*

This decision was originally issued as an “unpublished decision” filed on September 27, 2004. On November 15, 2004, the

court designated the opinion as one recommended for full-text publication.

**The Honorable William Stafford, United States District Judge for the Northern District of Florida, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 04a0417p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JUNE CARABELL; KEITH CARABELL; HARVEY

GORDENKER; FRANCES GORDENKER,

Plaintiffs-Appellants,

v.

UNITED STATES ARMY CORPS OF ENGINEERS; UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY,

Defendants-Appellees.

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No. 03-1700

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 01-72797—Paul D. Borman, District Judge.

Argued: August 11, 2004

Decided and Filed: September 27, 2004*

Before: BATCHELDER and GIBBONS, Circuit Judges; STAFFORD, District Judge.**

_________________

COUNSEL

ARGUED: Paul R. Bernard, DICKINSON, WRIGHT, PLLC, Detroit, Michigan, for Appellants. Todd

S. Kim, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF:

Paul R. Bernard, Timothy A. Stoepker, DICKINSON, WRIGHT, PLLC, Detroit, Michigan, for Appellants.

Todd S. Kim, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. M.

Reed Hopper, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Amicus Curiae.

_________________

OPINION _________________

 STAFFORD, District Judge. Plaintiffs appeal the summary judgment for the defendants in this

action to review final agency action under the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387. We

affirm.

1
No. 03-1700 Carabell, et al. v. United States Army Corps of Engineers, et al. Page 2

I. 

Plaintiffs, June Carabell, Keith Carabell, Harvey Gordenker, and Frances Gordenker (collectively,

“Carabells”), own 19.61 acres of property in Chesterfield Township, Macomb County, Michigan. In

prehistoric times, this property was submerged under Lake St. Clair. As the lake receded over time, some

areas of the Carabells’ property remained covered by wetlands. Today, the property--located approximately

one mile northwest of Lake St. Clair--encompasses 15.96 acres of wooded wetlands, constituting one of the

last remaining large forested wetland parcels in Macomb County. 

The Carabells want to construct a large multi-family condominium development on their property.

The property is shaped like an inverted right triangle, the hypotenuse of which runs from the southwestern

corner of the parcel at a 45 degree angle to the northeast corner. Following the hypotenuse and separating

the Carabells’ property from the adjacent property is an unnamed ditch. When the ditch was excavated, the

spoils were cast to either side of the ditch, creating upland berms approximately four feet wide along the

banks of the ditch. The berm edging the Carabells’ property serves to block immediate drainage of surface

water out of the parcel into the ditch. Wooded conditions exist up to the upland rim of the ditch. At the

northeastern corner of the property, the ditch connects to the Sutherland-Oemig Drain, which empties into

the Auvase Creek, which empties into Lake St. Clair, which is part of the Great Lakes drainage system.

Although the record does not establish the direction of water flow in the ditch, the ditch empties either into

the Sutherland-Oemig Drain at the northeastern corner of the property, or into ditches at the southwestern

corner of the property that--like the Sutherland-Oemig Drain--outlet into Auvase Creek and eventually into

Lake St. Clair. 

In 1993, the Carabells applied to the Michigan Department of Environmental Quality (“MDEQ”)

for a permit to fill 15.9 acres of the forested area of their property for construction of a 130-unit

condominium complex. The MDEQ initially denied their application after the United States Environmental

Protection Agency (“EPA”) and the United States Fish and Wildlife Service filed comments opposing the

application. The denial was based on findings that “the proposed activity would have a significant adverse

impact on the natural resources, public interest and public trust held in the subject wetlands.” J.A. at 667.

On appeal, a state administrative law judge (“ALJ”) ordered the MDEQ to issue the Carabells a state permit

for a 112-unit alternative condominium development with on-site wetland enhancement. Consistent with

the ALJ’s order, a permit was issued in November of 1998 over the EPA’s objections. The permit

specifically stated that “[a]uthority granted by this permit does not waive any jurisdiction of the U.S. Army

Corps of Engineers or the need for a federal permit.” J.A. at 49. 

