* Th e Hono rabl e Danny C. Reev es, Unit ed Sta tes Dist ric t Ju dge f

or the Eastern Distri ct of Kentucky, si tting by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0239P (6th C ir.) File Name: 04a02 39p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

J OHN A. RAPANOS ; J UDITH A. N ELKI E RAPANOS ; P RODO , I NC .; R OLLI

NG M EADOWS H UNT C LUB ; P INE R IVER B LUFF E STATES , I

NC ., Defenda nts-Appe llants. X - - - -
> , - - - - - - - N No. 03-1489

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 94-70788—Bernard A. Friedman, Chief District Judge. Argued: June 9, 2004 Decided and Filed: July 26, 2004

Befor e: SIL ER and GI

BBONS, Circuit Judg es; REEVE S, District Judge. * 2 United Sta tes v. Rap anos, et al

. No. 03-1489

_________________ COUNSEL

ARGUED: David E. D earin g, I ndianapolis, Indiana, for Appellan ts. Kather in e W. Hazard, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BR IEF: David E. D earing , Ind ianapoli s, Indi a na, for Appellants. Katherine W. Hazard, UNI TED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

_________________

OPINION

_________________ DANNYC. REEVES, District Judge. Plaintiff-Ap pe llee United States brough

t suit agains t the Def

endants p ursuant t o the Federal Water Pollut i on Control Act Amendments of 1972, Pub. L . No. 92-5 00, 86 Stat. 817, as amend ed 33 U.S. C. § 1251 et seq

. , commonly known as the Clean Water Act (“CWA”). Defend

ants-App ellants J ohn Rapan os, Judith Rapanos, Prodo, Inc., Rolling Meadows Hunt Club, and Pine River Bluff Estates, Inc. a

ppeal the district court’s entry of judgment in favor of the United

States. Prodo, Inc., Rolling Meadows Hunt Club, and Pine Ri ver Bluff Estates, I nc. are wholly owned by

John and Judith

Rapanos. For the reasons discussed below, we AFFIRM

the ju dgmen t of the district court.
BACKGROUND

The Rapanos, through their wh olly -owned c ompanies , owned various parcels of

land in Bay, Midland, a

nd Saginaw Counties in Michigan. These parcels are known as the Salz burg, Hines Road, Pine River, Freeland, Mapl eton, and Jefferson Avenue sites. Th e Rapanos w ere cha rged w ith illega lly dischar ging f ill materi al into protected wetlands atNo. 03-1489 United Sta tes v. Rap anos, et al

. 3

thesesites between 1988 and 1997. The United States alleges that the Rapa nos attempted to fill

these we tlands to make the land more conduciv e to deve lopment.

I. The Salzburg Site

Before filling wetla

nds su bject 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 a sked the s tate to ins pect the Salzburg site in hope of obtaining a permit to construct a shop pi ng center at this location . The stat

e informed him that the site was l ikely
a regulated wetland and sent him an applica t ion for the
necessar y pe rmits. A sta

te repr esentat ive toure d the site i

n March 1989, noting that the site probably conta ined wetlands butcould be develope d if the ne cessar y pe rmits were issued. Mr. Rapanos hired

a consultant, Dr. Goff, to prepare a report detailing the wetlands on the Salzburg site. Dr. G of f conclud ed

that ther

e were betwee n 48 and 58 acres o f wetlands on the site, presen ting h is fi ndin gs in the form of a report and a map. Upset by the re

port, Mr. Rapanos ordered Dr. Goff to de stroy

both the r

eport an d map, as well as all references to Mr. Rapanos in Dr. Goff’s files. However, Dr. Goff was unwil ling to do

so. Mr. Ra

panos statedhe would “d es tr oy” Dr. Goff if he did not com ply, claiming that he would do away w

ith the report and bulldoze the site himself, regar dless of Dr. Goff’ s finding s.
InApril 1989, workers began leveling the ground, filling in low spots, clearingbrush, removing stumps, movingdirt, and dumping sand to cover most of the wetland v egeta

tion. This activity caused Dr. Goff t

o note that the site nowlooked “like nothing more than a beach.” In Au gust 198 9 the state attempted to inspect the Salzburg site, but w as denie d acces s. Three months later, authorities from the state returned, armed with a sea rch war rant.

In1991, a state representative returned to the Salzburg site, noting that the site had been “tiled” to drain subsurface wa ter. 4 United Sta tes v. Rap anos, et al

. No. 03-1489

When Mr. Rapa

nos refu sed to com

ply with anadministrative
com pliance order is sued by the Envir

onmental Protecti o n Agency (“EPA”) (requi rin g him to immediately cease h is 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 dra

ins, build r

oads, and fill the wetlands at the Hines Road site. Howeve r, in July 1992, the state

issued a c ease an

d desist le

tt er to stop the ongoingactivity. Mr. Rapanos did not reply to this letter. Thereafter, the state co n ducted a n examinati on of the s ite pursuant to a search warrant in June 1994. I n June 1997, the state returned to the site and noted that fill h ad been

added to certain areas s ince the

1994 sea rch. Ac cordingly, the EPA issued an admini strative

compliance orde

r. The EPA

alleges that Mr. Rapanos did not comply with this order.

III. The Pine River Site

Mr. Rapanos also hired contractors at thePine River site to construct ditches, spread dirt and sand, construct roads, and clear vegeta tio n. The state sent Mr. Rapanos a cease and des ist order after an

officia l observe d that por

tions of th e wetlands had bee

n filled. T

he EPA issued an administrative compliance order in September 1 997 after Mr. Rapanos refused to comply with the cease and desist order. The EPA alleges that Mr. Ra

panos als o did not comp l y with the administrative order.

IV. The Criminal Proceedings

Cr iminal charg es were

brough t simultane ously

with th e instantcivil ac tio n. In July 1994, the district court declared
a mistrial in Mr. Rapanos’ criminal trial. The trial was moved to Flin t, Michig an and, on March 7 , 1995, the jury inth e second trial retu r ned a guilty

verdict on two counts. United States v. Rapanos , 895 F.Supp. 165, 166 (E.D. Mich. 1995).No. 03-1489 United Sta tes v. Rap anos, et al

. 5

1 The land a t is sue in the c riminal t rial was t

he Salzburg site. The Salzburg site in t

he cri minal t

rial is somewhat diff

erent than t

he Salzburg site i nvolved in this proceeding. Following trial, the district court granted Rapanos’ motion for
a new tria l, finding that the c ourt had i

mproper ly allowed the United States t o pursue a line of questioning that was prejudicial to the de fendant. Id . at 169-7 0. This co urt, however, determined that th e line of questioni

ng was n ot improper and reversed

the district

court’s grant of a new trial and remand ed for s enten cing. United States v. Rapanos , 115 F.3d 3 67, 374 (6th Cir. 1997). The district court sentenced Rapanos to three

ye ars prob ati on an d o rd er ed hi m t o p ay a $185,000 fine. On appeal, this court affirmed theconviction butremanded for resentencing

. United States v. Rapanos , 235 F.3d 256, 261 (6th Cir. 2000).

