United States of America v. John A. Rapanos

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0268P (6th Cir.)
File Name: 03a0268p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JOHN A. RAPANOS,
Defendant-Appellee.
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No. 02-1377
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 93-20023—Lawrence P. Zatkoff, Chief District Judge.
Argued: June 18, 2003
Decided and Filed: August 5, 2003
Before: MARTIN, Chief Circuit Judge; NORRIS and
ROGERS, Circuit Judges.
_________________
COUNSEL
ARGUED: Jennifer J. Peregord, UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellant. Thomas V.
Wilhelm, Waterford, Michigan, for Appellee. ON BRIEF:
Jennifer J. Peregord, UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellant. Thomas V. Wilhelm,
Waterford, Michigan, David E. Dearing, Indianapolis,
2 United States v. Rapanos No. 02-1377
Indiana, for Appellee. Virginia S. Albrecht, Stephen M.
Nickelsburg, HUNTON & WILLIAMS, Washington, D.C.,
for Amici Curiae.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Chief Circuit Judge. This case
arises from the criminal conviction of John Rapanos for
unlawfully filling wetlands in Michigan in violation of the
Clean Water Act, 33 U.S.C. § 1311(a). After the conviction,
an appeal, a denial of certiorari, a second appeal, and a grant
of certiorari, the Supreme Court remanded the case back to
us to review in light of Solid Waste Agency of North Cook
County v. Army Corps of Engineers, 531 U.S. 159 (2001).
We remanded the case to the district court. The district court
found that, in light of Solid Waste, Rapanos’s land was
outside the jurisdiction of the Clean Water Act and the
charges were dismissed. The United States now appeals this
decision. For the reasons below, we REVERSE the judgment
of the district court and REINSTATE the convictions.
John Rapanos owns a one hundred and seventy-five-acre
plot of land in Williams Township, Bay County, Michigan.
This plot once contained forested wetlands and cleared
meadow areas. During the course of this proceeding, the
wetlands in question have been described as between eleven
and twenty miles from the nearest navigable-in-fact water.
The government argues that there is a significant and direct
link between the wetlands on Rapanos’s land and this
navigable waterway, rendering the wetlands covered by the
Clean Water Act. The wetlands are connected to the
Labozinski Drain (a one hundred year-old man-made drain)
which flows into Hoppler Creek which, in turn, flows into the
Kawkawlin River, which is navigable. The Kawkawlin
eventually flows into Saginaw Bay and Lake Huron.

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No. 02-1377 United States v. Rapanos 3
At some unstated time, Rapanos decided to sell this plot of
land to developers, but in order to make the land more
attractive, Rapanos made plans beginning in 1988 to clear the
trees from the land and to eradicate the wetlands that were on
the property. In December of 1988, Rapanos’s attorney
approached the Michigan Department of Natural Resources
with the development plan. The Department informed him
that the land contained wetlands and a permit would be
necessary for development to begin on the area, advising that
a wetlands consultant be hired to help Rapanos get the permit.
Rapanos hired a consultant, who found at least forty-nine and
at most fifty-nine acres of wetlands. After receiving the
report, Rapanos asked the consultant to destroy any paper
evidence of the wetlands on his property and then threatened
to fire him and sue if he did not comply. Despite warnings
from the Michigan Department of Natural Resources and the
United States Environmental Protection Agency, Rapanos
began destroying the wetlands on his property by filling them
with earth and sand.
On November 7, 1989, a search warrant was issued, and the
executing officers found twenty-nine acres of wetlands on
Rapanos’s property. In April of 1991, the Michigan
Department of Natural Resources asked the United States
Environmental Protection Agency to intervene and force
compliance from Rapanos. The facts established at trial that
Rapanos and his attorney lied in response to the compliance
order. Subsequently, Rapanos was charged with knowingly
discharging pollutants into the waters of the United States
without a permit, a violation of the Clean Water Act. While
acknowledging that the wetlands were destroyed, Rapanos
argues that the area is not subject to the Clean Water Act
because of a lack of federal jurisdiction. He argues the
wetlands on his property are not part of the “waters of the
United States” as required by the Act. The Act defines
“navigable waters” as “waters of the United States.” 33
U.S.C. § 1362(7).
4 United States v. Rapanos No. 02-1377
Rapanos’s first trial ended in a mistrial, and the second trial
concluded with a guilty verdict. United States v. Rapanos,
895 F. Supp. 165, 166 (E.D. Mich. 1995). Rapanos then filed
a motion for judgment of acquittal and a new trial. The
district court denied the motion for judgment of acquittal but
granted a new trial. Id. at 170. The district court found that,
although defense counsel did not object to certain questioning
by the prosecution, the court committed plain error by
permitting the questioning to proceed. Id. at 168. On appeal
to this court, we held that the line of questioning was not
improper and, therefore, the district court did not commit
plain error. We reversed the court’s grant of a new trial and
remanded for sentencing. United States v. Rapanos, 115 F.3d
367, 374 (6th Cir. 1997).
The district court sentenced Rapanos to three years of
probation and ordered him to pay $185,000. He appealed his
conviction, and the United States cross-appealed his sentence.
This court affirmed Rapanos’s conviction on direct appeal but
remanded to the district court for resentencing. United States
v. Rapanos, 235 F.3d 256, 261 (6th Cir. 2000). Rapanos filed
a petition for writ of certiorari, which the Supreme Court
granted. The order granting the writ vacated this court’s
judgment and remanded the case to us for further
consideration in light of Solid Waste, 531 U.S. 159. Rapanos
v. United States, 533 U.S. 913 (2001). We remanded the case
to the district court for consideration in light of Solid Waste.
United States v. Rapanos, Nos. 98-2424, 99-1578, 99-1074,
2001 WL 868006 (6th Cir. July 13, 2001). On remand, the
district court set aside Rapanos’s convictions and dismissed
the case, finding that Solid Waste had changed the scope of
federal jurisdiction under the Clean Water Act. The district
court found that because the wetlands on Rapanos’s property
were not “directly adjacent to navigable waters,” the
government could not regulate them. United States v.
Rapanos, 190 F. Supp. 2d 1011, 1015-16 (E.D. Mich. 2002).
The United States appealed this order, which brings this case
before us now.

