*

The Honorable Danny C. Reeves, United States District Judge for

the Eastern District of Kentucky, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0239P (6th Cir.)

File Name: 04a0239p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN A. RAPANOS; JUDITH A.

NELKIE RAPANOS; PRODO,

INC.; ROLLING MEADOWS

HUNT CLUB; PINE RIVER

BLUFF ESTATES, INC.,

Defendants-Appellants.

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No. 03-1489

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 94-70788—Bernard A. Friedman, Chief District Judge.

Argued: June 9, 2004

Decided and Filed: July 26, 2004 

Before: SILER and GIBBONS, Circuit Judges; REEVES,

District Judge.*

2 United States v. Rapanos, et al. No. 03-1489

_________________

COUNSEL

ARGUED: David E. Dearing, Indianapolis, Indiana, for

Appellants. Katherine W. Hazard, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee. ON BRIEF: David E. Dearing, Indianapolis,

Indiana, for Appellants. Katherine W. Hazard, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Appellee.

_________________

OPINION

_________________

DANNY C. REEVES, District Judge. Plaintiff-Appellee

United States brought suit against the Defendants pursuant to

the Federal Water Pollution Control Act Amendments of

1972, Pub. L. No. 92-500, 86 Stat. 817, as amended 33 U.S.C.

§ 1251 et seq., commonly known as the Clean Water Act

(“CWA”). Defendants-Appellants John Rapanos, Judith

Rapanos, Prodo, Inc., Rolling Meadows Hunt Club, and Pine

River Bluff Estates, Inc. appeal the district court’s entry of

judgment in favor of the United States. Prodo, Inc., Rolling

Meadows Hunt Club, and Pine River Bluff Estates, Inc. are

wholly owned by John and Judith Rapanos. For the reasons

discussed below, we AFFIRM the judgment of the district

court.

BACKGROUND

The Rapanos, through their wholly-owned companies,

owned various parcels of land in Bay, Midland, and Saginaw

Counties in Michigan. These parcels are known as the

Salzburg, Hines Road, Pine River, Freeland, Mapleton, and

Jefferson Avenue sites. The Rapanos were charged with

illegally discharging fill material into protected wetlands at
No. 03-1489 United States v. Rapanos, et al. 3

these sites between 1988 and 1997. The United States alleges

that the Rapanos attempted to fill these wetlands to make the

land more conducive to development.

I. The Salzburg Site

Before filling wetlands subject to CWA jurisdiction, a

landowner must first obtain a permit from the Army Corps of

Engineers (“Corps”). 33 U.S.C. § 1344. In December 1988,

John Rapanos asked the state to inspect the Salzburg site in

hope of obtaining a permit to construct a shopping center at

this location. The state informed him that the site was likely

a regulated wetland and sent him an application for the

necessary permits. A state representative toured the site in

March 1989, noting that the site probably contained wetlands

but could be developed if the necessary permits were issued.

Mr. Rapanos hired a consultant, Dr. Goff, to prepare a report

detailing the wetlands on the Salzburg site. Dr. Goff

concluded that there were between 48 and 58 acres of

wetlands on the site, presenting his findings in the form of a

report and a map. Upset by the report, Mr. Rapanos ordered

Dr. Goff to destroy both the report and map, as well as all

references to Mr. Rapanos in Dr. Goff’s files. However, Dr.

Goff was unwilling to do so. Mr. Rapanos stated he would

“destroy” Dr. Goff if he did not comply, claiming that he

would do away with the report and bulldoze the site himself,

regardless of Dr. Goff’s findings.

In April 1989, workers began leveling the ground, filling in

low spots, clearing brush, removing stumps, moving dirt, and

dumping sand to cover most of the wetland vegetation. This

activity caused Dr. Goff to note that the site now looked “like

nothing more than a beach.” In August 1989 the state

attempted to inspect the Salzburg site, but was denied access.

Three months later, authorities from the state returned, armed

with a search warrant.

In 1991, a state representative returned to the Salzburg site,

noting that the site had been “tiled” to drain subsurface water.

4 United States v. Rapanos, et al. No. 03-1489

When Mr. Rapanos refused to comply with an administrative

compliance order issued by the Environmental Protection

Agency (“EPA”) (requiring him to immediately cease his

filling of the Salzburg site), the EPA referred the matter to the

Department of Justice.

II. The Hines Road Site

The Defendants undertook to expand drains, build roads,

and fill the wetlands at the Hines Road site. However, in July

1992, the state issued a cease and desist letter to stop the

ongoing activity. Mr. Rapanos did not reply to this letter.

Thereafter, the state conducted an examination of the site

pursuant to a search warrant in June 1994. In June 1997, the

state returned to the site and noted that fill had been added to

certain areas since the 1994 search. Accordingly, the EPA

issued an administrative compliance order. The EPA alleges

that Mr. Rapanos did not comply with this order.

III. The Pine River Site

Mr. Rapanos also hired contractors at the Pine River site to

construct ditches, spread dirt and sand, construct roads, and

clear vegetation. The state sent Mr. Rapanos a cease and

desist order after an official observed that portions of the

wetlands had been filled. The EPA issued an administrative

compliance order in September 1997 after Mr. Rapanos

refused to comply with the cease and desist order. The EPA

alleges that Mr. Rapanos also did not comply with the

administrative order.

IV. The Criminal Proceedings

Criminal charges were brought simultaneously with the

instant civil action. In July 1994, the district court declared

a mistrial in Mr. Rapanos’ criminal trial. The trial was moved

to Flint, Michigan and, on March 7, 1995, the jury in the

second trial returned a guilty verdict on two counts. United

States v. Rapanos, 895 F.Supp. 165, 166 (E.D. Mich. 1995).
No. 03-1489 United States v. Rapanos, et al. 5

1

The land at issue in the criminal trial was the Salzburg site. The

Salzburg site in the criminal trial is somewhat different than the Salzburg

site involved in this proceeding.

Following trial, the district court granted Rapanos’ motion for

a new trial, finding that the court had improperly allowed the

United States to pursue a line of questioning that was

prejudicial to the defendant. Id. at 169-70. This court,

however, determined that the line of questioning was not

improper and reversed the district court’s grant of a new trial

and remanded for sentencing. United States v. Rapanos, 115

F.3d 367, 374 (6th Cir. 1997). The district court sentenced

Rapanos to three years probation and ordered him to pay a

$185,000 fine. On appeal, this court affirmed the conviction

but remanded for resentencing. United States v. Rapanos,

235 F.3d 256, 261 (6th Cir. 2000). 

The Supreme Court granted Rapanos’ request for a writ of

certiorari, vacating and remanding this court’s order in light

of Solid Waste Agency of Northern Cook County v. United

States Army Corps of Engineers, 531 U.S. 159 (2001)

(“SWANCC”). Rapanos v. United States, 533 U.S. 913

(2001). Following remand from the Supreme Court, this

court remanded the case to the district court for further

consideration. United States v. Rapanos, Nos. 98-2424, 99-

1578, 99-1074, 16 Fed. Appx. 345 (6th Cir. 2001). On

remand, the district court set aside the conviction, finding that

the United States lacked jurisdiction in the wake of the

Supreme Court’s ruling in SWANCC. United States. v.

