# Petition for Writ of Certiorari — Gerke Excavating, Inc. v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 901

## Text

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approximately seventy-five feet away into Deer Creek, a
nonnavigable watercourse that flows into the Lemonweir River,
also non-navigable. /d. at B-3 to B-4. The Lemonweir runs to
the Wisconsin River, a navigable waterway, which empties into
the Mississippi River. /d. at B-4.

At the direction of the owner, Gerke removed stumps and
topsoil and filled in and graded part of the property using a
bulldozer and trucks. /d. at B-6. The next day, the Corps
issued cease and desist orders against Gerke and Peter Thorson,
president of Managed Investments. /d. at B-8. These were
hand-delivered the following day. /d. at B-8. The Respondent
United States (United States or government) subsequently
brought this action for injunctive and monetary relief against
Gerke, Mr. Thorson, and Managed Investments. The district
court granted summary judgment to the United States. /d. at B-
35. On appeal, the Seventh Circuit affirmed. United States v.
Gerke Excavating, Inc., 412 F.3d 804, 808 (7th Cir. 2005),
reprinted in App. A at A-7.

The CWA prohibits discharges of “fill” material into
“navigable waters” unless permitted by the federal government.
See 33 U.S.C. §§ 131 1(a) and 1344(a) (CWA §§ 301(a) and
404(a)). The Act defines “navigable waters” simply as “waters
of the United States.” 33 U.S.C. § 1362(5)-(7). Although the
CWA does not mention “wetlands” in any relevant provision,
federal agencies have defined “waters of the United States” to
include wetlands the “use, degradation or destruction of which
could affect interstate or foreign commerce” or any wetland
“adjacent” to a tributary of a “navigable water.” 33 C.F.R.
§ 328.3(a). In this case, the government and the courts have
determined that these regulations authorize federal regulation
over any wetland with a “hydrological connection” to a
navigable water. See Apps. A and B.

The District Court Decision

The United States brought this action for injunctive and
monetary relief in the district court for the Western District
of Wisconsin approximately two years after the Corps
served cease and desist orders on Gerke and Mr. Thorson. See
Appellant’s Br. at 5. The United States argued before the
district court that Gerke had viola’-d the CWA by piling
excavated material on and adding sand to the site. These
actions, the government asserted, constituted the discharge of
a pollutant into a “navigable water” of the United States. On
the government’s motion for summary judgment, the district
court found for the United States.

The central issue before the district court was, whether the
property qualifies as a navigable water within the meaning of
the CWA and, if so, whether Congress can regulate the land as
part of its Commerce Clause power over the Nation’s navigable
waters. See App. at B-18 to B-31. The Corps has interpreted
the CWA to extend to wetlands “adjacent to” any tributary of a
navigable water, see 33 C.F.R. § 328.3(a)(7), and has defined
“adjacent” to mean “bordering, contiguous or neighboring,” id.
§ 328.3(c). Thus, the precise jurisdictional question was
whether the wetlands in question are “adjacent” to “waters of
the United States.” See App. at B-19. The district court read
this Court’s decision in United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121 (1985), not to require that the
wetlands actually abut a navigable water to be considered
“adjacent.” See App. at B-25. Instead, the court held that a
surface hydrological connection is sufficient to establish the
requisite “significant nexus” and to show that the wetlands are
“inseparably bound up” with jurisdictional “waters of the
United States.” The court concluded that the wetlands were
adjacent to waters of the United States because the wetlands at
issue were hydrologically connected to the Wisconsin River,
a navigable-in-fact watercourse. The court considered its
analysis proper under SWANCC because the hydrological

>

connection rule uses a navigable waterbody cs a reference point,
whereas the migratory bird rule overturned in SWANCC had no
connection to navigable waters. /d. at B-24. The court declined
to read the Corps’s regulation narrowly to avoid any question
of unconstitutionality because it found the government’s
regulation of the land at issue to fall comfortably within
Congress’s Commerce Clause power over the channels of
commerce. /d. at B-28 to B-30.

eventh Circuit Opi

On appeal, Gerke argued that the district court erred in
finding (1) the land in question to be subject to the CWA, and
(2) finding that federal regulation of the land was within
Congress’s Commerce Clause power. The panel deemed the
two points to be so interrelated as to merit a single analysis.
United States v. Gerke Excavating, Inc., 412 F.3d at 806,
App. A at A-3. Thus, the panel addressed the constitutional
question directly.

The court began its discussion of the constitutional
question by stating the well-established rule that “Congress can
regulate waterways used to transport people and goods in
interstate or foreign commerce.” /d., App. at A-3. Next, the
court, citing such precedents as Gonzales v. Raich, 125 S. Ct.
2195 (2005), and Wickard v. Filburn, 317 U.S. 111 (1942),
noted that the constitutional analysis does not turn on whether
the filling of the land in question can have a demonstrable
effect on interstate commerce—for the “sum of many small
interferences with commerce can be large, and so to protect
commerce Congress must be able to regulate an entire class of
acts if the class affects commerce, even if no individual act has
a perceptible effect.” /d., App. at A-4. Whether Gerke’s
activities had an effect on the navigability of waters of the
United States was not important, the court concluded, because
“{ijn fact navigability is a red herring from the standpoint of
constitutionality.” /d. at 807, App. at A-5. In essence, the court

a

8

found that federal power over the Nation's waterways extends
beyond the protection of navigation. The court concluded that

it doesn’t matter whether the objection to allowing
the Gerkes of this world to dry out wetlands is that
the effect may be to reduce water levels in navigable
waterways to the point at which navigation would be
affected or that the effect may be to increase the
level of pollution in such waters by reducing the
supply of unpolluted wetlands water,

because if the water flows into a navigable waterway, the
source of that water includes “waters of the United States”
under the CWA. /d. at 807, App. at A-5 to A-6.

The court also rejected Gerke’s argument that extending
federal power over the land in question would result in an
unwarranted restriction of the traditional regulatory powers of
the states. That argument, in the court’s mind, was “two-
edged,” for the “more extensive the wetlands, the greater
their potential importance as a source of water to keep the
navigable waterways full and clean.” /d., App. at A-6. The
court conceded, however, that some wetlands, though
extensive, might be unconnected to navigable waters and
therefore out of the CWA’s reach. The court found such an
example of isolated wetlands in SWANCC.

Lastly, the panel rebuffed Gerke’s argument that SWANCC
permits CWA jurisdiction over nonnavigable waters only where
such waters actually abut a navigable-in-fact watercourse. To
support its position, Gerke pointed to that part of this Court's
SWANCC opinion stating that the CWA does not cover
“ponds that are not adjacent to open water,” SWANCC, 531
U.S. at 168. The panel was not convinced, however, and
instead distinguished SWANCC on the ground that the case
dealt with wetlands “completely isolated from any navigable
waterway, tributary, etc.” Gerke, 412 F.3d at 808, App. at A-6.
Abutment cannot be the legally significant critenon, the panel

9

reasoned, because such a test would produce the supposedly
absurd result of excepting from CWA jurisdiction wetlands not
abutting a navigable waterway yet connected “by a pipe
two feet long.” /d., App. at A-7. The panel also considered
“adjacency” and “open water” to have more flexible meanings
than Gerke was willing to concede: “‘adjacent’ can just mean
‘connected,’ and ‘open water’ can just mean water that is part
of the waters of the United States because it flows into
navigable waterways.” /d., App. at A-7.

REASONS FOR GRANTING THE
PETITION FOR WRIT OF CERTIORARI

THIS COURT SHOULD GRANT
THE PETITION TO RESOLVE A
CONFLICT AMONG THE CIRCUITS
ABOUT WHETHER FEDERAL JURISDICTION
UNDER SECTION 404 OF THE CLEAN
WATER ACT EXTENDS TO INTRASTATE,

NONNAVIGABLE WETLANDS THAT DO NOT
ABUT A TRADITIONAL NAVIGABLE WATER

The Seventh Circuit's decision below adds to the dispute
among the federal courts of appeais concerning the extent of
federal power under the CWA. With this Court’s recent grant
of certiorari in the consolidated cases of Rapanos and Carabell
v. United States Army Corps of Engineers, 04-1384, the same
issues raised in this case merit the Court's attention.
Necessarily, the discordant decisions of the lower courts call for
the harmonizing hand of this Court’s review.

On one side of the ledger of the “circuit split” are the
Fourth, Sixth, Seventh, and Ninth Circuits. Cases from these
Circuits support the proposition that CWA jurisdiction can be
established with the existence of a surface hydrological
connection between a wetland and a navigable water. On the

10

other side is the Fifth Circuit. That Circuit’s definitive
statement of CWA jurisdiction is found in /n re Needham, 354
F.3d 34015th Cir. 2003). But to put that case in context, a look
at Rice v. Harken Exploration Co., 250 F.3d 264 (Sth Cir.
2001), is instructive. In Rice, an action was brought against
Harken Exploration Company under the Oil Pollution Act
(OPA) for oil spills on Rice’s property in Hutchinson County,
Texas. Among other things, the OPA imposes strict liability on
parties responsible for discharging oil into “navigable waters,”
defined as “waters of the United States.” Jd. at 266-67. The
scope of the OPA was an issue of first impression for the Fifth
Circuit and required the court to define “navigable waters.” /d.
at 267.

Because only a few cases had construed the OPA, the
court turned to the cases interpreting the term “navigable
waters” under the Clean Water Act. The Fifth Circuit
determined that the legislative history and the use of identical
definitions of “navigable waters” in the OPA and CWA
suggested that Congress intended the term to “have the same
meaning” in both Acts. /d.

The Fifth Circuit began its analysis with United States v.
Riverside Bayview Homes, 474 U.S. 121, noting that this Court
had adopted an expansive reading of “navigable waters” which
the Fifth Circuit had previously followed in Avoyelles
Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (Sth Cir.
1983). Rice, 250 F.3d at 268. But the court concluded its
analysis with SWANCC, stating that this Court had more
recently “limited the scope of the CWA.” /d.

The Fifth Circuit observed that in SWANCC this Court had
“distinguished Riverside Bayview Homes on the ground that in
that case the wetlands in question were adjacent to a body of
open water that was actually navigable,” and that the term
“navigable waters” had to have some effect. /d. Based on its
reading of SWANCC, therefore, the Fifth Circuit declined to

11

characterize a small seasonal creek as “waters of the United
States” subject to federal regulation under either the OPA or
CWA, even though the creek flowed intermittently into the
Canadian River, a “navigable water.” “Instead,” the court held,
“a body of water is protected under the Act only if it is actually
navigable or is adjacent to an open body of navigable water.”
Jd. at 270.

More recently, the Fifth Circuit affirmed its holding in
Rice and rejected the interpretation of CWA jurisdiction which
the Seventh Circuit applied in this case. In the case of Jn re
Needham, the Fifth Circuit was again required to determine the
scope of “navigable waters” under the Oil Pollution Act and, as
in Rice, the Fifth Circuit relied on SWANCC for this
determination. See Jn re Needham, 354 F.3d at 344-47,

In Jn re Needham, as in this case, the government
argued that the definition of navigable waters “covers all
waters, excluding groundwater, that have any hydrological
connection with ‘navigable water.” Jd. at 345. The Fifth
Circuit acknowledged some support for this view. At least two
appellate courts had agreed with this interpretation: United
States v. Deaton, 332 F.3d 698, 702 (4th Cir. 2003)
(“assert[ing] authority, under the CWA, over wetlands that are
‘adjacent to, and drain into, a roadside ditch whose waters
eventually flow into the navigable Wicomico River and
Chesapeake Bay’”), and the Sixth Circuit in the United States
v. Rapanos, 339 F.3d 447, 449 (6th Cir. 2003), criminal case
(“asserting authority, under the CWA, over wetlands that flow
into a man-made drain, which in turn flows into a creek, which
in turn flows into a navigable river”). Jn re Needham, 354 F.3d
at 345.

But the Fifth Circuit expressly rejected this interpretation,
stating unequivocally that the government's definition of
navigable waters “is unsustainable” under SWANCC. Id. So as
not to be misunderstood, the court stated further that the CWA

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and OPA are not so broad as to permit federal regulation of
“tributaries” that are neither navigable in fact nor adjacent to
such waters. /d. The court thus held:

Consequently, in this circuit the United States may
not simply impose regulations over puddles, sewers,
roadside ditches and the like; under [SWANCC] “a
body of water is subject to regulation . . . if the body
of water is actually navigable or adjacent to an open
body of navigable water.”

Id. at 345-46 (citing Rice, 250 F.3d at 269).

The views of the other circuits are represented in the
following noteworthy cases: United States v. Kapanos, 339
F.3d at 453 (finding that SWANCC merely invalidated the
“Migratory Bird Rule”), cert. granted, 533 U.S. 913 (2001);
Treacy v. Newdunn Associates, LLP, 344 F.3d 407, 415 (4th
Cir. 2003) (noting that SWANCC reaffirmed a broad reading of
CWA jurisdiction); United States v. Deaton, 332 F.3d at 702
(holding that SWANCC did not disavow any Corps
interpretations of the CWA, except the “Migratory Bird
Rule”); United States v. Rueth Development Co., 335 F.3d
598, 604 (7th Cir. 2003), cert. denied (finding SWANCC did
not significantly limit the government’s wetland
jurisdiction); Baccarat Fremont Developers, LLC v. United
States Army Corps of Eng'rs, 425 F.3d 1150 (9th Cir.
2005) (“SWANCC .. . did not address the Corps’ adjacency
jurisdiction”), Headwaters, Inc. v. Talent Irrigation District,
243 F.3d 526, 533-34 (9th Cir. 2001) (expressing the view that
SWANCC did not change the conclusion that waters flowing
into navigable waters are jurisdictional).