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No. 02-1377 United States v. Rapanos 5
We review the district court’s statutory and legal
interpretations de novo. United States v. Markwood, 48 F.3d
969, 975 (6th Cir. 1995). The two questions at issue are
whether the district court correctly interpreted the holding of
Solid Waste and applied it to the facts of this case and
whether the original jury instructions were correct in light of
Solid Waste.
The controversy in Solid Waste arose from a group of
Chicago suburbs’ efforts to find new landfill areas. 531 U.S.
at 162-63. They targeted land that had been a sand and gravel
mining area from the late 1920's until 1960. Id. at 163. Once
the mining operation was abandoned, a forest began to take
over, and some of the excavation areas collected enough
water to become permanent and seasonal ponds. Id. When
the suburbs wanted to use the land for landfill, the United
States Army Corps of Engineers objected to this destruction
of “waters of the United States.” Id. at 164. The non-
navigable and isolated ponds were given this designation
because the ponds had become the home of migratory birds;
the Corps had recently promulgated the “Migratory Bird
Rule,” which brought waters that were home to migratory
birds under federal jurisdiction, based on the principle that
“millions of Americans cross state lines and spend over a
billion dollars to hunt and observe migratory birds.” Id. at
166. In Solid Waste, however, the Supreme Court rejected
that basis for Clean Water Act jurisdiction and ruled that the
Migratory Bird Rule exceeded the limitations of the Clean
Water Act. Id. at 174. The ponds were, therefore, not
“waters of the United States,” and the group of suburbs was
allowed to develop the land without federal interference. Id.
The primary question in the case before us is one of
jurisdiction. Rapanos claims that Solid Waste has redefined
the jurisdiction of the Clean Water Act to such a degree that
his land is no longer under the Act’s protection. We must
first turn to the Act itself. The Clean Water Act prohibits the
“discharge of any pollutant by any person” except for certain
situations enumerated in the Act itself. 33 U.S.C. § 1311(a).
6 United States v. Rapanos No. 02-1377
One of the exceptions is that a permit must be issued by the
Corps of Engineers “for the discharge of dredged or fill
material into the navigable waters at specified disposal sites.”
33 U.S.C. § 1344(a). “Navigable waters” is in turn defined as
“waters of the United States, including territorial seas,” 33
U.S.C. § 1362(7), and the Supreme Court has noted that
“Congress chose to define waters covered by the Act broadly”
in that definition. United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121, 133 (1985). Although simple in theory,
the application of “waters of the United States” has been
anything but straightforward.
As common sense makes clear, the Clean Water Act cannot
purport to police only the navigable-in-fact waters in the
United States in order to keep those waters clean from
pollutants. A pollutant can contaminate non-navigable water
and pollute the navigable-in-fact waters downstream.
Congress acknowledged this reality when it created the Clean
Water Act, stating, “Water moves in hydrological cycles and
it is essential that discharge of pollutants be controlled at the
source.” S.Rep. No. 92-414, at 77 (1972). As Solid Waste
makes clear, however, the need to protect the navigable
waters from pollution, as the Clean Water Act intends, does
not require extending the federal government’s jurisdiction
over all non-navigable waters.
Wetlands have presented one of the most difficult areas in
which to determine the Clean Water Act’s exact jurisdictional
limitations. Although wetlands are not traditionally
navigable-in-fact, they play an important ecological role
where they exist. In 40 C.F.R. § 230.3(s), the regulation
specifies protection for wetlands that
affect interstate or foreign commerce . . . [,] [w]hich are
or could be used by interstate or foreign travelers for
recreational or other purposes . . . [,] [f]rom which fish or
shellfish are or could be taken and sold in interstate or
foreign commerce [, and] [w]hich are or could be used

