United States of America v. John A. Rapanos

*The Hono rable Danny C. Reeves, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0239P (6th Cir.)
File Name: 04a0239p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN A. RAPANOS; JUDITH A.
NELKIE RAPANOS; PRODO,
INC.; ROLLING MEADOWS
HUNT CLUB; PINE RIVER
BLUFF ESTATES, INC.,
Defendants-Appellants.
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No. 03-1489
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 94-70788—Bernard A. Friedman, Chief District Judge.
Argued: June 9, 2004
Decided and Filed: July 26, 2004
Before: SILER and GIBBONS, Circuit Judges; REEVES,
District Judge.*
2 United States v. Rapanos, et al. No. 03-1489
_________________
COUNSEL
ARGUED: David E. Dearing, Indianapolis, Indiana, for
Appellants. Katherine W. Hazard, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: David E. Dearing, Indianapolis,
Indiana, for Appellants. Katherine W. Hazard, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
_________________
OPINION
_________________
DANNY C. REEVES, District Judge. Plaintiff-Appellee
United States brought suit against the Defendants pursuant to
the Federal Water Pollution Control Act Amendments of
1972, Pub. L. No. 92-500, 86 Stat. 817, as amended 33 U.S.C.
§ 1251 et seq., commonly known as the Clean Water Act
(“CWA”). Defendants-Appellants John Rapanos, Judith
Rapanos, Prodo, Inc., Rolling Meadows Hunt Club, and Pine
River Bluff Estates, Inc. appeal the district court’s entry of
judgment in favor of the United States. Prodo, Inc., Rolling
Meadows Hunt Club, and Pine River Bluff Estates, Inc. are
wholly owned by John and Judith Rapanos. For the reasons
discussed below, we AFFIRM the judgment of the district
court.
BACKGROUND
The Rapanos, through their wholly-owned companies,
owned various parcels of land in Bay, Midland, and Saginaw
Counties in Michigan. These parcels are known as the
Salzburg, Hines Road, Pine River, Freeland, Mapleton, and
Jefferson Avenue sites. The Rapanos were charged with
illegally discharging fill material into protected wetlands at

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No. 03-1489 United States v. Rapanos, et al. 3
these sites between 1988 and 1997. The United States alleges
that the Rapanos attempted to fill these wetlands to make the
land more conducive to development.
I. The Salzburg Site
Before filling wetlands subject 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 asked the state to inspect the Salzburg site in
hope of obtaining a permit to construct a shopping center at
this location. The state informed him that the site was likely
a regulated wetland and sent him an application for the
necessary permits. A state representative toured the site in
March 1989, noting that the site probably contained wetlands
but could be developed if the necessary permits were issued.
Mr. Rapanos hired a consultant, Dr. Goff, to prepare a report
detailing the wetlands on the Salzburg site. Dr. Goff
concluded that there were between 48 and 58 acres of
wetlands on the site, presenting his findings in the form of a
report and a map. Upset by the report, Mr. Rapanos ordered
Dr. Goff to destroy both the report and map, as well as all
references to Mr. Rapanos in Dr. Goff’s files. However, Dr.
Goff was unwilling to do so. Mr. Rapanos stated he would
“destroy” Dr. Goff if he did not comply, claiming that he
would do away with the report and bulldoze the site himself,
regardless of Dr. Goff’s findings.
In April 1989, workers began leveling the ground, filling in
low spots, clearing brush, removing stumps, moving dirt, and
dumping sand to cover most of the wetland vegetation. This
activity caused Dr. Goff to note that the site now looked “like
nothing more than a beach.” In August 1989 the state
attempted to inspect the Salzburg site, but was denied access.
Three months later, authorities from the state returned, armed
with a search warrant.
In 1991, a state representative returned to the Salzburg site,
noting that the site had been “tiled” to drain subsurface water.
4 United States v. Rapanos, et al. No. 03-1489
When Mr. Rapanos refused to comply with an administrative
compliance order issued by the Environmental Protection
Agency (“EPA”) (requiring him to immediately cease his
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 drains, build roads,
and fill the wetlands at the Hines Road site. However, in July
1992, the state issued a cease and desist letter to stop the
ongoing activity. Mr. Rapanos did not reply to this letter.
Thereafter, the state conducted an examination of the site
pursuant to a search warrant in June 1994. In June 1997, the
state returned to the site and noted that fill had been added to
certain areas since the 1994 search. Accordingly, the EPA
issued an administrative compliance order. The EPA alleges
that Mr. Rapanos did not comply with this order.
III. The Pine River Site
Mr. Rapanos also hired contractors at the Pine River site to
construct ditches, spread dirt and sand, construct roads, and
clear vegetation. The state sent Mr. Rapanos a cease and
desist order after an official observed that portions of the
wetlands had been filled. The EPA issued an administrative
compliance order in September 1997 after Mr. Rapanos
refused to comply with the cease and desist order. The EPA
alleges that Mr. Rapanos also did not comply with the
administrative order.
IV. The Criminal Proceedings
Criminal charges were brought simultaneously with the
instant civil action. In July 1994, the district court declared
a mistrial in Mr. Rapanos’ criminal trial. The trial was moved
to Flint, Michigan and, on March 7, 1995, the jury in the
second trial returned a guilty verdict on two counts. United
States v. Rapanos, 895 F.Supp. 165, 166 (E.D. Mich. 1995).

