a § 328.3(a)(3) water could be

made with respect to (a) (5) waters and (a) (7) wetlands.

Defs.’ Mem. at 11, n.9. However, neither the Supreme

Court nor the Fourth Circuit has made such a

determination.

Moreover, there is strong dicta in SWANCC

suggesting the Supreme Court would not accept such an

argument if presented with the question involved in the

instant case. The SWANCC Court discussed in

considerable detail the holding in United States v.

Riverside Bayview Homes, 474 U.S. 121 (1985), a case in

34a

which the Court held the Corps had jurisdiction over

wetlands directly adjacent to a navigable waterway.

SWANCC, 531 U.S. at 167. The Supreme Court in

SWANCC noted both that it did not, in Riverside

Bayview, address whether the Corps would have

jurisdiction over wetlands not immediately adjacent to

open water, and that it need not address this question in

SWANCC because the isolated water at issue was in no

way connected to navigable waters. While stating that

Congress’ jurisdiction under the Act was not without

limits, the Court cited with approval its finding in

Riverside Bayview that Congress intended a broader,

though not limitless, construction than the literal meaning

of the word “navigable”. SWANCC, 531 U.S. at 171

(citing Riverside Bayview, 474 U.S. at 133).

The Court found that this construction could not be so

broad as to include the wholly intrastate pond used by

migratory birds but left open the question of whether it

might include wetlands not directly adjacent to navigable

waters. Id. at 170-71. As one federal district court

interpreting SWANCC put it:

SWANCC does not reach the question of

whether, on a basis other than being visited

by migratory birds, isolated wetlands may

fall under the definition of navigable

waters/waters of the United States. It makes

clear that it is still the rule that a

nonnavigable (in the traditional sense)

wetland directly adjacent to a navigable

body of water falls within the purview of

the [Act], and that an isolated wetland being

visited by migratory birds is not enough to

bring the wetland within the purview of the

[Act]. SWANCC does not clarify at what

35a

points between those two extremes a

nonnavigable body of water falls within the

[Act’s] definition of navigable waters.

United States v. Krilich, 152 F.Supp.2d 983, 988 (N.D.III.

2001) (citations omitted). Regardless of where the

dividing line between those two extremes will ultimately

drawn, the SWANCC decision addresses only jurisdiction

derived from 33 C.F.R. § 328.3 (a) (3), not § 328.3(a)(1),

(5), and (7). Thus, SWANCC is not a change in decisional

law with respect to jurisdiction in the instant action, and it

therefore provides no basis for the Court to change its

previous decision on jurisdiction.

Even if jurisdiction in this case were derived from §

328.3(a)(3), it is still not clear that SWANCC would

amount to a change in decisional law. The Defendants

broadly assert that SWANCC invalidated § 328.3(a)(3).

Defs.’ Mem. at 7. However, the narrow holding of

SWANCC quoted above appears to invalidate only the

Migratory Bird Rule (which was derived from § 328.3(a)

(3)) rather than § 328.3(a)(3) itself.” Because there is a.

hydrologic connection between the Deaton wetlands and

navigable waters, jurisdiction over the Defendants’ Parcel

would in no way depend on the Migratory Bird Rule.

? There is no general consensus as to the status of § 328(a)(3)

after SWANCC. See, e.g., Headwaters, Inc. v. Talent Irrigation

Dist., 243 F.3d 526 (9th Cir. 2001) (SWANCC “invalidated a

1986 Army Corps of Engineers promulgation known as the

‘Migratory Bird Rule’.”); United States v. Buday, 138 F. Supp.

2d 1282, 1287 (D. Mont. 2001) (“Even though the [SWANCC]

Court did not strike any part of 33 C.F.R. § 328 (a) (3), the

decision raises serious questions about the continued viability

of that subsection.”); United States v. Interstate Gen. Co., 152

F. Supp. 2d 843, 846 (D. Md. 2001) (SWANCC essentially

invalidated 33 C.F.R. § 328 (a) (3)).

Sacer aE Ei em ne

36a

Thus, the SWANCC Court’s invalidation of the Rule

would not control jurisdiction over the Deaton wetlands

even if such jurisdiction were derived from 33 C.F.R. §

328.3 (a) (3). Again, as the Krilich court put it:

To the extent there is a basis for the

government to contend that the wetlands are

not isolated, a colorable basis for [Clean

Water Act] regulation continues to exist.

Cases subsequent to SWANCC have not

limited the definition of waters of the

United States to those immediately adjacent

to navigiole (in the traditional sense)

waters.

152 F.Supp.2d 983 at 992, n.13.

Indeed, the language used by the SWANCC Court

indicates that it did not intend for the holding to have a

broad reach. 531 U.S. 159. For example, in holding that

the respondents had not presented evidence sufficient to

support the validity of the Migratory Bird Rule, the Court

stated that the respondents had produced no persuasive

evidence “[b]eyond Congress’ desire to regulate wetlands

adjacent to ‘navigable waters’... “. Id. at 170-71.

Notably, the Court said neither directly abutting nor

adjacent to open waters. The Supreme Court, well aware

of the broader than literal meanings “adjacent” and

“navigable” have under the Act, presumably would not

have used such language had it intended its holding to

restrict the Corps’ jurisdiction under the Act to wetlands

directly abutting open waters.

While there are no controlling cases interpreting

SWANCC, other courts have declined to extend

SWANCC beyond its narrow holding. For example, in

United States v. Interstate Gen. Co., 152 F.Supp.2d 843

37a

(D.Md. 2001), which is the latest incarnation of the

Wilson case’, a district court within the Fourth Circuit

expressly declined to construe SWANCC as barring

jurisdiction over wetlands very similar to those involved

in the instant action. Like the Deatons, the Interstate

defendants argued that SWANCC amounted to a change

in controlling law requiring the court to reconsider

whether the Corps had jurisdiction over their wetlands that

were connected to the Potomac River by a six-mile

network of streams and creeks. 152 F.Supp.2d at 846. The

court found the defendants’ reading of SWANCC overly

broad and held:

The SWANCC case is a narrow holding in

that only 33 C.F.R. § 328(a)(3), as applied

to the Corps creation of the Migratory Bird

Rule, is invalid . . . . Because the Supreme

Court reviewed only 33 C.F.R. § 328 (a)

(3), it would be improper for this Court to

extend the SWANCC Court’s ruling any

further than they clearly intended.

Id. at 847.

Other courts have taken a similarly narrow view of

SWANCC. In United States v. Rueth Dev. Co., the

defendants sought to modify a consent decree entered into

following a determination that they violated the Clean

Water Act by dredging without a permit on their non-tidal

wetlands. No. 2:96-CV-540 (N.D.Ind. Sept. 25, 2001)

(order, inter alia, denying motion to reconsider). Like the

Deatons, the Rueth defendants argued in support of their

motion for reconsideration that in light of SWANCC, the

> After being resolved by a criminal guilty plea and a civil

consent decree, Wilson is again on appeal before the Fourth

Circuit sub nomine United States v. Interstate Gen. Co.