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No. 02-1377 United States v. Rapanos 7
for industrial purposes by industries in interstate
commerce.
Additionally, the regulation specifies coverage for
“[w]etlands adjacent to waters” listed above. Id. Essentially,
any wetlands adjacent to waters that are protected by the
Clean Water Act are also protected. Id.
The Supreme Court first addressed this question of the
applicability of the Clean Water Act to wetlands in Riverside
Bayview, 474 U.S. 121, a case originally from this circuit. In
that case, a landowner wished to develop his wetlands area for
a housing development. Id. at 124. The wetlands were
located in close proximity to Lake St. Clair, Michigan, a
navigable-in-fact body of water. Id. The Court held that non-
navigable wetlands, if adjacent to navigable water, are under
the jurisdiction of the Clean Water Act. Id. at 131. The Court
recognized that the next question before them was whether
“the [Corps’ definition of wetlands] itself is valid as a
construction of the term ‘waters of the United States.’” Id.
The Court noted that “Congress chose to define the waters
covered by the Act broadly. . . . [T]he term ‘navigable’ . . . is
of limited import.” Id. at 133. The Court ultimately held that
“a definition of ‘waters of the United States’ encompassing all
wetlands adjacent to other bodies of water over which the
Corps has jurisdiction is a permissible interpretation of the
Act.” Id. at 135. In the post-Riverside jurisprudence,
however, the question remains as to how far the jurisdiction
may go and remain a “permissible interpretation.”
The Supreme Court’s most recent exploration of the extent
of Clean Water Act jurisdiction comes in Solid Waste, 531
U.S. 159. In that case, the Court recognized that
constitutional limits exist as to how far Congress can extend
the Clean Water Act’s coverage beyond navigable-in-fact
waters. In Solid Waste, the water in question was in
permanent and seasonal ponds with no hydrological
connection to other waterways. Id. at 163. The United States
claimed federal jurisdiction over the ponds through the
8 United States v. Rapanos No. 02-1377
“Migratory Bird Rule.” 51 Fed. Reg. 41217 (Nov. 13, 1986)
(was codified at 33 C.F.R. § 328.3). The Court ruled that the
Migratory Bird Rule “exceeds the authority granted to the
respondents under § 404(a) of the [Clean Water Act].” Solid
Waste, 531 U.S. at 174.
Here, Rapanos successfully argued to the district court that
Solid Waste drastically changed the scope of power granted
by the Clean Water Act. In support of his argument, Rapanos
turns to Chief Justice Rehnquist’s frequent use in the majority
opinion of the phrase “wetlands adjacent to water.” Rapanos
argues that by the use of this phrasing, the Court required that
wetlands be directly adjacent to navigable water in order for
the wetlands to be covered by the Clean Water Act. Although
the wetlands were incidentally directly adjacent to navigable-
in-fact water in Riverside, this interpretation would mark a
stark departure from the broad interpretation of the Clean
Water Act’s scope expressed by the Court in that case. See
Riverside, 474 U.S. 121.
Riverside Bayview established that it was a reasonable
application of the Clean Water Act to protect wetlands
“adjacent to” navigable waterways. 474 U.S. at 135. Solid
Waste stated that the Migratory Bird Rule was an
unreasonable application of the Clean Water Act. 531 U.S. at
174.
This case is closer to Riverside Bayview than to Solid
Waste. In drawing this conclusion, we find persuasive the
Fourth Circuit’s recent decision in United States v. Deaton,
332 F.3d 698 (4th Cir. 2003). In Deaton, the defendants were
charged under the same statute as Rapanos. Id. at 701. In a
further similarity, Deaton involved wetlands that drain into a
ditch which must pass through other waterways to get to
navigable-in-fact water, just as is the case on Rapanos’s land.
Id. at 702. The Fourth Circuit analyzed the situation in light
of the Supreme Court’s decision in Solid Waste and held, id.
at 709 (citations omitted), that