Soon after the permit was issued, the EPA notified the MDEQ that the state-issued permit did not

constitute authority under the CWA for the permitted activities. The EPA asserted its federal jurisdiction

over the Carrabells’ project under the CWA, and it advised the MDEQ that the United States Army Corps

of Engineers (“Corps”) had the authority under the CWA to process a federal permit application by the

Carrabells. Although the Carrabells contested federal jurisdiction over their project, they nonetheless

applied to the Corps for a permit to place 57,437 cubic yards of fill on the wetland. The application

indicated that they would disrupt 15.87 acres of wetland but would dredge and replant 3.74 acres of wetland.

On September 11, 2000, after three site inspections, the Corps issued its permit evaluation, stating

that the operation and use of the proposed activity would have major, long term, negative impacts on water

quality, on terrestrial wildlife, on the wetlands, on conservation, and on the overall ecology of the area. The

Corps also stated that issuance of the permit would have minor negative impacts on downstream erosion

and sedimentation, on flood hazards and floodplain values, and on aquatic wildlife. By letter dated October

5, 2000, the Corps notified the Carabells that their application for a permit had been denied. In its letter,

the Corps stated:

Your parcel is primarily a forested wetland that provides valuable seasonal

habitat for aquatic organisms and year round habitat for terrestrial organisms.
No. 03-1700 Carabell, et al. v. United States Army Corps of Engineers, et al. Page 3

Additionally, the site provides water storage functions that, if destroyed,

could result in an increased risk of erosion and degradation of water quality

in the Sutherland-Oemig Drain, Auvase Creek, and Lake St. Clair. The

minimization of impacts to these wetlands is important for conservation and

the overall ecology of the region. Because the project development area is

a forested wetland, the proposed project would destroy the resources in such

a manner that they would not soon recover from impacts of the discharges.

The extent of impacts in the project area when considered both individually

and cumulatively would be unacceptable and contrary to the public interest.

J.A. at 519. The Corps further explained that the denial was also based on the Carabells’ failure to

overcome the presumption that there were less damaging practicable alternatives available. 

The Carabells filed an administrative appeal of the Corps’ decision denying their permit application.

The Carabells argued (1) that the Corps lacked regulatory jurisdiction over the property because the

wetlands were purportedly isolated from all outside waters by a spoil berm; (2) that the MDEQ’s permit

issuance decision barred the Corps from denying the Carabells a permit; and (3) that the Corps should have

issued the Carabells a permit because their proposed activities met all statutory and regulatory requirements.

After a site visit by the appeal review officer and an appeal conference, the Carabells were notified that all

of their grounds for appeal lacked merit and that their appeal had been denied. 

On July 26, 2001, the Carabells filed this action in federal district court. The case was referred to

a magistrate judge, who held a hearing on the parties’ cross-motions for summary judgment. The magistrate

judge recommended that the Carabells’ motion for summary judgment be denied and that the defendants’

motion for summary judgment be granted. Among other things, the magistrate judge concluded that

“because Plaintiffs’ property is adjacent to neighboring tributaries of navigable waters and has a significant

nexus to ‘waters of the United States,’ it is in fact not isolated, and is subject to the jurisdiction of the

CWA.” J.A. at 849. The magistrate judge also found that the denial of the Carabells’ permit application

was rational based on the Corps’ conclusions regarding the likely effects of the Carabells’ proposed project

and on the Carabells’ failure to demonstrate the absence of less damaging practicable alternatives. 

After the Carabells filed objections to the magistrate judge’s report and recommendation, the district

court entered an order and judgment accepting the magistrate judge’s recommendations and entering the

report and recommendations as the court’s own findings and conclusions. This timely appeal ensued.

II.

We review the district court's summary judgment order de novo. Sierra Club v. Slater, 120 F.3d 623,

632 (6th Cir. 1997). Where, as here, the district court’s order is based on its review of an administrative

agency's final decision, our review is governed by the Administrative Procedure Act (“APA”). Id. The

APA provides that a court shall set aside an agency’s decision only if it is “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard of review is

highly deferential, and the court is “not empowered to substitute its judgment for that of the agency.”