The Supreme

Court gr anted Ra panos’ r equest f or a writ of certior ari, vacati ng and remanding this court’s order in light of Solid W

aste Agen cy of N

or thern Cook County v. United States Army Corp

s of Engine ers , 531 U.S. 159 (2001) (“ SWANC

C ”). Rap ano s v. United States , 533 U.S. 913 (20 01). Followin

g rema nd from th e Supreme

Court, this court remande d the cas e to the di strict co urt f or furt her consideration. United

States v. Rapanos , Nos. 98-2424, 99- 1578, 99-1074, 16 Fed. A ppx. 345 (6th

Cir

. 2001). On remand, the district court set aside the conviction, finding that t he U nited States lacked jurisdiction in the wake of the Supreme Court’s ruling in SWANC C

. United States . v. Rapanos , 190 F.Supp. 2d 1011 (E.D. Mich. 2002). On appeal, this cour

t rever sed the or

der of th e district cou rt, reinstated the previous conviction and r emanded to the district court for resentencing

. Un ited States v. Rapanos , 339 F.3d 447, 454 (6th Cir. 2003). A panel of this court determined that, despite the Suprem e Court’s decision in SWANC C , the United States retained jurisdiction over the wetlands at issue by virtue of the CWA. 1 Recently , the Supre

me Courtdenied 6 United Sta tes v. Rap anos, et al

. No. 03-1489

2 On Janu ary 10 , 200 3, afte r the Supreme Court overturned the “Migratory Bird Rule” as an excessive extensi on of jurisdict ion under the CWA in SWANCC , th e dist rict court amended i ts f

indin gs to r emove al l refer ences to th e “Migrator y Bird Rule” as a basi s f or federal juri sdiction. 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 act ion in February 1994, confining its scope to t he Salzburg site and naming only Mr. Rapanos as a defendant. I n June 1996, t he United States added Mrs. Rapano s to the compl aint, as w ell as Prodo, Inc., a company ow

ned by Mr. Rapanos . In Februar y 1998, the United States amended its complaint to add allegatio ns concerning

the Hines Road and Pi

ne River s ites. Pine River Bluffs E states wa s also add ed as a de fendant

. Following a 13-day be

nchtrial, 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 we tlands at the Hines Road site, and 15 of 49 acres of protected wetlands at the Pine River site. The district cou rt concluded that the government had established that 54 of the fil led acr es fit the three parameter s for wetlands, i.e. , vegetation, soils, and hyd ro lo gy. Inaddition, the court found that the United States did not meet it s burden regarding the e xistence of wetlands at the Freela nd and Ma

pleton sites. Th e district court entered these findings and conclusions on March 22, 2000. 2

STANDARDOF REVIEW Following a benc h trial, this court reviews the district court’s finding s of fac t for cle ar err or and re

views its conclusions of law de novo

. Pledger v. United States , 236 F.3d 315, 320 (6th Cir. 2000). Factual det erminati o ns of a trial co ur t are not

clearly errone ous unless

we are “left wi th the definite and firm conviction that a mistake has beenNo. 03-1489 United Sta tes v. Rap anos, et al

. 7

committed.” Id

. (quot ing Anderson v. City of Bessemer City , 470 U.S . 56 4, 5 73 ( 198 5)) . “If the district court’s account of t he evidence is plausible in light of the record viewed in it s en ti re ty, the court of appeals may not reverse it even

thou gh convinced

that had it been sitting as the trier of fact, it would have weighed the evidence diffe rently.” Anderson , 470 U.S. at 573-74.

DISCUSSION

Onapp eal, Rapanos argues that the district court erre d when it (1) hel d that the

disturbe d wetland s w ere adjacent wetlands because they

had a surfaceconnec tion to waters of the Un it ed St at es ; ( 2) fa il ed to ma ke su bs id ia ry f indings t o support its conclu sion that the Salzburg , Hin es Road, and Pine River sites had a h ydrologic al con necti on to naviga bl e waters; (3) allowed pl aintiff ’s ex pe rt Dr . W il la rd to te st if y; (4) failed to

co nsider Michigan’s definition of “wetland”; (5) collaterally e stopped

Rapanos f

rom deny ing liab ility

at the Salzburg site; and ( 6) relie d on Dr. Will ard’s testimo ny t o determ ine th e ext ent of

unaut horiz ed fil ling.

I. The CWA

In1972, Congress reacted to the problem of water

pollution by enactin g the CWA. The CW

A is viewed by some a s the federal gover

nment’s ma

in weapon in its effo rt 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 (1 99 8). Section 404 of the CWA requires landowners to obtain permits from the Army Corps of Engineers (“Corps”) before dischar ging fill material into wetlands adjacent to navigable bodies of water and their

tributar ies. United States v. Riverside Bayview Homes, Inc. , 474 U.S. 1 21, 123 (1 985); see also 33 U.S.C. § 1344. “Navig able waters” are defined as “waters of the United States, including territorial seas.” 33 U.S.C.§ 1362(7). The 8 United Sta tes v. Rap anos, et al

. No. 03-1489

Supreme Court and this court have n oted that “Cong ress c ho se to define waters covered by the Act broadly”

in the CWA. Riverside Bayvi e w , 474 U.S. a t 133; Rapanos , 339 F.3d at 450-51. Determining the precise boundary of which waters are cov ered by

the CWA has

been dif ficult. 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 b e navi gated in the traditional sense. See id. at 451. As the Supreme Court has noted, CWA jurisdiction extends beyond traditionally

naviga ble wate rs b ecause economic activities affec ti ng interstate commer ce are su sceptible t o “congressional

regula tion under

the Commer

ce Clause irrespective of wheth er navig at ion, or, in deed, wa ter, is involved.” Kaiser Aetna v. United States , 444 U.S. 164, 174 (1979).

The CWA’s broa

d reach , exte n ding be

yon d traditionally naviga ble waters, however, does not extend to all waters. The Code of Federal Regulation s co ntains the Corps’ in terpretation

of which waters are properly considere d “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 “wet lands adj acent to traditional navig able waters” as supporting CWA jurisdiction for the D efenda nts’ lands. Id . at § 328.3(a)(7). It f ound 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). Determiningwhich wetlands are considered “adja cent to” traditional navigable waters or their tributaries has proved to be a complication in defining CWA jurisdiction . The Code of Federal Regulations stat es that “adjacent” means “b orderi ng, contigu

ous, or ne ighbori

ng. Wetla nds separ ate d fromother waters of the United States by man-made dikes or barrier s, natural river berms, beach dunes and the like a re ‘adjacent wetlands.’” 33 C.F.R. § 328.3(c).No. 03-1489 United Sta tes v. Rap anos, et al

. 9

Inorder to invoke f

e deral ju risdiction the wetl ands must bear some connection to

naviga ble wate rs or inte

rstate
commerce. Determi

n ing ho w much of

a conne ction is necessary has proven difficult. Un fortun ately, the two leading Supreme Court cases on the reac h of the CWA have done little to clear

the muddied waters of

CWA jurisdiction.