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No. 03-1489 United States v. Rapanos, et al. 5
1The land at issue in the criminal trial was the Salzburg site. The
Salzburg site in the criminal trial is somewhat different than the Salzburg
site involved in this proceeding.
Following trial, the district court granted Rapanos’ motion for
a new trial, finding that the court had improperly allowed the
United States to pursue a line of questioning that was
prejudicial to the defendant. Id. at 169-70. This court,
however, determined that the line of questioning was not
improper and reversed the district 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 probation and ordered him to pay a
$185,000 fine. On appeal, this court affirmed the conviction
but remanded for resentencing. United States v. Rapanos,
235 F.3d 256, 261 (6th Cir. 2000).
The Supreme Court granted Rapanos’ request for a writ of
certiorari, vacating and remanding this court’s order in light
of Solid Waste Agency of Northern Cook County v. United
States Army Corps of Engineers, 531 U.S. 159 (2001)
(“SWANCC”). Rapanos v. United States, 533 U.S. 913
(2001). Following remand from the Supreme Court, this
court remanded the case to the district court for further
consideration. United States v. Rapanos, Nos. 98-2424, 99-
1578, 99-1074, 16 Fed. Appx. 345 (6th Cir. 2001). On
remand, the district court set aside the conviction, finding that
the United States lacked jurisdiction in the wake of the
Supreme Court’s ruling in SWANCC. United States. v.
Rapanos, 190 F.Supp. 2d 1011 (E.D. Mich. 2002). On
appeal, this court reversed the order of the district court,
reinstated the previous conviction and remanded to the district
court for resentencing. United States v. Rapanos, 339 F.3d
447, 454 (6th Cir. 2003). A panel of this court determined
that, despite the Supreme Court’s decision in SWANCC, the
United States retained jurisdiction over the wetlands at issue
by virtue of the CWA.1 Recently, the Supreme Court denied
6 United States v. Rapanos, et al. No. 03-1489
2On January 10 , 200 3, after the Supreme Court overturned the
“Migratory Bird Rule” as an excessive extension of jurisdiction under the
C W A in SWANCC, the district court amended its findings to remove all
references to the “Migratory Bird Rule” as a basis for federal jurisdiction.
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 action in February
1994, confining its scope to the Salzburg site and naming
only Mr. Rapanos as a defendant. In June 1996, the United
States added Mrs. Rapanos to the complaint, as well as Prodo,
Inc., a company owned by Mr. Rapanos. In February 1998,
the United States amended its complaint to add allegations
concerning the Hines Road and Pine River sites. Pine River
Bluffs Estates was also added as a defendant.
Following a 13-day bench trial, 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 wetlands at
the Hines Road site, and 15 of 49 acres of protected wetlands
at the Pine River site. The district court concluded that the
government had established that 54 of the filled acres fit the
three parameters for wetlands, i.e., vegetation, soils, and
hydrology. In addition, the court found that the United States
did not meet its burden regarding the existence of wetlands at
the Freeland and Mapleton sites. The district court entered
these findings and conclusions on March 22, 2000.2
STANDARD OF REVIEW
Following a bench trial, this court reviews the district
court’s findings of fact for clear error and reviews its
conclusions of law de novo. Pledger v. United States, 236
F.3d 315, 320 (6th Cir. 2000). Factual determinations of a
trial court are not clearly erroneous unless we are “left with
the definite and firm conviction that a mistake has been

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No. 03-1489 United States v. Rapanos, et al. 7
committed.” Id. (quoting Anderson v. City of Bessemer City,
470 U.S. 564, 573 (1985)). “If the district court’s account of
the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently.” Anderson, 470 U.S.
at 573-74.
DISCUSSION
On appeal, Rapanos argues that the district court erred
when it (1) held that the disturbed wetlands were adjacent
wetlands because they had a surface connection to waters of
the United States; (2) failed to make subsidiary findings to
support its conclusion that the Salzburg, Hines Road, and
Pine River sites had a hydrological connection to navigable
waters; (3) allowed plaintiff’s expert Dr. Willard to testify;
(4) failed to consider Michigan’s definition of “wetland”;
(5) collaterally estopped Rapanos from denying liability at the
Salzburg site; and (6) relied on Dr. Willard’s testimony to
determine the extent of unauthorized filling.
I. The CWA
In 1972, Congress reacted to the problem of water pollution
by enacting the CWA. The CWA is viewed by some as the
federal government’s main weapon in its effort 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 (1998). Section
404 of the CWA requires landowners to obtain permits from
the Army Corps of Engineers (“Corps”) before discharging
fill material into wetlands adjacent to navigable bodies of
water and their tributaries. United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121, 123 (1985); see also
33 U.S.C. § 1344.
“Navigable waters” are defined as “waters of the United
States, including territorial seas.” 33 U.S.C.§ 1362(7). The
8 United States v. Rapanos, et al. No. 03-1489
Supreme Court and this court have noted that “Congress
chose to define waters covered by the Act broadly” in the
CWA. Riverside Bayview, 474 U.S. at 133; Rapanos, 339
F.3d at 450-51. Determining the precise boundary of which
waters are covered by the CWA has been difficult. It is well-
settled that the CWA covers more than what has come to be
known as “navigable in fact waters,” i.e., waters that can be
navigated in the traditional sense. See id. at 451. As the
Supreme Court has noted, CWA jurisdiction extends beyond
traditionally navigable waters because economic activities
affecting interstate commerce are susceptible to
“congressional regulation under the Commerce Clause
irrespective of whether navigation, or, indeed, water, is
involved.” Kaiser Aetna v. United States, 444 U.S. 164, 174
(1979).