Rapanos, 190 F.Supp. 2d 1011 (E.D. Mich. 2002). On

appeal, this court reversed the order of the district court,

reinstated the previous conviction and remanded to the district

court for resentencing. United States v. Rapanos, 339 F.3d

447, 454 (6th Cir. 2003). A panel of this court determined

that, despite the Supreme Court’s decision in SWANCC, the

United States retained jurisdiction over the wetlands at issue

by virtue of the CWA.1 Recently, the Supreme Court denied

6 United States v. Rapanos, et al. No. 03-1489

2

On January 10, 2003, after the Supreme Court overturned the

“Migratory Bird Rule” as an excessive extension of jurisdiction under the

CWA in SWANCC, the district court amended its findings to remove all

references to the “Migratory Bird Rule” as a basis for federal jurisdiction.

Rapanos’ petition for a writ of certiorari. Rapanos v. United

States, 124 S. Ct. 1875 (2004).

V. The Civil Proceedings

The United States initiated this civil action in February

1994, confining its scope to the Salzburg site and naming

only Mr. Rapanos as a defendant. In June 1996, the United

States added Mrs. Rapanos to the complaint, as well as Prodo,

Inc., a company owned by Mr. Rapanos. In February 1998,

the United States amended its complaint to add allegations

concerning the Hines Road and Pine River sites. Pine River

Bluffs Estates was also added as a defendant.

Following a 13-day bench trial, the district court concluded

that Rapanos had filled 22 of 28 acres of protected wetlands

at the Salzburg site, 17 of 64 acres of protected wetlands at

the Hines Road site, and 15 of 49 acres of protected wetlands

at the Pine River site. The district court concluded that the

government had established that 54 of the filled acres fit the

three parameters for wetlands, i.e., vegetation, soils, and

hydrology. In addition, the court found that the United States

did not meet its burden regarding the existence of wetlands at

the Freeland and Mapleton sites. The district court entered

these findings and conclusions on March 22, 2000.2

STANDARD OF REVIEW

Following a bench trial, this court reviews the district

court’s findings of fact for clear error and reviews its

conclusions of law de novo. Pledger v. United States, 236

F.3d 315, 320 (6th Cir. 2000). Factual determinations of a

trial court are not clearly erroneous unless we are “left with

the definite and firm conviction that a mistake has been
No. 03-1489 United States v. Rapanos, et al. 7

committed.” Id. (quoting Anderson v. City of Bessemer City,

470 U.S. 564, 573 (1985)). “If the district court’s account of

the evidence is plausible in light of the record viewed in its

entirety, the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact, it would

have weighed the evidence differently.” Anderson, 470 U.S.

at 573-74. 

DISCUSSION

On appeal, Rapanos argues that the district court erred

when it (1) held that the disturbed wetlands were adjacent

wetlands because they had a surface connection to waters of

the United States; (2) failed to make subsidiary findings to

support its conclusion that the Salzburg, Hines Road, and

Pine River sites had a hydrological connection to navigable

waters; (3) allowed plaintiff’s expert Dr. Willard to testify;

(4) failed to consider Michigan’s definition of “wetland”;

(5) collaterally estopped Rapanos from denying liability at the

Salzburg site; and (6) relied on Dr. Willard’s testimony to

determine the extent of unauthorized filling.

I. The CWA

In 1972, Congress reacted to the problem of water pollution

by enacting the CWA. The CWA is viewed by some as the

federal government’s main weapon in its effort to protect

wetlands. David Dornak, A New Generation is Teeing Off: Is

Tiger Woods Making Divots on Environmentally Sound Golf

Courses?, 23 Colum. J. Envtl. L. 299, 324 (1998). Section

404 of the CWA requires landowners to obtain permits from

the Army Corps of Engineers (“Corps”) before discharging

fill material into wetlands adjacent to navigable bodies of

water and their tributaries. United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 123 (1985); see also

33 U.S.C. § 1344. 

“Navigable waters” are defined as “waters of the United

States, including territorial seas.” 33 U.S.C.§ 1362(7). The

8 United States v. Rapanos, et al. No. 03-1489

Supreme Court and this court have noted that “Congress

chose to define waters covered by the Act broadly” in the

CWA. Riverside Bayview, 474 U.S. at 133; Rapanos, 339

F.3d at 450-51. Determining the precise boundary of which

waters are covered by the CWA has been difficult. It is wellsettled that the CWA covers more than what has come to be

known as “navigable in fact waters,” i.e., waters that can be

navigated in the traditional sense. See id. at 451. As the

Supreme Court has noted, CWA jurisdiction extends beyond

traditionally navigable waters because economic activities

affecting interstate commerce are susceptible to

“congressional regulation under the Commerce Clause

irrespective of whether navigation, or, indeed, water, is

involved.” Kaiser Aetna v. United States, 444 U.S. 164, 174

(1979).

The CWA’s broad reach, extending beyond traditionally

navigable waters, however, does not extend to all waters. The

Code of Federal Regulations contains the Corps’

interpretation of which waters are properly considered

“waters of the United States.” 33 C.F.R. § 328.3. In the

present case, the district court relied on the Corps’ exercise of

jurisdiction over “wetlands adjacent to traditional navigable

waters” as supporting CWA jurisdiction for the Defendants’

lands. Id. at § 328.3(a)(7). It found that the wetlands were

adjacent to tributaries of traditional navigable waters. The

Corps asserts jurisdiction over such waters pursuant to the

CWA. Id. at §§ 328.3(a)(5), 328.3(a)(7). 

Determining which wetlands are considered “adjacent to”

traditional navigable waters or their tributaries has proved to

be a complication in defining CWA jurisdiction. The Code

of Federal Regulations states that “adjacent” means

“bordering, contiguous, or neighboring. Wetlands separated

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

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

‘adjacent wetlands.’” 33 C.F.R. § 328.3(c). 
No. 03-1489 United States v. Rapanos, et al. 9

In order to invoke federal jurisdiction the wetlands must

bear some connection to navigable waters or interstate

commerce. Determining how much of a connection is

necessary has proven difficult. Unfortunately, the two

leading Supreme Court cases on the reach of the CWA have

done little to clear the muddied waters of CWA jurisdiction.