A. Riverside Bayview

Riverside Bay

view Home s o wned 8 0 acres of low -lying, marshy land n ear the

shores of

Lake St. Clair in

Macomb Co un ty, Michiga

n. It b egan f

illing pa rt of the l and with

the intention of constructing a housing development on the site. The Corps determined that the land was an “adjacent wetland,” thus falling un de r the ambit of the CWA. The districtcourt

determined that the land on the site below 575.5 fe et above se a level w as a wetl and requ iring th e iss uance o f
a perm it before it could be filled. Riversid e Bayvie w , 474 U.S. at 125. This court reversed the district cour t, concludingthat adjacent wetlands only existed when the land
was flooded by adjac ent nav igable waters at a freque ncy sufficient to support the growth of

aquatic vegetation. United St ates v. Riverside Bayview Homes, Inc. , 729 F.2d 391 (6t h Cir. 1984).

This court was largel y motivated by Fi fth Am endment takin gs concer

ns, conc luding that t he CWA must be read
narrowly to avoid improper condemnation by the gov ernment

. A unanimous Supreme Court, however, held that the Tucker Act, 28 U.S.C. § 1 491, provides the owners o f condemned land with the right

of compensation and thus concluded that this court wa s not justif

ied in reading the CWA’s jurisdiction
so narrowly. Riverside Bayv i ew , 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 Courtof Appeals’ conclusion that inundation o r ‘f requent flood ing’ by t

he adjace nt bo dy of water is a sine qua non of a wetland under the regulation.” Id . at 129. 10 United Sta tes v. Rap anos, et al

. No. 03-1489

Next, the Court a

ddresse d the issue

of which waters c ould be considered “adjacent to navig able waters.”

Indeterm i ning the

limits of its

power to

regula te discharg es und er the Ac t, the Corp s must nec essarily choose some point at which water ends and land begins. Our common experience tells us tha t this is often no easy task: the t ransit ion from water to solid ground is not
nec essarily

or even typica

lly an abrupt one. Rathe r , between open wat

ers and d ry land may

lie shallows, marshes , mudflats, swamp s, bogs -- in s hort, a huge array of areas that are

not wholly

aquatic but never theless f all far short of being d ry land. Wher

e on this c ontinuum to find the li mit of “wa

ters” is f ar from o bvious.

Id . at 132.
The Courtconclude d that to pr otect ag ainst

pollution “ at its source,” Congress sought to define coverage o f the CWA br oa dl y. Id . at 133. It noted that even wetlan ds that are not connected

to ad ja cent bodi es of wa

ter and a re not re gularl

y inundatedby f

looding may

still have

a conne ction to naviga ble waters because such

water c an drain

into naviga

ble waters. Id . at

134. These adjacent bodies of water ca n bring pollution to the navi ga ble wate rs, resu lting in p ossibly 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 adjace nt to lakes, rivers, stream s, andother bodies of water may function
as integral parts of the aquatic en viron ment even when the moisture c

reating the wetla

nds does not find its
source in the adjacent bodies of water. . . . [W] e cannot say that the Corps’ judg

me nt on t hese mat

ters is unreasonable, and we therefore conclude that

a definition of “waters of t

he United Sta

tes” enc ompassing

all wetlands adjace

nt to other bodies of water over which the Corps has jurisd

iction is a permissib le interpretation of the [C WA].No. 03-1489 United Sta tes v. Rap anos, et al

. 11

Id . at 135.

B. SWANC

C

After upholding a broad view of the CWA’s jurisdictional reach in Riverside Bayvi ew , a divided Supreme Court invalidated

one of the

Corps’ ju

risdic tional re gulations in SWANC C

. 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 e

ndange red spec ies. Fina

l Rule f or Regulatory

Programs of the Corps of Engine ers, 5 1 Fed. R eg. 41206, 41217 (No v. 13, 1986) (previously c odified at 33 C.F.R. § 328.3). The dispu ted land was a

533 acre parcel straddling th e C ook and Kane County lines in norther n Illinois. The land was owned by the Solid Waste Agency

of Northern Cook County, a

consortiumof 23 Chicago cities that sought to develop a garbage disposal site. SWANC

C , 5 3 1 U.S. at 162-63. The Corps initially determined that it had no jurisdiction over the

land bec ause it

did n ot contain any wetlands and did not support “vegetation ty pically ada

pted for life in saturated soil conditions.” Id

. at 164 (c iting 33 C. F.R. § 328. 3(b)). H owever , after learnin g that se veral mig rato r y 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 auth or ity to use the Migra tory Bird Rule, re lying on the cumulativ e impact d

octrine to conclu de that, in tot o , the impact on migratory

birds from disturbing wholly intrastate,
non-navigable

waters had a

subst antial imp act on int erstate
commerce. Solid W

aste Agen cy of N. Cook County v. United States Army Corp

s of Engine ers , 191 F.3d 845, 850 (7th Cir. 1999). A majority of the Supreme Court disag reed, however, ho ldi ng that the Migratory Bird Rule was not supported by Congre ss’ intent in pa ssing the CWA and thus c oncluding that it w as unnecessary

to determine whether the Migratory Bird Rule fell

within the

broades t reach

of Co ngr ess’
commerc e power s. SWANC C , 531 U.S. at 167. 12 United Sta tes v. Rap anos, et al

. No. 03-1489

Indoing so, the Court first reaffi rm ed the hol ding in Riverside Bayview , pointing out that in Riverside Bayview

we noted that

the term “na

vigable ” is of “li

mited impor

t” and that Congress evidenced its intent to regu late at le ast
some waters that would no t be de emed “navigable” under the classical understanding of that term. But our holding
was based in large measure upon Cong

ress’ unequivocal acquiescenceto, and approval of, the Corps’ regulations inter pretin g the CWA to c over wetlands ad jacent to naviga ble waters. We found that Congr ess’ concern

for the protection of water quality and a quatic ecosy

stems indicated its intent to regulat e w etlands in separa bly bound up with the “w aters” of the Un

ited State s.
It was the significant

nex us between the wetlands and “navig able waters”

that infor

me d ou r reading of the CWA in Riverside Bayview Homes . Indeed, we did not express any opinion on t

he qu estion of the authority of the Corps to re gulate

dis charge s of fill ma

terial in to wetlan ds that are not adjacent to open bodies of water. In order to rule for respondents here, we would have t o hold that the ju

risdiction of th e Co rps extends to ponds that are not adjacent to open water. But we conclude that the test of the statut e will not a

llow this.

SWANC C , 531 U.S. a

t 167-68 ( citations

omitted) ( emphasi s in original).

The Court also refused to extend Chevron deference to the Corps’ interpretation o f its authority under the CWA. See Chevron U.S.A. In c. v. Na tur al Resourc es Defen se Counci l, Inc. , 467 U.S. 837 (1984). It reason edthat such deference
was inappropriate where the Corps was infring ing upon a power usually reser

ved to the states, i.e. , the a uthorit y to regula te land and water use. SWANC C , 531 U.S. at

172-74. Th erefore, the Court concluded that Congress had no t envisioned

extending CWA jur isdiction to i solated, intrastate,
non-navigable

“ponds” simply by virtue of the

fact that theyNo. 03-1489 United Sta tes v. Rap anos, et al

. 13

were occasionally the home for migrat ory

bir ds, despite the Corps’ contrar

y in terpretation of i

ts authority. Id . at

171-72.