The CWA’s broad reach, extending beyond traditionally
navigable waters, however, does not extend to all waters. The
Code of Federal Regulations contains the Corps’
interpretation of which waters are properly considered
“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 “wetlands adjacent to traditional navigable
waters” as supporting CWA jurisdiction for the Defendants’
lands. Id. at § 328.3(a)(7). It found 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).
Determining which wetlands are considered “adjacent to”
traditional navigable waters or their tributaries has proved to
be a complication in defining CWA jurisdiction. The Code
of Federal Regulations states that “adjacent” means
“bordering, contiguous, or neighboring. Wetlands separated
from other waters of the United States by man-made dikes or
barriers, natural river berms, beach dunes and the like are
‘adjacent wetlands.’” 33 C.F.R. § 328.3(c).

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No. 03-1489 United States v. Rapanos, et al. 9
In order to invoke federal jurisdiction the wetlands must
bear some connection to navigable waters or interstate
commerce. Determining how much of a connection is
necessary has proven difficult. Unfortunately, the two
leading Supreme Court cases on the reach of the CWA have
done little to clear the muddied waters of CWA jurisdiction.
A. Riverside Bayview
Riverside Bayview Homes owned 80 acres of low-lying,
marshy land near the shores of Lake St. Clair in Macomb
County, Michigan. It began filling part of the land with the
intention of constructing a housing development on the site.
The Corps determined that the land was an “adjacent
wetland,” thus falling under the ambit of the CWA. The
district court determined that the land on the site below 575.5
feet above sea level was a wetland requiring the issuance of
a permit before it could be filled. Riverside Bayview,
474 U.S. at 125. This court reversed the district court,
concluding that adjacent wetlands only existed when the land
was flooded by adjacent navigable waters at a frequency
sufficient to support the growth of aquatic vegetation. United
States v. Riverside Bayview Homes, Inc., 729 F.2d 391 (6th
Cir. 1984).
This court was largely motivated by Fifth Amendment
takings concerns, concluding that the CWA must be read
narrowly to avoid improper condemnation by the government.
A unanimous Supreme Court, however, held that the Tucker
Act, 28 U.S.C. § 1491, provides the owners of condemned
land with the right of compensation and thus concluded that
this court was not justified in reading the CWA’s jurisdiction
so narrowly. Riverside Bayview, 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
Court of Appeals’ conclusion that inundation or ‘frequent
flooding’ by the adjacent body of water is a sine qua non of
a wetland under the regulation.” Id. at 129.
10 United States v. Rapanos, et al. No. 03-1489
Next, the Court addressed the issue of which waters could
be considered “adjacent to navigable waters.”
In determining the limits of its power to regulate
discharges under the Act, the Corps must necessarily
choose some point at which water ends and land begins.
Our common experience tells us that this is often no easy
task: the transition from water to solid ground is not
necessarily or even typically an abrupt one. Rather,
between open waters and dry land may lie shallows,
marshes, mudflats, swamps, bogs -- in short, a huge array
of areas that are not wholly aquatic but nevertheless fall
far short of being dry land. Where on this continuum to
find the limit of “waters” is far from obvious.
Id. at 132.
The Court concluded that to protect against pollution “at its
source,” Congress sought to define coverage of the CWA
broadly. Id. at 133. It noted that even wetlands that are not
connected to adjacent bodies of water and are not regularly
inundated by flooding may still have a connection to
navigable waters because such water can drain into navigable
waters. Id. at 134. These adjacent bodies of water can bring
pollution to the navigable waters, resulting in possibly
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 adjacent to lakes,
rivers, streams, and other bodies of water may function
as integral parts of the aquatic environment even when
the moisture creating the wetlands does not find its
source in the adjacent bodies of water. . . . [W]e cannot
say that the Corps’ judgment on these matters is
unreasonable, and we therefore conclude 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 [CWA].

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No. 03-1489 United States v. Rapanos, et al. 11
Id. at 135.
B. SWANCC
After upholding a broad view of the CWA’s jurisdictional
reach in Riverside Bayview, a divided Supreme Court
invalidated one of the Corps’ jurisdictional regulations in
SWANCC. 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 endangered species. Final Rule for
Regulatory Programs of the Corps of Engineers, 51 Fed. Reg.
41206, 41217 (Nov. 13, 1986) (previously codified at
33 C.F.R. § 328.3). The disputed land was a 533 acre parcel
straddling the Cook and Kane County lines in northern
Illinois. The land was owned by the Solid Waste Agency of
Northern Cook County, a consortium of 23 Chicago cities that
sought to develop a garbage disposal site. SWANCC, 531
U.S. at 162-63. The Corps initially determined that it had no
jurisdiction over the land because it did not contain any
wetlands and did not support “vegetation typically adapted for
life in saturated soil conditions.” Id. at 164 (citing 33 C.F.R.
§ 328.3(b)). However, after learning that several migratory
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 authority to use the Migratory Bird Rule, relying on
the cumulative impact doctrine to conclude that, in toto, the
impact on migratory birds from disturbing wholly intrastate,
non-navigable waters had a substantial impact on interstate
commerce. Solid Waste Agency of N. Cook County v. United
States Army Corps of Engineers, 191 F.3d 845, 850 (7th Cir.