38a

Corps lacked jurisdiction over their wetlands. Id. at 4. On

facts very similar to the instant action, the Rueth court

found that SWANCC did not constitute a change in

decisional law because:

There are two _ fundamental factual

differences between Defendants’ Site and

the real property at issue in SWANCC.

First, Defendants’ Site is home to a natural

wetland which flows into connecting bodies

of water. In SWANCC, the bodies of water

at issue were isolated mining pits and

ponds. In other words, a molecule of water

residing in one of these pits or ponds could

not mix with molecules from other bodies

of water. At Defendants’ Site, however,

water molecules currently present in the

wetlands will inevitably flow towards and

mix with water from connecting [navigable

waters]. Secondly, the “Migratory Bird

Rule” was the sole basis of regulatory

jurisdiction asserted by the [Corps] in

SWANCC. With respect to the Defendants’

site, however, the government has never

invoked the Migratory Bird Rule. Instead,

the government seeks to regulate the Site on

the theory that it is an “adjacent wetland.”

Id.

In United States _v. Buday, 138 F.Supp.2d 1282

(D.Mont. 2001), the court, post-SWANCC, upheld the

defendant’s Clean Water Act conviction where

jurisdiction was exercised over his discharge of pollutants

into wetlands adjacent to tributaries of navigable waters

pursuant to 33 C.F.R. § 328 (a) (1), (5), and (7). The court

—-

39a

noted that Congress could exercise its Commerce Clause

power under these subsections because they relate directly

to navigability, and that it was the absence of this

connection to a channel of interstate commerce that

concerned the SWANCC Court. 138 F.Supp.2d at 1288.

Accordingly, the Buday court found permissible the

Corps’ exercise of jurisdiction over the defendant’s

wetlands, even though they were not connected to a

navigable waterway for more than 235 miles, because the

pollutants would eventually reach waters affecting

interstate commerce. Id. at 1292. In fact, the court went so

far as to say:

[A]ny polluting activity is subject to federal

jurisdiction if it impinges on any stream

that flows primarily over the surface of the

land and empties into a water that is at

some point navigable-in-fact. . . . The

legislative history, in combination with the

cases cited, establishes that Congress

intended the Clean Water Act to reach any

surface water that contributes to a water

that is navigable-in-fact.

Id. at 1289-90.

In Headwaters, Inc. et al. v. Talent Irrigation Dist., the

Ninth Circuit found SWANCC inapplicable to the

exercise of jurisdiction over irrigation canals which, at

least intermittently, exchanged water with streams and

creeks. 243 F.3d 526 (9" Cir. 2001). The court refused to

extend SWANCC, stating “[t]he irrigation canals in this

case are not ‘isolated waters’ such as those that the

[SWANCC] Court concluded were outside the jurisdiction

of the Clean Water Act.” Id. at 533. The court held that

40a

“[e]ven tributaries that flow intermittently are ‘waters of

the United States’.” Id. at 534.

In support of its holding, the Headwaters court cited

United States v. Eidson, the reasoning of which persuaded

this Court when it originally found the Deaton Parcel

contained jurisdictional wetlands under the Act.

Headwaters, 243 F.3d 526, 534 (citing Eidson, 108 F.3d

1336, 1342 (11th Cir. 1997); Corrected M&O at 19-20. In

Eidson, the Eleventh Circuit held that a drainage ditch

connected to a sewer drain that ran into a canal and

eventually led to Tampa Bay was a “water of the United

States” under the Act. 108 F.3d at 1342-43. This Court,

like the Ninth Circuit and other courts’, does not agree

with the Defendants’ conclusion that the reasoning of

Eidson and other cases finding jurisdiction over waters not

immediately adjacent to navigable waters is called into

question by SWANCC.

Unlike the situation with the isolated pond at issue in

SWANCC, there is a surface water connection, albeit

indirect, between the Deaton Parcel and navigable waters,

* The Headwaters court cites, in further support of its holding,

several other pre-SWANCC cases: “[S]Jee Driscoll v. Adams

181 F.3d 1285, 1291 (11th Cir. 1999) (small-volume stream

running only intermittently is ‘navigable water’); Quivira

Mining Co. v. United States Envtl. Prot. Agency, 765 F.2d 126,

130 (10" Cir. 1985) (creeks and arroyos connected to streams

during intense rainfall are ‘waters of the United States’);

[United States v.] Texas Pipe Line Co., 611 F.2d [345, 347

(10™ Cir. 1979)] (oil spill into tributary involved ‘waters of the

United States,’ even though there was no evidence that streams

that connected the tributary with navigable waters were

running at time of spill) . . .”. 243 F.3d at 534. Thus, the Ninth

Circuit reads SWANCC as limited to its narrow holding and

does not regard it as a dramatic curtailing of Corps jurisdiction

under the Act.

4la

which was demonstrated in a dye study conducted by

Corps ecologist Alex Dolgos. See 2" Stipulation J] 5-14;

1* Dolgos Aff. | 6. Like the wetlands in Rueth, “water

molecules currently present in the [Deaton] wetlands will

inevitably flow towards and mix with water from

connecting” navigable waters. No. 2:96-CV-540 at 4. The

Defendants’ sidecasting activities on their wetlands

impinged on water that “flows primarily over the surface

of the land and empties into a water that is at some point

navigable-in-fact”, a fact which was sufficient to convince

the Buday court that the defendant’s wetlands were

subject to regulation under the Act. 138 F.Supp.2d at

1289-90; 1 Dolgos Aff. {§ 2, 4-6, 9. Similarly, this

Court’s determsnation that the Corps has jurisdiction over

the Parcel was premised on the Parcel’s surface water

connection, or “adjacency”, to the Wicomico River and,

ultimately, the Chesapeake Bay. Corrected M&O at 21.

The Defendants contend that their wetlands are not

adjacent to waters of the United States because of the

roadside drainage ditch immediately adjacent to their

wetlands. They claim that the ditch cannot be considered a

tributary of any sort but argue that even assuming it is, it

is only a tributary of the kind of water described in the

now limited § 328.3(a)(3). While the Court agrees that the

Defendants’ wetlands cannot be considered adjacent to

navigable waters according to the plain meaning of

“adjacent”, the foregoing discussion of the Clean Water

Act regulations and interpreting cases makes clear that

“adjacent” is not to be restricted to its plain general usage

meaning in the context of the Act. If “[w]etlands separated

from other waters of the United States by man-made dikes

or barriers, natural river berms, beach dunes and the like

are ‘adjacent wetlands’” wetlands, such as those on the

Defendants’ Parcel, having an actual surface water

connection to navigable waters are “adjacent” within the

42a

meaning of the Act. 33 C.F.R. § 328.3(c) (emphasis

added).