A. Riverside Bayview

Riverside Bayview Homes owned 80 acres of low-lying,

marshy land near the shores of Lake St. Clair in Macomb

County, Michigan. It began filling part of the land with the

intention of constructing a housing development on the site.

The Corps determined that the land was an “adjacent

wetland,” thus falling under the ambit of the CWA. The

district court determined that the land on the site below 575.5

feet above sea level was a wetland requiring the issuance of

a permit before it could be filled. Riverside Bayview,

474 U.S. at 125. This court reversed the district court,

concluding that adjacent wetlands only existed when the land

was flooded by adjacent navigable waters at a frequency

sufficient to support the growth of aquatic vegetation. United

States v. Riverside Bayview Homes, Inc., 729 F.2d 391 (6th

Cir. 1984).

This court was largely motivated by Fifth Amendment

takings concerns, concluding that the CWA must be read

narrowly to avoid improper condemnation by the government.

A unanimous Supreme Court, however, held that the Tucker

Act, 28 U.S.C. § 1491, provides the owners of condemned

land with the right of compensation and thus concluded that

this court was not justified in reading the CWA’s jurisdiction

so narrowly. Riverside Bayview, 474 U.S. at 128. Having

disposed of the Fifth Amendment issue, the Court concluded

that “[t]he plain language of [33 C.F.R. § 323.2(c)] refutes the

Court of Appeals’ conclusion that inundation or ‘frequent

flooding’ by the adjacent body of water is a sine qua non of

a wetland under the regulation.” Id. at 129.

10 United States v. Rapanos, et al. No. 03-1489

Next, the Court addressed the issue of which waters could

be considered “adjacent to navigable waters.” 

In determining the limits of its power to regulate

discharges under the Act, the Corps must necessarily

choose some point at which water ends and land begins.

Our common experience tells us that this is often no easy

task: the transition from water to solid ground is not

necessarily or even typically an abrupt one. Rather,

between open waters and dry land may lie shallows,

marshes, mudflats, swamps, bogs -- in short, a huge array

of areas that are not wholly aquatic but nevertheless fall

far short of being dry land. Where on this continuum to

find the limit of “waters” is far from obvious.

Id. at 132. 

The Court concluded that to protect against pollution “at its

source,” Congress sought to define coverage of the CWA

broadly. Id. at 133. It noted that even wetlands that are not

connected to adjacent bodies of water and are not regularly

inundated by flooding may still have a connection to

navigable waters because such water can drain into navigable

waters. Id. at 134. These adjacent bodies of water can bring

pollution to the navigable waters, resulting in possibly

disastrous effects on the habitat and food chain for the native

aquatic species. See id. at 134-35. Thus, the Court wrote that

the Corps has concluded that wetlands adjacent to lakes,

rivers, streams, and other bodies of water may function

as integral parts of the aquatic environment even when

the moisture creating the wetlands does not find its

source in the adjacent bodies of water. . . . [W]e cannot

say that the Corps’ judgment on these matters is

unreasonable, and we therefore conclude that a definition

of “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 [CWA].
No. 03-1489 United States v. Rapanos, et al. 11

Id. at 135.

B. SWANCC

After upholding a broad view of the CWA’s jurisdictional

reach in Riverside Bayview, a divided Supreme Court

invalidated one of the Corps’ jurisdictional regulations in

SWANCC. The regulation at issue, known as “the Migratory

Bird Rule,” extended the definition of “waters of the United

States” to include isolated waters that were used as habitat by

migratory birds or endangered species. Final Rule for

Regulatory Programs of the Corps of Engineers, 51 Fed. Reg.

41206, 41217 (Nov. 13, 1986) (previously codified at

33 C.F.R. § 328.3). The disputed land was a 533 acre parcel

straddling the Cook and Kane County lines in northern

Illinois. The land was owned by the Solid Waste Agency of

Northern Cook County, a consortium of 23 Chicago cities that

sought to develop a garbage disposal site. SWANCC, 531

U.S. at 162-63. The Corps initially determined that it had no

jurisdiction over the land because it did not contain any

wetlands and did not support “vegetation typically adapted for

life in saturated soil conditions.” Id. at 164 (citing 33 C.F.R.

§ 328.3(b)). However, after learning that several migratory

birds were observed at the site, the Corps asserted jurisdiction

under the Migratory Bird Rule. Id.

The Seventh Circuit concluded that the federal government

had the authority to use the Migratory Bird Rule, relying on

the cumulative impact doctrine to conclude that, in toto, the

impact on migratory birds from disturbing wholly intrastate,

non-navigable waters had a substantial impact on interstate

commerce. Solid Waste Agency of N. Cook County v. United

States Army Corps of Engineers, 191 F.3d 845, 850 (7th Cir.

1999). A majority of the Supreme Court disagreed, however,

holding that the Migratory Bird Rule was not supported by

Congress’ intent in passing the CWA and thus concluding

that it was unnecessary to determine whether the Migratory

Bird Rule fell within the broadest reach of Congress’

commerce powers. SWANCC, 531 U.S. at 167.

12 United States v. Rapanos, et al. No. 03-1489

In doing so, the Court first reaffirmed the holding in

Riverside Bayview, pointing out that in Riverside Bayview

we noted that the term “navigable” is of “limited import”

and that Congress evidenced its intent to regulate at least

some waters that would not be deemed “navigable” under

the classical understanding of that term. But our holding

was based in large measure upon Congress’ unequivocal

acquiescence to, and approval of, the Corps’ regulations

interpreting the CWA to cover wetlands adjacent to

navigable waters. We 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.

It was the significant nexus between the wetlands and

“navigable waters” that informed our reading of the

CWA in Riverside Bayview Homes. Indeed, we did not

express any opinion on the question of the authority of

the Corps to regulate discharges of fill material into

wetlands that are not adjacent to open bodies of water.

In order to rule for respondents here, we would have to

hold that the jurisdiction of the Corps extends to ponds

that are not adjacent to open water. But we conclude that

the test of the statute will not allow this.

SWANCC, 531 U.S. at 167-68 (citations omitted) (emphasis

in original). 

The Court also refused to extend Chevron deference to the

Corps’ interpretation of its authority under the CWA. See

Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). It reasoned that such deference

was inappropriate where the Corps was infringing upon a

power usually reserved to the states, i.e., the authority to

regulate land and water use. SWANCC, 531 U.S. at 172-74.

Therefore, the Court concluded that Congress had not

envisioned extending CWA jurisdiction to isolated, intrastate,

non-navigable “ponds” simply by virtue of the fact that they
No. 03-1489 United States v. Rapanos, et al. 13

were occasionally the home for migratory birds, despite the

Corps’ contrary interpretation of its authority. Id. at 171-72.