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No. 02-1377 United States v. Rapanos 9
[Solid Waste], of course, emphasizes that the [Clean
Water Act] is based on Congress’ power over navigable
waters, suggesting that covered non-navigable waters are
those with some connection to navigable ones. But we
cannot tell from the Act the extent to which nonnavigable
tributaries are covered. The statutory term “waters of the
United States” is sufficiently ambiguous to constitute an
implied delegation of authority to the Corps; this
authority permits the Corps to determine which waters
are to be covered within the range suggested by [Solid
Waste].
The court further stated, id. at 712 (citations omitted),
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. The
Act thus reaches to the roadside ditch and its adjacent
wetlands.
Because we find the Fourth Circuit’s reasoning persuasive,
we disagree with the broad interpretation of Solid Waste taken
by the district court in this case, Rapanos, 190 F. Supp.2d at
1016, and, instead, agree with Deaton, 332 F.3d 698 at 708-9.
Although the Solid Waste opinion limits the application of the
Clean Water Act, the Court did not go as far as Rapanos
argues, restricting the Act’s coverage to only wetlands
directly abutting navigable water. Instead, the Solid Waste
Court, in a narrow holding, invalidated the Migratory Bird
10 United States v. Rapanos No. 02-1377
Rule as exceeding the authority granted to the Army Corps of
Engineers by the Clean Water Act, because it found “nothing
approaching a clear statement from Congress that it intended
[the Act] to reach an abandoned sand and gravel pit.” Solid
Waste, 531 U.S. at 174.
The evidence presented in this case suffices to show that
the wetlands on Rapanos’s land are adjacent to the Labozinski
Drain, especially in view of the hydrological connection
between the two. It follows under the analysis in Deaton,
with which we agree, that the Rapanos wetlands are covered
by the Clean Water Act. Any contamination of the Rapanos
wetlands could affect the Drain, which, in turn could affect
navigable-in-fact waters. Therefore, the protection of the
wetlands on Rapanos’s land is a fair extension of the Clean
Water Act. Solid Waste requires a “significant nexus between
the wetlands and ‘navigable waters,’” 531 U.S. at 167, for
there to be jurisdiction under the Clean Water Act. Because
the wetlands are adjacent to the Drain and there exists a
hydrological connection among the wetlands, the Drain, and
the Kawkawlin River, we find an ample nexus to establish
jurisdiction. Riverside Bayview, 474 U.S. at 133.
We now turn to the second question before us, regarding
the disputed jury instruction. The instruction reads as
follows:
The term waters of the United States includes waters
such as lakes, rivers, streams, including intermittent
streams or wetlands. The use, degradation, or destruction
of, which could affect interstate or foreign commerce,
including any such water from which fish or shellfish are
or could be taken and sold in interstate commerce.
The definition of waters of the United States also
includes tributaries of the waters . . . just identified, and
wetlands adjacent to waters of the United States.
Rapanos did not object to the jury instruction; in fact, he
specifically requested them. Our review of the instruction is

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No. 02-1377 United States v. Rapanos 11
therefore for plain error. Fed R. Crim. P. 52(b). We have
stated in United States v. Jones, 108 F.3d 668, 670 (6th Cir.
1997) (citations omitted), that
[O]ur inquiry under Rule 52(b) consists of the following
four distinct, though interrelated, analyses: (1) whether
an error occurred in the district court; (2) if error
occurred, whether the error was plain; (3) if the error was
plain, whether the plain error affected substantial rights;
and (4) "even if all three factors exist, we must then
consider whether to exercise our discretionary power
under Rule 52(b), or in other words, we must decide
whether the plain error affecting substantial rights
seriously affected the fairness, integrity or public
reputation of judicial proceedings."
In this case, we need only go so far as the first part of the
Rule 52(b) inquiry as set forth in Jones. Because the Solid
Waste holding was limited in the way we have described,
there was no error in the jury instructions. Solid Waste
invalidated the “Migratory Bird Rule” but it did not invalidate
the agency’s regulations upon which the jury instruction was
based. See 33 C.F.R. § 328(a)(3).
Moreover, even if the jury instruction could be interpreted
to have permitted the jury to find that the wetlands at issue
were covered because the “affect commerce” language
somehow permits an inference like that rejected in Solid
Waste, there is no indication that such an error affected
substantial rights in this case. There was no evidence of
migratory bird activity in Rapanos’s wetlands. Therefore, the
jury could not have based its decision on impermissible
grounds, and Rapanos’s substantial rights could not have been
affected.
For the foregoing reasons, we REVERSE the decision of
the district court and REINSTATE the conviction. 28 U.S.C.
§ 2106. In light of our previous ruling, the case is hereby
12 United States v. Rapanos No. 02-1377
REMANDED to the district court for resentencing based on
a total offense level of twelve. See Rapanos, 235 F.3d at 261.

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