1999). A majority of the Supreme Court disagreed, however,
holding that the Migratory Bird Rule was not supported by
Congress’ intent in passing the CWA and thus concluding
that it was unnecessary to determine whether the Migratory
Bird Rule fell within the broadest reach of Congress’
commerce powers. SWANCC, 531 U.S. at 167.
12 United States v. Rapanos, et al. No. 03-1489
In doing so, the Court first reaffirmed the holding in
Riverside Bayview, pointing out that in Riverside Bayview
we noted that the term “navigable” is of “limited import”
and that Congress evidenced its intent to regulate at least
some waters that would not be deemed “navigable” under
the classical understanding of that term. But our holding
was based in large measure upon Congress’ unequivocal
acquiescence to, and approval of, the Corps’ regulations
interpreting the CWA to cover wetlands adjacent to
navigable waters. We found that Congress’ concern for
the protection of water quality and aquatic ecosystems
indicated its intent to regulate wetlands inseparably
bound up with the “waters” of the United States.
It was the significant nexus between the wetlands and
“navigable waters” that informed our reading of the
CWA in Riverside Bayview Homes. Indeed, we did not
express any opinion on the question of the authority of
the Corps to regulate discharges of fill material into
wetlands that are not adjacent to open bodies of water.
In order to rule for respondents here, we would have to
hold that the jurisdiction of the Corps extends to ponds
that are not adjacent to open water. But we conclude that
the test of the statute will not allow this.
SWANCC, 531 U.S. at 167-68 (citations omitted) (emphasis
in original).
The Court also refused to extend Chevron deference to the
Corps’ interpretation of its authority under the CWA. See
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). It reasoned that such deference
was inappropriate where the Corps was infringing upon a
power usually reserved to the states, i.e., the authority to
regulate land and water use. SWANCC, 531 U.S. at 172-74.
Therefore, the Court concluded that Congress had not
envisioned extending CWA jurisdiction to isolated, intrastate,
non-navigable “ponds” simply by virtue of the fact that they

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No. 03-1489 United States v. Rapanos, et al. 13
were occasionally the home for migratory birds, despite the
Corps’ contrary interpretation of its authority. Id. at 171-72.
C. Putting Riverside Bayview and SWANCC in Context
The Court in SWANCC noted that even reading the CWA
through a restrictive lens demonstrates that Congress “wanted
to include all waters adjacent to ‘navigable waters,’ such as
nonnavigable tributaries and streams” in its definition of
“waters of the United States.” SWANCC, 531 U.S. at 171.
Lower courts have disagreed over the extent to which
SWANCC limited Riverside Bayview’s holding. SWANCC
only specifically addressed the Migratory Bird Rule, and in
fact specifically held that it was not overruling any aspect of
Riverside Bayview, yet its language has been seen by some as
justification for a wide-ranging reduction of the CWA’s
jurisdiction. A minority of courts have done so, reading
SWANCC broadly to limit the CWA to navigable waters and
non-navigable waters that directly abut navigable waters. In
re Needham, 354 F.3d 340, 345-46 (5th Cir. 2003); FD & P
Enterprises, Inc. v. U.S. Army Corps of Engineers, 239
F.Supp.2d 509, 516 (D.N.J. 2003). Conversely, the majority
of courts have interpreted SWANCC narrowly to hold that
while the CWA does not reach isolated waters having no
connection with navigable waters, it does reach inland waters
that share a hydrological connection with navigable waters.
Rapanos, 339 F.3d at 453; Treacy v. Newdunn Assoc., LLP,
344 F.3d 407, 415 (4th Cir. 2003); United States v. Deaton,
332 F.3d 698, 702 (4th Cir. 2003), cert. denied, 124 S.Ct.
1874 (2004); United States v. Rueth Dev. Co., 335 F.3d 598,
604 (7th Cir. 2003), cert. denied, 124 S.Ct. 835 (2003);
Headwaters v. Talent Irrigation District, 243 F.3d 526, 533-
34 (9th Cir. 2001); Carabell v. United States Army Corps of
Engineers, 257 F. Supp. 2d 917, 930 (E.D. Mich. 2003);
United States v. Interstate Gen. Co., 152 F. Supp. 2d 843, 847
(D. Md. 2001).
The Fifth Circuit has adopted the more expansive reading
of SWANCC and thus the more limited interpretation of the
14 United States v. Rapanos, 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 considered part
of the “waters of the United States,” instead finding that the
water must be “truly adjacent to navigable waters,” or at least
have a “significant measure of proximity” to navigable
waters. Id. at 345, 347, n.12. In reaching this conclusion, the
Fifth Circuit relied heavily on SWANCC, disagreeing with
holdings from the Fourth, Seventh, and Ninth Circuits, as
well as this court, that have adopted a limited interpretation of
SWANCC. Rapanos, 339 F.3d at 453 (finding that the
SWANCC court merely invalidated the Migratory Bird Rule
and did not deal with the Corps’ “adjacent waters”
jurisdiction); Treacy, 344 F.3d at 415 (noting that SWANCC
reaffirmed the holding in Riverside Bayview and did not
abridge the Corps’ authority over “adjacent waters”); Deaton,
332 F.3d at 702 (holding that SWANCC did not disavow any
of the Corps’ interpretations of the CWA, save for the
Migratory Bird Rule); Rueth Dev. Co., 335 F.3d at 604 (“it is
clear that SWANCC did not affect the law regarding the
government's alternative asserted basis for jurisdiction
adjacency under [the “adjacent water” rule]. The Corps’
adjacency jurisdiction is well-established; it was upheld by
the Supreme Court in [Riverside Bayview], and was
reaffirmed in SWANCC”); Headwaters, 243 F.3d at 533-34
(holding that SWANCC did not impact its conclusion that
waters flowing into navigable waters are within the CWA’s
jurisdiction); Carabell, 257 F. Supp. 2d at 930 (concluding
that SWANCC’s holding was narrow and did not require a
body of water to directly abut navigable water in order to fall
under the jurisdiction of the CWA); Interstate Gen. Co., 152
F. Supp. 2d at 847 (“[b]ecause the Supreme Court only
reviewed 33 CFR § 328.3(a)(3), it would be improper for this
Court to extend the SWANCC Court’s ruling any further than
they clearly intended”); but see FD & P Enterprises, 239 F.