The Defendants’ continued reliance on_ the

“questionable” status of § 328.3(a)(3) is misplaced. It is

the surface water connection between the Defendants’

wetlands and navigable waters that renders the wetlands

“waters of the United States” under the Act by virtue of

§§ 328.3 (a)(1), (5), and (7) and § 328.3(c) and thereby

gives the Corps jurisdiction in the instant action. Because

these provisions are not called into question by

SWANCC, the Court will not change its decision on

jurisdiction.

2. Wilson

In Wilson, the Fourth Circuit held that 33 C.F.R. §

328.3 (a)(3), which adds to the definition of “waters of the

United States” intrastate waters whose degradation could

affect interstate commerce, exceeded the Corps’

congressional authority to regulate under the Clean Water

Act. 133 F.3d 251, 253-54. The Wilson court invalidated

the provision because it does not require that the use of

the intrastate waters have a substantial impact on interstate

commerce or that the covered waters have any sort of

nexus with interstate or navigable waters. 133 F.3d at 257.

Rather, it triggers Corps jurisdiction if the activity to be

regulated merely could affect interstate or foreign

commerce. 33 C.F.R. § 328 (a)(3) .

As discussed above, jurisdiction over the Defendants’

wetlands is conferred by § 328.3 (a)(1), (5), and (7). The

Wilson court’s Constitutional concern does not apply to §

328.3 (a)(1), (5S), and (7), which, as detailed below, confer

jurisdiction pursuant to Congress’ authority to reguiate

channels of interstate commerce. In fact, the Wilson court

noted that:

43a

Presumably, Congress may also regulate the

discharge of pollutants into nonnavigable

waters to the extent necessary to protect the

use or potential use of navigable waters as

channels or instrumentalities of interstate

commerce, although the extent of that

power is not entirely clear.

133 F.3d at 256. Yet the Wilson court specifically

declined to answer the very question the Defendants

present to this Court. Instead, the Fourth Circuit was.

careful to circumscribe its decision to construing only §

328.3 (a)(3):

[W]e need not resolve these difficult

questions about the extent and limits of

congressional power to regulate

nonnavigable waters to resolve the issue

before us. The regulation challenged here,

33 C.F.R. 328.3(a)(3) (1993), defines

“waters of the United States” to include: All

other waters such as intrastate lakes, rivers,

streams (including intermittent streams),

mud flats, sand flats, wetlands, sloughs,

prairie potholes, wet meadows, playa lakes,

or natural ponds, the use, degradation or

destruction of which could affect interstate

or foreign commerce . . . . The regulation

requires neither that the regulated activity

have a_ substantial effect on interstate

commerce, nor that the covered waters have

any sort of nexus with navigable, or even

interstate, waters.

Wilson at 256-57. In contrast, the regulations conferring

jurisdiction over the Parcel wetlands require just such a

44a

nexus, namely “adjacency”, between the wetlands and

navigable or tidal waters, i.e. channels of interstate

commerce. See 33 C.F.R. § 328.3(a)(1), (5), (7). Thus,

Wilson is not controlling decisional law with respect to

jurisdiction in the instant action.

The Defendants seek to extend Wilson’s holding to

the present case because the facts (the type of wetlands

and their proximity to navigable waters) of the two cases

are very similar.° However, the similarity of the facts does

not render Wilson controlling decisional law in the instant

action. Wilson therefore provides no basis for, the Court to

reconsider its previous finding of jurisdiction.°

3. Morrison

The Corps’ jurisdiction under the Clean Water Act

derives from Congress’ power to regulate interstate

commerce. under the Commerce Clause. U.S. Const. art. I,

§ 8. The Defendants contend that the Supreme Court’s

modern curtailment of Congress’ Commerce Clause

powers, beginning with United States v. Lopez, 514 U.S.

549 (1995), and recently clarified by United States v.

Morrison, 529 U.S. 598 (2000), renders unconstitutional

the Corps’ attempt to regulate activity on wetlands that

will not have a substantial economic impact on interstate

> The parcels in Wilson contained wetlands, the waters from

which “flowed in a drainage pattern through ditches,

intermittent streams, and creeks, ultimately joining the

Potomac River, a tributary of the Chesapeake Bay.” 133 F.3d at

254-55.

Fourth Circuit, invalidating only the Migratory Bird Rule and

not § 328.3(a)(3) in its entirety, so query whether this aspect of

Wilson remains good law in the aftermath of SWANCC. See

supra n.2 and accompanying text.

45a

commerce.

In Lopez, the Supreme Court outlined the modern

scope of Congress’ commerce clause power as follows:

[There are] three broad categories of

activity that Congress may regulate under

its commerce power. First, Congress may

regulate the use of the channels of interstate

commerce [Prong 1”]. Second, Congress is

empowered to regulate and protect the

instrumentalities of interstate commerce, or

persons or things in interstate commerce,

even though the threat may come only from

intrastate activities [“Prong 2”]. Finally,

Congress’ commerce authority includes the

power to regulate those activities having a

substantial relation to interstate commerce,

i.e., those activities that substantially affect

interstate commerce [“‘Prong 3”’].

514 U.S. at 558-559 (citations omitted). Prong 3

jurisdiction may be exercised over purely intrastate

activities which individually do not effect interstate

commerce, but, in the aggregate, the class of activities has

a substantial impact on interstate commerce. See Wickard

v. Filburn, 317 U.S. 111 (1942). Short of stating that

Prong 3 jurisdiction applies only to economic activities,

the Morrison Court emphasized the importance of

focusing on economic endeavors when aggregating

activities to determine whether Prong 3 jurisdiction exists.

529 U.S. at 608-611.

Pursuant to the authority to regulate intrastate

activities whose cumulative impact affects interstate

commerce, the Corps enacted Clean Water Act regulation

46a

33 C.F.R. § 328(3)(a)(3), which extends the definition of

“waters of the United States” under the Act to include:

All other waters such as intrastate lakes, —

rivers . . . or naturals ponds, the use,

degradation or destruction of which could

affect interstate or foreign commerce....

Id. As § 328.3(a)(3) confers jurisdiction over intrastate

waters to the extent that the use of such waters could

affect interstate commerce, it clearly derives the kind of

Commerce Clause jurisdiction described by Lopez Prong

3.514 US. at 558-559.

The Defendants correctly assert that the SWANCC,

Court found that the Migratory Bird Rule exceeded the

scope of what Congress may regulate under Lopez Prong

3. SWANCC, 531 U.S. 159, 174. However, jurisdiction is

- exercised in the instant action under § 328.3 (a)(1), (5),

and (7), which derive authority to confer jurisdiction from

Lopez Prong 1, i.e. wetlands adjacent to tributaries of

channels of interstate commerce. Thus, the Defendants’

contention that the sidecasting they conducted on their

wetlands did not have a substantial economic impact on

interstate commerce, regardless of its merit, is irrelevant

to the instant decision. Because Morrison focuses

exclusively on Lopez Prong 3 jurisdiction, it is not

applicable to this case. 529 U.S. 598. The Constitutional

arguments raised by the Defendants thereunder need not

and will not be reached.