The conflict among the circuits is real and substantial and
involves an important question of law. To resolve the conflict,
this Court should grant the petition

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THIS COURT SHOULD GRANT THE
PETITION BECAUSE THE EXTENSION OF
CLEAN WATER ACT JURISDICTION TO
EVERY INTRASTATE WETLAND WITH ANY
SORT OF HYDROLOGICAL CONNECTION
TO NAVIGABLE WATERS, NO MATTER
HOW TENUOUS OR REMOTE THE
CONNECTION, EXCEEDS CONGRESS’
CONSTITUTIONAL POWER TO REGULATE
COMMERCE AMONG THE STATES

In SWANCC, this Court stated that the word “navigable”
constrains the jurisdictional reach of the Clean Water Act.
Otherwise, “ ‘the use of the word navigable in the statute .
does not have any independent significance.’” SWANCC, 531
U.S. at 172 (citation omitted). Accordingly, this Court found:
“[t}he term ‘navigable’ has at least the import of showing us
what Congress had in mind as its authority for enacting the
CWA: its traditional jurisdiction over waters that were or had

been navigable in fact or which could reasonably b- -o made.”
Id.

Besides the Act’s express language, this Court gave
another reason for limiting section 404(a) to Congress’
traditional power over navigable waters and refusing to hold, as
the government urged, that federal jurisdiction extends to
waters that do not abut an open body of navigable water;
namely, the government’s application of its CWA regulations
to nonnavigable, isolated, intrastate waters was a “far cry,
indeed, from the ‘navigable waters’ and ‘waters of the United
States’ to which the statute by its terms extends” and thus
“raises significant constitutional questions.” /d. at 173-74.

Likewise, in this case, federal regulation of nonnavigable,
nonadjacent, intrastate wetlands, approved by the court below,
raises “significant constitutional questions.” In the Seventh

14

Circuit, jurisdictional wetlands are defined by any hydrological
connection to navigable waters:

Whether the wetlands are 100 miles from a
navigable waterway or 6 feet, if water from the
wetlands enters a stream that flows into the
navigable waterway, the wetlands are “waters of the
United States” within the meaning of the Act.

Gerke, 412 F.3d at 807 (App. at A-6).

Therefore, under this decision, CWA jurisdiction extends
to every intrastate wetland with any sort of hydrological
connection to navigable waters, no matter how tenuous or
remote the connection. This is evidenced by the facts of this
case. The intrastate wetlands that are the focus of this dispute
are not navigable waters. See 412 F.3d at 805, App. at A-2;
App. at B-!2. They do not abut a navigable water. See App.
at B-3 to B-4. They have only an intermittent, indirect, and
remote surface runoff connection to the nearest navigable
waters. See id. at B-4.

In SWANCC, the government argued that the CWA
granted it authority to regulate “nonnavigable, isolated,
intrastate” waters. 531 U.S. at 172. This Court, however,
determined that the government’s interpretation of the statute
invoked “the outer limits of Congress’ power” and could not be
sustained. /d.

Thus, “where an otherwise acceptable construction
of a statute would raise serious constitutional
problems, the Court will construe the statute to avoid
such problems unless such construction is plainly
contrary to the intent of Congress.”

Id. at 173 (quoting Edward J. DeBartolo Corp. v. Fla. Gulf
Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575
(1988)).

15

The constitutional problem was the government's claim
that it could regulate any waters usable by migratory birds under
“Congress’ power to regulate intrastate activities that
‘substantially affect’ interstate commerce.” SWANCC, 531 U.S.
at 173. This Court was clearly skeptical of that argument and,
to underscore the point, cited its Commerce Clause decisions in
United States v. Lopez, 514 U.S. 549 (1995), and United States
v. Morrison, 529 U.S. 598 (2000), stating: “Twice in the past
six years we have reaffirmed the proposition that the grant of
authority to Congress under the Commerce Clause, though
broad, is not unlimited.” SWANCC, 531 U.S. at 173.

Evidently, because the regulation of nonnavigable,
isolated, intrastate waters implied unlimited administrative
authority in the federal government, well beyond the power of
Congress to regulate, this Court was unwilling to read such
authority into the CWA. But the government's assertion of
authority over any wetland with a hydrological connection to a
navigable water in this case implies essentially the same
limitless power as the “Migratory Bird Rule” and is likewise
invalid.

Both the district court and the Seventh Circuit reasoned
that federal jurisdiction over the property in question was
constitutionally justifiable under the “channels of commerce”
prong of the Commerce Clause power. See App. at B-27 to B-
30; Gerke, 412 F.3d at 806, App. at A-3 to A-4._ This
determination is incorrect. The CWA was enacted pursuant to
the federal government’s authority over navigable waters,
SWANCC, 531 U.S. at 172, but the navigability power’ under
the Commerce Clause has never been used to regulate activities
that may affect the channels of commerce, as opposed to
activities occurring in the channels of commerce or goods

? A “spur” of the “channels of commerce” prong of the Commerce
Clause power: See United States v. Appalachian Power Co., 311
U.S. 377, 426-27 (1940).

16

flowing through the same. This distinction is critical because
the Court previously determined that Congress has a near
“police power” over the channels of interstate commerce. Hoke
v. United States, 227 U.S. 308, 323 (1913); see Kaiser Aetna v.
United States, 444. U.S. 164, 173 (1979) (Congress “has
extensive authority” over waters of United States). Although
the Court has described Congress’s “substantially affects”
power under the Commerce Clause in broad terms, see Perez v.
United States, 402 U.S. 146, 154-57 (1971) (implying that
Congress may regulate criminal conduct connected with
interstate felonious conduct); Wickard, 317 U.S. at 125
(approving federal regulation of activities having a substantial
effect on interstate commerce regardless of whether the effect
was direct or indirect); NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1, 36-37 (1937) (acknowledging a plenary power to
enact “all appropriate legislation” concerning those activities
having a substantial relation to interstate commerce), it has
never conceded a “police power” over these activities. Cf.
Morrison, 529 U.S. at 608; Lopez, 514 U.S. at 556-57; Raich,
125 S. Ct. at 2215-16 (Scalia, J., concurnng) (noting that
Congress's “substantially affects” Commerce Clause power
depends upon and is restricted by the Necessary and Proper
Clause).

That the regulation of the property in question cannot be
justified under the “channels of commerce” power is ably
shown by this Court’s leading “channels” precedents. In
Caminetti v. United States, 242 U.S. 470 (1917), this Court
upheld the constitutionality of the Mann Act because it
regulated the knowing transportation of persons in interstate
commerce for immoral purposes, id. at 491—in other words,
the Act regulated the channels of commerce by excluding
particular items (or persons) from those channels. But
according to the lower courts here, the government would have
the power, under the Commerce Clause, to regulate not just
immoral conduct occurring in interstate channels, or persons

17

and things coincident to immoral conduct passing through those
channels, but also conduct, persons, and things that
substantially affect the channels of commerce. Caminetti does
not support such an expansive interpretation. Similarly, in The
Lottery Case (Champion v. Ames), 188 U.S. 321 (1903), the
Court upheld the 1895 Lottery Suppression Act on the grounds
that lottery tickets are subjects of commerce, id. at 354, and that
Congress may constitutionally regulate the channels of
interstate commerce by excluding particular items, such as
lottery tickets, id. at 363-64. The Lottery Case does not support
the proposition that Congress may regulate activities having a
substantial effect on the channels of interstate commerce as a
channels regulation. Rather, the nub of both Caminetti and The
Lottery Case is that Congress may regulate interstate commerce
channels directly by excluding persons or things from the flow
of traffic. It would be a profound misreading of these
precedents to conflate the “substantially affects” prong with the
“channels of interstate commerce” prong of the Commerce
Clause power. Yet that is the very interpretive error made by
the lower courts in this case. By analyzing the question
according to the “channels of commerce” framework, the
district court and the Seventh Circuit have unwittingly
conceded to Congress a scope of power over the Nation’s
waters that this Court has heretofore declined to afford.

The wetlands that Gerke “filled” are not navigable;
therefore, the appropriate constitutional rubric under which the
jurisdictional question must be analyzed is the “substantially
affects’—not the “channels of commerce”—prong of the
Commerce Clause power. In Lopez; as subsequently affirmed
in Morrison, this Court set forth a simple standard for analyzing
Commerce Clause enactments that are based on the regulation
of activities that substantially affect interstate commerce.

18

A. Under Lopez and Morrison, Intrastate
Activity May Be Regulated for Its Substantial
Effects on Interstate Commerce Only If the
Regulated Activity Is Economic in Nature

The Gun-Free School Zones Act of 1990 made it a federal
offense “for any individual knowingly to possess a firearm . . .
at a place that the individual knows, or has reasonable cause to
helieve, is a school zone.” 18 U.S.C. § 922(q)(2)(A). Lopez,
a 12th-grade student, was arrested and charged under this Act
when he brought a concealed .38 caliber handgun and five
bullets to school. Lopez, 514 U.S. at 551. However, Lopez
challenged the Act as beyond the commerce power of Congress.
Id. The Fifth Circuit agreed with Lopez and this Court
affirmed. /d. at 552.

In Lopez, this Court declared the purpose of its inquiry
was to determine if Congress intended to regulate commerce
and then to ascertain “whether a rationale basis existed for
concluding that a regulated activity sufficiently affected
interstate commerce.” /d. at 557.

First, this Court turned to the statute itself and found
§ 922(q), by its own terms, had “nothing to do with ‘commerce’
or any sort of economic enterprise, however broadly one might
define those terms.” /d. at 561. This obvious conclusion was
compelled by the express language of the Act which made the
mere possession of a firearm in a school zone a crime. It
followed, therefore, that the regulated act—the possession of a
gun—was “not an essential part of a larger regulation of
economic activity, in which the regulatory scheme could be
undercut unless the intrastate activity were regulated.” Jd. at

> This Court’s decision last Term in Raich illustrates an instance

where the regulated act was an essential part of a larger economic
regulatory scheme involving the entire market in drugs. 125 S. Ct.
at 2207, 2209. Obviousl “be Clean Water Act is not a regulation of

(continued...)

19

561. The Court observed that the Act was a criminal statute
that did not involve a commercial or economic regulatory
scheme at all. Jd. Accordingly, § 922(q) could not be sustained
under this Court's cases allowing congressional regulation of
activities “that arise out of or are connected with a commercial
transaction, which viewed in the aggregate, substantially affects
interstate commerce.” /d. Interestingly, the Court came to that
conclusion even though the possession of a gun involves an
item having traveled in commerce.

Second, this Court sought to determine whether § 922(q)
contained a “jurisdictional element” that would ensure on a
case-by-case basis that the possession of a firearm substantially
affects interstate commerce. /d. For that determination, this
Court turned again to the language of the Act and found that it
did not provide an express requirement that would “limit its
reach to a discrete set of firearm possessions that additionally
have an explicit connection with or effect on interstate
commerce.” /d. at 562.

Third, because no substantial effect was “vis le to the
naked eye” in the text of the Act itself, the Court looked to
legislative history to locate any express congressional findings
demonstrating Congress’ belief that the possession of a gun in
a school zone substantially affects interstate commerce. /d. at
562-63. The Court found none.

Nevertheless, the government argued that Congress could
rationally have concluded that § 922(q) did substantially affect
interstate commerce because possession of a gun in a school
zone may result in violent crime and violent crime interferes
with the national economy in two respects: (1) violent crime

> (...continued)

a markct commodity in interstate commerce. Rather, as this Court
noted in SWANCC, Congress passed the CWA _ using its
“navigability” power under the Commerce Clause. SWANCC, 531
U.S. at 172.

20

increases the cost of insurance throughout the Nation; and
(2) violent crime deters people from traveling to unsafe areas.
Id. at 563-64. The government also argued that guns in school
undermine the learning environment, producing less productive
citizens, which hurts the national economy, id. at 564.

To underscore the inherent limitations on the commerce
power, this Court also addressed the implications of these
“substantially affects” arguments. Under the government’s
“costs of crime” argument, Congress could regulate any activity
that might lead to violent crime no matter how remote the
connection to interstate commerce. /d. The Court found that
under the government’s “national productivity” argument,
Congress could regulate anything related to individual
economic productivity. /d. If these arguments were accepted,
the Court would be “hard pressed” to find any individual
activity that Congress could not regulate under the commerce
power. /d. “[D]epending on the level of generality,” this Court
observed, “any activity can be looked upon as commercial.” Jd.
at 565.

This was the flaw in the government’s arguments: they
provided no logical stopping point to congressional authority
and converted the commerce power into a general police power
like that enjoyed by the states. /d. at 567. Although some of
this Court’s earlier cases leaned in that direction and suggested
a possible expansion of the commerce power, this Court set
aside § 922(q) as an invalid Commerce Clause enactment and
declined in Lopez to go any further. Jd. “To do so,” this Court
stated, “would require us to conclude that the Constitution's
enumeration of powers does not presuppose something not
enumerated, and that there never will be a distinction between
what is truly national and what is truly local.” Jd. at 567-68
(citations omitted).

