United States of America v. Gerke Excavating , Inc .

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3941
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
G ERKE E XCAVATING , I NC .,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-C-0074-C—Barbara B. Crabb, Chief Judge.
____________
A RGUED M AY 9, 2005—D ECIDED J UNE 21, 2005
____________
Before POSNER , E ASTERBROOK , and E VANS , Circuit Judges.
P OSNER , Circuit Judge. This suit charges that the defendant
violated the Clean Water Act by discharging pollutants into
navigable waters from “point sources” without the permit
from the Corps of Engineers that is required when the
pollutant consists of dredge or fill material (otherwise the
permit must be sought from the EPA or, in some cases, a
state). 33 U.S.C. §§ 1311(a), 1362(12). The district judge
granted summary judgment for the government and
imposed a civil penalty of $55,000 on the defendant.
The Clean Water Act defines “navigable waters” as
“waters of the United States.” Id. § 1362(7). A regulation

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2 No. 04-3941
defines the latter term to include not only waters “suscepti-
ble to use in interstate or foreign commerce,” which are
“navigable waters” in the usual sense, but also tributaries of
such waters and—of particular pertinence to this case—
“wetlands adjacent to” such waters or to such tributaries. 33
C.F.R. §§ 328.3(a)(1), (5), (7). (That is the Corps’ regulation;
the EPA’s, 40 C.F.R. §§ 230.3(s)(1), (5), (7), is identical.)
The defendant dumped dredged stumps and roots,
plus sand-based fill (all conceded to be pollutants within the
meaning of the Act, 33 U.S.C. § 1362(6); Borden Ranch
Partnership v. U.S. Army Corps of Engineers, 261 F.3d 810, 814-
15 (9th Cir. 2001); United States v. Deaton, 209 F.3d 331, 335
(4th Cir. 2000); Driscoll v. Adams, 181 F.3d 1285, 1291 (11th
Cir. 1999)), into a patch of what it concedes are wetlands
within the meaning of the regulation. It also concedes that
the means of the dumping—bulldozers and dump
trucks—are “point sources.” 33 U.S.C. § 1362(14); Parker v.
Scrap Metal Processors, Inc., 386 F.3d 993, 1009 (11th Cir.
2004); Borden Ranch Partnership v. U.S. Army Corps of Engi-
neers, supra, 261 F.3d at 815; United States v. Pozsgai, 999 F.2d
719, 726 n. 6 (3d Cir. 1993); Avoyelles Sportsmen’s League, Inc.
v. Marsh, 715 F.2d 897, 922 (5th Cir. 1983).
Located on a 5.8 acre tract near Tomah, Wisconsin, that
the owner wanted to develop, the wetlands are drained by
a ditch that runs into a nonnavigable creek that runs into the
nonnavigable Lemonweir River which in turn runs into the
Wisconsin River, which is navigable. The Lemonweir River
is thus a tributary of a navigable river, but are the wetlands
“adjacent” to the Lemonweir? They are connected to it in
the sense that water from the wetlands flows into the river,
but they might be thought “adjacent” not to the river but
merely to the ditch, and a ditch is not what one would
ordinarily understand as a “tributary.” The Wisconsin