In sum, while Supreme Court and the Fourth Circuit

decisions are certainly controlling over this Court, the

precedents established by SWANCC, Wilson, and

Morrison cannot be construed as controlling decisional

law in the instant case. Thus, the Defendants’ Motion for

Reconsideration presents no reason to change the decision

——— llr tt —ts—

47a

or modify the rationale of the Court’s September 22, 1997

Memorandum and Order.

Ill. REMEDY AND PENALTY

A. Remedy

After inspecting the Parcel, the Court finds that the

appropriate remedy is to require the Defendants to restore

the status quo prior to the offense by replacing the

excavated material in the drainage ditch. The Court finds

unacceptable the Defendants’ proposal that they be

permitted to remove the sidecast material from the Parcel.

It is doubtful that this removal could be done in an

ecologically harmless manner. Even if it could, the net

effect of such a “remedy” would be to reward the

Defendants with Court sanctioned drainage of protected

wetlands and permanent disruption of the environmental

status quo.

The Government, in its October 18, 2001 Brief

Following Site Visit, states that an ecologically acceptable

alternative to refilling the entire ditch on the Parcel would

be to order the Defendants only to: 1) backfill fifty to

seventy-five feet beginning at Morris Leonard Road; and

2) backfill fifty to seventy-five feet at the point where

water coming off the Parker Property enters the Deaton

ditch. If this possibility is less burdensome on the

Defendants yet does no ecological harm, it will be

permitted; however, the Court will not open the door to

further litigation. The Court will, therefore, provide in its

Order that it will entertain a joint motion to modify the

Order so as to permit the Government’s suggestion to be

effected.

48a

B. Penalty

The Government is, quite appropriately, concerned

about the action of the Defendants and the effects upon

the environment. Moreover, it is true that, in cases like

this one, substantial penalties should be imposed as a

deterrent to others who may take their chances on getting

caught. Nevertheless, the critical point in the instant case

is that the Defendants had a perfectly reasonable argument

in support of their position that their actions did not

contitute a violation of the Clean Water Act. Indeed,

Judge Niemeyer of the Fourth Circuit expressly so held in

his decision in Wilson and this Court (while disagreeing

with Judge Niemeyer) predicted that the Fourth Circuit

would adopt the Defendants’ position.

In context, and in recognition of the fact that the

Defendants are required to bear the expense of restoring

the Parcel to its pre-violation condition, the Court will not

impose a penalty on the Defendants.

~ IV. CONCLUSION

For the foregoing reasons:

1. Defendants’ Motion for Reconsideration of the

Court’s September 22, 1997 decision is

DENIED.

2. The Judgment Order issued on September 22,

1997, insofar as it resolves the jurisdictional

issue in this matter, remains in effect.

3. The Court shall require, by separate Order, that

the Defendants replace the excavated material

in the drainage ditch.

4. The Court shall not impose a financial penalty

on the Defendants.

2 Me Sn en bre

49a

5. Judgment shall be entered by separate Order.

SO ORDERED this 29" day of January, 2002.

/s/ Marvin J. Garbis

; Marvin J. Garbis

United States Distict Judge

50a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA *

Plaintiff *

vs. *

JAMES S. DEATON AND * CiviL No. MJG 95-2140

REBECCA DEATON *

Defendants. *

...000...

REMEDIAL ORDER

For the reasons set forth in the Memorandum and

Order issued January 29, 2002:

1. Defendants James S. Deaton and Rebecca Deaton

shall restore the property at issue, Parcel 117 on

Wicomico County Tax Map 31, to its pre-violation

condition and elevation by replacing in the drainage

ditch thereon the material which was removed and

sidecast on the said property by them and/or their

agents;

2. This restoration shall be accomplished with all

reasonable expedition but in no event later than 6

months from the effective date of this ORDER and,

subject to the approval of the Army Corps of

Engineers, in compliance with all pertinent legal and

regulatory requires, which approval shall not be

unreasonably withheld;

3. Work pursuant to this ORDER may include cutting

trees which have grown up on the spoil piles and

planting annual rye for stabilization, as necessary.

Sla

SO ORDERED This 4th day of February 2002.

/s/ Marvin J. Garbis

Marvin J. Garbis

United States District Court Judge

‘

52a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

August 11, 2003

No. 02-1442

CA-95-2140-MJG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

JAMES S. DEATON; REBECCA DEATON,

Defendants-Appellants,

THE CHESAPEAKE BAY FOUNDATION,

INCORPORATED; STATE OF MARYLAND,

~ DEPARTMENT OF THE ENVIRONMENT,

Amici Supporting Appellee.

The appellant's petition for rehearing and rehearing en

banc was submitted to this Court. As no member of this

Court or the panel requested a poll on the petition for

rehearing en banc, and

As the panel considered the petition for rehearing

and is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing

and rehearing en banc is denied.

For the Court,

/s/ Patricia S. Connor

Clerk

53a

APPENDIX E

L. Pertinent Provisions of the Clean Water Act.

(33 U.S.C.A. §$§ 1251 to 1387)

CHAPTER 26-WATER POLLUTION PREVENTION

1251.

1252.

1252a.

1253.

1254.

1254a.

1255.

1256.

1257.

1257a.

1258.

1259.

1260.

1261.

1262.

1263.

AND CONTROL

TABLE OF CONTENTS

SUBCHAPTER I-RESEARCH AND

RELATED PROGRAMS

Congressional declaration of goals and policy.

Comprehensive programs for water pollution

control.

Reservoir projects, water storage; modification;

storage for other than for water quality, opinion of

Federal agency, committee resolutions of approval;

provisions inapplicable to projects with certain

prescribed water quality benefits in relation to total

project benefits.

Interstate cooperation and uniform laws.

Research, investigations, training, and information.

Research on effects of pollutants.

Grants for research and development.

Grants for pollution control programs.

Mine water pollution control demonstrations.

State demonstration programs for cleanup of

abandoned mines for use as waste disposal sites;

authorization of appropriations.

Pollution control in the Great Lakes.

Training grants and contracts.

Applications; allocation.

Scholarships.

Definitions and authorizations.

Alaska village demonstration projects.

54a

1263a. Grants to Alaska to improve sanitation in rural and

Native villages.

1264. Omitted.

1265. In-place toxic pollutants.

1266. Hudson River reclamation demonstration project.

1267. Chesapeake Bay.

1268. Great Lakes.

1269. Long Island Sound.

1270. Lake Champlain Basin Prograni.

1271. Sediment survey and monitoring.

1271a. Research and deveiopment program.

1272. Environmental dredging.

1273. Lake Pontchartrain Basin.

1274. Wet weather watershed pilot projects.

SUBCHAPTER II-GRANTS FOR CONSTRUCTION

OF TREATMENT WORKS

1281. Congressional declaration of purpose.

1281a. Total treatment system funding.