Supp. 2d at 516 (“it is the view of this court that the
‘hydrological connection’ test is no longer the valid mode of
analysis”).

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No. 03-1489 United States v. Rapanos, et al. 15
In Rapanos’ criminal trial, a panel of this court adopted the
limited reading of SWANCC criticized in Needham. Adopting
the Fourth Circuit’s reasoning in Deaton, this court held that
because we find the Fourth Circuit’s reasoning
persuasive, we disagree with the broad interpretation of
[SWANCC] taken by the district court in this case and,
instead, agree with Deaton. Although the [SWANCC]
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 [SWANCC] Court, in a
narrow holding, invalidated the Migratory Bird Rule as
exceeding the authority granted to the [Corps] by the
[CWA], because it found “nothing approaching a clear
statement from Congress that it intended [the CWA] to
reach an abandoned sand and gravel pit.”
Rapanos, 339 F.3d at 453 (citations omitted). This court
further adopted the holding in Deaton, that “adjacent
waterways” include any branch of a tributary system that
eventually flows into a navigable body of water. Rapanos,
339 F.3d at 452-53. This court concluded that the wetlands
were adjacent because “[a]ny contamination of the Rapanos
wetlands could affect the Drain, which, in turn could affect
navigable-in-fact waters.” Id.
Thus, the primary difference between the conclusion
reached by the Fifth Circuit and that reached by the Fourth,
Sixth, Seventh, and Ninth Circuits, concerns the “adjacency”
requirement. The Fifth Circuit requires that the non-
navigable water be “truly adjacent to navigable waters” in
order to qualify for CWA jurisdiction. The majority of
courts, including this one, however, construe Riverside
Bayview and SWANCC to hold that, while a hydrological
connection between the non-navigable and navigable waters
is required, there is no “direct abutment” requirement.
16 United States v. Rapanos, et al. No. 03-1489
What is required for CWA jurisdiction over “adjacent
waters,” however, is a “significant nexus between the
wetlands and ‘navigable waters,’” SWANCC, 531 U.S. at
167, which can be satisfied by the presence of a hydrological
connection. Rapanos, 339 F.3d at 453; see also Deaton, 332
F.3d at 711-12 (CWA jurisdiction extends to those waters
adjacent to any branch of a tributary system that eventually
flows into a navigable water, because these waters effect the
water quality of navigable waters and thus there is a
“substantial nexus” between the tributaries and the navigable
waters); Headwaters, 243 F.3d at 533 (“Because the canals
receive water from natural streams and lakes, and divert water
to streams and creeks, they are connected as tributaries to
other ‘waters of the United States’”). Waters sharing a
hydrological connection are interconnected, sharing a
symbiotic relationship. As Congress acknowledged when
passing the CWA, “[w]ater moves in hydrological cycles and
it is essential that discharge of pollutants be controlled at the
source.” Rapanos, 339 F.3d at 451 (citing S.Rep. No. 92-414,
at 77 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3742).
Unlike the absence of Congressional support for the
Migratory Bird Rule discussed in SWANCC, Congress clearly
envisioned that CWA jurisdiction would extend to bodies of
water exhibiting a hydrological connection to traditional
navigable waters. As this court previously recognized
[i]n Riverside Bayview the Supreme Court concluded that
the Corps regulation extending jurisdiction to adjacent
wetlands was a reasonable interpretation in part because
of what [SWANCC] 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

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No. 03-1489 United States v. Rapanos, et al. 17
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).
D. Chevron Deference
The doctrine of “administrative deference,” also known as
“Chevron deference,” provides an alternative ground for
affirming the Corps’ authority over waters adjacent to
tributaries of navigable waters. When Congress delegates
authority to enforce a statute to a governmental agency, while
leaving some ambiguity in how the agency is to enforce the
statute, courts should assume that Congress impliedly
delegated the authority to interpret the ambiguity to the
agency charged with administering the statute. Chevron, 467
U.S. at 843-45. The agency is thus in the position to “fill the
gaps” left by Congress. Unless the agency’s interpretation of
the statute is “arbitrary, unreasonable, or manifestly contrary
to the statute,” the agency interpretation should be applied.
Id. at 843-44.
In Chevron, a unanimous Supreme Court pointed out that
deferring to agency interpretations, rather than requiring
judicial interpretation, served the interests of democracy,
noting that
Judges are not experts in the field, and are not part of
either political branch of the Government. Courts must,
in some cases, reconcile competing political interests, but
not on the basis of the judges’ personal policy
preferences. In contrast, an agency to which Congress
has delegated policymaking responsibilities may, within
the limits of that delegation, properly rely upon the
incumbent administration’s views of wise policy to
inform its judgments. While agencies are not directly
accountable to the people, the Chief Executive is, and it
is entirely appropriate for this political branch of the
Government to make such policy choices -- resolving the
18 United States v. Rapanos, et al. No. 03-1489
competing interests which Congress itself either
inadvertently did not resolve, or intentionally left to be
resolved by the agency charged with the administration
of the statute in light of everyday realities.
