United States of America v. James S. Deaton; Rebecca Deaton

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JAMES S. DEATON; REBECCA DEATON,
Defendants-Appellees.
No. 98-2256
ENVIRONMENTAL DEFENSE FUND,
INCORPORATED; AMERICAN FARM
BUREAU FEDERATION; PACIFIC LEGAL
FOUNDATION; THE CHESAPEAKE BAY
FOUNDATION, INCORPORATED,
Amici Curiae.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES S. DEATON; REBECCA DEATON,
Defendants-Appellants.
No. 98-2370
ENVIRONMENTAL DEFENSE FUND,
INCORPORATED; AMERICAN FARM
BUREAU FEDERATION; PACIFIC LEGAL
FOUNDATION; THE CHESAPEAKE BAY
FOUNDATION, INCORPORATED,
Amici Curiae.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-95-2140-MJG)

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Argued: October 28, 1999
Decided: April 7, 2000
Before WILKINSON, Chief Judge, and LUTTIG
and MICHAEL, Circuit Judges.
_________________________________________________________________
Reversed in part, dismissed in part, and remanded by published opin-
ion. Judge Michael wrote the opinion, in which Chief Judge Wilkin-
son and Judge Luttig concurred.
_________________________________________________________________
COUNSEL
ARGUED: Ethan Gregory Shenkman, Environment & Natural
Resources Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellant. Raymond Stevens Smethurst,
Jr., ADKINS, POTTS & SMETHURST, L.L.P., Salisbury, Maryland,
for Appellees. ON BRIEF: Lois J. Schiffer, Assistant Attorney Gen-
eral, Lynne A. Battaglia, United States Attorney, James C. Howard,
Assistant United States Attorney, David C. Shilton, Environment &
Natural Resources Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant. Duane J. Desiderio,
NATIONAL ASSOCIATION OF HOMEBUILDERS, Washington,
D.C.; Virginia S. Albrecht, HUNTON & WILLIAMS, Washington,
D.C., for Appellees. Timothy D. Searchinger, ENVIRONMENTAL
DEFENSE FUND, Washington, D.C., for Amicus Curiae Environ-
mental Defense Fund. John J. Rademacher, General Counsel, AMER-
ICAN FARM BUREAU FEDERATION, Park Ridge, Illinois;
Timothy S. Bishop, Jeffrey W. Sarles, MAYER, BROWN & PLATT,
Chicago, Illinois, for Amicus Curiae Farm Bureau. Robin L. Rivett,
Anne M. Hayes, PACIFIC LEGAL FOUNDATION, Sacramento,
California, for Amicus Curiae Pacific Legal Foundation. Roy A.
Hoagland, Virginia Staff Attorney, THE CHESAPEAKE BAY
FOUNDATION, INC., Richmond, Virginia, for Amicus Curiae Ches-
apeake Bay Foundation.
_________________________________________________________________
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OPINION
MICHAEL, Circuit Judge:
The United States sued James and Rebecca Deaton, alleging that
they violated §§ 301 and 404 of the Clean Water Act, 33 U.S.C.
§§ 1311, 1344, by sidecasting dredged material as they dug a drainage
ditch through a wetland. The district court ultimately awarded sum-
mary judgment to the Deatons, and the government appeals. We
reverse, holding that sidecasting in a jurisdictional wetland is the dis-
charge of a pollutant under the Clean Water Act. We dismiss the Dea-
tons' cross-appeal for lack of appellate jurisdiction.
I.
On November 22, 1988, James Deaton signed a contract to buy a
twelve-acre parcel of land in Wicomico County, Maryland, subject to
the condition that it was suitable for developing a small residential
subdivision. Deaton immediately applied to the Wicomico County
Health Department for a sewage disposal permit for a five-lot "single
family subdivision." The Health Department denied the permit on
April 26, 1989, because the groundwater elevations were unaccept-
ably high at the disposal sites proposed by Deaton and his consultant.