1281b. Availability of Farmers Home Administration

funds for non-Federal share.

1282. Federal share.

1283. Plans, specifications, estimates, and payments.

1284. Limitations and conditions.

1285. Allotment of grant funds.

1286. Reimbursement and advanced construction.

1287. Authorization of appropriations.

1288. Areawide waste treatment management.

1289. Basin planning.

1290. Annual survey.

1291. Sewage collection systems.

1292. Definitions.

1293. Loan guarantees.

1293a. Contained spoil disposal facilities.

ee ee eens Tee E ae eee

55a

- Public information and education on recycling and

reuse of wastewater, use of land treatment, and

reduction of wastewater volume.

. Requirements for American materials.

. Determination of priority of projects.

. Guidelines for cost-effectiveness analysis.

. Cost effectiveness.

. State certification of projects.

Pilot program for alternative water source

projects.

. Sewer overflow control grants.

SUBCHAPTER III-STANDARDS

AND ENFORCEMENT

Effluent limitations.

Water quality related effluent limitations.

Water quality standards and implementation plans.

Revised water quality standards.

. Information and guidelines.

. State reports on water quality.

. National standards of performance.

. Toxic and pretreatment effluent standards.

. Records and reports; inspections.

. Enforcement.

. International pollution abatement.

. Oil and hazardous substance liability.

. Marine sanitation devices.

. Federal facilities pollution control.

. Clean lakes.

. National Study Commission.

. Thermal discharges.

. Omitted.

. Aquaculture.

. Nonpoint source management programs.

. National estuary program.

56a

SUBCHAPTER IV-PERMITS AND LICENSES

1341. Certification.

1342. National pollutant discharge elimination system.

1343. Ocean discharge criteria.

1344, Permits for dredged or fill material.

1345. Disposal or use of sewage sludge.

1346. Coastal recreation water quality monitoring and

notification.

SUBCHAPTER V-GENERAL PROVISIONS

1361. Administration.

1362. Definitions.

1363. Water Pollution Control Advisory

Board.

1364. Emergency powers.

1365. Citizen suits.

1366. Appearance.

1367. Employee protection.

1368. Federal procurement.

1369. Administrative procedure and judicial

review.

1370. State authority.

1371. Authority under other laws and

regulations.

1372. Labor standards.

1373. Public health agency coordination.

1374. Effluent Standards and Water Quality

Information Advisory Committee.

1375. Reports to Congress; detailed estimates and com-

prehensive study on costs; State estimates.

1375a. Report on coastal recreation waters.

1376. Authorization of appropriations.

1377. Indian tribes.

57a

SUBCHAPTER VI-STATE WATER POLLUTION

CONTROL REVOLVING FUNDS

1381. Grants to States for establishment, of revolving

funds.

1382. Capitalization grant agreements.

1383. Water pollution control revolving loan

funds.

1384. Allotment of funds.

1385. Corrective action.

1386. Audits, reports, and fiscal controls; intended use

plan.

1387. Authorization of appropriations.

* %* *

§ 101(a), (b), 33 U.S.C. § 1251(a), (b) (2003)

(a) Restoration and maintenance of chemical, physical

and biological integrity of Nation's waters; national

goals for achievement of objective

The objective of this chapter is to restore and maintain the

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

waters. In order to achieve this objective it is hereby

declared that, consistent with the provisions of this

chapter--

(1) it is the national goal that the discharge of pollutants

into the navigable waters be eliminated by 1985;

(2) it is the national goal that wherever atiainable, an

interim goal of water quality which provides for the

protection and propagation of fish, shellfish, and wildlife

and provides for recreation in and on the water be

achieved by July 1, 1983;

(3) it is the national policy that the discharge of toxic

58a

pollutants in toxic amounts be prohibited;

(4) it is the national policy that Federal financial

assistance be provided to construct publicly owned waste

treatment works;

(5) it is the national policy that areawide waste treatment

management planning processes be developed and

implemented to assure adequate control of sources of

pollutants in each State;

(6) it is the national policy that a major research and

demonstration effort be made to develop technology

necessary to eliminate the discharge of pollutants into the

navigable waters, waters of the contiguous zone, and the

oceans; and

(7) it is the national policy that programs for the control of

nonpoint sources of pollution be developed and

implemented in an expeditious manner so as to enable the

goals of this chapter to be met through the control of both

point and nonpoint sources of pollution.

Congressional declaration of goals and policy

(b) Congressional recognition, preservation, and

protection of primary responsibilities and rights of

- States

It is the policy of the Congress to recognize, preserve, and

protect the primary responsibilities and rights of States to

prevent, reduce, and eliminate pollution, to plan the

development and use (including restoration, preservation,

and enhancement) of land and water resources, and to

consult with the Administrator in the exercise of his

authority under this chapter. It is the policy of Congress

that the States manage the construction grant program

under this chapter and implement the permit programs

under sections 1342 and 1344 of this title. It is further the

59a

policy of the Congress to support and aid research relating

to the prevention, reduction, and elimination of pollution,

and to provide Federal technical services and financial aid

to State and interstate agencies and municipalities in

connection with the prevention, reduction, and elimination

of pollution.

* * *

§ 301(a), 33 U.S.C. § 1311(a) (2003)

Effluent limitations

(a) Illegality of pollutant discharges except in

compliance with law

Except as in compliance with this section and sections

1312, 1316, 1317, 1328, 1342, and 1344 of this title, the

discharge of any pollutant by any person shall be

unlawful. |

* * *

§ 404(a), 33 U.S.C. § 1344(a) (2003)

Permits for dredged or fill material

(a) Discharge into navigable waters at specified

disposal sites

The Secretary may issue permits, after notice and

opportunity for public hearings for the discharge of

dredged or fill material into the navigable waters at

specified disposal sites. Not later than the fifteenth day

after the date an applicant submits all the information

required to complete an application for a permit under this

subsection, the Secretary shall publish the notice required

by this subsection.

* * *

§ 502(6), (7), (12), (14), 33 U.S.C. § 1362(6), (7), (12),

(14) (2003)

Definitions |

Except as otherwise specifically provided, when used in

this chapter:

60a

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

incinerator residue, sewage, garbage, sewage sludge,

munitions, chemical wastes, biological materials,

radioactive materials, heat, wrecked or discarded

equipment, rock, sand, cellar dirt and _ industrial,

municipal, and agricultural waste discharged into water.

This term does not mean (A) "sewage from vessels or a

discharge incidental to the normal operation of a vessel of

the Armed Forces" within the meaning of section 1322 of

this title; or (B) water, gas, or other material which is

injected into a well to facilitate production of oil or gas, or

water derived in association with oil or gas production and

disposed of in a well, if the well used either to facilitate

production or for disposal purposes is approved by

authority of the State in which the well is located, and if

such State determines that such injection or disposal will

not result in the degradation of ground or surface water

resources.

(7) The term "navigable waters" means the waters of the

United States, including the territorial seas.