When a challenge to an agency construction of a
statutory provision, fairly conceptualized, really centers
on the wisdom of the agency’s policy, rather than
whether it is a reasonable choice within a gap left open
by Congress, the challenge must fail. In such a case,
federal judges -- who have no constituency -- have a duty
to respect legitimate policy choices made by those who
do. The responsibilities for assessing the wisdom of such
policy choices and resolving the struggle between
competing views of the public interest are not judicial
ones: Our Constitution vests such responsibilities in the
political branches.
Id. at 865-66 (citation omitted). Before according deference
to agency interpretations, a federal court “need not find that
[the agency’s interpretation] is the only permissible
construction . . . but only that [its] understanding of this . . .
statute is a sufficiently rational one to preclude a court from
substituting its judgment for that of [the agency.]” Chem.
Mfrs. Ass’n v. Natural Resources Defense Council, 470 U.S.
116, 125 (1985) (citation omitted). I n S W A N C C t h e
Supreme Court refused to accord Chevron deference to the
Corps’ Migratory Bird Rule. Noting that “where an otherwise
acceptable construction of a statute would raise serious
constitutional problems, the Court will construe the statute to
avoid such problems unless such construction is plainly
contrary to the intent of Congress,” the Court concluded that
the Migratory Bird Rule infringed on the state’s “traditional
and primary power over land and water use,” and thus was
not entitled to Chevron deference. Id. at 173-74 (citation
omitted). In Riverside Bayview, however, the Supreme Court
accorded Chevron deference to the Corps’ conclusion that
“waters of the United States” included wetlands adjacent to
navigable waters. 474 U.S. at 134-35. As the SWANCC

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No. 03-1489 United States v. Rapanos, et al. 19
Court recognized, deference was appropriate in Riverside
Bayview given the significant nexus between the adjacent
waters and navigable waters that was not present in the
“nonnavigable, isolated, intrastate ponds” at issue in
SWANCC whose only connection to interstate commerce was
the fact that they were occasionally home to migratory birds.
In Deaton, after conducting a thorough review of the CWA,
the Fourth Circuit accorded Chevron deference to the Corps’
construction of the CWA that granted it authority over
“distant, nonnavigable tributaries of navigable waters.”
Deaton, 332 F.3d at 709. In Rapanos, this court agreed with
the Fourth Circuit’s holding in Deaton. Rapanos, 339 F.3d at
452-53. Because waters containing a hydrological connection
to tributaries of navigable waters bear a “significant nexus” to
navigable waters, as in Riverside Bayview and unlike the
waters in SWANCC, Chevron deference is appropriate. The
Corps’ interpretation of “waters of the United States” to
include those waters adjacent to tributaries of navigable
waters, that share a hydrological connection with those
tributaries, is neither “arbitrary, unreasonable, or manifestly
contrary to the statute.” Chevron, 467 U.S. at 843-44.
E. Application to this Case
The Defendants argue that this court should impose a
“direct abutment” requirement to CWA jurisdiction over non-
navigable water. In response, the United States asserts that
the Defendants waived a defense based on SWANCC by not
raising it before the district court. It claims that, while the
Defendants argued that the CWA does not extend to “isolated
waters,” they did not make the current argument that the
CWA does not extend to “wetlands adjacent to nonnavigable
tributaries.” However, the United States is splitting hairs, as
this is simply part and parcel of the “isolated waters”
argument the Defendants made before the district court.
Alternatively, the Defendants’ current claim falls under the
exceptions to the traditional rule that appellate courts will not
entertain arguments raised for the first time on appeal because
20 United States v. Rapanos, et al. No. 03-1489
this argument involves a question of law and the factual
record has been fully developed below. Taft Broadcasting
Co. v. United States, 929 F.2d 240, 244 (6th Cir. 1991).
As discussed supra, Rapanos’ argument regarding
SWANCC has previously been adjudicated by this court, in a
published disposition, and its conclusion is entitled to stare
decisis. See Rapanos, 339 F.3d at 453. Indeed, Rapanos
acknowledged as much during oral arguments. Further, this
court’s reasoning in that case is supported by the majority of
circuits, by the policy of deferring to agency interpretations,
and by a careful examination of the relevant Supreme Court
cases. There is no “direct abutment” requirement in order to
invoke CWA jurisdiction. Non-navigable waters must have
a hydrological connection or some other “significant nexus”
to traditional navigable waters in order to invoke CWA
jurisdiction. Unlike the isolated waters in SWANCC, these
waters are interconnected with traditional navigable waters.
Next, the Defendants’ argument that the district court did
not find that there was a “significant nexus” between the
wetlands and the navigable waters is similarly misplaced. The
district court found that all three sites contained a
hydrological connection to navigable waters and thus fell
within the jurisdiction of the CWA. Specifically, the district
court found that
the Salzburg wetlands have a surface water connection to
tributaries of the Kawkawlin River which, in turn, flows
into the Saginaw River and ultimately into Lake Huron.
Dr. Willard testified that the wetlands at the Salzburg site
had a surface connection to the waters of the United
States. In 1994, Hal Harrington verified that a surface
water connection exists between the Salzburg site and
Saginaw Bay.