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No. 04-3941 3
River, because it flows into the Mississippi, is connected to
the Gulf of Mexico, but it would be odd to describe it as
“adjacent” to the gulf.
Gerke, however, does not argue that the regulation is
inapplicable to this case, and would not get far with the
argument because of how the regulation has been inter-
preted—as treating a ditch connected to a tributary of a nav-
igable waterway as a tributary of a tributary, e.g., Carabell v.
U.S. Army Corps of Engineers, 391 F.3d 704, 708-09 (6th Cir.
2004); United States v. Deaton, 332 F.3d 698, 704 (4th Cir.
2003), just as the Lemonweir River itself is a tributary of a
tributary of the Mississippi River. A stream can be a tribu-
tary; why not a ditch? A ditch can carry as much water as a
stream, or more; many streams are tiny. It wouldn’t make
much sense to interpret the regulation as distinguishing
between a stream and its manmade counterpart.
Gerke argues instead that the regulation exceeds the
authority granted the Corps of Engineers by the Clean
Water Act because the wetlands are not “waters of the
United States,” or, if the regulation is within the congressio-
nal grant of authority, then it exceeds the authority that the
commerce clause of the Constitution grants Congress. The
arguments are interchangeable, since the only reason Gerke
gives to doubt the validity of the regulation is the principle
that the meaning of a statute or a regulation can be stretched
where that is necessary to avoid its being held unconstitu-
tional. The idea here would be that the Corps of Engineers
would prefer a bobtailed regulation to none if that is the
choice forced on it by the Constitution.
Congress can regulate waterways used to transport people
and goods in interstate or foreign commerce. Kaiser Aetna v.
United States, 444 U.S. 164, 173-74 (1979); United States
v. Rands, 389 U.S. 121, 122-23 (1967); Gilman v. City of

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4 No. 04-3941
Philadelphia, 70 U.S. (3 Wall.) 713, 724-25 (1865); Gibbons v.
Ogden, 22 U.S. (9 Wheat.) 1, 189-97 (1824). Those are the
waterways that the term “navigable waters” conventionally
denotes (though a river could be navigable even though it
was entirely within one state). The Wisconsin River, not to
mention the Mississippi River into which it flows, is a
navigable waterway in the conventional sense. The most
elementary type of federal regulation of such waterways
that the commerce clause authorizes is regulation aimed at
making sure they remain navigable, in the sense of usable
in interstate or foreign commerce, rather than allowing them
to become obstructed by low-lying bridges, Pennsylvania v.
Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518 (1852),
or to become too shallow for navigation by large vessels
because the sources of their water are being diminished by
dams, silting, or real estate development. There are believed
to be more than 100 million acres of wetlands in the lower
48 states, Thomas E. Dahl, “Status and Trends of Wetlands
in the Conterminous United States 1986 to 1997” 9 (U.S. Fish
& Wildlife Service 2000), and they supply some of the water
in navigable waterways. Ralph W. Tiner, “Correlating
Enhanced National Wetlands Inventory Data with Wetland
Functions for Watershed Assessments: A Rationale for
Northeastern U.S. Wetlands” 6-7 (U.S. Fish & Wildlife
Service 2003). Also, by temporarily storing storm water,
wetlands reduce flooding, which can interfere with naviga-
tion. Office of Technology Assessment, U.S. Congress,
“Wetlands: Their Use and Regulation” 43-47 (1984).
Obviously, filling in a 5.8 acre tract (not all of it wet-
lands—we do not know how much of it is) is not going to
have a measurable effect on the depth of the Wisconsin or
Mississippi Rivers. But that cannot be the test. The sum of
many small interferences with commerce can be large, and
so to protect commerce Congress must be able to regulate an