(12) The term "discharge of a pollutant" and the term

"discharge of pollutants" each means (A) any addition of

any pollutant to navigable waters from any point source,

(B) any addition of any pollutant to the waters of the

contiguous zone or the ocean from any point source other

than a vessel or other floating craft.

(14) The term "point source" means any discernible,

confined and discrete conveyance, including but not

limited to any pipe, ditch, channel, tunnel, conduit, well,

Sy dine

6la

discrete fissure, container, rolling stock, concentrated

animal feeding operation, or vessel or other floating craft,

from which pollutants are or may be discharged. This term

does not include agricultural stormwater discharges and

return flows from irrigated agriculture.

* * *

II. Pertinent Federal Regulations

33 C.F.R. § 328.3 (a), (c) (2003)

Definitions

For the purpose of this regulation these terms are defined

as follows:

(a) The term "waters of the United States" means

(1) All waters which are currently used, or were

used in the past, or may be susceptible to use in

interstate or foreign commerce, including all

waters which are subject to the ebb and flow of

the tide;

(2) All interstate waters including interstate

wetlands;

(3) All other waters such as intrastate lakes, rivers,

Streams (including intermittent streams),

mudflats, sandflats, wetlands, sloughs, prairie

potholes, wet meadows, playa lakes, or natural

ponds, the use, degradation or destruction of

which could affect interstate or foreign

commerce including any such waters:

i. Which are or could be used by interstate or

foreign travelers for recreational or other

purposes; or

ii. From which fish or shellfish are or could be

taken and sold in interstate or foreign

commerce; or

62a

iii. Which are used or could be used for

industrial purpose by industries in interstate

commerce;

(4) All impoundments of waters otherwise defined as

waters of the United States under the definition;

(5) Tributaries of waters identified in paragraphs

(a)(1)-(4) of this section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than waters that

are themselves wetlands) identified in paragraphs

(a)(1)-(6) of this section.

(8) Waters of the United States do not include prior

converted cropland. Notwithstanding _ the

determination of an area's status as prior converted

cropland by any other federal agency, for the

purposes of the Clean Water Act, the final

authority regarding Clean Water Act jurisdiction

remains with the EPA.

Waste treatment systems, including treatment

ponds or lagoons designed to meet the

requirements of CWA (other than cooling ponds as

defined in 40 CFR 123.11(m) which also meet the

criteria of this definition) are not waters of the

United States.

neighboring. Wetlands separated from other waters of

the United States by man-made dikes or barriers,

natural river berms, beach dunes and the like are

"adjacent wetlands."

63a

33 C.F.R. § 328.4 (2003)

Limits of jurisdiction.

(a) Territorial Seas. The limit of jurisdiction in the

territorial seas is measured from the baseline in a seaward

direction a distance of three nautical miles.

(b) Tidal Waters of the United States. The landward limits

of jurisdiction in tidal waters:

(1) Extends to the high tide line, or

(2) When adjacent non-tidal waters of the United

States are present, the jurisdiction extends to the

limits identified in paragraph (c) of this section.

jurisdiction in non-tidal waters:

(1) In the absence of adjacent wetlands, the

jurisdiction extends to the ordinary high water mark,

(2) When adjacent wetlands are present, the

jurisdiction extends beyond the ordinary high water

mark to the limit of the adjacent wetlands.

(3) When the water of the United States consists only

of wetlands the jurisdiction extends to the limit of the

wetland.

* * *

64a

APPENDIX F

I. Pertinent Articles of the Maryland Code

Article 8. Soil Conservation

Section 603(b). Agricultural drainage projects.

The General Assembly determines and finds that the lands

and waters comprising the watersheds of the State are

great natural assets and resources. It continues to find that

the drainage of surface waters from lands for agricultural

purposes by public drainage associations represents a

public benefit. The General Assembly further finds that

agricultural drainage projects, if not properly designed,

operated, and maintained, have the potential to contribute

nonpoint source pollutants to the waters of the State.

* * *

Article 25. County Commissioners Draining Lands

Section 52. Establishment of Public Drainage

Associations. (a) The boards of county commissioners of

the several counties in the State of Maryland shall have

jurisdiction, power, and authority to establish public

drainage associations in their respective counties, and to

locate and establish ditches, drains, or canals, and to cause

to be constructed, straightened, widened or deepened any

ditch, drain or watercourse for the purpose of establishing

and maintaining watershed drainage systems, and it is

hereby declared that such drainage shall be considered a

public benefit and conducive to the public health,

convenience and welfare.

(b) The State Secretary of Agriculture and the State Soil

Conservation Committee shall be notified of any

establishment of a drainage association so _ that

coordination and assistance may be provided in

accordance with § 8-602 of the Agriculture Article.

having a charter form of government under Article XI-A

of the Constitution, with the term "county council" being

65a

substituted in each instance in this subtitle for the term

"county commissioners". The provisions of this subtitle

apply in those counties having adopted code home rule

under Article XI-F of the Constitution.

(d) The provisions of this subtitle do not restrict a

chartered or code county from exercising those powers

granted in Article 25A, § 5(G) of the Code and Article

25B, § 13 of the Code, which do not conflict with this

subtitle.

Sectims: 53. Petition to establish. (a) A petition signed by

not less than one third of the landowners or by the owners

of not less than one third of the land in a watershed may

be filed with the clerk of the board of county

commissioners of the county in which all or any part of

such body of land is located, describing the area in such a

way as to convey an intelligent idea of its location,

boundaries and the need of drainage for optimal crop

production and that the public benefit or utility, or the

public health, convenience or welfare would be promoted

by draining or ditching the same, or by changing or

improving the natural watercourses, and asking for the

establishment of a public drainage association for such

purposes.

(b) The petition shall be accompanied by a report from the

local soil conservation district or districts lying in whole

or in part within the proposed association which shall

show the following:

(1) The size and location of the proposed drainage

association;

(2) The nature of the problem;

(3) The type of treatment believed needed and the

benefits anticipated;

)

. |

66a

(4) Whether the proposed public drainage association

is practicable and feasible and is generally supported

by the landowners in the area;

(5) Whether it will promote the public benefit, and be

conducive to the public health, safety, and welfare;

(6) The name of the proposed organization shall be

styled the 7 Public Drainage

Association”; and

(7) The number of managers, not less than three to

serve as the governing body.

The soil conservation district or districts shall file, with

the report, maps, which shall show a general delineation

of area affected, together with its location in the county or

counties indicated.

* *«* *

II. Pertinent Maryland Regulations

Title 15. Section 20.01.01.

These regulations establish the requirements for the

design, construction, operation, and maintenance of

agricultural drainage projects that are financed or

managed by public drainage associations. To the

maximum extent practicable, these regulations assure

protection of natural resources and prevent water pollution

by non-point source pollutants associated with agricultural

drainage projects. |

* * *

67a

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA

Plaintiff

vs. : CIVIL ACTION NO. MJG-95-2140

JAMES S. DEATON, et al.