Further, Hal Harrington, Chief of the Michigan Department
of Environmental Quality’s Great Lakes Submerged Lands
Unit, testified that there was a surface water connection

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No. 03-1489 United States v. Rapanos, et al. 21
3In Rapanos’ criminal case, this court held that the evidence
demonstrated that “the wetlands on Rapanos’s land are adjacent to the
Labozinski Drain . . .” and noted that contamination o f that drain “could
affect navigable-in-fact waters.” Rapanos, 339 F.3d at 453 (d iscussing a
slightly different parcel of land). The Labo zinski Drain discussed in the
criminal case drains into the Hop pler Drain.
between the Salzburg site and the Saginaw Bay. In 1994 he
visited the site. During this visit, he observed carp spawning
in a roadside stream on the north side of the property. He
followed the flow of the water and “each road crossing with
this surface water connection to Saginaw where it entered . . .
the river entering Saginaw Bay north of the Bay City State
Park [the Kawkawlin River].” An expert for Rapanos, Dr.
Straw, testified that water left the site through the Hoppler
Drain, which drains into the Hoppler Creek. This drain 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 have a surface water connection to the Rose Drain
which, in turn, has a surface water connection to the
Tittabawassee River. Dr. Willard also described the
nature of the surface water connection 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.
In addition, Mr. Zbiciak, a representative from the State of
Michigan, testified that the wetlands drained into the Rose
Drain, which runs along the western side of the site and flows
down to the Tittabawassee River. A report by Charlie
Dodgers, another representative of the State of Michigan,
indicated that the site inspection revealed five locations where
water moved into the Rose Drain, as he testified at trial.
Rapanos claims that ditches he dug in 1992 were the only
cause of a surface water connection to the Rose drain.
22 United States v. Rapanos, et al. No. 03-1489
However, Charlie Dodgers testified that surface runoff
occurred naturally “at least seasonally,” and one of the United
States’ exhibits demonstrated surface connections to the Rose
drain as early as 1975.
Regarding the Pine River site, the district court noted that
“Dr. Willard testified that 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 United
States showed that areas of wetlands on the site were in close
proximity to the Pine River (although they did not delineate
the specific paths these wetlands would have taken to drain
into the river).
Although the Defendants claim that the evidence did not
support these conclusions, the record demonstrates that there
were hydrological connections between all three sites and
corresponding adjacent tributaries of navigable waters. See
Rapanos, 339 F.3d at 453 (“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.”). Moreover, the
Defendants are certainly unable to show that the district
court’s conclusions were clearly erroneous. Pledger, 236
F.3d at 320. The district court was in a far superior position
to judge the complicated facts of this case after presiding over
the lengthy proceedings and the bench trial. Further,
[t]he rationale for deference to the original finder of fact
is not limited to the superiority of the trial judge’s
position to make determinations of credibility. The trial
judge’s major role is the determination of fact, and with
experience in fulfilling that role comes expertise.
Duplication of the trial judge’s efforts in the court of
appeals would very likely contribute only negligibly to
the accuracy of fact determination at a huge cost in
diversion of judicial resources. In addition, the parties to
a case on appeal have already been forced to concentrate
their energies and resources on persuading the trial judge

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No. 03-1489 United States v. Rapanos, et al. 23
that their account of the facts is the correct one; requiring
them to persuade three more judges at the appellate level
is requiring too much. As the Court has stated in a
different context, the trial on the merits should be “the
‘main event’ . . . rather than a “tryout on the road.’”
Wainwright v. Sykes, 433 U.S. 72, 90 (1977). For these
reasons, review of factual findings under the clearly-
erroneous standard -- with its deference to the trier of fact
-- is the rule, not the exception.
Anderson, 470 U.S. at 574-75. The testimony and evidence
in the record support the district court’s findings. Its
conclusions of fact are entitled to substantial deference and
they are not “clearly erroneous.”
The Defendants also argue that the district court was
required to make “subsidiary findings” to support its
conclusion that the sites had a hydrological connection to
navigable waters, citing 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 testimony regarding the
hydrological connection, provides a sufficient basis to
examine the district court’s findings and supports the
determination that its conclusions were not clearly erroneous.
II. Dr. Willard’s Testimony
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 an expert in wetlands and
concluded that his testimony was “highly credible.” The
Defendants argue that this testimony should have been
stricken, or the trial delayed, because Dr. Willard relied upon
a supplemental expert witness report that was not disclosed
until after trial was underway.
Dr. Willard revised the map he prepared for trial
delineating the areas of wetland on the Rapanos’ land. After
examining the soil analysis from the Defendants’ expert and
24 United States v. Rapanos, et al. No. 03-1489
aerial photography, Dr. Willard revised his wetlands maps,
removing some of the areas he had previously marked as
wetlands. He did so to be “as conservative and as accurate as
[he] could.” The new maps were produced in conjunction
with Will Bowman, a soils scientist with the Natural
Resources Conservation 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 Defendants contend that this late
report “made a mockery of the Federal Rules of Civil
Procedure,” specifically complaining that the disclosure rules
specified in Rule 26 were violated. They claim that the
district court’s denial of their motion for Rule 37 sanctions,
based on the failure to disclose, requires remand for a new
trial.