C. Putting Riverside Bayview and SWANCC in Context

The Court in SWANCC noted that even reading the CWA

through a restrictive lens demonstrates that Congress “wanted

to include all waters adjacent to ‘navigable waters,’ such as

nonnavigable tributaries and streams” in its definition of

“waters of the United States.” SWANCC, 531 U.S. at 171.

Lower courts have disagreed over the extent to which

SWANCC limited Riverside Bayview’s holding. SWANCC

only specifically addressed the Migratory Bird Rule, and in

fact specifically held that it was not overruling any aspect of

Riverside Bayview, yet its language has been seen by some as

justification for a wide-ranging reduction of the CWA’s

jurisdiction. A minority of courts have done so, reading

SWANCC broadly to limit the CWA to navigable waters and

non-navigable waters that directly abut navigable waters. In

re Needham, 354 F.3d 340, 345-46 (5th Cir. 2003); FD & P

Enterprises, Inc. v. U.S. Army Corps of Engineers, 239

F.Supp.2d 509, 516 (D.N.J. 2003). Conversely, the majority

of courts have interpreted SWANCC narrowly to hold that

while the CWA does not reach isolated waters having no

connection with navigable waters, it does reach inland waters

that share a hydrological connection with navigable waters.

Rapanos, 339 F.3d at 453; Treacy v. Newdunn Assoc., LLP,

344 F.3d 407, 415 (4th Cir. 2003); United States v. Deaton,

332 F.3d 698, 702 (4th Cir. 2003), cert. denied, 124 S.Ct.

1874 (2004); United States v. Rueth Dev. Co., 335 F.3d 598,

604 (7th Cir. 2003), cert. denied, 124 S.Ct. 835 (2003);

Headwaters v. Talent Irrigation District, 243 F.3d 526, 533-

34 (9th Cir. 2001); Carabell v. United States Army Corps of

Engineers, 257 F. Supp. 2d 917, 930 (E.D. Mich. 2003);

United States v. Interstate Gen. Co., 152 F. Supp. 2d 843, 847

(D. Md. 2001).

The Fifth Circuit has adopted the more expansive reading

of SWANCC and thus the more limited interpretation of the

14 United States v. Rapanos, et al. No. 03-1489

CWA’s jurisdiction. Needham, 354 F.3d at 345-46. The

Needham court disagreed that water exhibiting a hydrological

connection with “navigable water” should be considered part

of the “waters of the United States,” instead finding that the

water must be “truly adjacent to navigable waters,” or at least

have a “significant measure of proximity” to navigable

waters. Id. at 345, 347, n.12. In reaching this conclusion, the

Fifth Circuit relied heavily on SWANCC, disagreeing with

holdings from the Fourth, Seventh, and Ninth Circuits, as

well as this court, that have adopted a limited interpretation of

SWANCC. Rapanos, 339 F.3d at 453 (finding that the

SWANCC court merely invalidated the Migratory Bird Rule

and did not deal with the Corps’ “adjacent waters”

jurisdiction); Treacy, 344 F.3d at 415 (noting that SWANCC

reaffirmed the holding in Riverside Bayview and did not

abridge the Corps’ authority over “adjacent waters”); Deaton,

332 F.3d at 702 (holding that SWANCC did not disavow any

of the Corps’ interpretations of the CWA, save for the

Migratory Bird Rule); Rueth Dev. Co., 335 F.3d at 604 (“it is

clear that SWANCC did not affect the law regarding the

government's alternative asserted basis for jurisdiction

adjacency under [the “adjacent water” rule]. The Corps’

adjacency jurisdiction is well-established; it was upheld by

the Supreme Court in [Riverside Bayview], and was

reaffirmed in SWANCC”); Headwaters, 243 F.3d at 533-34

(holding that SWANCC did not impact its conclusion that

waters flowing into navigable waters are within the CWA’s

jurisdiction); Carabell, 257 F. Supp. 2d at 930 (concluding

that SWANCC’s holding was narrow and did not require a

body of water to directly abut navigable water in order to fall

under the jurisdiction of the CWA); Interstate Gen. Co., 152

F. Supp. 2d at 847 (“[b]ecause the Supreme Court only

reviewed 33 CFR § 328.3(a)(3), it would be improper for this

Court to extend the SWANCC Court’s ruling any further than

they clearly intended”); but see FD & P Enterprises, 239 F.

Supp. 2d at 516 (“it is the view of this court that the

‘hydrological connection’ test is no longer the valid mode of

analysis”).
No. 03-1489 United States v. Rapanos, et al. 15

In Rapanos’ criminal trial, a panel of this court adopted the

limited reading of SWANCC criticized in Needham. Adopting

the Fourth Circuit’s reasoning in Deaton, this court held that

because we find the Fourth Circuit’s reasoning

persuasive, we disagree with the broad interpretation of

[SWANCC] taken by the district court in this case and,

instead, agree with Deaton. Although the [SWANCC]

opinion limits the application of the Clean Water Act, the

Court did not go as far as Rapanos argues, restricting the

Act’s coverage to only wetlands directly abutting

navigable water. Instead, the [SWANCC] Court, in a

narrow holding, invalidated the Migratory Bird Rule as

exceeding the authority granted to the [Corps] by the

[CWA], because it found “nothing approaching a clear

statement from Congress that it intended [the CWA] to

reach an abandoned sand and gravel pit.”

Rapanos, 339 F.3d at 453 (citations omitted). This court

further adopted the holding in Deaton, that “adjacent

waterways” include any branch of a tributary system that

eventually flows into a navigable body of water. Rapanos,

339 F.3d at 452-53. This court concluded that the wetlands

were adjacent because “[a]ny contamination of the Rapanos

wetlands could affect the Drain, which, in turn could affect

navigable-in-fact waters.” Id.

Thus, the primary difference between the conclusion

reached by the Fifth Circuit and that reached by the Fourth,

Sixth, Seventh, and Ninth Circuits, concerns the “adjacency”

requirement. The Fifth Circuit requires that the nonnavigable water be “truly adjacent to navigable waters” in

order to qualify for CWA jurisdiction. The majority of

courts, including this one, however, construe Riverside

Bayview and SWANCC to hold that, while a hydrological

connection between the non-navigable and navigable waters

is required, there is no “direct abutment” requirement. 

16 United States v. Rapanos, et al. No. 03-1489

What is required for CWA jurisdiction over “adjacent

waters,” however, is a “significant nexus between the

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

167, which can be satisfied by the presence of a hydrological

connection. Rapanos, 339 F.3d at 453; see also Deaton, 332

F.3d at 711-12 (CWA jurisdiction extends to those waters

adjacent to any branch of a tributary system that eventually

flows into a navigable water, because these waters effect the

water quality of navigable waters and thus there is a

“substantial nexus” between the tributaries and the navigable

waters); Headwaters, 243 F.3d at 533 (“Because the canals

receive water from natural streams and lakes, and divert water

to streams and creeks, they are connected as tributaries to

other ‘waters of the United States’”). Waters sharing a

hydrological connection are interconnected, sharing a

symbiotic relationship. As Congress acknowledged when

passing the CWA, “[w]ater moves in hydrological cycles and

it is essential that discharge of pollutants be controlled at the

source.” Rapanos, 339 F.3d at 451 (citing S.Rep. No. 92-414,

at 77 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3742).