As if to demonstrate that Lopez was no anomaly, this
Court affirmed that opinion five years later in Morrison. In

21

Morrison, Christy Brzonkala brought an action against two
university students for rape under § 13981 of the Violence
Against Women Act of 1994. That Act provided a federal civil
remedy for victims of gender-motivated violence and stated that
“persons within the United States shall have the right to be free
from crimes of violence motivated by gender.” 42 U.S.C.
§ 13981(b). The Act defined gender-motivated crime as “a
crime of violence committed because of gender or on the basis
of gender, and due, at least in part, to an animus based on the
victim’s gender.” 42 U.S.C. § 13981(d)(1). The district court
dismissed the suit because it determined that § 13981 was
beyond the powers granted to Congress under the Commerce
Clause. The Fourth Circuit, sitting en banc, and this Court both
affirmed.

Relying on Lopez, this Court first determined that the
statute, by its terms, had nothing to do with commerce:
“{gjender-motivated crimes of violence are not, in any sense of
the phrase, economic activity.” Morrison, 529 U.S. at 613. As
a result, this Court held gender-motivated crimes not to be the
type of activity that, through repetition elsewhere, would
substantially affect interstate commerce. /d. at 610-11.

This determination was critical to the outcome of the case.
As the Court observed, the noneconomic and criminal nature of
the prohibited activity in Lopez was central to its decision in
that case. Jd. at 610. But the Court did not stop there. To
illustrate further the importance of this factor, this Court stated,
as a matter of historical fact, that it had upheld federal
regulation of intrastate activity based on its “substantial effects”
on interstate commerce only when the regulated activity was
economic in nature. /d. at 611, 613.

Next, this Court determined that the Violence Against
Women Act did not contain an express “jurisdictional element”
establishing that Congress was attempting to regulate interstate
commerce. /d. at 613. Rather than limit its reach to a discrete

22

set of gender-motivated violent crimes that had an explicit
connection with or effect on interstate commerce, this Court
found § 13981 to be drawn too broadly because it included
purely intrastate violent crime, and thus concluded that § 13981
was not adequately tied to interstate commerce. /d.

Unlike the situation in Lopez, however, this Court did find
that the Violence Against Women Act was supported by
congressional findings that gender-motivated violence affects
interstate commerce. /d. at 614. Among others, those effects
included deterring victims from traveling interstate or engaging
in interstate business. Jd. at 615. Diminishing national
productivity, increased medical costs, and a decrease in the
supply and demand of interstate goods were also cited. /d. But
this Court did not consider these findings to be sufficient to
uphold the Act under the Commerce Clause: “ ““{S]imply
because Congress may conclude that a particular activity
substantially affects interstate commerce does not make it
so.”’” Id. at 614 (citations omitted). That determination, this
Court stated, is reserved to the Judicial Branch. /a.

Because Congress followed the but-for causal chain from
the original violent act to every remote effect upon interstate
commerce, this Court decided that Congress’ findings were
faulty and relied on a “method of reasoning” that obliterates the
distinction between what is national and what is local and
which this Court had already rejected in Lopez. Jd. at 615. This
Court was simply unwilling to allow Congress to regulate
noneconomic activity, such as gender-motivated acts of
violence, based only on that activity’s attenuated effects on
interstate commerce. /d. at 617. Therefore, this Court held that
Congress did not have authority under the Commerce Ciause to
enact § 13981 of the Violence Against Women Act. /d. at 619.

23

B. The Extension of Clean Water Act
Jurisdiction over Any Water with a
Hydrological Connection to a
Navigable Water Fails the Lopez
Standard for “Substantial Effects”

Both Lopez and Morrison strongly affirmed that federal
power under the Commerce Clause is limited in order to
prevent the federal government from becoming a government
of general powers, like the states. Lopez, 514 U.S. at 559-68;
Morrison, 529 U.S. at 617-19. These cases prohibit the federal
government from regulating noneconomic intrastate activities,
like the filling of remote, nonnavigable, intrastate wetlands in
this case, that have only an attenuated connection to interstate
commerce and obliterate the “distinction between what is truly
national and what is truly local.” Lopez, 514 U.S. at 567-68.
A faithful application of the Lopez standard to the facts in this
case demonstrates that the regulation of Gerke’s activities
exceeds the commerce power and is invalid.

As expressed by this Court, four factors contributed to its
decision in Lopez. The first factor was that the statute, by its
terms, had nothing to do with commerce or an economic
enterprise; that is, the Act did not purport to regulate an
economic activity. See Morrison, 529 U.S. at 610. The second
factor was that the Act contained “ ‘no express jurisdictional
element which might limit its reach to a discrete set of firearm
possessions that additionally have an explicit connection with
or effect on interstate commerce.’” /d. at 611-12 (quoting
Lopez, 514 U.S. at 562). This factor was important to establish
that the Act was in “pursuance of Congress’ regulation of
interstate commerce.” /d. at 612. The third factor was that
neither the statute“ ‘nor its legislative history contain[{ed]
express congressional findings regarding the effects upon
interstate commerce™’” of the regulated activity. /d. (quoting
Lopez, 514 U.S. at 560). And, the fourth factor was that the

24

connection between the regulated activity and a substantial
effect on interstate commerce was attenuated. /d.

The first factor is the most ielling and focuses on the
express language of the act. As this Court observed in Lopez,
“Section 922(q) was a criminal statute that by its terms had
nothing to do with ‘commerce’ or any sort of economic
enterprise, however broadly one might define those terms.” 514
U.S. at 560. Under the interpretation offered by the government
and accepted by the court below, the CWA fares no better.

The CWA provides that “the discharge of any pollutant by
any person shall be unlawful,” unless approved by the federal
government. 33 U.S.C. § 1311(a) (CWA § 301(a)). The Act
provides further that: “The Secretary may issue permits . . . for
the discharge of dredged or fill materials into the navigable
waters at specified disposal sites.” 33 U.S.C. § 1344(a) (CWA
§ 404(a)). The term “navigable waters” is defined simply as
“waters of the United States.” 33 U.S.C. § 1362(7) (CWA
§ 502(7)). Gerke was cited for filling wetlands without a
permit, see App. at B-1, in violation of § 1319(b) and (d).

Like the statutes in Lopez and Morrison, the CWA
prohibition on the discharge of fill material into navigable
waters, by any person, does not, by its terms, have anything to
do with commerce or an economic activity or enterprise,
however broadly those terms are defined. The prohibition
applies to all discharges, whatever the source. Whether the
discharge is caused by a child playing with a pail of sand or by
the operation of a backhoe, it is the same. The text of the Act
gives no indication that Congress intended to regulate
commerce by prohibiting discharges to remote wetlands. Under
Lopez and Morrison, this alone is sufficient to invalidate federal
regulation of the wetlands in this case: “[Tjhus far in our
Nation’s history our cases have upheld Commerce Clause
regulation of intrastate activity only where that activity 1s
economic in nature.” Morrison, 529 U.S. at 613.

25

Only one exception applies. If the Act does not, by its
terms, purport to regulate economic activity, then the provision
may be upheld as a proper Commerce Clause enactment if the
provision contains an express “jurisdictional element which
would ensure, through case-by-case inquiry, that the [regulated
activity] affects interstate commerce.” Lopez, 514 U.S. at 560.
This is the second Lopez factor. But in this case, the statutory
definition of “navigable waters” as “waters of the United
States,” does not contain any reference to interstate commerce.
There is no jurisdictional statement. Moreover, the Seventh
Circuit held in this case it is enough if the regulated wetlands
have a mere hydrological connection with a navigable water.
Therefore, the statutory definition of “navigable waters” in this
case suffers from the same problem as the provisions
challenged in Lopez and Morrison; it is too broad and sweeps
in waters that have no actual effect on interstate commerce.

The third Lopez factor involves a consideration of the
legislative history to determine if Congress was pursuing its
power to regulate interstate commerce and to allow the court to
consider the legislative judgement that the regulated activity
substantially affects interstate commerce. See Morrison, 529
U.S. at 612. In SWANCC, the government argued the
legislative history of the CWA supported its view that Congress
intended to exercise its commerce power to its full extent. But,
this Court disagreed. According to this Court, the legislative
history does not indicate that Congress intended to exercise any
Commerce Clause authority over remote wetlands:

Respondents refer us to portions of the legislative
history that they believe indicate Congress’ intent to
expand the definition of “navigable waters.”
Although the Conference Report includes the
statement that the conferees “intend that the term
‘navigable waters’ be given the _ broadest
possible constitutional interpretation,” S. Conf. Rep.
No. 92- 1236, p. 144 (1972), U.S. Code Cong. &

26

Admin.News 1972 pp. 3668, 3822, neither this, nor
anything else in the legislative history to which
respondents point, signifies that Congress intended
to exert anything more than its commerce power
over navigation. Indeed, respondents admit that the
legislative history is somewhat ambiguous.

SWANCC, 531 U.S. at 168 n.3.

As in Lopez, neither the statute nor the legislative history
contains “express congressional findings regarding the effects
upon interstate commerce” of the filing of remote, intrastate
wetlands. See Morrison, 529 U.S. at 612.

The fourth and final Lopez factor involves a determination
as to whether the regulated activity is so removed from any
substantial impact on interstate commerce that to allow such
regulation would obliterate the distinction between what is
national and what is local. /d. at 614-15. This determination
appears to be forgone when the court finds the other three
factors do not support the enactment, as here.

in this case, neither the statutory definition of “navigable
waters” nor the prohibition on discharges to “navigable waters”
without a permit has, by its terms, anything to do with
economic activity and there is no express jurisdictional element
to limit the Act to a “discrete set of [discharges] that
additionally have an explicit connection with or effect on
interstate commerce” as the Lopez standard requires. Lopez,
514 U.S. at 560. There are also no express findings in the
legislative history to support the regulation of remote, intrastate
wetlands as a regulation of commerce. These factors suggest
that the connection to interstate commerce is attenuated and that
no “rational basis existed for concluding that [the] regulated
activity sufficiently affected interstate commerce.” /d. at 554.
Moreover, it is axiomatic that to allow federal regulation of any
water that has a mere hydrological connection to a navigable
water would “completely obliterate the Constitution's

27

distinction between national and local authority.” Morrison,
529 U.S. at 615. So long as a federal permit is required to fill
such waters, the federal government has a virtual veto power
over local land and water use. If the federal government can
regulate all waters hydrologically connected to a navigable
water, no matter how tenuous or remote the connection, there
is virtually nothing that the government could not regulate
under the Commerce Clause.

Analyzed under the “substantially affects” criterion, the
regulation of the filling of remote, nonnavigable, intrastate
wetlands utterly fails as a valid exercise of the Commerce
Clause power. The decision below must be overturned.

——_¢~-

CONCLUSION

This Court has already granted certiorari in Rapanos and
Carabell. The issues presented by Gerke and decided by the
Seventh Circuit are identical to those presented in Rapanos and
are related to the issues presented in Carabell. Thus, Supreme
Court review of the Gerke case will promote judicial efficiency
by directly resolving the common legal issues in Gerke,
Rapanos, and Carabell. This alone is strong enough reason to
justify review of Gerke’s petition. But there is more. Review
by this Court will resolve the split among the Circuits regarding
the extent of CWA jurisdiction. This case raises a question of
immense federal importance—the scope of federal authority
over “waters of the United States’—upon which the lower
courts are divided. Whereas the Fourth, Sixth, Seventh, and
Ninth Circuits have broadly interpreted the CWA to cover ail
waters with a hydrological connection to a navigable water, no
matter how tenuous or remote the connection, the Fifth Circuit
has expressly rejected that interpretation as “unsustainable”
under this Court’s precedents.

28

For these reasons, this Court should grant Gerke’s petition
for a Writ of Certiorari.

DATED: November, 2005.

Respectfully submitted,

DAMIEN M. SCHIFF M. REED HOPPER

Of Counsel Counsel of Record

Pacific Legal Foundation ROBIN L. RIVETT

3900 Lennane Drive, Suite 200 Pacific Legal Foundation

Sacramento, California 95834 3900 Lennane Drive, Suite 200

Telephone: (916) 419-7111 Sacramento, California 95834

Facsimile: (916) 419-7747 Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Petitioner

APPENDIX

i
TABLE OF CONTENTS

Opinion of the United States Court of Appeals for
the Seventh Circuit (June 21, 2005)

Opinion and Order from the United States District Court
for the Eastern District of Wisconsin (Apr. 7, 2004)

Order from the United States Court of Appeals for the
Seventh Circuit (Aug. 17, 2005)

Appendix A-|

In the
United States Court of Appeals
for the Seventh Circuit

No. 04-3941
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERKE EXCAVATING, INC.,
Defendant-Appellani.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-C-0074-C—Barbara B. Crabb, Chief Judge.

Argued May 9, 2005—Decided June 21, 2005

Before POSNER, EASTERBROOK, and EVANS, Circuit
Judges.

POSNER, Circuit Judge. This suit charges that the
defendant violated the Clean Water Act by discharging
pollutants into navigable waters from “point sources” without
the permit from the Corps of Engineers that is required when
the pollutant consists of dredge or fill material (otherwise the
permit must be sought from the EPA or, in some cases, a state).
33 U.S.C. §§ 1311(a), 1362(12). The district judge granted
summary judgment for the government and imposed a civil
penalty of $55,000 on the defendant.