Defendants

...0O0...

SIXTH AFFIDAVIT OF ALEXANDER G. DOLGOS

I, Alexander G. Dolgos, being duly sworn, do state as

follows:

1. I am an Ecotogist employed in the United States

Army Corps of Engineers, Baltimore District, assigned to

the Eastern Shore Enforcement Office. I have previously

provided affidavits in this case and incorporate my

qualifications from those prior affidavits as if stated

herein.

2. At the suggestion of Mr. Smethurst, I am filing this

affidavit to authenticate photographs taken during the dye

test done in May 1996.

3. In my first affidavit I described the dye test in this

case as follows:

On May 18, 1996, another authorized entry

on the Deaton property was made. The purpose of

this entry was to dye trace the flow of the stream

located on the property. I was assisted by Jerry

Crutchly, an Environmental Protection Specialist

with EPA Region III, and Doug Parker, Special

Agent EPA CID.

At 8:18 a.m., Mr. Crutchly placed non-toxic

68a

tracing dye in the headwater stream at the

location of well number 20, as depicted on the

May 17, 1996 site survey plan. See Attachment

15, Defendants Site Survey Plan. Well #20 is

located upstream of the unauthorized work. The

dye was followed by visual observation and was

photographed. Additional dye was added to the

plume as necessary to maintain a detectable level

for observations and photography.

The dye plume flowed downstream reaching

the confluence with the manmade ditch at 9:47

a.m. The flow and dye continued downstream in

the ditch and flowed under Morris Leonard Road

through the existing culvert at 10:24 a.m. The

plume continued downstream along the western

side of Morris Leonard Road in a northerly

direction. This stream channel is now part of the

Public Draining Association (PDA). At 12:17

p.m., the plume reached the point were the

channel turns west away from the road and flows

across the agricultural fields. At 1:24 p.m., the

plume reached the point where the Perdue Creek

channel turns back in a northern direction. The

plume continued downstream reaching the

Beaver Dam Creek at 4:16 p.m. Beaver Dam

Creek flows directly into the Wicomico River, a

tidal tributary of the Chesapeake Bay. The stream

flowed the entire length of Perdue Creek within

the banks of a defined channel.

Review of other documents and photographs indicates

that this dye test was actually performed on May 17, 1996.

4. The attached photographs, numbered 40- 54, were

taken during the aforementioned dye test, at the

69a

approximate locations indicated on the maps attached as

Attachments | and 2. These photographs are fair and

accurate depictions of the dye test as it appeared on May

17, 1996. On these same maps, Attachments | and 2, I

have also indicated the approximate location of the

photographs numbered 1-33, which photographs are

attached to the Second Stipulation.

I hereby swear under penalty of perjury that the foregoing

is true and correct, this 16th day of October 2001.

[ATTACHED EXHIBITS NOT REPRODUCED]

/s/ Alex G. Dolgos

Alexander G. Dolgos

70a

APPENDIX H

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA

Plaintiff .

v. : Civit No. MJG-95-2140

JAMES S. DEATON AND

REBECCA DEATON,

Defendants. :

...0O0...

SECOND STIPULATION

The Parties to the above matter, in an effort to resolve

factual disputes so that a final judgment may be entered,

hereby agree and stipulate to the following facts in this

case:

1. For the purposes of this stipulation (and without

prejudice to Defendants’ appellate rights) the parties accept

the Court's prior rulings on the definitions of "saturated to

the surface" and "growing season." For the purposes of this

stipulation, the expression "shallow groundwater" means

water within 12 inches of the surface. Since the parties do

not agree on whether certain water filled depressions are

"ditches", "channels", "watercourses" or "streams", this

stipulation will use these terms interchangeably to describe

any water filled depression containing flowing water for at

least part of the year.

2. The Delmarva peninsula (incorporating Delaware

and the eastern shores of Maryland and Virginia) exhibits a

low, flat topography. In many areas, including within the

Tla

conditionally stipulated wetlands Deaton property’, shallow

groundwater on the peninsula rises and falls in a predictable

seasonal pattern, rising to or close to the surface in the late

Winter (January-February) and then falling off to lower

levels in the late Spring through the Fall. When adjacent,

some of this shallow ground water discharges into nearby

ditches or streams.

3. The ditches/ channels along Morris Leonard Road

have been there since at least the 1940's and probably were

constructed when Morris Leonard Road was a dirt road.

The Beaverdam Public Drainage Association (PDA) was

not formed until the late 1960's. Prior to that time

agricultural ditching in the area was part of an effort to

drain farm fields and lower the groundwater table. Such

ditching and draining was necessary in some areas because

the soil conditions were sometimes too wet in the Spring

for the planting or cultivating of crops.

4. Surface water and shallow ground water flows down

gradient from the Parker property to the Deaton property.

The source of the surface water flowing onto the Deaton

property is a combination of groundwater and rainwater.

This surface flow varies with fluctuations in annual and

seasonal groundwater and rainfall, with greater frequency

and volume generally occurring in the period from January

to May. The relative contributions to this surface flow from

shallow groundwater or rainfall also varies with

groundwater levels and rainfall.

5. Prior to the construction of the ditch excavated by

the Deatons in 1990 (the "Deaton Ditch"), this surface and

shallow groundwater flowing onto the Deaton property

' The Parties have conditionally stipulated that the area between

the ponded area and Morris Leonard Road was a wetland as

described in the Attachment to the First Stipulation.

72a

moved down gradient across the Deaton Property toward

Morris Leonard Road. In the winter months, some of it

ponded in a low area in the middle of the property. Some of

it may have discharged down gradient into the roadside

ditch either as shallow groundwater or sheet flow from the

ponded area.

6. The roadside ditch along Morris Leonard Road has a

defined bed and bank for most of its length.

7. The drainage ditch along Morris Leonard Road

begins near Parsonsburg, approximately 2,350 feet to the

southeast of the western corner the Deaton Property and the

bend in Morris Leonard Road. At this point, it is not really

a ditch but rather a shallow (6" - 8") swale that is not more

that two feet wide. The "ditch" proceeds in a northwesterly

direction getting slightly deeper and wider. At the property

of Gary Nock (Parcel 423), it is perhaps three feet wide.

Halfway across the Nock lot it enters a buried 14-inch

culvert which continues across the balance of the Nock lot

and across the developed portion of the Alfred Scrivo lot

(Parcel 37). At the terminus of the culvert, the ditch is

about four feet wide and when observed on October 22,

1996 by John Andrews, contained water having a depth of

three inches. ;

8. As the ditch passes in front of the Deaton property

(Parcel 117), it has a bottom width of two - three feet and

when observed on October 22, 1996 by John Andrews a

water depth of three-to-four inches.

