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-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 03-C-0074-C—Barbara B. Crabb, Chief Judge.

____________

On Remand From the

Supreme Court of the United States

____________

SEPTEMBER 22, 2006

____________

Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.

PER CURIAM. This suit charges that the defendant, Gerke

Excavating, violated the Clean Water Act by discharging

pollutants into “navigable waters” from “point sources”

without having obtained the permit from the Corps of

Engineers that is required if the pollutant consists of dredge

or fill material. 33 U.S.C. §§ 1311(a), 1362(12). The district

judge granted summary judgment for the government and

imposed a civil penalty. We affirmed. 412 F.3d 804 (7th Cir.
2 No. 04-3941

2005). Gerke filed a petition for certiorari. The Court granted

the petition, 126 S. Ct. 2964 (2006), and remanded the case

to us for further consideration in light of Rapanos v. United

States, 126 S. Ct. 2208 (2006), where the Court reversed two

judgments by the Sixth Circuit upholding federal authority

over wetlands, as had we.

There was, however, no majority opinion in Rapanos. Four

Justices, in an opinion supporting reversal, wanted to limit

federal authority over “navigable waters” to “those wetlands with a continuous surface connection to bodies that

are ‘waters of the United States’ in their own right,

so that there is no clear demarcation between ‘waters’ and

wetlands, are ‘adjacent to’ such waters and covered by

the [Clean Water Act]. Wetlands with only an intermittent,

physically remote hydrologic connection to ‘waters of the

United States’ . . . thus lack the necessary connection to

covered waters that we described as a ‘significant nexus.’

Thus, establishing that wetlands such as those at the

Rapanos and Carabell sites are covered by the Act requires

two findings: First, that the adjacent channel contains a

‘wate[r] of the United States,’ (i.e., a relatively permanent

body of water connected to traditional interstate navigable

waters); and second, that the wetland has a continuous

surface connection with that water, making it difficult to

determine where the ‘water’ ends and the ‘wetland’ begins.”

Id. at 1226-27 (citations omitted).

Justice Kennedy concurred in the judgment to reverse but

not in the plurality opinion. The four dissenting Justices

took a much broader view of federal authority; Justice

Kennedy criticized them as well as criticizing the plurality.

When a majority of the Supreme Court agrees only on the

outcome of a case and not on the ground for that outcome,

lower-court judges are to follow the narrowest ground to
No. 04-3941 3

which a majority of the Justices would have assented if

forced to choose. Marks v. United States, 430 U.S. 188, 193

(1977). In Rapanos, that is Justice Kennedy’s ground.

The plurality Justices thought that Justice Kennedy’s

ground for reversing was narrower than their own, because

they concluded their extensive and in places harsh criticism

of the concurrence by saying that “Justice KENNEDY tips a

wink at the agency [i.e., the Corps of Engineers], inviting it

to try its same expansive reading again.” 126 S. Ct. at 2234

n. 15. Justice Kennedy expressly rejected two “limitations”

imposed by the plurality on federal authority over wetlands

under the Clean Water Act, one being the requirement of a

“continuous surface connection” between the wetland and

the conventional waterway that it abuts. Id. at 2242 (concurring opinion). He accused the majority of being “unduly

dismissive of the interests asserted by the United States in

these cases. Important public interests are served by the

Clean Water Act in general and by the protection of

wetlands in particular.” Id. at 2246.

The test he proposed is that “wetlands possess the

requisite nexus, and thus come within the statutory phrase

‘navigable waters,’ if the wetlands, either alone or in

combination with similarly situated lands in the region,

significantly affect the chemical, physical, and biological

integrity of other covered waters more readily understood

as ‘navigable.’ When, in contrast, wetlands’ effects on water

quality are speculative or insubstantial, they fall outside the

zone fairly encompassed by the statutory term ‘navigable

waters.’ ” Id. at 2248. This test is narrower (so far as reining

in federal authority is concerned) than the plurality’s in

most cases, though not in all because Justice Kennedy also

said that “by saying the Act covers wetlands (however

remote) possessing a surface-water connection with a
4 No. 04-3941

continuously flowing stream (however small), the plurality’s reading would permit applications of the statute as far

from traditional federal authority as are the waters it deems

beyond the statute’s reach.” Id. at 2246.

Thus, any conclusion that Justice Kennedy reaches in

favor of federal authority over wetlands in a future case will

command the support of five Justices (himself plus the four

dissenters), and in most cases in which he concludes that

there is no federal authority he will command five votes

(himself plus the four Justices in the Rapanos plurality), the

exception being a case in which he would vote against

federal authority only to be outvoted 8-to-1 (the four

dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection. The plurality’s insistence that the issue of federal

authority be governed by strict rules will on occasion align

the Justices in the plurality with the Rapanos dissenters

when the balancing approach of Justice Kennedy favors the

landowner. But that will be a rare case, so as a practical

matter the Kennedy concurrence is the least common

denominator (always, when his view favors federal authority).

Justice Kennedy’s proposed standard, which we conclude

must govern the further stages of this litigation, requires

factfinding not yet undertaken by the district court. We

therefore remand the case to that court for such further

proceedings as may be necessary to apply the standard.

REMANDED WITH DIRECTIONS.
No. 04-3941 5

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-22-06