Appendix A—2

The Clean Water Act defines “navigable waters” as
“waters of the United States.” /d. § 1362(7). A 1 gulation
defines the latter term to include not only waters “sur eptible to
use in interstate or foreign commerce,” which are “navigable
waters” in the usual sense, but also tributaries of such
waters and—-of particular pertinence to this case—‘wetlands
adjacent to” such waters or to such tributaries. 33 C.F.R.
§§ 328.3(a)(1), (5), (7). (That is the Corps’ regulation; the
EPA’s, 40 C.F.R. §§ 230.3(s){1), (5), (7), is identical.)

The defendant dumped dredged stumps and roots, plus
sand-based fill (all conceded to be pollutants within the
meaning of the Act, 33 U.S.C. § 1362(6); Borden Ranch
Partnership v. U.S. Army Corps of Engineers, 261 F.3d 810,
814-15 (9th Cir. 2001); United States v. Deaton, 209 F.3d 331,
335 (4th Cir. 2000); Driscoll v. Adams, 181 F.3d 1285, 1291
(ilth Cir. 1999)), into a patch of what it concedes are wetlands
within the meaning of the regulation. It also concedes that the
means of the dumping—bulldozers and dump trucks—are
“point sources.” 33 U.S.C. § 1362(14); Parker v. Scrap Metal
Processors, Inc., 386 F.3a 993, 1009 (ilth Cir. 2004); Borden
Ranch Partnership v. U.S. Army Corps of Engineers, supra,
261 F.3d at 815; United States v. Pozsgai, 999 F.2d 719, 726 n.
6 (3d Cir. 1993); Avoyettes Sportsmen's League, Inc. v. Marsh,
715 F.2d 897, 922 (Sth Cir. 1983).

Located on a 5.8 acre tract near Tomah, Wisconsin, that
the owner wanted to develop, the wetlands are drained by a
ditch that runs into a nonnavigable creek that runs into the
nonnavigable Lemonweir River which in turn runs into the
Wisconsin River, which is navigable. The Lemonweir River is
thus a tributary of a navigable river, but are the wetlands
“adjacent” to the Lemonweir? They are connected to it in the
sense that water from the wetlands flows into the river, but they
might be thought “adjacent” not to the river but merely to the
ditch, and a ditch is not what one would ordinarily understand
as a “tributary.” The Wisconsin River, because it flows into the

Appendix A-3

Mississippi, is connected to the Gulf of Mexico, but it would be
odd to describe it as “adjacent” to the gulf.

Gerke, however, does not argue that the regulation is
inapplicable to this case, and would not get far with the
argument because of how the regulation has been
interpreted—as treating a ditch connected to a tributary of a
navigable waterway as a tributary of a tributary, e.g., Carabell
v. U.S. Army Corps of Engineers, 39\ F.3d 704, 708-09 (6th
Cir. 2004); United States v. Deaton, 332 F.3d 698, 704 (4th Cir.
2003), just as the Lemonweir River itself is a tributary of a
tributary of the Mississippi River. A stream can be a tributary,
why not a ditch? A ditch can carry as much water as a stream,
or more; many streams are tiny. It wouldn't make much sense
to interpret the regulation as distinguishing between a stream
and its manmade counterpart.

Gerke argues instead that the regulation exceeds the
authority granted the Corps of Engineers by the Clean Water
Act because the wetlands are not “waters of the United States,”
or, if the regulation is within the congressional grant of
authority, then it exceeds the authority that the commerce clause
of the Constitution grants Congress. The arguments are
interchangeable, since the only reason Gerke gives to doubt the
validity of the regulation is the principle that the meaning of a
statute or a regulation can be stretched where that is necessary
to avoid its being held unconstitutional. The idea here would
be that the Corps of Engineers would prefer a bobtailed
regulation to none if that is the choice forced on it by the
Constitution.

Congress can regulate waterways used to transport people
and goods in interstate or foreign commerce. Kaiser Aetna v.
United States, 444 U.S. 164, 173-74 (1979); United States v.
Rands, 389 U.S. 121, 122-23 (1967); Gilman v. City of
Philadelphia, 70 U.S. (3 Wall.) 713, 724-25 (1865), Gibbons v.
Ogden, 22 U.S. (9 Wheat.) 1, 189-97 (1824). Those are the

Appendix A-4

waterways that the term “navigable waters” conventionally
denotes (though a river could be navigable even though it was
entirely within one state). The Wisconsin River, not to mention
the Mississippi River into which it flows, is a navigable
waterway in the conventional sense. The most elementary type
of federal regulation of Such Waterways that the commerce
clause authorizes is regulation aimed at making sure they
remain navigable, in the sense of usable in interstate or foreign
commerce, rather than allowing them to become obstructed by
low-lying bridges, Pennsylvania v. Wheeling & Belmont Bridge
Co., 54 U.S. (13 How.) 518 (1852), or to become too shallow
for navigation by large vessels because the sources of their
water are being diminished by dams, silting, or real estate
development. There are believed to be more than 100 million
acres of wetlands in the lower 48 states, Thomas E. Dahl,
“Status and Trends of Wetlands in the Conterminous United
States 1986 to 1997" 9 (U.S. Fish & Wildlife Service 2000),
and they supply some of the water in navigable waterways.
Ralph W. Tiner, “Correlating Enhanced National Wetlands
Inventory Data with Wetland Functions for Watershed
Assessments: A Rationale for Northeastern U.S. Wetlands” 6-7
(U.S. Fish & Wildlife Service 2003). Also, by temporarily
storing storm water, wetlands reduce flooding, which can
interfere with navigation. Office of Technology Assessment,
U.S. Congress, “Wetlands: Their Use and Regulation” 43-47
(1984).

Obviously, filling in a 5.8 acre tract (not all of it
wetlands—we do not know how much of it is) is not going to
have a measurable effect on the depth of the Wisconsin or
Mississippi Rivers. But that cannot be the test. The sum of
many smail interferences with commerce can be large, and so
to protect commerce Congress must be able to regulate an entire
class of acts if the class affects commerce, even if no individual
act has a perceptible effect. See, e.g., Gonzales v. Raich, 125 S.
Ct. 2195, 2205-07 (2005); Wickard v. Fillburn, 317 U.S. 111,

Appendix A—5S

118-29 (1942); United States v. Hicks, 106 F.3d 187, 188-90
(7th Cir. 1997); United States v. Leslie, 103 F.3d 1093, 1100
(2d Cir. 1997), and, with specific reference to the regulation of
navigable waters, United States v. Deaton, supra, 332 F.3d at
706-07; cf Oklahoma ex rel. Phillips vy. Guy F. Atkinson Co.,
313 U.S. 508, 525-26 (1941).

Congress’s power to regulate commerce is not limited to
removing obstructions; otherwise it could not forbid trafficking
in controlled substances, a program designed to reduce a form
of commerce. Congress may forbid the pollution of navigable
waters even if the pollution has no effect on navigability, which
is the usual case, though we’ve found a couple of cases in
which pollution did impede navigability. Kernan v. American
Dredging Co., 355 U.S. 426, 427-28 (1958); United States v.
Ashiand Oil & Transportation Co., 504 F.2d 1317, 1326
(6th Cir. 1974). In fact navigability is a red herring from
the standpoint of constitutionality. The power of Congress to
regulate pollution is not limited to polluted navigable
waters; the pollution of groundwater, for example, is regulated
by federal law, eg, 42 U.S.C. §§ 300h, 6949a(c),
9621(d)(2)(B)(1i), because of its effects on agriculture and other
industries whose output is shipped across state lines, and such
regulation has been held to be authonzed by the commerce
clause. Freier v. Westinghouse Electric Corp., 303 F.3d 176,
202-03 (2d Cir. 2002); United States v. Olin Corp., 107 F.3d
1506, 1510-11 (11th Cir. 1997); cf Allied Local & Regional
Mfrs. Caucus v. United States EPA, 215 F.3d 61, 81-83 (D.C.
Cir. 2000). In Village of Oconomowoc Lake v. Dayton Hudson
Corp., 24 F.3d 962, 964-66 (7th Cir. 1994), we noted that in
excluding groundwater frorn the definition of “waters of the
United States,” Congress in the Clean Water Act had declined
to exercise its constitutional power to the utmost.

So it doesn’t matter whether the objection to allowing the
Gerkes of this world to dry out wetlands is that the effect may
be to reduce water levels in navigable waterways to the point at

Appendix A-6

which navigation would be affected or that the effect may be to
increase the level of pollution in such waters by reducing
the supply of unpolluted wetlands water. Nothing in the
Constitution forbids interpreting the Clean Water Act to cover
any wetlands that are connected to navigable waters. Whether
the wetlands are 100 miles from a navigable waterway cr 6 feet,
if water from the wetlands enters a stream that flows into
the navigable waterway, the wetlands are “waters of the
United States” within the meaning of the Act. United States v.
Rapanos, 339 F.3d 447, 450-53 (6th Cir. 2003), United States
v. Deaton, supra, 332 F.3d at 704-12.

Gerke argues that the wetlands of the United States are so
extensive that the Corps’ interpretation will tilt the balance
between federal and state power too far in the direction of the
federal government. Jn re Needham, 354 F.3d 340, 344-46 (Sth
Cir. 2003); see also Rice v. Harken Exploration Co., 250 F.3d
264, 267-69 (Sth Cir. 2001). Gerke reminds us of recent
decisions by the Supreme Court which hold that the commerce
power is not plenary, such as United States v. Morrison, 529
U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549
(1995). The argument, however, is two-edged. The more
extensive a wetlands, the greater its potential importance as a
source of water to keep the navigable waterways full and clean

Granted, a wetlands could be extensive yet not be a source
of water for navigable waterways. In a decision about wetlands
that are isolated from navigable waterways, the Supreme Court
held in Solid Waste Agency of Northern Cook County
(SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159
(2001), that such wetlands are not “waters of the United States.”
Gerke fastens on the sentence in the opinion that states that
the Clean Water Act does not extend “to ponds that are not
adjacent to open water.” /d. at 168 (emphasis in original). It is
dangerous, however, to take judicial language out of context;
the case was about a pond that was completely isolated from
any navigable waterway, tributary, etc. As we noted in United

Appendix A-7

States v. Rueth Development Co., 335 F.3d 598, 603-04 (7th
Cir. 2003), SWANCC did not overrule United States v.
Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), which
had held that a wetlands that actually abutted a navigable
waterway was constitutionally regulable. It cannot make any
difference if instead of abutting, the wetlands is connected to
the waterway by a pipe two feet long. Even taken out of
context, the sentence Gerke fastens on doesn’t do the work it
thinks it does. For “adjacent” can just mean “connected,” and
“open water” can just mean water that is part of the waters of
the United States because it flows into navigable waterways.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of
Appeals for the Seventh Circuit

Appendix B—1

Filed Apr. 7, 2004
[IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

ree eee ee eh ee eh eh eh er rer rl rer re rl rl ere rl rerhlUc rmhUc rhc rl rl rhc rr rer wr rl rh rl rerhlUc rhc rl rhc rh om hm

UNITED STATES OF AMERICA, OPINION AND
ORDER
Plaintiff,
03-C-0074-C
Vv.

PETER THORSON, MANAGED
INVESTMENTS INC., CONSTRUCTION
MANAGEMENT, INC. and GERKE
EXCAVATING INC.,

Defendants.

ens eeeneeeueeeeeh rem rerhlee rer lrerlrerl rhlc hl ermhClc rhUc rl er CrCl rl rhc hl rl rhlUc rhc OrC rl rhc rc rh rhc rhc Om hme

This is a civil action for injunctive and monetary relief
in which the United States contends that defendants
Peter Thorson, Managed Investments, Inc., Construction
Management, Inc. and Gerke Excavating, Inc. violated 33
U.S.C. § 1319(b) and (d) of the Clean Water Act by discharging
pollutants into waters of the United States without a permit.
Plaintiff asks the court to (1) permanently enjoin defendants
from discharging pollutants into the waters of the United States
without a permit; (2) require defendants to remedy the damage
caused by their unlawful activities at their own expense, and
(3) impose civil penalties pursuant to 33 U.S.C. § 1319(d).
Defendants have asserted a counterclaim, in which they seek a
declaratory judgment that the site of the discharge (1) does not
meet the necessary criteria for wetlands set out in the United

Appendix B—2

States Army Corps of Engineers “Wetlands Delineation
manual” and (2) is not subject to jurisdiction under the
Clear: Water Act. The case is before the court on plaintiff's
motion for partial summary judgment. Jurisdiction is present.
28 U.S.C. § 1331.

Plaintiff's motion for partial summary judgment will
be granted with respect to defendants Thorson, Managed
Investments and Gerke Excavating. Plaintiff has proved that
these defendants discharged pollutants into the waters of the
United States. Defendant has not shown why the court should
not give deference to the Army Corps of Engineers’s standards
for wetlands, including wetland hydrology. It was proper for
plaintiff to rely on that method in determining that the
site constitutes a wetland. Further, the clear statutory text
of the Clean Water Act is not violated by the Corps’s
regulation, which applies to wetlands adjacent to tributaries of
navigable waters. Finally, I reject defendants’ argument that
the regulation exceeds congressional authority under the
commerce clause of the United States Constitution.
Congressional authority to regulate channels of interstate
commerce extends beyond the regulation of those activities
affecting a channel’s suitability for transporting goods and

persons.