C. Putting Riverside Bayview and SWANCC in Context

The Court in SWANC

C noted that e

ven r eadi ng th e CWA throu gh a restrictive lens demons trate s that Congress “wanted to include a ll waters adjacent to ‘navigable waters,’ such as nonnavig able tributar

ies and st

r eams” in its definition of “waters of the United States.” S WANCC , 5 31 U.S. at 171. Lower courts ha

ve disagreed o ver the extent to which SWANC C limit ed Riverside Bayview ’s holding. SWANC C only specifically a

ddressed the Migratory

Bird R ule, an d in fact specific ally

held that it was not overruling any

aspect of Riverside Bayview , yet its langua ge has been seen by

some as justification fo ra wide-ranging re duction of the CWA’s jurisdiction. A mi nority of courts have done so, reading SWANC C broadly to limit the C WA to navigable waters and
non-navigable

waters t hat dire ctly

abut navi gable waters. In re Needham , 354 F.3d 340, 345-46 (5 th Cir. 2003 ); FD & P Enterpris es, Inc. v. U.S. Army C orps of Eng

ineers , 239 F.Supp.2d

509, 516 (D.N.J. 2003). Converse ly, the major ity of court s have interpreted SWANC C narrowly to hold that while the CW A does not reach isolated waters having no connection

with navigable wa

ters, it does reach inland waters that sha re a hy

drologi cal connection wi

th navig able wa

ters. Rapanos , 339 F .3d at 453; Treacy v . Newdunn A ssoc., LLP , 344 F.3d 407, 415 (4th Cir. 2 0 03); United States v. Deaton , 332 F.3d 698, 702 (4th Cir. 2003), cert. denied, 124 S.Ct. 1874 (2004); United Sta tes v. Rue th Dev. Co. , 335 F.3d 598, 604 (7th Cir. 2003), cert. denied , 124 S.Ct. 835 (2003); Headwate

rs v. Talent Irrigation District , 243 F.3d 526, 533- 34 (9th Cir . 2001); Carabell v. United States Army Corps of Enginee rs , 257 F. Supp. 2d 917, 930 (E.D. Mich. 2 003); United States v. Interstate Gen. Co. , 152 F. Supp. 2d 843, 847 (D. Md. 2001).

The Fifth Circuit has adopted the more expansive r e ading of SWAN CC and thus the more limited interpretation of the 14 United Sta tes v. Rap anos, 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 consider ed part of the “waters of the United States,” instead fin ding that the water must be “trul y a djacent to naviga ble wate rs,” or a t least h ave a “sign

ificant measure

of proximity

” to navig able waters. Id

. at 345, 347, n.12. In reaching this conclusion, the Fifth Circuit re lied heavily on SWANC C , disagr eeing w ith hold ings from the F ourth , Seventh, and Ninth Circuits, as wellas this court, that have adopted a limited interpretation

of SWANC C

. Rapanos , 3 39 F.3d at 453 (finding that the SWANC C court merel y inva lidated the Migra tory Bird Rule and did not deal with the Cor ps’ “a djacent

waters” jurisdict ion); Treacy , 344 F.3d at 415 (notingthat SWANC C reaffirmed

the holding in Riversid e Bayvie w and did not abrid ge the Corps’ authority over “adjacent waters” ); Deaton , 332 F.3d at 702 (holding

that SWANC

C did not disavow any of the Corps’ interpre

ta tions of

the CWA, save for the Migratory Bird Rule ); Rueth Dev. Co. , 335 F.3d at 6 04 (“it is clear that SWANC

C did not affect the law regar ding the govern ment's alterna

tive asse rted bas is f

or j urisdiction adjacency under [the “adjacent water” rule ]. The Corp s’ adjacency jurisdict i on is well-established; it was upheld by the Supreme Court in [ Riversi de Bay view ], and was reaffirmed

in SWANC

C ”); Headw a ters , 243 F.3d at 533-34 (h o lding that SWANC

C did not impact its conclusion that waters flowing int o navi gable waters are within the CWA’s jurisdiction); Carabell, 257 F. Supp. 2d at 93 0 ( concluding t ha t SWANC

C ’s holding was narrow and did not require a body of water to directly abut navi gable water in o rder tofall under the jurisdiction of the CWA); Interstate Gen. Co. , 152 F. Supp. 2d at

8 47 ( “[b]ecau se the Supr eme Court

only reviewed 33 CFR § 328 .3(a)( 3), it woul d be improper for

this Courtto extendthe SWANC C Court’s ruling any

further than they clearly intended ”); but see FD &

P Enter prise s , 239 F. Supp. 2d at 516 ( “it i s the view of this court that the ‘hydrological connec tion’ test is no long er the va

lid mode of analysis”).No. 03-1489 United Sta tes v. Rap anos, et al

. 15

InRapanos’ criminal trial, a panel of this court adopted the limitedreading of SWANC C criticize d in

Ne edham

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

becau se we find the Fourth Circuit’s reasoning persuasive, we disagree

with the broad interpretation of [ SWANC C] tak en by

th e district court in this case and, ins tea d, agree with Deaton . Although the [ SWANC C] opinion limits the application of the Clean Water Act, the Courtdid not go as far

as Rapanos argu

es, restricting the Act ’ s coverage to only wetlands directly a

butting naviga ble water. Instead, the [ SWANC C] Court, in a
narrow holding, invalidated the Migratory Bird Rule as exceedingthe authority g ranted to the [Corps] by the [CWA], because it found “nothing approaching a clear st atem ent from Cong

ress tha t it intende d [the CWA] to reach an abandoned sand and g ravel pit.” Rapanos , 339 F.3d at 453 (citations omitted). Thi s c ourt further adopted the holding in Deaton , th a t “adjacent waterw ay s” in cl ud e a ny b ranch of a tributary sy stem that eventua lly flows i nto a navigable body of water. Rapanos , 339 F.3d at 452-53. This court concluded that the wetlands
were adjacent because “[a]ny contaminationof the Rapanos wetlands could affec t the Drain, which, in turn could affect navigable-in-fact waters.” Id

. Thus, the primary diff

erence between the conclusion

r eached by the Fifth Circuit and that r eached by the Fourth , Sixth, Seventh, and Ninth Circuits, concerns th e “ ad ja ce nc y” req ui rement. The Fifth Circuit requires that the nonnaviga ble water be “trul y

adjace nt to navig able wa

ters” in order to qu al if

y for CWA jurisdiction. The majority of courts, inc luding this one, however, construe Riverside Bayview and SWA NCC

to hold that, while a hydrological connection

between the non-navigable and

navigable waters is required, there is no “direct abutment” require ment. 16 United Sta tes v. Rap anos, et al

. No. 03-1489

Whatis required for CWA jurisdiction over “a djacen t waters, ” how ever, is a “significant nexus between the wetlands and ‘navigab le wa ters,’” SWANC C , 531 U.S. at 167, which can be satisfied by the presence of a

hydrologic al connection. Rapanos , 339 F.3d a t 453; see also Deaton , 332 F.3d at 711-12 (CWA jurisdiction exten ds to t hose waters adjacent to any branc

h of a tributa ry sys tem that e

ventuall y flows into a nav

igable water, because these waters effe ct the water quality of navig abl e wa ters and thus ther

e is a “substantial nexus” between the tributar ies and th e navig able waters); Headwate

rs , 243 F.3d

at 533 (“ Becau se the ca

nals receive water from natural streams and lakes, and dive rt water to str e ams and creeks, t

hey are con nected a s tributar

ies to other ‘water s of the Unit ed St ates’ ”). Wa ters s harin g a hydrologic al connection are interconnected, shar i ng a sym biotic relation ship. As Con gress a ckno wledged when passing the CWA, “[w ]ater move s in hydrologic al cycle s and it is essential that

disch arge of pollutants be controlled at the source.” Rapanos , 339 F.3d at 451 (citing S.Rep. No. 92-414, at 77 (1972), reprinte

d in 1972 U.S.C.C.A.N. 3668, 3742).