The department commented that "[t]he majority of the parcel . . . is
very poorly drained and would severely restrict the function of the on-
site sewage disposal systems." There was a "very limited area" that
might warrant evaluation, the department said, if it proved to be
within the property boundary. In late April 1989, after the permit was
denied, Deaton contacted the U.S. Department of Agriculture, Soil
Conservation Service (SCS), to discuss the wetness problem on the
twelve-acre parcel. Deaton was referred to Glen Richardson, who
agreed to examine the site. According to Deaton, Richardson sug-
gested that the problem could be corrected by digging a ditch through
the middle of the property. Deaton and his wife (Rebecca) decided to
go ahead with the purchase of the land, and title was transferred to
them in June 1989.
Before any ditching work began, the property was also inspected
by Michael Sigrist, District Conservationist at the SCS in Wicomico
County. Deaton and Sigrist walked over the property together, and
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Deaton told Sigrist that he wanted to dig a large ditch to drain the
area. Sigrist saw hydric soils (which are typical of wetland areas),
areas of standing water, "a large, low wet area" in the center of the
parcel, and non-tidal wetlands. Water was flowing from the property
into a culvert that connects to (or is part of) Perdue Creek. (The
waters of Perdue Creek end up in the Wicomico River, a tributary of
the Chesapeake Bay.) Sigrist advised Deaton that a large portion of
his property contained non-tidal wetlands and that he would need a
permit from the U.S. Army Corps of Engineers (the Corps) before
undertaking any ditching work. Deaton ignored Sigrist's advice and
hired a contractor to dig a drainage ditch across the property. Using
a back hoe, a front-end track loader, and a bulldozer, the contractor
dug a 1,240 foot ditch that intersected the areas that Sigrist had identi-
fied as wetlands. As he dug, the contractor piled the excavated dirt on
either side of the ditch, a practice known as sidecasting.
In July 1990 the Corps learned of possible Clean Water Act viola-
tions on the Deaton property. A Corps ecologist, Alex Dolgos,
inspected the site and concluded that it contained wetlands, that those
wetlands were "waters of the United States" under the Clean Water
Act, and that the ditching and fill work that had taken place required
a permit. On August 7 and 8, 1990, the Corps issued stop-work orders
to Deaton and his contractor, warning them that their placement of fill
material in a non-tidal wetland violated § 404 of the Clean Water Act,
33 U.S.C. § 1344, and that no further work should be done without
a permit. Deaton filed a joint state and federal application in Decem-
ber 1990, seeking permits to ditch and fill wetlands in order to con-
struct an eighteen-lot subdivision. That application was returned as
incomplete on February 15, 1991, and was never resubmitted. Over
the next three years Deaton engaged several consultants to inspect the
property, negotiate with the Corps, and prepare a remediation plan.
No remediation ever took place, however, and on July 21, 1995, the
government filed a civil complaint alleging that the Deatons had vio-
lated the Clean Water Act by discharging fill material (the dirt exca-
vated from the ditch) into a regulated wetland.
The government moved for partial summary judgment, seeking rul-
ings that jurisdictional wetlands (waters of the United States) existed
on the property, that the Deatons had violated the Clean Water Act
by filling those wetlands, and that the Deatons were therefore liable
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for the restoration of the property and subject to civil penalties. The
Deatons cross-moved for summary judgment, asserting that the por-
tions of the property affected by the fill material were not wetlands
under the Corps' regulations, that the property was not a wetland
adjacent to waters of the United States (and thus was not subject to
the Clean Water Act), see 33 C.F.R. § 328.3, and that sidecasting dirt
excavated from a ditch in a wetland did not require a permit under the
Act. On September 22, 1997, the district court granted partial sum-
mary judgment to the government, holding that any wetlands on the
property were subject to the Clean Water Act and that sidecasting
excavated material into those wetlands was the discharge of a pollu-
tant under the Act. The Deatons' motion for summary judgment was
denied. According to the district court, further proceedings would be
necessary to determine the size and location of any wetlands on the
Deaton property.
On December 23, 1997, this court decided United States v. Wilson,
133 F.3d 251 (4th Cir. 1997). One issue in that case was whether side-
casting in a wetland without a permit violated the Clean Water Act.