Plaintiff is not entitled to summary judgment with respect
to defendant Construction Management. Although plaintiff
bears the burden of proof, it has not proposed any facts showing
defendant Construction Management’s involvement in the
discharge. At most, the evidence shows that defendant
Construction Management submitted a permit application for a
building project on the site two years before the acts that gave
rise to this lawsuit.

Defendants are not saved by any of the four affirmative
defenses they pursue. They contend that plaintiff has failed to
state a claim on which relief may be granted, but the contention

Appendix B-3 .

is not meritorious. Defendants’ last three “affirmative
defenses” are not true affirmative defenses; they simply restate
defendants’ denial of the underlying violation. Finally,
defendants’ counterclaim seeking a declaration that the site is
not a “water of the United States” will be dismissed with
respect to the filled portion of the site. In determining that
plaintiff is entitled to summary judgment, | have already
concluded that the site of the discharge is a “water of the United
States.” However, the claim survives this motion to the extent
that defendants seek a declaration regarding the status of the
unfilled portions of the site. The Administrative Procedure Act
allows persons aggrieved by agency actions to sue for
non-monetary relief and the Corps has not made a fact-specific
determination of its jurisdiction over the entire site.

From the parties proposed findings of fact, | find the
following to be material and undisputed.

UNDISPUTED FACTS

Plaintiff is the United States of America. Defendant
Managed Investments, Inc. is a real estate development
corporation. Defendant Construction Management, Inc. is a
general contracting and development corporation. Defendant
Thorson is the president of ooth defendant Managed
Investments and Construction Management. Defendant Gerke
is an excavating corporation. All defendants are located in
Tomah, Wisconsin or reside there.

A. The Site

The incidents giving rise to this cause of action took place
on an undeveloped 5.8 acre tract of land owned by defendant
Managed Investments in Tomah, Wisconsin. The eastern
border of the tract abuts Superior Avenue; Jefferson Street runs
along the tract’s southern border. A private residential
driveway runs along the north side; the western border abuts a
drainage ditch, which runs to Deer Creek, which flows from

Appendix B4

west to east approximately seventy-five feet north of the
residential driveway. Deer Creek is a soft water, alkaline, clear
stream that flows into the south fork of the Lemonweir River.

B. Application for Permit to Fill Si

Under the Clean Water Act, the Army Corps of Engineers
is authorized to regulate the disposal of dredged and fill
material into the waters of the United States. In 1999, the
Corps made a preliminary determination that the site at issue
was within its jurisdiction under the Act. The drainage ditch,
Deer Creek and the south fork of the Lemonweir River are all
part of the Mississippi River's surface water tributary system.
The Lemonweir River flows into the Wisconsin River, which
is used in interstate commerce and is navigable in fact from
Tomahawk, Wisconsin, down to its confluence with the
Mississippi River near Prairie du Chien, Wisconsin. The
Mississippi River is navigable in fact and used in interstate
commerce. The residential driveway on the northern edge of
the site is not a barrier to surface water flow from the site to
Deer Creek because of two culverts, one on each end of the
driveway.

On February 10, 1999, George Schleicher, the owner of
the lot at the time, received a letter from the Corps advising him
that part of the site was covered in wetlands that could not be
manipulated without first obtaining a permit. On or about
February 18, 1999, defendant Managed Investments submitted
to plaintiff a joint state and federal application for water quality
certification, a copy of which was received by the Wisconsin
Department of Natural Resources on February 22, 1999. The
application included a letter from Schleicher, stating that
defendant Managed Investments had offered to purchase the lot
if the Corps and the department would issue permits approving
the proposed plan to fill parts of the site. In the application,
defendant Managed Investment described its plan to construct
a retail and service business complex. The department's fee

Appendix B—5S

application was signed by defendant Thorson and dated
February 19, 1999.

By letter dated April 9, 1999, detendant Managed
Investments’ agent, Lawrence Feddersen, revised the plans for
the site because of certain water quality concerns raised by the
Corps and the Wisconsin Department of Natural Resources. At
some point that same month, defendant Thorson hired an
outside consultant, Ayres Associates, to assist with the permit
application. On or about April 23, 1999, Ayres Associates sent
a letter to the Wisconsin Department of Natural Resources,
asking that defendant Construction Management be substituted
for defendant Managed Investments as the permit applicant. In
the letter, Ayres provided additional environmental information
about the site, including a delineation of the plants, soils and
hydrology.

On May 24, 1999, the Wisconsin Department of Natural
Resources denied water quality certification because defendant
Construction Management had not provided reasonable
assurance that the project would comply with wetland quality
standards. On June 8, 1999, the Corps followed the lead of the
Wisconsin Department of Natural Resources and denied
the application without prejudice. Defendant Construction
Management petitioned the Wisconsin Department of Natural
Resources for a contested case hearing on June 22, 1999, but
sent the petition to the wrong location and did not discover the
error until the time for filing had expired. On January 12, 2000,
after the petition was routed to the proper office, the department
denied the request because it had not been filed within the
requisite time period or at the proper location.

C. Development of the Site

In January 2001, the United States Supreme Court decided
Solid Waste Agency of Northern Cook County v. United States
Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001).
The Corps had defined its jurisdiction under the Clean Water

Appendix B-6

Act to regulate the discharge of pollutants into “navigable
waters” as extending to intrastate waters that provide habitat for
migratory birds. In invalidating this regulation, the Court made
it clear that isolated intrastate waters cannot be subject to the
Corps’s jurisdiction under the Act. After learning of this
decision, defendant Thorson, acting in his capacity as president
of defendant Managed Investments, offered to purchase the site
for the reduced price of $55,000 from Schleicher, who
accepted. (The original offer price in 1999 had been $80,000).
In February 200!, defendant Thorson contacted Bruce Norton,
a biologist and the Corps’s initial point of contact in Monroe
County, Wisconsin. Norton expressed his understanding that
the wetlands on the site were “adjacent” to Deer Creek under
the Corps’s definition of that term so that defendant Thorson
would need a permit for any mechanized clearing of the
wetlands. Defendant Thorson did not apply for a permit after
having this conversation with Norton.

In February or March 2001, defendant Thorson hired
contractor defendant Gerke Excavating to place fill material and
perform other grading activities on the site. At some point in
March, defendant Thorson contacted defendant Gerke's
president and project coordinator to tell them to go ahead with
the proiect even without permits because of a recent United
States Supreme Court opinion. Defendant Thorson gave them
a two-week time frame in which to complete the project. On
March 23, 2001, the parties officially entered into an agreement
for performance of these grading services.

On March 27,2001, defendant Gerke removed stumps and
topsoil and began to fill and grade the site with a sand-based fill
product. Defendant used a bulldozer and trucks to haul material
and a broom to keep fill material off the road. That same day,
defendant Thorson attempted unsuccessrully to contact Norton
at his office. He then contacted the Corps’s district office,
seeking a jurisdictional determination whether the wetlands on
the site were “adjacent” to waters within the Corps’s

Appendix B-7

jurisdiction. The regional officer told defendant Thorson that
the site could be filled if it were actually isolated, but the officer
did not make any final determination that the wetlands on the
site were either “adjacent” to navigable waters or isolated.
Later in the day, defendant Thorson left Norton a voicemail
message indicating that he believed that his site was isolated
because of the advice he had received from the regional officer
and that he would proceed to fill the site.

After receiving defendant Thorson’s voicemail message
the following morning, Norton attempted to reach him without
success. Norton learned from a Tomah city official that the city
had “red flagged” the project because defendant Thorson had
not obtained the necessary city permits and that defendant
Gerke had been hired to perform the work. Norton then
contacted Ron Parish of defendant Gerke Excavating and asked
him whether he was aware of the wetland issues in the project.
Parish told Norton that defendant Thorson had said that he had
taken care of everything and that defendant Gerke had started
work on the project the previous moming (March 27, 2001).
Norton told Parish that he would need a permit to fill the
wetlands and advised him of the penaities for filling the site
without one. Parish agreed to stop work at the site. At some
time on March 28, 2001, defendant Gerke and defendant
Thorson executed a written contract for the excavation and
filling services. (it is unclear whether the contract was executed
before or after the conversation between Norton and Parish or
the conversation between Norton and defendant Thorson.) The
contract includes the following clause: “Gerke Excavating, Inc.
will not bear responsibility for any fines or penalties assessed
by government agencies for any reason prior to completion,
owner shall pay for all work completed.” Later that day,
defendant Thorson contacted Norton and accused him of
threatening defendant Gerke and forcing a work stoppage.
Norton informed defendant Thorson that the Corps was
preparing a cease and desist order.

Appendix B-8

On March 28, 2001, the Corps issued cease and desist
orders to defendants Thorson, Construction Management and
Gerke. At the site the following day, Norton hand-delivered the
orders to defendant Thorson and defendant Gerke’s president,
Richard Gerke. In response, defendant Thorson and Gerke
indicated that no filling had taken place after Norton’s phone
calls the day before. By this time, dredged stumps, roots and
other spoil material was piled on the west, north, east and
southeast of the fill area. These piles remain on the site.

D. Ecological Condit he Si

The Corps’s 1987 wetland delineation manual lays out
three wetland criteria: wetland hydrology (soil saturation),
wetland soil (hydric soil) and wetland vegetation (hydrophytes).
According to the manual, an area must satisfy all three criteria
in order to qualify as wetlands. The manual provides various
methods and standards for determining whether these criteria
are satisfied. Recent disturbances or normal seasonal variations
may create atypical situations in which one or more of the three
critena may be lacking or obscured.

Obligate wetland plants are those found in wetlands more
than 99% of the time, faculative wetland plants are those found
in wetlands between 67-99% of the time, and faculative plants
are those found in wetlands between 33-67% of the time.
According to the 1987 manual, the hydrophytic vegetation
criterion is met when more than 50% of the plant species in an
area fall into these three categories. The hydrophytic vegetation
requirement was met at 28 of the 34 sample points on the site
at issue.

Hydric soils are those formed under conditions of
saturation, flooding or ponding for periods long enough to
create anaerobic conditions during the growing season. The
anaerobic conditions cause changes in soil elements, such as
iron and manganese, producing soil colors and other
characteristics that indicate hydric soils. Hydric soils were

Appendix B—9

found at 23 of the 24 sample points surrounding the fill area and
at all six sample points beneath the fill.

The wetland hydrology criteria is satisfied if the soil is
saturated “within a major portion of the root zone (usually
within |2 inches of the surface)” for at least 5% of the growing
season. The 1987 manual provides that the starting and ending
dates of the growing season may be estimated from air
temperatures over a ten-year span. Specifically, the last and
first date on which the air temperature reaches 28° Fahrenheit
or lower five years out of ten mark the start and end of the
growing season. Applying this method, the estimated start and
end dates of the growing season at the site are April 29 and
October 5 respectively. This is a 159-day period, 5% of which
is 8 days. At all six locations tested, the soil was saturated to
within 12 inches from the surface for more tan 8 days during
the estimated growing season in 2003.

(I note that plaintiff has proposed voluminous additional
scientific data that would tend to show that the soil hydrology
criteria have been satisfied under one of the other methods
outlined in the manual. However, in its brief in support of its
motion for summary judgment, plaintiff relies exclusively on
the 12 inch soil saturation method described above. See Plt.
Br., dkt. # 77, at 14-15. Thus, these other data are immaterial
for purposes of resolving this motion.)

OPINION

The Clean Water Act makes it unlawful for any person to
discharge a “pollutant” from a “point source” into “navigable
waters” unless the discharge is authorized by a permit or an
exemption. 33 U.S.C. §1311(a); 33 U.S.C. § 1362(12); United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123
(1985); Home Builders Ass'n of Greater Chicago v. U.S. Army
Corps of Engineers, 335 F.3d 607, 612 (7th Cir. 2003). The
Act’s purpose is to “restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.” 33

Appendix B-10

U.S.C. § 1251(a). Congress has charged the Army Corps of
Engineers with regulating the permit process under § 404 of the
Act. 33 U.S.C. § 1344; Home Builders, 335 F.3d at 612.
Individual permits are issued on a case-by-case basis after the
Corps conducts site specific examination, provides an
opportunity for a public hearing and public interest review and
makes a formal determination. 33 C.F.R. §§ 320.4, 323. See
also Home Builders, 335 F.3d at 612. The Corps may not
issue a § 404 permit unless an applicant has first obtained
certification or waiver from the state in which the discharge
originates, indicating that the activity will not damage water
quality impermissibly. See 33 U.S.C. § 1341(a).

§ 309 of the Act authorizes civil actions for “appropriate
relief, including a permanent or temporary injunction” for
violations of § 301. 33 U.S.C. § 1319(b). In addition, the Act
authorizes district courts to impose civil penalties, not to exceed
$25,000 a day for each violation. 33 U.S.C. § 1319 (d). A
plaintiff must prove that the defendants (1) discharged a
“pollutant” (2) from a “point source” (3) into “navigable
waters.” 33 U.S.C. § 1311. If a plaintiff proves these three
elements, the defendants’ actions constitute a § 301 violation
unless authorized by a permit. In this case, defendants concede
that they did not have a permit for their activities.