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No. 04-3941 5
entire class of acts if the class affects commerce, even if no
individual act has a perceptible effect. See, e.g., Gonzales v.
Raich, 125 S. Ct. 2195, 2205-07 (2005); Wickard v. Fillburn, 317
U.S. 111, 118-29 (1942); United States v. Hicks, 106 F.3d 187,
188-90 (7th Cir. 1997); United States v. Leslie, 103 F.3d 1093,
1100 (2d Cir. 1997), and, with specific reference to the
regulation of navigable waters, United States v. Deaton, supra,
332 F.3d at 706-07; cf. Oklahoma ex rel. Phillips v. Guy F.
Atkinson Co., 313 U.S. 508, 525-26 (1941).
Congress’s power to regulate commerce is not limited
to removing obstructions; otherwise it could not forbid
trafficking in controlled substances, a program designed to
reduce a form of commerce. Congress may forbid the pol-
lution of navigable waters even if the pollution has no effect
on navigability, which is the usual case, though we’ve
found a couple of cases in which pollution did impede
navigability. Kernan v. American Dredging Co., 355 U.S. 426,
427-28 (1958); United States v. Ashland Oil & Transportation
Co., 504 F.2d 1317, 1326 (6th Cir. 1974). In fact navigability
is a red herring from the standpoint of constitutionality. The
power of Congress to regulate pollution is not limited to
polluted navigable waters; the pollution of groundwater, for
example, is regulated by federal law, e.g., 42 U.S.C. §§ 300h,
6949a(c), 9621(d)(2)(B)(ii), because of its effects on agricul-
ture and other industries whose output is shipped across
state lines, and such regulation has been held to be autho-
rized by the commerce clause. Freier v. Westinghouse Electric
Corp., 303 F.3d 176, 202-03 (2d Cir. 2002); United States v.
Olin Corp., 107 F.3d 1506, 1510-11 (11th Cir. 1997); cf. Allied
Local & Regional Mfrs. Caucus v. United States EPA, 215 F.3d
61, 81-83 (D.C. Cir. 2000). In Village of Oconomowoc Lake v.
Dayton Hudson Corp., 24 F.3d 962, 964-66 (7th Cir. 1994), we
noted that in excluding groundwater from the definition of

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6 No. 04-3941
“waters of the United States,” Congress in the Clean Water
Act had declined to exercise its constitutional power to the
utmost.
So it doesn’t matter whether the objection to allowing the
Gerkes of this world to dry out wetlands is that the effect
may be to reduce water levels in navigable waterways to the
point at which navigation would be affected or that the
effect may be to increase the level of pollution in such
waters by reducing the supply of unpolluted wetlands
water. Nothing in the Constitution forbids interpreting the
Clean Water Act to cover any wetlands that are connected
to navigable waters. Whether the wetlands are 100 miles
from a navigable waterway or 6 feet, if water from the
wetlands enters a stream that flows into the navigable
waterway, the wetlands are “waters of the United States”
within the meaning of the Act. United States v. Rapanos, 339
F.3d 447, 450-53 (6th Cir. 2003); United States v. Deaton,
supra, 332 F.3d at 704-12.
Gerke argues that the wetlands of the United States are so
extensive that the Corps’ interpretation will tilt the balance
between federal and state power too far in the direction of
the federal government. In re Needham, 354 F.3d 340, 344-46
(5th Cir. 2003); see also Rice v. Harken Exploration Co., 250
F.3d 264, 267-69 (5th Cir. 2001). Gerke reminds us of recent
decisions by the Supreme Court which hold that the com-
merce power is not plenary, such as United States v. Morri-
son, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S.
549 (1995). The argument, however, is two-edged. The more
extensive a wetlands, the greater its potential importance as
a source of water to keep the navigable waterways full and
clean.
Granted, a wetlands could be extensive yet not be a source
of water for navigable waterways. In a decision about

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No. 04-3941 7
wetlands that are isolated from navigable waterways, the
Supreme Court held in Solid Waste Agency of Northern Cook
County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S.
159 (2001), that such wetlands are not “waters of the United
States.” Gerke fastens on the sentence in the opinion that
states that the Clean Water Act does not extend “to ponds
that are not adjacent to open water.” Id. at 168 (emphasis in
original). It is dangerous, however, to take judicial language
out of context; the case was about a pond that was com-
pletely isolated from any navigable waterway, tributary, etc.
As we noted in United States v. Rueth Development Co., 335
F.3d 598, 603-04 (7th Cir. 2003), SWANCC did not overrule
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121
(1985), which had held that a wetlands that actually abutted
a navigable waterway was constitutionally regulable. It
cannot make any difference if instead of abutting, the
wetlands is connected to the waterway by a pipe two feet
long. Even taken out of context, the sentence Gerke fastens
on doesn’t do the work it thinks it does. For “adjacent” can
just mean “connected,” and “open water” can just mean
water that is part of the waters of the United States because
it flows into navigable waterways.
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-21-05

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