The panel split three ways, with one judge concluding that sidecasting
did not constitute the discharge of a pollutant under the Act, one
judge concluding that it did, and one judge concurring in the judg-
ment without reaching the sidecasting question. After Wilson was
decided, the district court reconsidered its award of partial summary
judgment to the government. In a subsequent order (entered June 23,
1998) the district court noted that although it agreed with the judge
in Wilson who said that unauthorized sidecasting in a wetland is
against the law, see Wilson, 133 F.3d at 266-75 (op. of Payne, J.), it
predicted that this court would adopt the reasoning of the judge who
concluded that sidecasting is not the discharge of a pollutant, see Wil-
son, 133 F.3d at 258-60 (op. of Niemeyer, J.). On that analysis the
district court vacated its prior determination that sidecasting is the dis-
charge of a pollutant under the Act; it then granted summary judg-
ment for the Deatons.
The government now appeals the judgment awarded to the Dea-
tons, and the Deatons cross-appeal the district court's (earlier) Sep-
tember 22, 1997, rulings (1) that the Corps properly applied its
criteria for determining the presence of wetlands on the Deaton prop-
erty and (2) that any wetlands on the property are subject to the Clean
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Water Act. For the reasons discussed below, we hold that sidecasting
is the discharge of a pollutant that violates the Act. Our disposition
of the sidecasting issue requires a remand and restores the case to its
status as of the September 22, 1997, order. Because the September 22,
1997, order is nonfinal and nonappealable, we lack jurisdiction to
consider the issues raised by the Deatons in their cross-appeal.
II.
The Clean Water Act prohibits the discharge, without a permit, of
any pollutant into "navigable waters." See 33 U.S.C. §§ 1311(a),
1362(6), (7), (12). The Act defines "navigable waters" as "the waters
of the United States, including the territorial seas." Id. § 1362(7).
Consistent with the intent of Congress, the Corps has construed "wa-
ters of the United States" to include the territorial seas, interstate
waters, waters used or susceptible to use in interstate commerce, trib-
utaries of any of these waters, and wetlands adjacent to all of these
waters. See 33 C.F.R. § 328.3(a); United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121, 132-35 (1985).1 The Corps argues and we
assume for purposes of this appeal that the Deatons' property contains
wetlands that are subject to the Clean Water Act. The narrow issue
before us today is whether sidecasting (that is, the deposit of dredged
or excavated material from a wetland back into that same wetland)
constitutes the discharge of a pollutant under the Clean Water Act.
We hold that it does.
The Clean Water Act defines "discharge of a pollutant" to mean
"any addition of any pollutant to navigable waters from any point
source." 33 U.S.C. § 1362(12)(A). The definition of pollutant, in turn,
specifically includes "dredged spoil" that has been "discharged into
water." Id. § 1362(6).2 The piles of dirt dredged up by the Deatons'
_________________________________________________________________
1 The Corps has also construed the term "waters of the United States"
to apply to "all other waters . . . the use or degradation of which could
affect interstate or foreign commerce." 33 C.F.R.§ 328.2(a)(3). In Wil-
son this court held that the "could affect" language swept too broadly and
exceeded the scope of the Corps' authority under the statute. See Wilson,
133 F.3d at 257.
2 Pollutant is defined as "dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded equipment,
rock, sand, cellar dirt, and industrial, municipal, and agricultural waste
discharged into water." 33 U.S.C. § 1362(6).
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contractor were, without question, "pollutants" within the meaning of
the Act. See Wilson, 133 F.3d at 259 (op. of Niemeyer, J.)
("[D]redged materials, including the native soils excavated by ditch-
ing activities, may constitute a pollutant within the meaning of the
Clean Water Act."); id. at 269, 274 & n.12 (op. of Payne, J.) (dredged
earth is a pollutant). This conclusion, instead of resolving the dispute,
merely brings us to its center because the parties disagree fundamen-
tally about what it means to "discharge . . . a pollutant" into the waters
of the United States.
The Deatons seize on the word "addition" in the phrase "addition
of any pollutant" in the statutory definition of discharge. 18 U.S.C.