A. Discharge of a Pollutant

Defendants do not deny that their actions constitute a
discharge of a “pollutant,” which is defined under the Act to
include dredged spoil, solid waste, rock and sand. 33 U.S.C.
§ 1362(6). Defendant Gerke piled dredged stumps, roots and
spoil on the site. In addition, defendant deposited sandy fill
material that it had trucked in and began grading portions of the
site.

Although defendants do not raise the issue, it is not clear
from the facts proposed by plaintiff how the discharge can
be attributed to defendant Construction Management. The

Appendix B-!1

discharge can be attributed to defendant Managed Investments
because it owns the site, defendant Thorson because he directed
and oversaw the discharge and defendant Gerke because it did
the discharging. United States v. Lambert, 915 F. Supp. 797,
802 (S.D. W.Va. 1996) (“The CWA imposes liability both on
the party who actually performed the work and on the party
with responsibility for or control over performance of the
work.”) At most, the facts show that defendant Construction
Management was the substituted named applicant for a building
permit at the site approximately two years before the discharge.
Although plaintiff proposes extensive facts about defendant
Thorson’s role in arranging for the discharge, there is no
indication that he was acting in his capacity as defendant
Construction Management’s president at the time. Absent any
other information about the involvement, | cannot conclude that
plaintiff has proved the discharge element with respect
to defendant Construction Management, notwithstanding
defendants’ failure to raise this issue. Plaintiff bears the burden
of proving a violation. It has not met this turden with respect to
defendant Construction Management. (Throughout the
remainder of the opinion, the term “defendants” will refer to
defendants Thorson, Managed Investments and Gerke).

B. From a Point Source

Defendants concede that the discharge was made from a
point source. A “point source” is “any discernible, defined
and discrete conveyance” 33 U.S.C. § 1362(14). Bulldozers,
tractors, backhoes and dump trucks qualify as “point sources.”
United States v. Pozsgai, 999 F.2d 719,726 n.6 (3d Cir. 1993)
(“Courts have consistently held that dump trucks and
bulldozers.., qualify as ‘point sources.””) (citations omitted);
Borden Ranch Partnership v. United States Army Corps of
Engineers, 261 F.3d 810, 815 (9th Cir. 2001 ) (bulldozers,
tractors and backhoes); Avoyelles Sportsmen's League, Inc. v.
Marsh, 715 F.2d 897, 922 (Sth Cir. 1983) (bulldozers and
backhoes). Defendants used trucks to haul fill material to the

Appendix B—12

site and bulldozers to push dredged materials into piles. Thus,
the point source element is satisfied.

C. Navigable. Waters

The primary debate in this case is whether the filled
portions of the site constitute “navigable waters” under the Act.
Congress defined the term “ndéyigable waters” to mean “the
waters of the United States.” Initially, the Corps construed the
Act to cover only waters that were navigable in fact. Riverside
Bayview, 474 U.S. at 123. In 1975, it redefined the term to
extend to the non-navigable tributaries of those waters and to
the freshwater wetlands adjacent to other covered waters. /d.
In Riverside Bayview, 474 U.S. 121, the Supreme Court found,
in light of the statute’s language, purpose and history, that
the“waters of the United States” could be construed reasonably
to include certain wetlands, even though wetlands are not
navigable in the traditional sense. Jd. There are two primary
disputes: first, does the filled portion of the site qualify as a
wetland and second, if it does, are the wetlands subject to
jurisdiction under the Act?

1. Status as a wetland

“The term wetlands means those areas that are inundated
or saturated by surface or ground water at a frequency and
duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically
adapted for life in saturated soil conditions.” 33 C.F.R.
§ 328.4(b). The Corps uses three physical characteristics to
determine the existence of a wetland: (1) hydrophytic
vegetation; (2) hydric soil; and (3) wetland hydrology.
Waterways Experiment Station, Department of the Army, Corps
of Engineers Wetlands Delineation manual (1987).

Defendants do not deny that the hydrophytic vegetation
criteria has been met or that the site meets the hydric soil
criteria. Their only challenge is to plaintiff's conclusion that

Appendix B-13

the site’s hydrology is that of a wetland. As to this conclusion,
they do not challenge the accuracy of plaintiff's data supporting
its visual observation under the soil saturation method of
determining a site’s hydrology. Instead, they argue that their
expert’s “transpiration” theory is a better method of
determining hydrology. Plaintiff makes a number of objections
to the evidence on which defendants rely, pointing out that
defendants did not reveal their expert’s method until they filed
their brief in opposition to plaintiff's motion for partial
summary judgment and arguing that the expert's theory flunks
the Daubert test. It is not necessary to address these points.
However valid defendant's expert opinions are, they do not
establish that the Corps’s method of determining hydrology is
“plainly erroneous.”

The 1987 manual lists several methods for determining an
area’s hydrology, ranking them by reliability. /d. at 31-34. The
most dependable method is using recorded data on water levels,
flooding, and soil saturation followed by field data. Jd. at
31-32. Among the various methods for establishing wetland
hydrology using field data, “visual observation of soil
saturation” is listed in the manual as the second most reliable.
Id. at 32. Using this method, the wetland hydrology criterion is
satisfied if the soil is saturated “within a major portion of the
root zone (usually within 12 inches of the surface)” for at least
5% of the growing season. /d. at 30-32.

The relevant issue is whether defendants’ expert's
testimony is sufficient to overcome the presumption that agency
standards and measures are appropriate. As a general matter,
regulations of an agency charged with enforcing a statute are
entitled to deference when there is no clear statutory language
on point. Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837, 842-43 (1984). In applying deference
under Chevron, courts are to apply an agency’s interpretations
unless they are unreasonable. Jd. However, “interpretations
such as those in opinion letters—like interpretations contained

Appendix B~14

in policy statements, agency manuals, and enforcement
guidelines, all of which lack the force of law—do not warrant
Chevron-style deference.’” Keys v. Barnhart, 347 F.3d 990,
993 (7th Cir. 2003) (quoting Christensen v. Harris County, 529
U.S. 576, 586-88 (2000)) (emphasis added). Plaintiff has not
demonstrated that the manual has been subjected to the rigorous
review normally required in formal agency rule making. See
5 U.S.C. § 553 (Administrative Procedure Act provision
mandating notice, comment and consideration in agency rule
making). See also Reno v. Koray, 515 U.S. 50, 61 (1995)
(internal agency guideline not “subject to the rigors of the
Administrative Procedur{e] Act, including public notice and
comment,” entitled only te “some deference”) (internal
quotation marks omitted)).

However, even when Chevron deference is not warranted,
agency interpretations may be entitled to some degree of
deference. Matz v. Household International Tax Reduction
Investment Plan, 265 F.3d $72,574 (2001). Under Auer v.
Robbins, 519 U.S. 452 (1997), an agency’s interpretation of its
own regulations is entitled to a relatively high level of
deference. Christensen, 529 U.S. at 588. A court must accept
the interpretation unless it is “‘plainly erroneous or inconsistent
with the regulation.”” Auer, 519 U.S. at 461 (quoting Bowles
v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).
(Although the Court of Appeals for the Seventh Circuit has
noted the unliklihood of giving deference to an agency's
interpretation of its own regulation contained only im a
brief, Keys, 347 F.3d at 993, plaintiff's temperature-based
method has been published in the Corps’s Delineation Manual

for approximately ten years.)

In a case involving a nearly identical issue, the Court of
Appeals for the Fourth Circuit applied a relatively high level of
deference to the 1987 manual. In United States v. Deaton, 332
F.3d 698 (4th Cir. 2003), the defendants in a § 301 civil action
challenged the 1987 manual’s method for establishing soil

Appendix B—15

hydrology. The defendants argued that soil must be saturated
to the surface and not merely within twelve inches of the
surface for 5% of the growing season in order to establish the
requisite hydrology. /d. at 712-13. The court rejected this
argument, noting that “[i]f the [defendants] 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.” Jd. at 173. The court reasoned that it was
bound to defer to the manual interpretation, particularly because
it deals in a complex scientific field, unless defendants gave it
reason to believe the manual to be “‘plainly erroneous or
inconsistent with’ the regulatory definition of wetlands.” /d.
(citing Bowles, 325 U.S. at 413-14).

In essence, defendants argue that their expert’s
transpiration method determines the actual onset of the growing
season with greater accuracy than plaintiff's temperature
method. See Dfts.’ Br., dkt., 90, at 27 (“The more appropriate
method for determining when the growing season commenced
in a particular year is to examine the data that shows when the
piants actually began to grow.”). The most critical remark their
expert makes in his affidavit is characterizing as “arbitrary” the
results of the temperature-based method. However, he fails to
identify any arbitrariness beyond that inherent in any
estimation. He does not assert that the onset of warmer air and
ground temperatures does not correlate with the start of plant
growth or that the 28° Fahrenheit cut-off point is somehow
inappropriate. Even if! were to assume that defendant's expert
is correct when he says that his method results in a more
accurate estimation of the growing season, his testimony does
not show that the Corps’s interpretation is “plainly erroneous.”

Defendants do not address the issue of deference. They
seem to assume that none is due. Their approach would burden
courts with evaluating competing scientific methods, a practice
that courts are not qualified to perform. Pauley BethEnergy
Mines, Inc., 501 U.S. 680, 696 (1991) (deference particularly

Appendix B-16

appropriate when agency administers “complex and highly
technical regulatory program.”), if a court were to disregard the
scientific standards set by the agency charged with enforcing an
Act whenever it found another standard more appropriate, it
would effectively usurp the agency’s expressly delegated
authority, violating fundamental separation of powers
principles. See id. (“Judicial deference to an agency’s
interpretation of ambiguous provisions of the statutes it is
authorized to implement reflects a sensitivity to the proper roles
of the political and judicial branches.”)

Defendants argue that the hydrology requirement cannot
be met because of the developments around the site, such as
road construction and accompanying drainage ditches (all prior
to 2001), which prevent ground water flow to the site from
surrounding areas. This argument is a non sequitur. It is not
logically sound to argue that soil saturation measurements are
inaccurate or misleading because saturation levels may have
been higher in the past. Part of the confusion may have been
caused by defendants’ overly broad reading of their expert’s
testimony at his deposition, where he states that “because of
these modifications, local soil survey data should not be used
as a secondary indicator of wetlands hydrology.” Straw Dep.,
dkt. #93, at | 23, p. 7-8 (emphasis added). Plaintiff is not
relying on such data as a secondary indicator. It relies
exclusively on the primary indicator of “visual observation of
soil saturation” for purposes of summary judgment. See PIt.’s
Br., dkt. #77, at 14-15. It is immaterial that plaintiff collected
and submitted data that could be used to establish hydrology
using some other method, such as local soil surveys. In the
portion of the affidavit defendants cite in support of their
argument, their expert does not suggest that the site
modifications have any bearing on the reliability of visual
observation of soil saturation data on which plaintiff is relying.

Defendants raise two other objections to plaintiff's
method of determining hydrology. The first focuses on soil

Appendix B—17

saturation. They assert that the soil must be saturated to the
surface rather than within twelve inches of the surface for 5%
of the growing season. The entirety of their argument is as
follows:

In its analysis, the Corps appeared to have taken the
position that the 1987 manual mandates the usage of

- “a major portion of the root zone” (usually 12
inches). It does not! This reading of the 1987
manual is incorrect. Instead, the 1987 manual
provides for six field hydrologic indicators, which
can be used to assess the criterion of hydrology. The
‘root zone’ language falls under paragraph 2 of the
“Field Data Section” of the 1987 manual where
there is a description of what to do when engaging
in visual observation of soil saturation. It states,
“For soil saturation to impact vegetation, it must
occur within a major portion of the root zone
(usually within 12 inches of the surface) of the
prevalent vegetation.”

Dfts.’ Br., dkt. #90, at 28-29. I cannot understand why
defendant are arguing that the twelve-inch standard should
apply only to the visual observation method described in
subsection two when plaintiff does not contend that it should
apply to any other method. Plaintiffis relying on the subsection
two visual observation method; thus, application of the twelve
inch standard is appropriate. A nearly identical challenge was
raised and rejected in Deaton, 332 F.3d at 713, in which the
court noted that “[t]he ‘within twelve inches’ indicator is
spelled out in the manual.”

Finally, defendants challenge plaintiff s “reliance” on reed
canary grass as a secondary indicator of wetland hydrology.
Plaintiff has never suggested that it relied on reed canary grass
as a secondary indicator of wetland hydrology at the site. Pit.’s
Br., dkt. # 77, at 14. To the extent that plaintiff cites other

Appendix B-18

secondary indicators of hydrology, it is barred from relying on
them because it did not refer to them uniil its reply brief.
Arguments made for the first time in a reply brief are waived.
Nelson v. La Crosse County Dist. Atty. (State of Wisconsin),
301 F.3d 820, 836 (7th Cir. 2002).

2. Adjacency,

Although I conclude that the site in this case qualifies as
a “wetland,” this is not the end of the inquiry. Not every
“wetland” is subject to regulation under the Clean Water Act.
33 C.F.R. § 328.3 (1993) (only interstate wetlands and those
wetlands adjacent to other covered waters are subject to Act).