U nlike the absence of Congressional support for th e Migratory Bird Rule discussed in SWANC C , Congre ss clear

ly envisioned

that CWA jurisdiction would extend to bodies of water exhibiting

a hy drologi cal c o nnection to traditional navigable waters. As this court previously recognized [i]n Riverside Bay view the Supr eme Court concluded that the Corps regulation extending jurisdiction to adjacent wetlands was a re asonable interpre tation in pa

rt beca use of what [ SWANC

C] described as “the significant nexus between the wetlands and

‘navigable waters.’”

There is also a nexus between a navi gab le water way and its nonnavigable tributaries. . . . This nexus, in light of the “bread thof congressional concern for protection

of water quality and aquatic ecosy stems,” is sufficient to allow the Corps to determine reasonably that its jurisdi c tion over the whole tri

butary sys tem of an

y na vigable waterw ay

isNo. 03-1489 United Sta tes v. Rap anos, et al

. 17

warranted. The regulation, as the Corps r eads it, r eflects
a reasonable int

erpret ation of the Clean Wa

ter Act. Rapanos , 339 F.3d at

452 (q uoti ng Deaton , 332 F.3d at 712).

D. Chevron Deference

The doctrine of

“administ

rative d efere nce,” a lso known as

“ Chevron deference,” provides an a lternative ground for affirmingthe Corps’ authority over waters adja cent to tributaries of navig able wa te r s. When Congress delegates authority to enforce a statute to a

gover nmental a gency , while leavingsome a mbigu ity in ho w the agency is to enforce the statute , cou rts should

assume th at Congr

ess implie dly delegated the authority to interpr et the ambiguity to the agency charg ed with

administering the statute. Chevron , 467 U.S. at 843-45. T

he age ncy is thus in the position to “fill the gaps” left by Congre ss. Unless the agency ’s interpretation of the statute is

“arbitrary , unreasonable, or manifestly contrary to the statute,” the agency interpretation should be a ppli ed. Id . at 843-44.

In Chevron , a unanimous Supreme Court pointed out that deferring to agenc y i nterpretations, rather than requiring judi cial in te rp re ta ti on , s er ve d t he in te re st s o f d em oc ra cy, noting that Judges are not experts in the field , and are not part of either political branch

of the Go vernmen

t. Courts mu st, in som e cases , reconc ile compe ting poli tical inte rest s, but noton the basis of the judges’ personal policy preferences

. In c ontrast, an age ncy to which Congress has delegated

policymaking

responsi bilities ma

y, w ithin the limits of that delegation , p roperly re ly upon the incumbent

administr

ation’s views of w

ise policy

to informits judgment s . While ag encies a re not dir ectly
accoun tableto the people, the Chief Executive

is, and it is enti rely

appropriate for this political branch of the Government

to make such policy

choices -- resolving the 18 United Sta tes v. Rap anos, et al

. No. 03-1489

com peting interests which Congress itself eithe r inadvertently did not resolve, or intentionally left to be
res olve d by the ag ency c

harged with the administration of the sta tute in lig ht of eve ryday realitie s.
When a challenge to an ag ency cons truction of a statutory provision , fairly

concep tualized, r

eally centers
onthe wisdom of the agency ’s policy, rather than whether it is a reasonable c hoice within a gap left open by Co ngress, the challenge must fail. I n such a ca se , federal judges -- who have no constituency -- have a duty to respect legitimate polic y choices mad e by those who do. The responsibilities for assessingthe wisdom of such policy choic es and resol ving t he struggle between competing views of the public interest are not judicial
ones: Our Consti

tution ves ts such re sponsibilit ies in the political branche s.
Id

. at 865-66 (citation omitted). Before accor ding deference to agency interpretations, a fed eral court “need not find that [th e agenc

y’ s interpr

etation] is

the only

permissi

bl e construction

. . . but onl y that [its] understanding of this . . . statute is a sufficiently ra

tional one t o p reclude a court from substituting its judgment for that of [the agency .]” Chem. Mfrs. Ass’n v. Natural Re sources D efense Co uncil , 470 U.S. 116, 125 (1985) (citation omitted). I n SWANC C th e Supreme Co urt refused to accord Chevron deference to the Corps’ Migratory

Bird Rule. Notingthat “whe re an otherwise accept able construction of a statute would r aise s erious constitutional problems , the Court w ill constr ue the sta tute to avoid such problems unless such construction i s pl ainly contrary to the intent of

Congress,” the Court concluded that the Migratory

Bird Rule infringed on the s tate’s “traditional and primary powe

r over land and water use,” a nd thus was notentitled to Chevron d eference. Id . at 173-74 (citation omitted). In Riverside Bayview , howeve r, the Supr

eme Court accorded Che vron deference to the Corps’ conclusion that “waters of the Un

ited State s” in clu ded wetla nds adjac ent to naviga ble wat ers. 474 U.S. at 134-35. As the SWANC CNo. 03-1489 United Sta tes v. Rap anos, et al

. 19

Courtrecog

nized, def

erence was appr

opria te in Riverside Bayview given the signif

icant nexus between the adjacent waters and navigable waters that was not pre sent in the “nonnavigable, isolated, intrastat e po nds” at is sue in SWANC C whose onl

y c onnection to intersta

te commerce was the fact that they

were occasionally

home to mig

ratory birds.

In Deaton , after conducting a thor ough review of the CWA, the Fourth

Circuit accorded Chevron defere nce to the Corps’ construct ion of the CWA that granted it authority over “distant, nonnavigable tributari es of navigable waters.” Deaton , 332 F.3d at 709. In Rapanos , this cour t agre ed with the Fourth Circuit’s holding in Deaton

. Rapanos , 339 F.3d at 452-53. Becau se water

s contain ing a hy drologi cal connectio n to tributaries of navig able waters b ear a “ signific ant nexus” to naviga ble waters, as in Riversid e Bayvie w and unlike the waters in SWANC

C , Chev ron d eference is appropriate. The Corps’ interpret ation of “wate rs of the United Sta

tes” to include those wa

ters adja cent to tr

ibutarie s of navig able waters, that share a hy drological connection with those tributar ies, is neither

“arbitr ary , unreas onable, or manife stly contrary to the statute.” Chevron , 467 U.S. at 843-44.