§ 1362(12). They argue that the "ordinary and natural meaning of
`addition' means something added, i.e., the addition of something not
previously present." Deaton Reply Br. at 18-19. Thus, according to
the Deatons, no pollutant is discharged unless there is an "introduc-
tion of new material into the area, or an increase in the amount of a
type of material which is already present." Wilson, 133 F.3d at 259
(op. of Niemeyer, J.). Because sidecasting results in no net increase
in the amount of material present in the wetland, the Deatons argue,
it does not involve the "addition" (or discharge) of a pollutant. See
National Mining Ass'n v. U.S. Army Corps of Engineers, 145 F.3d
1399, 1404 (D.C. Cir. 1998) ("[W]e fail to see how there can be an
addition of dredged material when there is no addition of material.").
We are not convinced by this argument.
Contrary to what the Deatons suggest, the statute does not prohibit
the addition of material; it prohibits "the addition of any pollutant."
The idea that there could be an addition of a pollutant without an
addition of material seems to us entirely unremarkable, at least when
an activity transforms some material from a nonpollutant into a pollu-
tant, as occurred here. In the course of digging a ditch across the Dea-
ton property, the contractor removed earth and vegetable matter from
the wetland. Once it was removed, that material became "dredged
spoil," a statutory pollutant and a type of material that up until then
was not present on the Deaton property. It is of no consequence that
what is now dredged spoil was previously present on the same prop-
erty in the less threatening form of dirt and vegetation in an undis-
turbed state. What is important is that once that material was
excavated from the wetland, its redeposit in that same wetland added
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a pollutant where none had been before. See 33 U.S.C. § 1362 (6),
(12). Thus, even under the definition of "addition" (that is, "some-
thing added") offered by the Deatons, sidecasting adds a pollutant that
was not present before.
Although we conclude that the Clean Water Act's definition of dis-
charge and its use of the term "addition" are unambiguous, the under-
lying rationale for defining dredged spoil as a pollutant provides
further support for our conclusion. In deciding to classify dredged
spoil as a pollutant, Congress determined that plain dirt, once exca-
vated from waters of the United States, could not be redeposited into
those waters without causing harm to the environment. Indeed, sev-
eral seemingly benign substances like rock, sand, cellar dirt, and bio-
logical materials are specifically designated as pollutants under the
Clean Water Act. See 33 U.S.C. § 1362(6). Congress had good reason
to be concerned about the reintroduction of these materials into the
waters of the United States, including the wetlands that are a part of
those waters.
Wetlands perform a vital role in maintaining water quality by trap-
ping sediment and toxic and nontoxic pollutants before they reach
streams, rivers, or other open bodies of water. See Office of Technol-
ogy Assessment, U.S. Congress, Wetlands: Their Use and Regulation
48-50 (1984). Given sufficient time, many (but not all) of these pollu-
tants will decompose, degrade, or be absorbed by wetland vegetation.
See id. at 48-49. When a wetland is dredged, however, and the
dredged spoil is redeposited in the water or wetland, pollutants that
had been trapped may be suddenly released. See id. at 49 ("Natural
or manmade alterations of the wetland caused by lowering the water
table, dredging, and the like, could mobilize large quantities of toxic
materials."); id. at 124 ("A long-term effect of the disposal of contam-
inated dredged spoil in or near wetlands is the potential bio-
availability of toxic chemicals such as oil and grease, pesticides, arse-
nic, and heavy metals, when the sediments are resuspended periodi-
cally."); Wilson, 133 F.3d at 273-74 (op. of Payne, J.) (describing how
sidecasting dredged material threatens to release pollutants contained
in sub-surface soil). At the same time, the increased drainage brought
about by the dredging may render the surrounding wetland unable to
reabsorb and filter those pollutants and sediment (the very purpose of
dredging is to destroy wetland characteristics). See 40 C.F.R.
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§ 230.41(b) (explaining how discharge of dredged or fill material in
wetlands "can degrade water quality by obstructing circulation pat-
terns that flush large expanses of wetland systems, by interfering with
the filtration function of wetlands, or by changing the aquifer
recharge capability of a wetland"). Even in a pristine wetland or body
of water, the discharge of dredged spoil, rock, sand, and biological
materials threatens to increase the amount of suspended sediment,
harming aquatic life. See id.; Office of Technology Assessment,
supra, at 48; see also Wilson, 133 F.3d at 274 (op. of Payne, J.).