9. Surface water from the Parker Property flows

approximately 200 feet through an area containing wetland

ferns and trees and into a 100-foot long, old, degraded man-

made ditch approximately 1 foot deep and 1 foot wide

which continues in a wetland swale down gradient to the

Deaton property. This flow continues on the Deaton

73a

property via swale down-slope approximately 400 feet from

the Deaton property boundary until it is intercepted by the

ditch the Deatons excavated in 1990, and then flows west

and then south to join the ditch described in paragraphs 7

and 8. |

10. Water from both ditches flows through an 18-inch,

metal culvert under Morris Leonard Road to a county

roadside drainage ditch adjacent to the John Adkins farm

(parcel 5) having a bottom width of 3.5 feet and, when

observed on October 22, 1996 by John Andrews, a water

depth of 4-7 inches. The ditch continues around a turn in

Morris Leonard Road where it empties into a larger ditch

with a bottom width of 5.5 feet identified as the John

Adkins Prong of the Beaverdam PDA. The PDA ditch

continues for about 1700 feet along the southerly side of

Morris Leonard Road (having a water depth 4-7 inches on

October 22, 1996) until it reaches a point about 700 feet

west of the entrance lane to John Adkins farm.

11. There the ditch turns 90 degrees and passes through

farm fields belonging to Mr. Adkins. The ditch becomes

wider and deeper after it again turns 90 degrees to the west

and eventually crosses the John Speake and Lewis Riley

farms. At the point where it crosses under the private dirt

road running from Morris Leonard Road south through the

Speake and Riley farms to Maryland Route 376 (Old Ocean

City Road) it is 12 feet wide and approximately 8-10 feet

deep, although the water depth when observed on October

22, 1996 by John Andrews was nine inches. From there it

continues with approximately the same dimensions until it

empties into Beaverdam Creek approximately 1320 feet to

the west.

12. Beaverdam Creek is a naturally occurring,

perennial, non-navigable stream that begins northwest of

Parsonsburg just south of Dagsboro Road and flows in a

74a

south-southwesterly direction under Morris Leonard Road,

intersects Perdue Creek, and crosses under Old Ocean City

Road (Md. Route. 346), Walston Switch Road and U. S.

Route 50. The portion of the creek from just above Morris

Leonard Road to just south of Md. Route 346 was

channelized in the late 1960's as part of the Beaverdam

PDA project.

13. After passing under U. S. Route 50, Beaverdam

Creek continues to flow in a southwesterly direction until it

reaches the dam at Hobbs Road where there is a privately

owned and maintained pond. The creek crosses under

Hobbs Road and Mt. Herman Road (Md. Route 350) and

discharges into Parker Pond. The water in Parker Pond

flows over the dam at North Schumaker Drive. From there

water flows westerly to Shumaker Pond and the dam at

Beaglin Park Drive owned and maintained by the City of

Salisbury. From there, water flows northwesterly through

Salisbury's municipal park and zoo to a city-maintained

dam at Beaverdam Drive. Below the dam, the watercourse,

although non-tidal, is known as the East Branch of the

Wicomico River, and it flows westerly to a dam on the east

side of Snow Hill Road (Md. Route 12).

14. Below the last-mentioned dam, the Wicomico

River is tidal and, west of Business U. S. Route 13,

navigable in fact. Approximately 25 miles downstream, the

river empties into Tangier Sound and the Chesapeake Bay.

15. Perdue Creek is a naturally occurring stream. It is

shown as an intermittent stream crossing Morris Leonard

Road on the 1942 (Rev. 1946) and 1983 U.S.GS.

quadrangle maps of the area; approximately 3/4 mile

downstream from Morris Leonard Road, Perdue Creek is

depicted as a blue line (perennial) stream. On the 1905 and

1992 U.S.G.S. quadrangle maps of the area, Perdue Creek

is depicted as an blue line (perennial) stream crossing

75a

Morris Leonard Road.

16. Beaverdam Creek is a naturally occurring stream

that is depicted on the 1905, 1942 (Rev. 1946), 1983 and

1992 U.S.G.S. quadrangle maps as a perennial (blue line)

stream at the point that Perdue Creek enters.

17. The 1942 (Rev. 1946) and 1983 U.S.G:S.

quadrangle maps of the area depict an intermittent stream

flowing through the Deaton Property; the 1905 and the

1992 U.S.G.S. maps do not.

18. The differences in the way stream heads are

depicted on these U.S.G.S. maps may be the result of

several mapping conventions and policies. To begin with.

stream classification features on U.S.G.S. maps are based

on subjective criteria and limited observations. No

scientific measurements are made to classify streams or

intermittent streams drawn on U.S.G.S. maps. The U.S.G.S.

maps do not purport to identify “waters of the United

States", jurisdictional wetlands or all surface water

connections between wetlands and downstream waters.

Actual wet areas may be greater than those shown on these

maps because USGS generally maps these areas based on

the driest season of the year.

19. Newer U.S.G.S. mapping policies and standards

adopted in 1973 and 1980 exclude first-order, intermittent

streams of less than 2,500 ft. in length. The 1983 U.S.G.S.

map was "photorevised" from the 1942 map to update

cultural features, such as buildings and roads, and did not

redraw physical features such as streams. Therefore, the

new mapping policies and standards in effect in 1983

would not have affected the appearance of streams on the

1983 U.S.G.S. map (i.e. the existing stream lines would

simply be recopied onto the new map). However, the 1992

map would reflect the 1973 and 1980 policy changes. The

76a

result is that if there was an intermittent stream on the

Deaton property it would not be reflected on the 1992

U.S.G.S. map.

20. Attached to and made a part of this stipulation are

the following:

A. Photographs numbered | through 33 most

of which were taken on September 14,

2001, the date of the Court's site visit.

B. Index To Photographs describing each of

the 33 photographs.

C. Map from the Salisbury Chamber of

Commerce on which are indicated the

points at which photographs 11-33 were

taken.

D. Map showing the general locations

described in paragraphs 7 through 16 of

this stipulation.

DATED this 12" day of October, 2001.

/s/ James C. Howard

James C. Howard

Assistant United States Attorney

/s/ Raymond S. Smethurst, Jr.

Raymond S. Smethurst, Jr.

Attorney For Defendants

{ATTACHED EXHIBITS NOT REPRODUCED]

77a

APPENDIX I

Brief of Appellants September 13, 2002

Depiction of Connections between Deaton

Property and Wicomico River, from Reply

LIS 0} UMBIC 304] JAY OIMUOI

wed WU Wey UseIg

JAN] OIMUOII MA

jo youelg 4

puog RyeY

puod syeAud uoneBuen

JO peay

we peoy sqqoy

Wwe 2AUq WepRAreg

. 3PIID snp

. JARS

Vdd Wepmareg N

jo Bu01g

suppy uyor

apispeou a —

iden tn ne fn ae ae en ee ee ee ee a

78a

APPENDIX J

Photograph of Roadside Ditch Next to Morris

Leonard Road, Attached to Affidavit of Amanda L.

Longfellow, Oct. 15, 2001

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.