E. Applicati

on to this Cas e
The Defendants arg

ue th at this court should impose a “direct abutment ” requir ement to CW

A j urisdiction over nonnavigabl e water. In response , the United States asserts that the Defendants waived a defense ba sed on SWANC C by not raising it before the distr ict court. It claims that, while the Defend ants argued that the CWA does not extend to “isolated waters,” they did not make the cur rent argument that the CWA does not extend to “wetlands adjace nt to nonna

vigable tributaries.” However, the United States is splitting hairs, as this is simply part and parc el of the “isolated waters ” argument the Defe

ndants ma

de befor e the distr

ict c ourt. Al te rn at iv el y, the Defendants’ current claim falls under the exceptions to the traditional rule that appel late cou rts will not enterta inargume nts raised for the first time on appeal because 20 United Sta tes v. Rap anos, et al

. No. 03-1489

this argument involves a question of law an d the factual

r eco rd has been fully de

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

As discussed supra , Rapanos’ argument rega rding SWANC C has previous ly b een adju dicated by t his court , in a published disposition, and i ts co nclusion is entitled to stare decis is

. See Rapanos , 339 F.3d at 453. Indeed, Rapa nos acknowledged as much

during oral argume

nts. Furt her, this court’s reasoni

ng in tha t case is supported by

the majority of circuits , by t

he policy of defe rrin g to agen

cy interpre tations, and by a ca reful examination of the relevant Supr e me Court
cases. There is no “direct abutment” requirement inorder to invoke CWA jurisdiction. Non-navigable watersmust have a hy drologi cal connection or

some othe

r “sign ificant nexus” to trad ition al na viga ble w ater s in or

der t o invo ke CWA jurisdiction. Unlike the isolat ed wa ters in SWANC C , these waters a re inter connec ted with tr

aditiona l naviga ble wate rs. Next, the Defendants’ argument that the d istrict c ourt did notfind that ther e was a “significant nexus” between the wetlands and

the navigable waters is similarly misplaced. The districtcourt fo

und that a

ll three s ite s contained a hydrologic al connec tion to navigable wate rs and thu s fell within the jurisdiction of

the CWA. Specifically, the district court found that

the Salzburg wetlands have a surfac e water

connec tion to tributaries of the Ka

wkawlin River whi ch, in

turn, flows into the Saginaw River

and ultimately into L ake Huron. Dr. Willard testified that the wetlands at the Salzbur

g site had a surf a ce connection to the waters of the United States. In 19 94, Hal H arring to n verified that a surface water conne ct ion exists between the Salzburg site and Sa gi na w B ay. Further, Hal Harrington, Chief of the Michiga n Department of E nvi ronmental Quality’s Gr eat Lakes Submerg ed Lands Unit, testified that there was a surface wa ter c onnec tionNo. 03-1489 United Sta tes v. Rap anos, et al

. 21

3 In Rapanos’ cri minal case , th is cour t hel d that

the evi dence demonstrat ed tha t “ the wetl ands onRapanos’ s l and ar e adjacent to the Labozinski Drain . . .” and noted that co ntamin ation o f that dra in “cou ld aff ect naviga

ble-i n-f act waters.” Rapanos , 339 F.3d at 453 (d iscussi ng a slight ly dif

ferent parcel of land). The Labo zinski Drain discus sed in the criminal case drai ns into t he Hop pler Drain. between the Salzburg site and the Saginaw Bay . In 1994 he visitedthe site. During this visit, he observed carp spawning in a r oadside stream on the north side of the property . He followed the flow of the water and “each road cr ossing with this surface water connection to Saginaw where it entered . . . the river entering Saginaw B ay north of t he Bay City State Park [the Kawkawlin River].” A n expert for Rapanos, Dr. Straw, testifie d that wat

er left the site through the Hoppler Drain, which drains into the Hoppler Creek. This dra in 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 h ave a sur

face w ater connection

to the Rose

Drain which, in turn, ha s a surfa ce wate r connec tio n to the Tittabawassee River. Dr. Willard also des cribed the nat ur e of the surface water connec tion 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.

Inaddition, Mr. Zbiciak, a representative fr om the State of Michigan, tes tified tha

t the wetl ands dra

ined into the Rose Drain, which runs alongthe western side of the site and flows do wnto the Titta

bawasse e River. A

report by Ch arli e Dodger s, another representative of t he St ate of Michigan, indicated that the site inspection revealed f ive l ocations where water moved into

the Rose D rain, as

he testif ied at tri al. Rapanos claims t hat ditch es he dug in 1992 we

re the on ly
cause of a surface water conne ction to the Rose dr ain

. 22 United Sta tes v. Rap anos, et al

. No. 03-1489

However, Charlie Dodgers testified that surface runoff occurred natural ly “at least seasonally ,” and one of the United States’ exhibits demonstr

ated sur face c onnections to the Rose drain as early

as 1975. Regarding

the Pine River site, the district court noted that “Dr. Willard testifiedthat 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 Uni ted States showed that areas of wetlands on the site wer e in close pro ximity to the Pine

River (a lthough t hey did not del in eat e the specific

paths t hese wetlands wou

ld have ta ken to dra

in into the river).

Alth ough the Defe

ndants c laim that the evidence did not support these conclusions, the record demonstrates that there
were hydrolog ica l connections between all three sites and corresponding

adjace nt tributa rie s of navigable waters. See Rapanos , 339 F.3d at 453 (“Because the we tlands are adjacent to the Drain and there exists a hydrological connection among the wetlands, the Drain, and the Kawkawlin River, we find a n amplenexus to establish jurisdiction.”). Moreover, the Defend ants are certainly

unable to show that the distri ct court’s conclusions were clearly err o neous. Pledger , 236 F.3d at 3 20. The di strict co urt was in a far superior position to judge the compl icated f acts of th is case after presiding over the lengthy

proceedings and the bench trial. F urther, [t]he rationa

le for de ferenc e to the original finder of fact i s not l imit ed to t he sup erior ity of th e tria l jud ge ’ s position to make determinations of cr ed ib il it y. The trial judge’s major rol e is the de terminat ion of fa ct, and with expe r ience in fulfilling that role comes expertise. Duplication of the t rial judge’s efforts in the court of appeals would very likely

contribu te only

negligibly

to the acc uracy

of fact determination at a

huge c ost i n diversionof judicia

l resour ces. In addition, the parties to
a case on appeal have alrea dy been forced to conce ntrate their energies and resource s on persuadingthe tr ial j udgeNo. 03-1489 United Sta tes v. Rap anos, et al

. 23

that their ac count of t

he fact s is the correct one; requiring themto persuade three morejudges a t the appe llate level i s requiring too much. As the Court has stated in a different cont ext, the trial on the merits should be “the ‘main event ’ . . . rather than a “try out on the road.’” Wainwright v. Sykes , 433 U.S. 72, 90 (1977) . For the se reasons , re vi ew of

fa ct ua l f in di ng s u nd er th e c le ar lyerroneous standar

d -- with i ts deference to the trier

of fact -- is the rule, not the exception.

Anderson , 470 U.S. at 574-75. The testimony and e viden ce inthe record support the district co urt’s finding s. Its conclusions of fact are entitled to sub stantia l deference and they are not “clearly

erroneous.”