These effects are no less harmful when the dredged spoil is redepo-
sited in the same wetland from which it was excavated. The effects
on hydrology and the environment are the same. Surely Congress
would not have used the word "addition" (in"addition of any pollu-
tant") to prohibit the discharge of dredged spoil in a wetland, while
intending to prohibit such pollution only when the dredged material
comes from outside the wetland. In reaching this conclusion, our
understanding of the word "addition" is the same as that of nearly
every other circuit to consider the question. See Avoyelles Sports-
men's League, Inc. v. Marsh, 715 F.2d 897, 923-25 (5th Cir. 1983)
(interpretation of "addition" to include "redeposit" of trees and vege-
tation dredged or excavated from the wetland itself is consistent with
both the purposes and legislative history of the Clean Water Act);
United States v. M.C.C. of Florida, Inc., 772 F.2d 1501, 1506 (11th
Cir. 1985) (redeposit of spoil churned up by tugboat propellers consti-
tuted the discharge of a pollutant under the Clean Water Act), vacated
and remanded on other grounds, 481 U.S. 1034 (1987), readopted in
relevant part, 848 F.2d 1133 (11th Cir. 1988); Rybachek v. EPA, 904
F.2d 1276, 1285 (9th Cir. 1990) (dirt and gravel extracted by gold
miners and redeposited into the stream bed from which it was
extracted constituted an "addition" of a pollutant under the Clean
Water Act); see also United States v. Bay-Houston Towing Co., 33 F.
Supp.2d 596, 606 (E.D. Mich. 1999) (adopting reasoning of Judge
Payne's Wilson opinion). But cf. National Mining Ass'n, 145 F.3d at
1404, 1406 (concluding that "incidental fallback" of dredged material
into waterway does not constitute the addition of a pollutant, but dis-
tinguishing between incidental fallback and sidecasting).
For these reasons, we hold that the Clean Water Act's definition of
discharge as "any addition of any pollutant to navigable waters"
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encompasses sidecasting in a wetland. We therefore reverse the dis-
trict court's June 23, 1998, judgment to the contrary.
III.
As we turn to the Deatons' cross-appeal, it is useful to summarize
once more what happened in district court. On September 22, 1997,
the district court granted the government's motion for summary judg-
ment in part, ruling (1) that the Corps had used the correct method for
determining the existence of wetlands on the Deaton property, (2) that
any wetlands on the property were "adjacent wetlands" and therefore
subject to the Corps' Clean Water Act jurisdiction, and (3) that side-
casting into a wetland is the discharge of a pollutant under the Clean
Water Act. After this court decided Wilson in December 1997, the
district court revisited the sidecasting question, reversed itself on that
point alone, and entered summary judgment for the Deatons. The
Deatons cross-appeal the first two issues from the September 1997
order, namely, whether the Corps properly interpreted and applied its
criteria for determining the presence of wetlands and whether any
wetlands on their property were subject to Corps' jurisdiction. The
September 1997 order left at least one matter open: the district court
granted summary judgment for the government only in part, noting
that further proceedings would be necessary "to determine the extent
of wetlands on the subject property." It is clear, therefore, that the
September 1997 order was interlocutory. See O'Connor v. United
States, 956 F.2d 48, 52 (4th Cir. 1992).
Our reversal of the district court's June 1998 determination that
sidecasting does not constitute the discharge of a pollutant under the
Clean Water Act simply returns this case to its status as of the Sep-
tember 1997 interlocutory order. Because the Deatons, in seeking
review of the September 1997 order, are not appealing from a final
order, and no exception to the final order rule applies, we lack juris-
diction to review the issues raised in the cross-appeal. See Taylor v.
Waters, 81 F.3d 429, 437 (4th Cir. 1996). The cross-appeal is there-
fore dismissed.
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IV.
The district court's judgment order of June 23, 1998, is reversed,
and the cross-appeal filed by the Deatons is dismissed. The case is
remanded for further proceedings consistent with this opinion.
No. 98-2256 (the direct appeal) is REVERSED;
No. 98-2370 (the cross-appeal) is DISMISSED;
and the case is REMANDED
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