# Appendix — Deaton v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2403%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 972

## Text

Supreme Court, U.S,
FILED

: 03 ZVOLNOV 117°

“ene |

OFFICE OF Ti& CiER.
No.

Fa
In The

Supreme Court of the United States

JAMES S. and REBECCA DEATON,

Petitioners,
v.
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

G.

H.

(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

la
APPENDIX A

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

\
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

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.

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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

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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.

I.

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

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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

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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.

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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.
A.

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

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“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.

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B.

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

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(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

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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,

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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

;
ut

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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

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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.

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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.

od
The thrust of the Deatons’ final argument about the

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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

a

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.

V.

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
(c) defines “adjacent” as:

[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.

(c) The term “adjacent” means _ bordering,
contiguous, or neighboring. Wetlands separated
from other waters of the United States by man-
made dikes or barriers, natural river berms, beach
dunes and the like are “adjacent wetlands.”

33 C.F.R. § 328.3. 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.

© The SWANCC Court took a narrower approach than the
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

‘
4
:

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,

V.

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 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.

(c) The term "adjacent" means bordering, contiguous, or
neighboring. Wetlands separated from other waters of
the United States by man-made dikes or barriers,
natural river berms, beach dunes and the like are
"adjacent wetlands."

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.

(c) Non-Tidal Waters of the United States. The limits of
jurisdiction in non-tidal waters:
(1) In the absence of adjacent wetlands, the
jurisdiction extends to the ordinary high water mark,
or
(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.

(c) The provisions of this subtitle apply in those counties
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;

)
i
.
. |

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

J

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

7

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

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78a
APPENDIX J

Photograph of Roadside Ditch Next to Morris
Leonard Road, Attached to Affidavit of Amanda L.
Longfellow, Oct. 15, 2001

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2403%3A02. Public record. Not legal advice.