Unlike the absence of Congressional support for the

Migratory Bird Rule discussed in SWANCC, Congress clearly

envisioned that CWA jurisdiction would extend to bodies of

water exhibiting a hydrological connection to traditional

navigable waters. As this court previously recognized

[i]nRiverside BayviewtheSupreme Court concluded that

the Corps regulation extending jurisdiction to adjacent

wetlands was a reasonable interpretation in part because

of what [SWANCC] described as “the significant nexus

between the wetlands and ‘navigable waters.’” There is

also a nexus between a navigable waterway and its

nonnavigable tributaries. . . . This nexus, in light of the

“breadth of congressional concern for protection of water

quality and aquatic ecosystems,” is sufficient to allow the

Corps to determine reasonably that its jurisdiction over

the whole tributary system of any navigable waterway is
No. 03-1489 United States v. Rapanos, et al. 17

warranted. The regulation, as the Corps reads it, reflects

a reasonable interpretation of the Clean Water Act.

Rapanos, 339 F.3d at 452 (quoting Deaton, 332 F.3d at 712).

D. Chevron Deference

The doctrine of “administrative deference,” also known as

“Chevron deference,” provides an alternative ground for

affirming the Corps’ authority over waters adjacent to

tributaries of navigable waters. When Congress delegates

authority to enforce a statute to a governmental agency, while

leaving some ambiguity in how the agency is to enforce the

statute, courts should assume that Congress impliedly

delegated the authority to interpret the ambiguity to the

agency charged with administering the statute. Chevron, 467

U.S. at 843-45. The agency is thus in the position to “fill the

gaps” left by Congress. Unless the agency’s interpretation of

the statute is “arbitrary, unreasonable, or manifestly contrary

to the statute,” the agency interpretation should be applied.

Id. at 843-44. 

In Chevron, a unanimous Supreme Court pointed out that

deferring to agency interpretations, rather than requiring

judicial interpretation, served the interests of democracy,

noting that

Judges are not experts in the field, and are not part of

either political branch of the Government. Courts must,

in some cases, reconcile competing political interests, but

not on the basis of the judges’ personal policy

preferences. In contrast, an agency to which Congress

has delegated policymaking responsibilities may, within

the limits of that delegation, properly rely upon the

incumbent administration’s views of wise policy to

inform its judgments. While agencies are not directly

accountable to the people, the Chief Executive is, and it

is entirely appropriate for this political branch of the

Government to make such policy choices -- resolving the

18 United States v. Rapanos, et al. No. 03-1489

competing interests which Congress itself either

inadvertently did not resolve, or intentionally left to be

resolved by the agency charged with the administration

of the statute in light of everyday realities.

When a challenge to an agency construction of a

statutory provision, fairly conceptualized, really centers

on the wisdom of the agency’s policy, rather than

whether it is a reasonable choice within a gap left open

by Congress, the challenge must fail. In such a case,

federal judges -- who have no constituency -- have a duty

to respect legitimate policy choices made by those who

do. The responsibilities for assessing the wisdom of such

policy choices and resolving the struggle between

competing views of the public interest are not judicial

ones: Our Constitution vests such responsibilities in the

political branches.

Id. at 865-66 (citation omitted). Before according deference

to agency interpretations, a federal court “need not find that

[the agency’s interpretation] is the only permissible

construction . . . but only that [its] understanding of this . . .

statute is a sufficiently rational one to preclude a court from

substituting its judgment for that of [the agency.]” Chem.

Mfrs. Ass’n v. Natural Resources Defense Council, 470 U.S.

116, 125 (1985) (citation omitted). I n SWANCC th e

Supreme Court refused to accord Chevron deference to the

Corps’ Migratory Bird Rule. Noting that “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,” the Court concluded that

the Migratory Bird Rule infringed on the state’s “traditional

and primary power over land and water use,” and thus was

not entitled to Chevron deference. Id. at 173-74 (citation

omitted). In Riverside Bayview, however, the Supreme Court

accorded Chevron deference to the Corps’ conclusion that

“waters of the United States” included wetlands adjacent to

navigable waters. 474 U.S. at 134-35. As the SWANCC
No. 03-1489 United States v. Rapanos, et al. 19

Court recognized, deference was appropriate in Riverside

Bayview given the significant nexus between the adjacent

waters and navigable waters that was not present in the

“nonnavigable, isolated, intrastate ponds” at issue in

SWANCC whose only connection to interstate commerce was

the fact that they were occasionally home to migratory birds.

In Deaton, after conducting a thorough review of the CWA,

the Fourth Circuit accorded Chevron deference to the Corps’

construction of the CWA that granted it authority over

“distant, nonnavigable tributaries of navigable waters.”

Deaton, 332 F.3d at 709. In Rapanos, this court agreed with

the Fourth Circuit’s holding in Deaton. Rapanos, 339 F.3d at

452-53. Because waters containing a hydrological connection

to tributaries of navigable waters bear a “significant nexus” to

navigable waters, as in Riverside Bayview and unlike the

waters in SWANCC, Chevron deference is appropriate. The

Corps’ interpretation of “waters of the United States” to

include those waters adjacent to tributaries of navigable

waters, that share a hydrological connection with those

tributaries, is neither “arbitrary, unreasonable, or manifestly

contrary to the statute.” Chevron, 467 U.S. at 843-44.

E. Application to this Case

The Defendants argue that this court should impose a

“direct abutment” requirement to CWAjurisdiction over nonnavigable water. In response, the United States asserts that

the Defendants waived a defense based on SWANCC by not

raising it before the district court. It claims that, while the

Defendants argued that the CWA does not extend to “isolated

waters,” they did not make the current argument that the

CWA does not extend to “wetlands adjacent to nonnavigable

tributaries.” However, the United States is splitting hairs, as

this is simply part and parcel of the “isolated waters”

argument the Defendants made before the district court.

Alternatively, the Defendants’ current claim falls under the

exceptions to the traditional rule that appellate courts will not

entertain arguments raised for the first time on appeal because

20 United States v. Rapanos, et al. No. 03-1489

this argument involves a question of law and the factual

record has been fully developed below. Taft Broadcasting

Co. v. United States, 929 F.2d 240, 244 (6th Cir. 1991).