The Corps’s regulations define the waters subject to jurisdiction
under the Act as including:

(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:

(1) Which are or could be used by interstate or

foreign travelers for recreational or other purposes;
or

(11) From which fish or shellfish are or could be
taken and sold in interstate or foreign commerce; or

Appendix B-19

(iii) Which are used or could be used for industrial
purpose by industries in interstate commerce;

(5) Tributaries of waters identified in paragraphs
(a)(1)-(4) of this section:

(7) Wetlands adiacent to waters (other than waters
that are themselves wetlands) identified in
paragraphs (a)( 1 )-(6) of this section.

Id. “Adjacent” is defined to mean “bordering, contiguous or
neighboring.” 33 C.F.R. § 328.40.

Plaintiff argues that defendants’ wetlands are subject to
the Act because they are adjacent to a drainage ditch running to
Deer Creek, a tributary flowing into the south fork of the
Lemonweir River, which is a tributary of the Wisconsin River,
which is navigable in fact and is used in interstate commerce
and a tributary of the Mississippi River, which is also a
navigable in fact interstate waterway used for interstate
commerce. In short, plaintiff contends that the wetlands are
subject to the Act because they are hydrologically connected to
other covered waters. See Pit.’s Br., dkt. # 77, at 15.
Defendants raise three arguments in opposition: (1) the text of
the Act is clear in limiting jurisdiction to only those wetlands
immediately adjacent to waters that are navigable in fact;
(2) even if the regulation is warranted under the statutory text,
the regulation should be disregarded because it raises serious
constitutional questions; and (3) if the Act does permit
plaintiff's hydrological connection standard, it exceeds
Congress's authority under the commerce clause. For the
reasons stated below, | do not find defendants’ argumenits
convincing and | find that the adjacency element has been
satisfied.

Appendix B-20

a) “Adjacency” under the statutory text

Defendants argue that plaintiff has exceeded its authonty
under the Clean Water Act in extending the Act's coverage to
include wetlands that are not immediately adjacent to waters
that are actually navigable. They note that the Corps is charged
with regulating the discharge of fill material into “navigable
waters” and argue that extending coverage to wetlands with
only a hydrological adjacency to traditionally navigable waters
is unwarranted jurisdictional bootstrapping. Defendants argue
that this conclusion is mandated by the Supreme Court's
holding in United States v. Riverside Bayview Homes, Inc., 474
U.S. 121 (1985), and its later ruling in SWANCC, 531 U.S. 159.

As defendants note, Congress charged the Corps with
regulating discharges of fill material in “navigable waters,” 33
U.S.C. § 1344(a), but “navigable waters” is defined in the Act
as “the waters of the United States,” 33 U.S.C. § 1362(7). In
Riverside Bayview, 474 U.S. 121, a unanimous Court held that
in light of the Act’s policies, language and legislative history,
it was reasonable to construe “waters of the United States” to
extend to at least some wetlands, even though they were not
navigable in fact. Jd. at 131-35. The Court observed that the
Act was part of a “comprehensive legislative attempt ‘to restore
and maintain the chemical, physical, and biological integrity of
the Nation’s waters.’” Jd. at 132 (quoting 33 U.S.C. § 1251).
It noted ongress’s recognition that “[p]rotection of aquatic
ecosystem .. . demanded broad federal authority to control
pollution, for ‘water moves in hydrologic cycles and it is
essential that discharge of pollutants be controlled at the
source.” Jd. at 132-33 (quoting S. Rep. No. 92-414, p. 77
(1972), reprinted in 1972 U.S.C.C_A.N. 3668, 3742).

Next, the Court reasoned that “the Act’s definition of
‘navigable waters’ as ‘the waters of the United States’ makes it
clear that the term ‘navigable’ as used in the Act is of limited
impor'.” Id. at 133 (emphasis added). Finally, the Court

Appendix B-21

concluded that Congress had acquiesced in the administrative
construction. /d. at 136. After the wetlands regulation was
adopted, critics introduced a House Bill that would have limited
the Act’s coverage to waters navigable in fact. /d. (citing H.R.
3199, 95th Cong., Ist Sess., § 16 (1977)). Although the bill
‘passed in the House, it was defeated after a lengthy debate in
the Senate. /d at 136-37. The effort to narrow the definition
of “navigable” under the Act was finally defeated when the
Conference Committee adopted the Senate’s approach. /d. at
137 (citing 123 Cong. Rec. 39209 (1977)). Accordingly, the
Court concluded, “a definition of the ‘waters of the United
States’ encompassing all wetlands adjacent to other bodies of
water over which the Corps has jurisdiction is a permissible
interpretation of the Act.’” /d. at 135.

In SWANCC, 531 U.S. at 167-72, the Court addressed
another regulation interpreting “waters of the United States” as
including any water used as a habitat by migratory birds, even
if it was otherwise wholly isolated. The Court invalidated the
so-called “Migratory Bird Rule” because it would have had the
effect of reading the word “navigable” out of the statute
entirely. /d. It reasoned:

We cannot agree that Congress’ separate
definitional use of the phrase “waters of the United
States” constitutes a basis for reading the term
“navigable waters” out of the statute. We said
in Riverside Bayview Homes that the word
“navigable” in the statute was of “limited import”
and went on to hold that § 404(a) extended to
non-navigable wetlands adjacent to open waters.
But it is one thing to give a word limited effect and
quite another to give it no effect whatever.

Id. at 172.

Courts are split over the question whether the inevitable
conclusion of SWANCC is that the Act’s coverage extends only

Appendix B-22

to those wetlands immediately adjacent to navigable waters or
whether a surface level hydrological connection may be
sufficient. Recently, the United States Supreme Court has
denied three petitions for certiorari addressing this issue.
United States v. Deaton, 332 F.3d 698 (4th Cir. 2003), cert.
denied, _ US. _, 2004 WL 71792 (Apr. 5, 2004)
(No. 03-701); United States v. Rapanos, 339 F.3d 447,453 (6th
Cir. 2003), cert. denied, U.S. __,2004 WL 717207 (Apr. 5,
2004) (No. 03-929); Treacy v. Newdunn Associates, LLP, 344
F.3d 407 (4th Cir. 2003), cert. denied, US. ,2004 WL
71790 (Apr. 5, 2004) (No. 03-637).

The Court of Appeals for the Fifth Circuit has held the
“any hydrological connection” standard to be unsustainable
after SWANCC. In re Needham, 354 F.3d 340, 345 (Sth Cir.
2003) (Rice v. Harken Exploration Co., 250 F.3d 264, 269 (Sth
Cir. 2001)). See also FD & P Enterprises, Inc. v. U.S. Army
Corps of Engineers, 239 F. Supp. 2d 509, 516 (D. N.J. 2003)
(holding that SWANCC barred hydrologic standard). The Court
of Appeals for the Fifth Circuit reads SWANCC as holding that
the Act’s coverage extends to only those wetlands that are
“truly adjacent” to navigable waters. Jn re Needham, 354 F.3d
at 345-46 (“under SWANCC ‘a body of water is subject to
regulation if the body of water is actually navigable or adjacent
to an open body of water’”) (quoting Rice, 250 F.3d at 269).

In Deaton, 332 F.3d 698, the Court of Appeals for the
Fourth Circuit upheld adjacency jurisdiction over wetlands
connected to the navigable waters of the Chesapeake Bay
through a “winding thirty-two mile path.” /d. at 702. The
Court of Appeals for the Sixth Circuit has also upheld the
hydrological-based definition of adjacency. Rapanos, 339 F.3d
at 453. In doing so, the court relied heavily on the reasoning in
Deaton. Id. at 452. A majority of district courts addressing the
issue have construed SWANCC more narrowly than the Court
of Appeals for the Fifth Circuit. See North Carolina Shellfish
Growers Ass'n v. Holly Ridge Associates, LLC., 278 F. Supp.

Appendix B~23

2d 654, 671 (E.D.N.C. 2003) (finding the reasoning in Deaton
persuasive on “adjacency” issue); Northern California River
Watch v. City of Healdsburg, No. C01-04686WHA, 2004 WL
201502, at *9 (N.D. Cal. Jan. 23, 2004) (“the Ninth Circuit
seems to have read SWANCC as only invalidating the
migratory-bird rule as applied to isolated waters”) (citing
Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 533
(9th Cir. 2001)); American Canoe Ass'n, Inc. v. District of
Columbia Water and Sewer Authority, 2004 WL 385660, at *8
(D. D.C. 2004) (“However, SWANCC did not purport to
reinterpret the general scope of the CWA. Rather, the Court
found that a rule promulgated by the Army Corps specifically
exceeded the scope of 33 U.S.C. § 1344(a).”); United States v.
Jones, 267 F. Supp. 2d 1349, 1360 (M.D. Ga. 2003) (“a
complete reading of SWANCC reveals that the Supreme Court
actually had no intention of defining ‘navigable waters’ as
narrowly as courts have done in cases such as Needham and
F D&P Enterprises.”), United States v. Interstate General Co.,
152 F. Supp. 2d 843, 847 (D. Md. 2001) (rejecting defendants’
invitation to read SWANCC to restrict wetlands covered by Act
to those immediately adjacent to traditionally navigable waters
and holding that because Court reviewed only migratory bird
rule in SWANCC, it is improper to extend ruling further).

Although the Court of Appeals for the Seventh Circuit has
not ruled on the issue, it has indicated its understanding that the
opinion in SWANCC did not even address the adjacency issue,
let alone decide it. United States v. Rueth Development Co.,
335 F.3d 598, 604 (7th Cir. 2003) (defendant’s argument that
its wetland’s connection to navigable waters was too attenuated
because connection ran through series of tributaries “simply
raises the question of what ‘adjacency’ means, which SWANCC
did not address at all”) (emphasis added). The court cited with
approval the Fourth Circuit’s ruling in Deaton, 332 F.3d 698.
Rueth, 335 F.3d at 604.

Appendix B-24

As defendants note, Rueth did not involve an enforcement
action under the Clean Water Act, but the enforcement of a
consent decree, under which the defendants conceded that their
wetlands were subject to jurisdiction under the Act. Although
the court's statements about adjacency i: Rueth were dicta and
therefore not binding, | agree that the reasoning in Deaton (and
Rapanos) is persuasive and that SWANCC does not forclose the
hydrological connection standard for determining adjacency.

“| SWANCC}, of course, emphasizes that the Clean Water
Act is based on Congress’ power over navigable waters,
suggesting that covered non-navigable waters are those with
some connection to navigable ones.” Rapanos, 339 F.3d at 452
(quoting Deaton, 332 F.3d at 709) (internal punctuation
omitted). See also Dfts.’ Br., dkt #90, at 11 (noting the Court's
observation in SWANCC, 531 U.S. at 172, that “navigable” had
“at least the import of showing us what Congress had in mind
as its authority for enacting the [Clean Water Act]: its
traditional jurisdiction over waters that were or had been made
navigable in fact or which could reasonably be so made.”)
Unlike the “migratory bird rule,” however, the regulation in this
case uses waters that are traditionally navigable as its reference
point. 33 C_F.R. § 328.3(7). The regulation subjects wetlands
to coverage under the Act because of their connection with
waters that are navigable in fact. Far frou reading the word
“navigable” out of the statute entirely, as the migratory bird rule
would have done, traditionally navigable waters are the starting
point for determining whether a wetland is subject to
jurisdiction under the regulation at issue in this case. Thus, the
textual concerns guiding the Court's opinion in SWANCC are
noi implicated.

In concluding that SWANCC requires immediate
adjacency with waters that are navigable in fact, the Court of
Appeals for the Fifth Circuit relies on the following language
from that opinion: “In order to rule for respondents here, we
would have to hold that the jurisdiction of the Corps extends to

Appendix B-25

ponds that are not adjacent to open water. But we conclude that
the text of the statute will not allow this.” Rice, 250 F 3d at 269
(quoting SWANCC, 531 U.S. at 168). The court appears to
have assumed that immediacy was implied in the word
“adjacent” and that navigability was implied ia the phrase
“open waters.” Defendants highlight three passages from the
portion of the SWANCC opinion summarizing the Court's
earlier holding in Riverside Bayview in support of this narrow
reading of the word “adjacent”: The Court noted in SWANCC
that (1) the specific wetlands involved in Riverside Bayview
“actually abutted on a navigable waterway,” (2) the Court
found that “Congress’ concern for the protection of water
quality and aquatic ecosystems indicated its intent to regulate
wetlands ‘inseparably bound up with the waters of the United
States”; and (3) that it was the “significant nexus between
wetlands and ‘navigable waters’ that informed [its} reading of
the [Clean Water Act].” See Dfts.” Br., dkt. #90, at 11-12;
SWANCC, 531 U.S. at 167 (citing and quoting Riverside
Bayview, 474 U.S. at 134).

The “actually abutted” language simply recounts the
specific factual circumstances in Riverside Bayview, 474 U.S.
at 135. Defendants attempt to read an actual abutment
requirement into the Riverside Bayview, but the Court declined
expressly to decide whether adjacency was required in that case.
Id. at 131, n.8. Moreover, the Court used the “inseparably
bound up” and “significant nexus” language to refer to the
hydrological connection between wetlands and adjacent
waterways. See id at 134 (wetlands and adjacent waters
“inseparably bound up” when part of the same aquatic system).
Even if these phrases did not refer to an aquatic connection, I
am not persuaded that in summarizing an earlier holding in
which the adjacency issue was avoided expressly, the Court has
somehow not only addressed the matter but decided what
“adjacency” means.