The Defe nd ants also argue that the district court was req ui red to make “ subsidiar

y f indings” to support

its conclusionthat the si

tes had a hyd rologic al conne ction to naviga ble waters, citi ng 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 test imony reg arding the hydrologic al conn ect ion, provi des a suf ficient b asis to examine the dist

rict court’s findings and supports the determination

that its conclusions were not clearly errone ous.
II. Dr. Willar d’s Testim ony
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 a n expert in wetlands and concl udedth at his testimony was “highly credible.” The Defend ants ar gue that this testimony should have been stricken, or the trial delayed, be cause Dr. Willard relied upon
a supplemental expert wi tness report that was not disclosed until after trial was underway

. Dr. Willard revised the map he prepared for tri a l delineatingthe areas of wetland on the Rapanos’ land. After examining

the soil analysis from the De fendants’ expert and 24 United Sta tes v. Rap anos, et al

. No. 03-1489

aerial photography , Dr. Willard revised his wetland s ma ps, removing some of th e area s h e had pr eviously marked a s wetlands

. He did

so to be “as conservative and as accur ate as [he] could.” The new maps were pro duce d in conjunction with Will Bowma

n, a soils s cienti st with the Natural Resour ces C onservation 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 Def endants c ontend tha

t this late report “made a moc ke ry

of the Fe deral Rul es of Civil Procedure,” specific ally

complaining that

the disclosure rules specified in Rule 26 were vi olated. They claim that the districtcourt’s

denial o f thei r motion for Rule 37 sa nctions, based on the failure to disclose, requires remand for a new trial.

The United States points out that the new maps were based
onanaly si s fro m the Defendants’ experts contained in the Pierce report. The version of Rule 26(e) in effe ct at the t ime of the trial provided

that a party was r

equired to supplement its disclosur

es “if the infor mation disc losed is incomplete or incorrect and if the additional or corr e ctive information has
no t other wise been made known to the other parties during the discovery proc ess.” The data used in the supplemental report and maps wa s known to the Defendants, as it was produced by t heir experts. Because Dr. Willard’s previous
ex pert report and maps were available to the De fenda nts, i t
seems unlikely

that simply

incorpor ating so me of th e da ta fromthe Defendants’ own experts, which r educ ed the computat io n of wetland areas, qualifies under Rule 26’s mandator y di sclosure

require ments.

Even i f we assu

me that the

United Sta

tes was r equired to disclose the supplemental results, exclusion of the report and testimony was not the on ly rem edy ava ilable to the district court. Rule 37(c ) provide s sanctio ns for the failure to comply with Rule 26 , inc luding exclusion of evidence. This court reviews for abus e of discretion a district c ourt’ s ruli ng on a motion to exclude an expert witness a s a

sanction under Rul eNo. 03-1489 United Sta tes v. Rap anos, et al

. 25

37 of the Federal Rules of Civil Proc e dure. Roberts e x rel. Johnson v. Galen of Virginia, Inc. , 325 F. 3d 7 76, 782 (6 th Cir. 2003); Toth v. Grand Trunk Railroad , 306 F.3d 335, 344 (6th Cir. 2002). Rule 37 pr ovides tha

t the tria l 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 allowe d to use the material that was not disclosed if t he lack of earlier notice was har mless.”). The no n

disclosing party

bears the burden

of proving that a disclosure
was harmless. Rob erts , 325 F.3d at 782. The aggrie ved pa rt y, how ever, must show su bstantial prejudic e befor

e this court will grant a new trial based on an alleg ed Rul e 26( e) disclosure error. Toth , 306 F.3d at 344.

Inthis case , the fai lure to dis close se ems harml es s as the Defend ants were aware

of the da ta used in the supplemental rep or ts and the r

evised r eports reduced

the amount of wetlands found

to exis t at the sites. Thus, the only chang es made betwee

n the orig

inal discl osed report and the supplemental report w ere ben efi cia l t o t he D efe nda nt s. In
su mm ar y, no “substantial prejudice” has been demonstrated.

Ev en if a trial court determines that Rule 26 has been violated, Rule 3 7 doe s not mandate exclusion of evidence. Roberts , 325 F.3d a

t 783-84 (Rule 37(c)(1) “provides several remedies to a district judge who is faced with violations of the mandatory-disclosure

p ro visions of Rule 26. The provision on sanctions explicitly states in pertinent part that ‘in lieu of this sanction [of total ex clusion ], the court, on motion and after affording an opportunity

to be heard, may

impose other appropr iate san ctions.’ ”). The

district c ourt, af

ter noting its
concer n with the failu re to disc lose the s

upplemen tal report, concluded that

the de fense should be accommodated and [I ] will do s o inseveral way s, [at] the op tion totally of the defe nse. N umber one is that at the conclusion of th e 26 United Sta tes v. Rap anos, et al

. No. 03-1489

Government’s expert witness case, I would cer tainly give the defense

as m uch rea sonable t

ime as the

y ne ed 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
ona phone confe rence so that they can he ar all that testimony

. . . s o t ha t yo u ca n be prepared and also take
some time and

recess for as lo ng as y

ou need in

order to consult with your expert for cr

oss-exam inati on and if i

t entails t aking whatever time it takes reasonably to be prepared. But I think that we’ re here t o seek the truth,
an d that’s -- that’s the whole ide a of havi

ng a tri al is t o seek the truth. It’s not . . . to ambush an d eve rybody should be prepa red. . . . But I

have to , I think, listen to the testimony to see

what really tr

anspired here with the understandingthat

we’r e here to seek the truth and that Iwill give the defense as much opportunity as they

need since it ’s a benc

h trial an d we can take time , and it’ s important , butnot that important thatyou shouldn’t have
anoppo rt un it y t o be able to use y our rig ht to cros sexamine, to seek the truth.

The district c ourt prop erly considered the role of thetrial, the rightsof the parties, and the considerations of the Fed eral Rules of Civil Procedure in this side-bar.

The Federal Rules of

Civil Procedure are not s o monolithic
as to demand a single outcome for the widely va ryi ng circumst ance s encountered in discovery and trial. They properl y recognize the discretion of the trial court to fashion appropr iate remedies, taking into account the facts of the c ase. This case la

nguishe d for mor

e than fi ve y ears betw een the filing of the Complaint and the 13- day b enc h t ria l. It involved complicated factual and legal issues. It was within the distri ct court’s

discreti on to allow

the evide

nce and it signific antly

allayed a ny fear s of undue surpr ise by gr

anting the Defendants “as long as they neede d” to review Dr. Willard’s suppleme

ntal rep ort so tha t they

could disc

uss it with their experts.No. 03-1489 United Sta tes v. Rap anos, et al

. 27

Finally , Dr . Willard no tified the Defend ants duri ng his deposition a

few wee ks befor e trial that he wa s in

the proc ess of amen ding his findings based upon the Pierce report. The Defend ants apparently did not

object to this until Dr. Willard testified and they neve

r m ad e a motion

pursuant to Rule 37(a)(2)(A) to co mp el di sc ov er y. In Roberts , this court noted that such inaction by the “sur prised” party

suggests that the failure to disclose should be considered harmless or justified. Roberts , 325 F.3d at 783. Considering all of the

circumst ance s in this complicated case, the distri ct court’s failure to exclude Dr. Willard’s supplemental reports cannot be said to be an “abus e of discretion” and its solu

tion for the disc losur e problem was entirely appr

opriate.

III. The Michigan Wetlands Program
The CWA permit s sta tes to develop their own water protection

permit program to e nforc e the provisions of the CWA. 33 U.S.C. § 1344(g). This partial de le gation provis ion “ gives a state the authority to render a comprehensive federal/state wetland permit de cision wit

h the federal government play

ing the role of the overseer in the consideration

of permit

a pp lications.” Michigan Peat v. Unite d States Envtl. Prot. Agency , 175 F.3d 422, 424 ( 6th Cir.1999). Michigan, along with New Jersey, has e stablished such a permitting program. 40 C.F.R. §§ 233.70-233.71.