As discussed supra, Rapanos’ argument regarding

SWANCC has previously been adjudicated by this court, in a

published disposition, and its conclusion is entitled to stare

decisis. See Rapanos, 339 F.3d at 453. Indeed, Rapanos

acknowledged as much during oral arguments. Further, this

court’s reasoning in that case is supported by the majority of

circuits, by the policy of deferring to agency interpretations,

and by a careful examination of the relevant Supreme Court

cases. There is no “direct abutment” requirement in order to

invoke CWA jurisdiction. Non-navigable waters must have

a hydrological connection or some other “significant nexus”

to traditional navigable waters in order to invoke CWA

jurisdiction. Unlike the isolated waters in SWANCC, these

waters are interconnected with traditional navigable waters.

Next, the Defendants’ argument that the district court did

not find that there was a “significant nexus” between the

wetlands and the navigable waters is similarly misplaced. The

district court found that all three sites contained a

hydrological connection to navigable waters and thus fell

within the jurisdiction of the CWA. Specifically, the district

court found that

the Salzburg wetlands have a surface water connection to

tributaries of the Kawkawlin River which, in turn, flows

into the Saginaw River and ultimately into Lake Huron.

Dr. Willard testified that the wetlands at the Salzburg site

had a surface connection to the waters of the United

States. In 1994, Hal Harrington verified that a surface

water connection exists between the Salzburg site and

Saginaw Bay.

Further, Hal Harrington, Chief of the Michigan Department

of Environmental Quality’s Great Lakes Submerged Lands

Unit, testified that there was a surface water connection
No. 03-1489 United States v. Rapanos, et al. 21

3

In Rapanos’ criminal case, this court held that the evidence

demonstrated that “the wetlands on Rapanos’s land are adjacent to the

Labozinski Drain . . .” and noted that contamination of that drain “could

affect navigable-in-fact waters.” Rapanos, 339 F.3d at 453 (discussing a

slightly different parcel of land). The Labozinski Drain discussed in the

criminal case drains into the Hoppler Drain.

between the Salzburg site and the Saginaw Bay. In 1994 he

visited the site. During this visit, he observed carp spawning

in a roadside stream on the north side of the property. He

followed the flow of the water and “each road crossing with

this surface water connection to Saginaw where it entered . . .

the river entering Saginaw Bay north of the Bay City State

Park [the Kawkawlin River].” An expert for Rapanos, Dr.

Straw, testified that water left the site through the Hoppler

Drain, which drains into the Hoppler Creek. This drain is

immediately north of the Salzburg site.3

Regarding the Hines Road site, the district court noted that

Dr. Willard testified that the wetlands at the Hines Road

site have a surface water connection to the Rose Drain

which, in turn, has a surface water connection to the

Tittabawassee River. Dr. Willard also described the

nature of the surface water connection between the

wetlands at Hines Road and the Rose Drain. In October

1994, Dodgers and Zbiciak . . . demonstrated that the

interior wetlands have a hydrologic connection with the

Rose Drain.

In addition, Mr. Zbiciak, a representative from the State of

Michigan, testified that the wetlands drained into the Rose

Drain, which runs along the western side of the site and flows

down to the Tittabawassee River. A report by Charlie

Dodgers, another representative of the State of Michigan,

indicated that the site inspection revealed five locations where

water moved into the Rose Drain, as he testified at trial.

Rapanos claims that ditches he dug in 1992 were the only

cause of a surface water connection to the Rose drain.

22 United States v. Rapanos, et al. No. 03-1489

However, Charlie Dodgers testified that surface runoff

occurred naturally “at least seasonally,” and one of the United

States’ exhibits demonstrated surface connections to the Rose

drain as early as 1975.

Regarding the Pine River site, the district court noted that

“Dr. Willard testified that the wetlands at the Pine River site

have a surface water connection to the Pine River, which

flows into Lake Huron.” The maps utilized by the United

States showed that areas of wetlands on the site were in close

proximity to the Pine River (although they did not delineate

the specific paths these wetlands would have taken to drain

into the river).

Although the Defendants claim that the evidence did not

support these conclusions, the record demonstrates that there

were hydrological connections between all three sites and

corresponding adjacent tributaries of navigable waters. See

Rapanos, 339 F.3d at 453 (“Because the wetlands are adjacent

to the Drain and there exists a hydrological connection among

the wetlands, the Drain, and the Kawkawlin River, we find an

ample nexus to establish jurisdiction.”). Moreover, the

Defendants are certainly unable to show that the district

court’s conclusions were clearly erroneous. Pledger, 236

F.3d at 320. The district court was in a far superior position

to judge the complicated facts of this case after presiding over

the lengthy proceedings and the bench trial. Further,

[t]he rationale for deference to the original finder of fact

is not limited to the superiority of the trial judge’s

position to make determinations of credibility. The trial

judge’s major role is the determination of fact, and with

experience in fulfilling that role comes expertise.

Duplication of the trial judge’s efforts in the court of

appeals would very likely contribute only negligibly to

the accuracy of fact determination at a huge cost in

diversion of judicial resources. In addition, the parties to

a case on appeal have already been forced to concentrate

their energies and resources on persuading the trial judge
No. 03-1489 United States v. Rapanos, et al. 23

that their account of the facts is the correct one; requiring

them to persuade three more judges at the appellate level

is requiring too much. As the Court has stated in a

different context, the trial on the merits should be “the

‘main event’ . . . rather than a “tryout on the road.’”

Wainwright v. Sykes, 433 U.S. 72, 90 (1977). For these

reasons, review of factual findings under the clearlyerroneous standard -- with its deference to the trier of fact

-- is the rule, not the exception.

Anderson, 470 U.S. at 574-75. The testimony and evidence

in the record support the district court’s findings. Its

conclusions of fact are entitled to substantial deference and

they are not “clearly erroneous.”

The Defendants also argue that the district court was

required to make “subsidiary findings” to support its

conclusion that the sites had a hydrological connection to

navigable waters, citing Deal v. Cincinnati Bd. of Educ., 369

F.2d 55 (6th Cir. 1966). To the contrary, the district court’s

opinion, along with the expert testimony regarding the

hydrological connection, provides a sufficient basis to

examine the district court’s findings and supports the

determination that its conclusions were not clearly erroneous.

II. Dr. Willard’s Testimony

At trial, the United States offered the expert testimony of

Dr. Daniel E. Willard. The district court found Dr. Willard to

be “eminently qualified” as an expert in wetlands and

concluded that his testimony was “highly credible.” The

Defendants argue that this testimony should have been

stricken, or the trial delayed, because Dr. Willard relied upon

a supplemental expert witness report that was not disclosed

until after trial was underway. 