Appendix B-26

Moreover, I see no need to read the term “open waters” as
meaning waters that are navigable in fact. The term “open
waters” is not defined in SWANCC, Riverside Bayview, or in the
regulations construing the Act. However, in Riverside Bayview,
the Court observed that “between open waters and dry land may
lie shallows, marshes, mudflats, swamps, bogs—in short, a
huge array of areas that are not wholly aquatic but nevertheless
fall far short of being dry land.” /d. at 132 (emphasis added).
Certainly, not every wholly aquatic body of water is navigable
in fact. Further, in reiterating the importance of the “significant
nexus” found in Riverside Bayview, the Court placed
“navigable waters” in quotation marks, indicating that it was
likely referring to the phrase’s statutory meaning. SWANCC,
531 U.S. at 167 (“It was the significant nexus between the
wetlands and ‘navigable waters’ that informed our reading
....”). Accordingly, I disagree with defendants that under the
statutory text in light of the Court's ruling in SWANCC, it was
impermissible for the Corps to assert jurisdiction over wetlands
adjacent to tributaries of traditionally navigable waters.

b) Adjacency under the commerce clause

Defendants’ last two arguments are interrelated.
Defendants invoke the principle that courts must disregard
agency regulations pushing the outer limits of congressional
authority unless Congress has expressed its clear intent. In
addition, they argue that the Clean Water Act exceeds
Congress’s authority under the commerce clause if it is
construed to extend to wetlands adjacent only to the
non-navigable tributaries of traditionally navigable waters.
Specifically, defendants argue that congressional authority to
regulate the channels of interstate commerce “may only be
exercised over activities that affect a water’s susceptibility to
use as a channel of interstate commerce.” Dfts.” Br., dkt. #90,
at 17. They say they have a heightened concern that the
regulation exceeds congressional authority because the
regulation would disrupt the federal-state framework by

Appendix B-27

usurping local land use planning authority over millions of
acres. Dfts.’ Br., dkt #90, at 16. As the Court of Appeals for
the Seventh Circuit has noted, an Act does not violate the Tenth
Amendment’s reservation of non-enumerated powers to the
states if it reflects a valid exercise of Congress's authority to
regulate interstate commerce. Gillespie v. City of Indianapolis,
185 F.3d 693,706 (7th Cir. 1999) (citing New York v. United
States, 505 U.S. 144, 156 (1992) (“[i}f a power is delegated to
Congress in the Constitution, the Tenth Amendment expressly
disclaims any reservation of that power to the States”)).
Accordingly, both arguments turn on whether the regulation
invoked the outer limits of congressional commerce clause
authority. Therefore, | will consolidate the discussion.

In SWANCC, 531 U.S. at 172-73, the Court referred to the
principle against reading federal agency regulations
expansively, especially those that encroach upon areas of
traditional state power, when it noted that even if it had not
found the migratory bird rule to be impermissible under the
clear statutory text, it would not have accorded the regulation
Chevron deference. This principle stems in part from a
“prudential desire not to needlessly reach Constitutional
issues.” /d. at 172. The Corps had argued that the migratory
bird rule was authorized pursuant to Congress's power to
regulate those activities that have a substantial effect on
interstate commerce. Because it is unclear that discharging
pollutants into isolated waters used as a habitat for migratory
birds would have a “substantial affect” on interstate commerce,
the Court reasoned that upholding the rule would necessitate
constitutional analysis under the framework laid out in United
States v. Lopez, 514 U.S. 549 (1995) and United States v.
Morrison, 529 U.S. 598 (2000). SWANCC, 531 U.S. at 173.

In Deaton, 332 F.3d at 705-07, the Court of Appeals for
the Fourth Circuit considered a challenge similar to the one
raised by defendants. First, the court noted that the reluctance
to read regulations expansively applies only when a regulation

Appendix B-28

in question raises a “grave and doubtful” constitutional
question. /d. at 705 (quoting Rust v. Sullivan, 500 U.S. 173,
191 (1991)). See also SWANCC, 531 U.S. at 173 (“where an
otherwise acceptable construction of a statute would raise
serious constitutional problems, the Court will construe the
statute to avoid such problems . . . .”) (quoting Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building &
Construction Trades Council, 485 U.S. 568,575 (1988))
(emphasis added). The court went on to hold that this
regulation did not raise the kind of serious constitutional issue
““that would lead [it] to assume Congress did not intend to
authorize [the regulation’s] issuance’” because the regulation
fell under Congress's broad authority to regulate the channels
of interstate commerce. /d. (quoting Rust, 500 U.S. at 191).
See also Lopez, 514 U.S. at 558 (congressional commerce
clause authority includes power to regulate channels of
interstate commerce, instrumentalities of interstate commerce
and those activities having a substantial effect on interstate
commerce).

| agree with the Court of Appeals for the Fourth Circuit
that Congress’s authority to regulate the channels of interstate
commerce extends to this regulation subjecting waters to
jurisdiction because of their relationship to traditionally
navigable waters. See SWANCC, 531 U.S. at 172 (“The term
‘navigable’ has at least the import of showing us what Congress
had in mind as its authority fer enacting the [Clean Water Act]:
its traditional jurisdiction over waters that were or had been
navigable in fact or which could reasonably be so made.”).
Defendants argue, without citing any authority, that the
regulation would be impermissible because under Congress's
channels power “Congress may only regulate activities that
impact a navigable water’s suitability to transport goods and
persons in interstate commerce.” Dfts.’ Br., dkt. #90, at 18.
(Defendants have cited Calvert G. Chipchase, The Clean Water
Act: What's Commerce Got to Do With It?, 33 E.L.R. 11075

Appendix B-29

(2003), for the simple proposition that navigable interstate
waters are deemed “channels” because of their capacity to move
persons and goods across state and national borders, but this
does not support defendants’ construction of the extent of
Congress's authority to regulate these channels of commerce.)

In arguing that congressional authority to regulate the
channels of interstate commerce empowers Congress to regulate
only those activities threatening the channel's suitability to
transport goods, defendants advocate a construction that
contravenes long-standing commerce clause precedent. “(T]he
authority of Congress to keep the channels of interstate
commerce free from immoral and injurious uses has been
frequently sustained and is no longer open to question.”
Caminetti v. United States, 242 U.S. 470, 491 (1917)
(upholding Mann Act which outlawed transporting women
across state lines for purpose of making them mistresses even
though such activity is non-commercial), cited with approval in
Lopez, 514 U.S. at 558. See also United States v. Schaffner,
258 F.3d 675,680 (7th Cir. 2001) (Congress “may forbid or
punish the use of channels to promote dishonesty or the spread
of any evil or harm across state lines”) (citing Brooks v. United
States, 267 U.S. 432, 436 (1925)). Other “[e]xamples of
activity falling within (the channels} category [] include the
shipment of stolen goods, kidnapped persons, prostitutes and
guns.” /d. Just as Congress may regulate the flow of drugs and
guns in interstate commerce, it may regulate the flow of
pollutants through the channels of interstate commerce, even if
the pollutants do not threaten the capacity of the channel to
serve as a conduit in interstate commerce.

Defendants suggest that in Riverview Bayside, the Court
approved the Act's extension of jurisdiction to wetlands
immediately adjacent to navigable waters only because of the
wetland’s “obvious effect” on the navigability of those waters.
Dfts.’ Br., dkt. #90, at 18. They do not explain how they
derived this result from the opinion, but instead quote a passage

Appendix B-30

indicating the Court’s reliance on the Corps’s conclusion that
pollutant discharges in certain wetlands can harm the “aquatic
environment” of navigable waters. /d. (citing Riverview
Bayside, 474 U.S. at 134.) Defendants do not argue that
tributaries are incapable of transporting pollutants that could
harm an aquatic environment simply because they are not large
enough to transport goods and persons. As the Court noted in
Riverside Bayview, 474 U.S. at 135, n.9,

[t}hat the [Corp's definition of waters of the United
States] may include some wetlands that are not
significantly intertwined with the ecosystem of
adjacent waterways is of little moment, for where it
appears that a wetland covered by the Corps’s
definition is in fact lacking in importance to the
aquatic environment—or where it is outweighed by
other values—-the Corps may always allow
development of the wetland for other uses simply by

issuing a permit.

Defendants’ unsupported and unprecedented view of
Congress’s authority to regulate the channels of interstate
commerce does not present the kind of grave and serious
constitutional question that would prevent a court from giving
the Corps’s regulation the deference normally accorded to
agency interpretations. See Rust, 500 U.S. at 191; Deaton, 332
F.3d at 705-07 (“The power over navigable waters also carries
with it the authority to regulate non-navigable waters when that
regulation is necessary to achieve Congressional goals in
protecting navigable waters.”). Moreover, this argument does
not provide a sound basis for invalidating the regulation or the
Act for exceeding the scope of Congress’s commerce clause
authority.

Finally, defendants argue that “[e]ven if Congress had
enacted the Clean Water Act pursuant to its broader power over
activities that ‘substantially affect’ interstate commerce, federal

Appendix B-31

jurisdiction in this case would still exceed Congress’[s]
commerce power.” | need not reach this argument. The
Supreme Court has indicated that it believes that the Act was
enacted pursuant to Congress's channels of commerce
authority, SWANCC, 531 U.S. 172.

D. Affirmative Defenses

Plaintiff has proved that without first obtaining a permit,
defendants (1) discharged a pollutant; (2) from a point source;
(3) into “navigable waters” as that term has been construed
permissibly by the agency charged with enforcing the Clean
Water Act. Accordingly, plaintiff has established a § 301
violation for which defendants wil) be held liable unless they
can establish that they may avoid liability under an affirmative
defense. Defendants Thorson, Managed Investments and
Construction Management assert nine “affirmative defenses” in
their answer, defendant Gerke Excavating has asserted twelve.
(Most of these affirmative defenses overlap.) In their brief in
opposition to plaintiffs motion for summary judgment however,
defendants discuss only the first four affirmative defenses
raised by defendants Thorson, Managed Investments and
Construction Management. Defendants’ failure to mention the
remaining affirmative defenses indicates that they no longer
intend to pursue these theories. Accordingly, | will address
only those four “affirmative defenses” and the counterclaim and
consider the remainder waived. Dey v. Colt Const. &
Development Co., °3 F.3d 1446, 1462 (7th Cir. 1994)
(defendant bears burden of persuasion on affirmative defenses).

For their first affirmative defense, defendants allege that
plaintiff has not stated a claim on which relief can be granted.
Plaintiff argues that this defense has no merit, the complaint
alleged facts that if proved would establish a violation of § 301
of the Clean Water Act. Pit.’s Br., dkt. #77, at 20. In response,
defendants say only that they have adequately raised the failure
to state a claim argument. Dfts.” Br., dkt. #90, at 29-30 (citing

Appendix B-32

Fed. R. Civ. P. Form 20 for proposition that defendant need
only assert that complaint fails to state claim to invoke defense;
defendant need not flesh out issue further). Defendants’
argument does not respond to plaintiff's charge, a defense is not
meritorious simply because it has beer: asserted adequately. In
the complaint, plaintiff alleged that defendants discharged fill
material (J 36, 37) onto the site, which contained wetland
(4 26) adjacent to the tributaries of navigable waters (4 27) and
did so without a permit (J 38). Compl., dkt. #2, at 5-8. These
allegations are sufficient to state a viable claim under § 301 of
the Clean Water Act. Therefore, I will dismiss this defense.

As their second, third and fourth “affirmative defenses,”
defendants assert that “plaintiff improperly applied or has failed
to follow its own rules, regulations or guidance,” Dfts.’ Ans.,
dkt. #4, at 8; the site is not a “water of the United States”; and
the site is not adjacent to a “water of the United States.” /d.
Plaintiff argues that none of these constitu.es an affirmative
defense. !n response, defendants assert that there are disputed
material facts governing these affirmative defenses that
preclude dismissal. Dfts.” Br., dkt. #90, at 31.

An affirmative defense is “[a] defendant's assertion
raising new facts and arguments that, if true, will defeat the
plaintiff's . . . claim, even if all of the allegations in the
complaint are true.” Black's .Law Dictionary 430 (7th ed.
1999) (emphasis added). In their second, third and fourth
affirmative defenses” defendants merely reiterate their denial of
various elements of plaintiffs claim. They have not raised true
affirmative defenses. Moreover, | have already cecluded that
plaintiff properly relied on the methods in the 1987 manual and
that the wetlands constitute “waters of the United States”
because they are adjacent to traditionally navigable waters.
Accordingly, defendants’ second, third and fourth “affirmative
defenses” will be dismissed.

Appendix B-33
E. Counterclaim

Finally, defendants assert a counterclaim for a declaratory
judgment; they seek a determination that the site does
not constitute a “water of the United States” either because
it is not a “wetland” under the wetland delineation
manual or alternatively, because it is not immediately adjacent
to a navigable water. Ans. of Dfts. Thorson, Managed
Investments, and Construction Management, dkt. #4, at 9-10;
Dft. Gerke’s Ans., dkt. #6, at 5-6. Plaintiff seeks dismissal of
this counterclaim.

First, plaintiff argues that the issues raised in defendants’
counterclaim, at least with respect to the filled portions of the
site, must be decided in the course of deciding the summary
judgment mo

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0465%3A1. Public record. Not legal advice.