The Defend

ants clai m that Michigan’s permitting regulations contain slight

variations to the federal statutes. In particular, th ey cite Michi ga n’s Geomare-Anderson Wetlands ProtectionAct, wh ich has language defining wetlands that diffe rso mewhat from the Corps’ regulations. Mich. Comp. Law s § 324.30301(p). Those wetlands that are not contiguous to the Great Lakes, a n inland lake or pond, or a river or stream, and less than

five acres in size, are not

subject to Michiga

n’s Wetlan

ds Protection Act, u

nless it is certified that the area’s preservation is necessa ry to protect the natural 28 United Sta tes v. Rap anos, 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 Defe ndants argue th at it was
error for the district court not to m ake findings of fact regarding the Michigan statute’s five-acre limitation, instead focusing solely on the fe deral r

egulat ions.

While the CWA gr

ants state s the authority

to establi sh their
ownclean water regulations, Cong res s clea rly intended for any state program to be at least as bro ad a s the federal progra m. See 33 U.S.C. § 1344(h)(1)(A)-(B). TheGeomareAnderson Wetlands Protection Act is a state statute se parate fromthe CWA. The CWA’s provision for state involvement inis suing CW

A permits does not delegate authority to the stat e to al ter application of the CWA and the Corps specific ally

notes th at “[ a]ny

approve d State Pro gram shall, at all times, be condu

cted in a ccorda nce with t he requi rements of the Act and of

thi s part. While States may impose more stringent requirements, they

may not impose an

y le ss strin gent requirements for any

purpose.” 40 C.F.R

. § 233.1(d) . Moreove

r, contr ary to the App ellant’s

assertions, permitting a state to issue CWA permits does notforecl ose all federal issu ance of CWA permits. See Michigan Peat , 175 F.3d at 427 (a case in which the Corps had ultimate a

uthority to issue permit when state permit did not address the concerns of the federal gover

nme nt); 33 U.S.C. § 1344(g)(1) (Corps still issues permits for waters used in interstate c omm erce, including adjacent wetlands).

The C WA explicitly provides that, notwithstanding the delegation

of author ity to the states, nothing in Section 1344 is meant torestrict the Corps ’ author ity t o enforce the CWA. 33 U.S.C. § 1344(n). This court has recognized that Section 1344(n) allows the f

ede ral government to pursue an action agains tano ffender regardle ss of whether the state has institutedits own enforcement program, noting that u nder “the CWA . . . the r

esp onsibl e federal agenc y retains oversight power to ensure compliance with federa l standards.” S. Ohio Coal Co. v. Office of Surface Mining,No. 03-1489 United Sta tes v. Rap anos, et al

. 29

Reclama t ion and Enforcement , 20 F.3d 1 418, 1427- 28 (6th Cir. 1994); see also United States v. City of Rock Island , 182 F. Supp. 2d 690 , 693-94 ( C. D. Il l . 2001); United States v. Town of Lowell , 637 F. Supp. 254, 257 (N.D. Ind. 1985). The CWA does not c ontain an

y la nguag e sugg esting t

hat state implementation of the CWA is “in lieu of” federal enforcement

and thus any deleg ation of

authority to the stat

e inthe CW A does not end a citizen’s responsibility to abide by the federal laws and regula tions. Cf. United States v. City of Youngstown , 109 F. Supp. 2d 739, 741 (N.D. Ohio 2000).

Inshort, there is no th ing 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 onCWA

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 ac t. In fact, the statute and the a ccompanying regulati ons make it cl ear tha t state enforcement prog rams cannot act to weaken the CWA.

Fi na ll y, it should be n oted tha t the Corps retains the ultimate authority

to deny a CWA perm

it, even i f Michig a n is inclined to grant one under its del egat io n o f a ut ho ri ty. Michigan’s Administra tion of Section 404 at 2 (available at http://www .deq.sta

te.mi.us/d ocuments /deq-lw m-wetlands-4 04admi n. 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 t he sole authority to authorize the issuance of a permit). In cer

tifying Michigan’s 404 permitting scheme, Michigan’s Attorney General wrote that [t]he Wate r Resources Commission Act governing disch arge of pollutants into water of this state includes within its ambit a

ll waters of the State of Michigan. It is, of course, clear that the

. . . Wetlands Act exclude from their pur view ce rtain lakes having an area of less than 5
acres. Even this problem is, in fact , of no practical 30 United Sta tes v. Rap anos, et al

. No. 03-1489

matter for a num

b er of reas ons. Firs t, it is quite conceiv able that

a lake under 5 acres would have an affect on inters tate commerce so as to imbue it wit

h the distinction of

being “water of the

United States” and thus subject to the fede ral per mit prog ram. Thus, Michigan’s permitting progra m properly re cogni z ed that a site not falling within the ambit of Michigan’ s s tate program c ould still be within the jurisdiction of the federal progra m.
IV. Collateral Estoppel
The district court found that Mr. R apano s should be collater ally estopp ed fr om denying liability at the Salzburg site base d on the ou

tcome in the criminal case. Both parties note the conf

usion fro m r ely

ing upon collater al estopp el in this ca se bec ause (1) the “Salzburg site” refer enced in the criminal trial is notcomplete ly a nalogo us to the Sa

lzburg si te inthis caseand (2 ) when t he dis trict court entere d its findi ngs of fact in 2 000, Rapa

nos had been convicted in his trial and senten ced, bu t his appeal was pending, y et when the district court entered its final judgment in Febr uary 20 03, Rapan

os’ convictionhad been vac a ted by the criminal trial c ourt and the United States’ appeal to this court was pending. The United States notes the difficulty inhere nt in r elying upon colla teral estop pel wh en an ap peal i s pend ing. Regar dless, the distri ct court ’s concl usio n r egarding collateral estoppel was no t nece ssary for its finding that the Defend ants were responsible for CW A violations at the Salzburg site. As discussed supra , the distri c t court concluded

that the D efenda

nts had dis charg ed fill into th e Salzburg site and

that the Salzburg site was subject to CWA jurisdiction. A judge

may rely upon multip le alternative, but independent

rationa les f

or his decision. See Nat’l Satellite Sports, Inc. v. Eliadis, Inc. , 253 F.3d 900, 909-10 (6th Cir. 2001) (disc uss ing the effects on collateral estoppel whe n a decisionis based upon two alternative, but independentNo. 03-1489 United Sta tes v. Rap anos, et al

. 31

ration ales). In thi s case, i t is unnec essary

to deter min e whet her collateral estoppel was appropriate beca use th e district c ourt prov

ided alte rnate r ationale s for its f

indings.

V. The Extent

of Unauthori

zed Fill ing

Fi na ll y, the Defendants contend tha t substantial evidence did not supp or t the district court’s finding that 54 acres of wetlands we re il le ga ll y fi lled. 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 (cover

ing 54 a cres) and not the result of incidental fallback after examining the eviden ce and h earing

th e relev ant te st im on y. This conclusion is supported by the evidence and is not clea

rly errone ous.
CONCLUSION

We AFFIRM

the judg ment of the

district c ourt.