Dr. Willard revised the map he prepared for trial

delineating the areas of wetland on the Rapanos’ land. After

examining the soil analysis from the Defendants’ expert and

24 United States v. Rapanos, et al. No. 03-1489

aerial photography, Dr. Willard revised his wetlands maps,

removing some of the areas he had previously marked as

wetlands. He did so to be “as conservative and as accurate as

[he] could.” The new maps were produced in conjunction

with Will Bowman, a soils scientist with the Natural

Resources Conservation Service of the U. S. Department of

Agriculture, and were known as the “Bowman Supplemental

Soils Maps.” Accompanying the new maps was a five-page

supplemental report. The Defendants contend that this late

report “made a mockery of the Federal Rules of Civil

Procedure,” specifically complaining that the disclosure rules

specified in Rule 26 were violated. They claim that the

district court’s denial of their motion for Rule 37 sanctions,

based on the failure to disclose, requires remand for a new

trial.

The United States points out that the new maps were based

on analysis from the Defendants’ experts contained in the

Pierce report. The version of Rule 26(e) in effect at the time

of the trial provided that a party was required to supplement

its disclosures “if the information disclosed is incomplete or

incorrect and if the additional or corrective information has

not otherwise been made known to the other parties during

the discovery process.” The data used in the supplemental

report and maps was known to the Defendants, as it was

produced by their experts. Because Dr. Willard’s previous

expert report and maps were available to the Defendants, it

seems unlikely that simply incorporating some of the data

from the Defendants’ own experts, which reduced the

computation of wetland areas, qualifies under Rule 26’s

mandatory disclosure requirements.

Even if we assume that the United States was required to

disclose the supplemental results, exclusion of the report and

testimony was not the only remedy available to the district

court. Rule 37(c) provides sanctions for the failure to comply

with Rule 26, including exclusion of evidence. This court

reviews for abuse of discretion a district court’s ruling on a

motion to exclude an expert witness as a sanction under Rule
No. 03-1489 United States v. Rapanos, et al. 25

37 of the Federal Rules of Civil Procedure. Roberts ex rel.

Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th

Cir. 2003); Toth v. Grand Trunk Railroad, 306 F.3d 335, 344

(6th Cir. 2002). Rule 37 provides that the trial judge should

not exclude expert testimony unless the failure to disclose is

both unjustified and harmful. Roberts, 325 F.3d at 782; Fed.

R.Civ. P. 37(c)(1) 2000 advisory committee’s notes (“Even if

the failure [to disclose] was not substantially justified, a party

should be allowed to use the material that was not disclosed

if the lack of earlier notice was harmless.”). The nondisclosing party bears the burden of proving that a disclosure

was harmless. Roberts, 325 F.3d at 782. The aggrieved

party, however, must show substantial prejudice before this

court will grant a new trial based on an alleged Rule 26(e)

disclosure error. Toth, 306 F.3d at 344.

In this case, the failure to disclose seems harmless as the

Defendants were aware of the data used in the supplemental

reports and the revised reports reduced the amount of

wetlands found to exist at the sites. Thus, the only changes

made between the original disclosed report and the

supplemental report were beneficial to the Defendants. In

summary, no “substantial prejudice” has been demonstrated.

Even if a trial court determines that Rule 26 has been

violated, Rule 37 does not mandate exclusion of evidence.

Roberts, 325 F.3d at 783-84 (Rule 37(c)(1) “provides several

remedies to a district judge who is faced with violations of the

mandatory-disclosure provisions of Rule 26. The provision

on sanctions explicitly states in pertinent part that ‘in lieu of

this sanction [of total exclusion], the court, on motion and

after affording an opportunity to be heard, may impose other

appropriate sanctions.’”). The district court, after noting its

concern with the failure to disclose the supplemental report,

concluded that

the defense should be accommodated and [I] will do so

in several ways, [at] the option totally of the defense.

Number one is that at the conclusion of the

26 United States v. Rapanos, et al. No. 03-1489

Government’s expert witness case, I would certainly give

the defense as much reasonable time as they need in

order to consult with their experts. I would be more than

happy to . . . so that your expert can be prepared without

having to order transcripts and so forth, have him or her

on a phone conference so that they can hear all that

testimony . . . so that you can be prepared and also take

some time and recess for as long as you need in order to

consult with your expert for cross-examination and if it

entails taking whatever time it takes reasonably to be

prepared. But I think that we’re here to seek the truth,

and that’s -- that’s the whole idea of having a trial is to

seek the truth. It’s not . . . to ambush and everybody

should be prepared. . . . But I have to, I think, listen to

the testimony to see what really transpired here with the

understanding that we’re here to seek the truth and that

I will give the defense as much opportunity as they need

since it’s a bench trial and we can take time, and it’s

important, but not that important that you shouldn’t have

an opportunity to be able to use your right to crossexamine, to seek the truth.

The district court properly considered the role of the trial, the

rights of the parties, and the considerations of the Federal

Rules of Civil Procedure in this side-bar. 

The Federal Rules of Civil Procedure are not so monolithic

as to demand a single outcome for the widely varying

circumstances encountered in discovery and trial. They

properly recognize the discretion of the trial court to fashion

appropriate remedies, taking into account the facts of the case.

This case languished for more than five years between the

filing of the Complaint and the 13-day bench trial. It

involved complicated factual and legal issues. It was within

the district court’s discretion to allow the evidence and it

significantly allayed any fears of undue surprise by granting

the Defendants “as long as they needed” to review Dr.

Willard’s supplemental report so that they could discuss it

with their experts.
No. 03-1489 United States v. Rapanos, et al. 27

Finally, Dr. Willard notified the Defendants during his

deposition a few weeks before trial that he was in the process

of amending his findings based upon the Pierce report. The

Defendants apparently did not object to this until Dr. Willard

testified and they never made a motion pursuant to Rule

37(a)(2)(A) to compel discovery. In Roberts, this court noted

that such inaction by the “surprised” party suggests that the

failure to disclose should be considered harmless or justified.

Roberts, 325 F.3d at 783.

Considering all of the circumstances in this complicated

case, the district court’s failure to exclude Dr. Willard’s

supplemental reports cannot be said to be an “abuse of

discretion” and its solution for the disclosure problem was

entirely appropriate.

III. The Michigan Wetlands Program

The CWA permits states to develop their own water

protection permit program to enforce the provisions of the

CWA. 33 U.S.C. § 1344(g). This partial delegation

provision “gives a state the authority to render a

comprehensive federal/state wetland permit decision with the

federal government playing the role of the overseer in the

consideration of permit applications.” Michigan Peat v.

United States Envtl. Prot. Agency, 175 F.3d 422, 424 (6th

Cir.1999). Michigan, along with New Jersey, has established

such a permitting program. 40 C.F.R. §§ 233.70-233.71.