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). An agency’s factual findings are

conclusive if supported by substantial evidence, and an agency's interpretation of its own regulations is

entitled to substantial deference and will be upheld unless plainly erroneous or inconsistent with the

regulatory text. 5 U.S.C. § 706(2)(E); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945);

United States v. Cinemark USA, Inc., 348 F.3d 569, 578 (6th Cir.2003).
No. 03-1700 Carabell, et al. v. United States Army Corps of Engineers, et al. Page 4

III.

On appeal, the Carabells maintain that the district court erred when it (1) held that the Corps had

CWA jurisdiction over the Carabells’ property; and (2) affirmed the Corps’ decision to deny the Carabells’

permit application. 

A.

The CWA requires landowners to obtain permits from the Corps before they discharge fill material

into “navigable waters.” 33 U.S.C. § 1344(a). Congress has defined “navigable waters” as “waters of the

United States, including the territorial seas.” 33 U.S.C. § 1362(7). The EPA and the Corps have defined

“waters of the United States” to include:

(1) All waters which are currently used, or were used in the past, or may be

susceptible to use in interstate or foreign commerce, including all waters

which are subject to the ebb and flow of the tide;

(2) All interstate waters including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers, streams (including

intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes,

wet meadows, playa lakes, or natural ponds, the use, degradation or

destruction of which could affect interstate or foreign commerce....

(4) All impoundments of waters otherwise defined as waters of the United

States under the definition;

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

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than waters that are themselves

wetlands) identified in paragraphs (a)(1)-(6) of this section.

33 C.F.R. § 328.3(a) (Corps) (emphasis added); see also 40 C.F.R. § 122.2 (EPA). The Corps defines

“adjacent” to mean “bordering, contiguous, or neighboring.” 33 C.F.R. § 328.3(c). “Adjacent wetlands”

include “wetlands separated from other waters of the United States by man-made dikes or barriers, natural

river berms, beach dunes and the like.” Id. 

In this case, the district court determined that the Carabells’ property contains wetlands adjacent to

neighboring tributaries of navigable waters of the United States. Specifically, the magistrate judge, whose

report was accepted by the district court, found that:

Plaintiffs’ property in this case is not isolated. It is undisputed that the

property is adjacent to an unnamed ditch, and that the ditch connects to the

Sutherland-Oemig Drain. The Drain, which neighbors a corner of the

property, connects to Lake St. Clair.

J.A. at 847. Having concluded that the Carabells’ property is not isolated from waters of the United States

but instead constitutes “adjacent wetlands” within the meaning of the CWA, the district court decided that

jurisdiction under the CWA existed. We agree with that decision.

The record here establishes that the unnamed ditch running along the hypotenuse of the Carabells’

triangle-shaped property is separated from wetlands only by a man-made berm or barrier. At its
No. 03-1700 Carabell, et al. v. United States Army Corps of Engineers, et al. Page 5

northeastern end, the ditch is connected to the Sutherland-Oemig Drain, a drain that empties into the Auvase

Creek, which, in turn, empties into Lake St. Clair, which connects to Lake Huron and Lake Erie. At its

southwestern end, the ditch is connected to other ditches, which--like the Sutherland-Oemig Drain--outlet

into the Auvase Creek and eventually into Lake St. Clair. The ditch, then, is connected on either end to

tributaries of “waters of the United States” as defined in the regulations. Whether water in the ditch flows

northeasterly or southwesterly, the ditch is necessarily a tributary of “waters identified in paragraphs (a)(1)-

(6) of...section [328.3(a)].” Because the wetlands on the Carabells’ property are separated from a tributary

of “waters of the United States” only by a man-made berm or barrier, they are considered “adjacent

wetlands” under § 328.3(a)(7). As such, the wetlands at issue in this case fall within the jurisdiction of the

Corps for purposes of the CWA.

The Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. United States

Army Corps of Engineers, 531 U.S. 159 (2001) ("SWANCC "), does not persuade us otherwise. Before

SWANCC, the Corps had defined its jurisdiction under the CWA as extending to intrastate waters that

provide habitat for migratory birds. In rejecting the Corps’ “Migratory Bird Rule,” the SWANCC Court

made clear that isolated intrastate waters cannot be subject to the Corps' jurisdiction under the CWA. Id.

at 166.

A minority of courts have read SWANCC broadly to limit the Corps’ jurisdiction under the CWA

to navigable waters and non-navigable waters that directly abut navigable waters. See, e.g., In re Needham, 354 F.3d 340, 345-46 (5th Cir. 2003). Conversely, a majority of courts, including this court, have narrowly

interpreted SWANCC as holding only that the CWA does not reach isolated waters--in SWANCC, an

abandoned, isolated gravel pit--having no connection with navigable waters. See, e.g., United States v.

Rapanos, 339 F.3d 447, 452-53 (6th Cir. 2003) (adopting a limited reading of SWANCC and concluding that

the CWA reached a roadside ditch and its adjacent wetlands), cert. denied, 124 S. Ct. 1875 (2004); United

States v. Deaton, 332 F.3d 698, 702 (4th Cir. 2003) (same).

In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 135 (1985), the Supreme Court

upheld the Corps’ “adjacent wetlands” jurisdiction. Noting that Congress chose to define the waters covered

by the CWA broadly, the Court wrote:

Of course, it may well be that not every adjacent wetland is of great

importance to the environment of adjoining bodies of water. But the

existence of such cases does not seriously undermine the Corps' decision to

define all adjacent wetlands as "waters." If it is reasonable for the Corps to

conclude that in the majority of cases, adjacent wetlands have significant

effects on water quality and the aquatic ecosystem, its definition can stand.

That the definition may include some wetlands that are not significantly

intertwined with the ecosystem of adjacent waterways is of little moment, for

where it appears that a wetland covered by the Corps' definition is in fact

lacking in importance to the aquatic environment--or where its importance

is outweighed by other values--the Corps may always allow development of

the wetland for other uses simply by issuing a permit.

Id. at 135 n.9. In SWANCC, moreover, the Court did not alter the Riverside-Bayview holding. Indeed, while

noting Congress's “unequivocal acquiescence to, and approval of, the Corps' regulations interpreting the

CWA to cover wetlands adjacent to navigable waters,” SWANCC, 531 U.S. at 167, the SWANCC Court did

not decide any issue with regard to “adjacent wetlands” under 33 C.F.R. § 328.3(a)(7). The SWANCC Court

instead addressed the application of the Corps’ Migratory Bird Rule to isolated ponds defined as “waters

of the United States” under § 328.3(a)(3). 531 U.S. at 174. 

Since SWANCC, this court has noted:
No. 03-1700 Carabell, et al. v. United States Army Corps of Engineers, et al. Page 6

 In Riverside Bayview the Supreme Court concluded that the Corps

regulation extending jurisdiction to adjacent wetlands was a reasonable

interpretation in part because of what [Solid Waste] 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 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); see also United States v. Rapanos, 376 F.3d

629, 639 (6th Cir. 2004) (explaining that CWA jurisdiction over “adjacent wetlands” requires a significant

nexus between the wetlands and navigable waters, “which can be satisfied by the presence of a hydrological

connection”). Consistent with both Rapanos cases, the district court in this case determined that there is

a “significant nexus” between the wetlands on the Carabells’ property and the adjacent nonnavigable ditch

abutting their property, a ditch that flows one way or another into other tributaries of navigable waters of

the United States. We find no error in the district court’s decision. 

B.

The Carabells contend that, even if CWA jurisdiction exists over their property, the district court

nonetheless erred by failing to overrule the Corps’ decision on the merits of their permit application. Based

on its review of the relevant regulations and the Corps’ evaluation of the Carabells’ permit application, the

district court concluded that the Corps provided a rational basis for its decision. Because we agree that the

Corps’ decision was neither arbitrary nor capricious, we find no basis for disturbing the district court’s

determination.

IV. 

For the foregoing reasons, we AFFIRM the district court’s decision granting summary judgment to

the defendants.