The Defendants claim that Michigan’s permitting

regulations contain slight variations to the federal statutes. In

particular, theyciteMichigan’s Geomare-Anderson Wetlands

Protection Act, which has language defining wetlands that

differ somewhat from the Corps’ regulations. Mich. Comp.

Laws § 324.30301(p). Those wetlands that are not

contiguous to the Great Lakes, an inland lake or pond, or a

river or stream, and less than five acres in size, are not subject

to Michigan’s Wetlands Protection Act, unless it is certified

that the area’s preservation is necessary to protect the natural

28 United States v. Rapanos, et al. No. 03-1489

resources of the state. Id. § 324.30301(p)(ii). This five-acre

jurisdictional limitation is not found in the CWA or the Code

of Federal Regulations. The Defendants argue that it was

error for the district court not to make findings of fact

regarding the Michigan statute’s five-acre limitation, instead

focusing solely on the federal regulations.

While the CWA grants states the authority to establish their

own clean water regulations, Congress clearly intended for

any state program to be at least as broad as the federal

program. See 33 U.S.C. § 1344(h)(1)(A)-(B). The GeomareAnderson Wetlands Protection Act is a state statute separate

from the CWA. The CWA’s provision for state involvement

in issuing CWA permits does not delegate authority to the

state to alter application of the CWA and the Corps

specifically notes that “[a]ny approved State Program shall,

at all times, be conducted in accordance with the requirements

of the Act and of this part. While States may impose more

stringent requirements, they may not impose any less

stringent requirements for any purpose.” 40 C.F.R.

§ 233.1(d). Moreover, contrary to the Appellant’s assertions,

permitting a state to issue CWA permits does not foreclose all

federal issuance of CWA permits. See Michigan Peat, 175

F.3d at 427 (a case in which the Corps had ultimate authority

to issue permit when state permit did not address the concerns

of the federal government); 33 U.S.C. § 1344(g)(1) (Corps

still issues permits for waters used in interstate commerce,

including adjacent wetlands).

The CWA explicitly provides that, notwithstanding the

delegation of authority to the states, nothing in Section 1344

is meant to restrict the Corps’ authority to enforce the CWA.

33 U.S.C. § 1344(n). This court has recognized that Section

1344(n) allows the federal government to pursue an action

against an offender regardless of whether the state has

instituted its own enforcement program, noting that under

“the CWA . . . the responsible federal agency retains

oversight power to ensure compliance with federal

standards.” S. Ohio Coal Co. v. Office of Surface Mining,
No. 03-1489 United States v. Rapanos, et al. 29

Reclamation and Enforcement, 20 F.3d 1418, 1427-28 (6th

Cir. 1994); see also United States v. City of Rock Island, 182

F. Supp. 2d 690, 693-94 (C.D. Ill. 2001); United States v.

Town of Lowell, 637 F. Supp. 254, 257 (N.D. Ind. 1985). The

CWA does not contain any language suggesting that state

implementation of the CWA is “in lieu of” federal

enforcement and thus any delegation of authority to the state

in the CWA does not end a citizen’s responsibility to abide by

the federal laws and regulations. Cf. United States v. City of

Youngstown, 109 F. Supp. 2d 739, 741 (N.D. Ohio 2000). 

In short, there is nothing in the CWA to suggest that by

allowing Michigan to enforce portions of the CWA, the Corps

was delegating the authority to the state to determine the

limitations on CWA jurisdiction. Michigan does not gain the

authority to alter the CWA’s federal jurisdiction merely by

virtue of the fact that it is entitled to administer some portions

of the act. In fact, the statute and the accompanying

regulations make it clear that state enforcement programs

cannot act to weaken the CWA. 

Finally, it should be noted that the Corps retains the

ultimate authority to deny a CWA permit, even if Michigan

is inclined to grant one under its delegation of authority.

Michigan’s Administration of Section 404 at 2 (available at

http://www.deq.state.mi.us/documents/deq-lwm-wetlands-4

04admin.pdf); see also Michigan Peat, 175 F.3d at 427

(Michigan failed to issue a permit satisfying the federal

government’s reservations so the Corps retained the sole

authority to authorize the issuance of a permit). In certifying

Michigan’s 404 permitting scheme, Michigan’s Attorney

General wrote that

[t]he Water Resources Commission Act governing

discharge of pollutants into water of this state includes

within its ambit all waters of the State of Michigan. It is,

of course, clear that the . . . Wetlands Act exclude from

their purview certain lakes having an area of less than 5

acres. Even this problem is, in fact, of no practical

30 United States v. Rapanos, et al. No. 03-1489

matter for a number of reasons. First, it is quite

conceivable that a lake under 5 acres would have an

affect on interstate commerce so as to imbue it with the

distinction of being “water of the United States” and thus

subject to the federal permit program.

Thus, Michigan’s permitting program properly recognized

that a site not falling within the ambit of Michigan’s state

program could still be within the jurisdiction of the federal

program.

IV. Collateral Estoppel

The district court found that Mr. Rapanos should be

collaterally estopped from denying liability at the Salzburg

site based on the outcome in the criminal case. Both parties

note the confusion from relying upon collateral estoppel in

this case because (1) the “Salzburg site” referenced in the

criminal trial is not completely analogous to the Salzburg site

in this case and (2) when the district court entered its findings

of fact in 2000, Rapanos had been convicted in his trial and

sentenced, but his appeal was pending, yet when the district

court entered its final judgment in February 2003, Rapanos’

conviction had been vacated by the criminal trial court and

the United States’ appeal to this court was pending. The

United States notes the difficulty inherent in relying upon

collateral estoppel when an appeal is pending.

Regardless, the district court’s conclusion regarding

collateral estoppel was not necessary for its finding that the

Defendants were responsible for CWA violations at the

Salzburg site. As discussed supra, the district court

concluded that the Defendants had discharged fill into the

Salzburg site and that the Salzburg site was subject to CWA

jurisdiction. A judge may rely upon multiple alternative, but

independent rationales for his decision. See Nat’l Satellite

Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 909-10 (6th Cir.

2001) (discussing the effects on collateral estoppel when a

decision is based upon two alternative, but independent
No. 03-1489 United States v. Rapanos, et al. 31

rationales). In this case, it is unnecessary to determine

whether collateral estoppel was appropriate because the

district court provided alternate rationales for its findings.

V. The Extent of Unauthorized Filling

Finally, the Defendants contend that substantial evidence

did not support the district court’s finding that 54 acres of

wetlands were illegally filled. They claim that some of the

fill used in the district court’s calculation was “incidental

fallback.” The district court concluded that the illegal fill was

substantial (covering 54 acres) and not the result of incidental

fallback after examining the evidence and hearing the relevant

testimony. This conclusion is supported by the evidence and

is not clearly erroneous.

CONCLUSION

We AFFIRM the judgment of the district court.