The United States points out that the new maps were based
on analysis from the Defendants’ experts contained in the
Pierce report. The version of Rule 26(e) in effect at the time
of the trial provided that a party was required to supplement
its disclosures “if the information disclosed is incomplete or
incorrect and if the additional or corrective information has
not otherwise been made known to the other parties during
the discovery process.” The data used in the supplemental
report and maps was known to the Defendants, as it was
produced by their experts. Because Dr. Willard’s previous
expert report and maps were available to the Defendants, it
seems unlikely that simply incorporating some of the data
from the Defendants’ own experts, which reduced the
computation of wetland areas, qualifies under Rule 26’s
mandatory disclosure requirements.
Even if we assume that the United States was required to
disclose the supplemental results, exclusion of the report and
testimony was not the only remedy available to the district
court. Rule 37(c) provides sanctions for the failure to comply
with Rule 26, including exclusion of evidence. This court
reviews for abuse of discretion a district court’s ruling on a
motion to exclude an expert witness as a sanction under Rule

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No. 03-1489 United States v. Rapanos, et al. 25
37 of the Federal Rules of Civil Procedure. Roberts ex rel.
Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th
Cir. 2003); Toth v. Grand Trunk Railroad, 306 F.3d 335, 344
(6th Cir. 2002). Rule 37 provides that the trial 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 allowed to use the material that was not disclosed
if the lack of earlier notice was harmless.”). The non-
disclosing party bears the burden of proving that a disclosure
was harmless. Roberts, 325 F.3d at 782. The aggrieved
party, however, must show substantial prejudice before this
court will grant a new trial based on an alleged Rule 26(e)
disclosure error. Toth, 306 F.3d at 344.
In this case, the failure to disclose seems harmless as the
Defendants were aware of the data used in the supplemental
reports and the revised reports reduced the amount of
wetlands found to exist at the sites. Thus, the only changes
made between the original disclosed report and the
supplemental report were beneficial to the Defendants. In
summary, no “substantial prejudice” has been demonstrated.
Even if a trial court determines that Rule 26 has been
violated, Rule 37 does not mandate exclusion of evidence.
Roberts, 325 F.3d at 783-84 (Rule 37(c)(1) “provides several
remedies to a district judge who is faced with violations of the
mandatory-disclosure provisions of Rule 26. The provision
on sanctions explicitly states in pertinent part that ‘in lieu of
this sanction [of total exclusion], the court, on motion and
after affording an opportunity to be heard, may impose other
appropriate sanctions.’”). The district court, after noting its
concern with the failure to disclose the supplemental report,
concluded that
the defense should be accommodated and [I] will do so
in several ways, [at] the option totally of the defense.
Number one is that at the conclusion of the
26 United States v. Rapanos, et al. No. 03-1489
Government’s expert witness case, I would certainly give
the defense as much reasonable time as they need 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
on a phone conference so that they can hear all that
testimony . . . so that you can be prepared and also take
some time and recess for as long as you need in order to
consult with your expert for cross-examination and if it
entails taking whatever time it takes reasonably to be
prepared. But I think that we’re here to seek the truth,
and that’s -- that’s the whole idea of having a trial is to
seek the truth. It’s not . . . to ambush and everybody
should be prepared. . . . But I have to, I think, listen to
the testimony to see what really transpired here with the
understanding that we’re here to seek the truth and that
I will give the defense as much opportunity as they need
since it’s a bench trial and we can take time, and it’s
important, but not that important that you shouldn’t have
an opportunity to be able to use your right to cross-
examine, to seek the truth.
The district court properly considered the role of the trial, the
rights of the parties, and the considerations of the Federal
Rules of Civil Procedure in this side-bar.
The Federal Rules of Civil Procedure are not so monolithic
as to demand a single outcome for the widely varying
circumstances encountered in discovery and trial. They
properly recognize the discretion of the trial court to fashion
appropriate remedies, taking into account the facts of the case.
This case languished for more than five years between the
filing of the Complaint and the 13-day bench trial. It
involved complicated factual and legal issues. It was within
the district court’s discretion to allow the evidence and it
significantly allayed any fears of undue surprise by granting
the Defendants “as long as they needed” to review Dr.
Willard’s supplemental report so that they could discuss it
with their experts.

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No. 03-1489 United States v. Rapanos, et al. 27
Finally, Dr. Willard notified the Defendants during his
deposition a few weeks before trial that he was in the process
of amending his findings based upon the Pierce report. The
Defendants apparently did not object to this until Dr. Willard
testified and they never made a motion pursuant to Rule
37(a)(2)(A) to compel discovery. In Roberts, this court noted
that such inaction by the “surprised” party suggests that the
failure to disclose should be considered harmless or justified.
Roberts, 325 F.3d at 783.
Considering all of the circumstances in this complicated
case, the district court’s failure to exclude Dr. Willard’s
supplemental reports cannot be said to be an “abuse of
discretion” and its solution for the disclosure problem was
entirely appropriate.
III. The Michigan Wetlands Program
The CWA permits states to develop their own water
protection permit program to enforce the provisions of the
CWA. 33 U.S.C. § 1344(g). This partial delegation
provision “gives a state the authority to render a
comprehensive federal/state wetland permit decision with the
federal government playing the role of the overseer in the
consideration of permit applications.” Michigan Peat v.
United States Envtl. Prot. Agency, 175 F.3d 422, 424 (6th
Cir.1999). Michigan, along with New Jersey, has established
such a permitting program. 40 C.F.R. §§ 233.70-233.71.
The Defendants claim that Michigan’s permitting
regulations contain slight variations to the federal statutes. In
particular, they cite Michigan’s Geomare-Anderson Wetlands
Protection Act, which has language defining wetlands that
differ somewhat from the Corps’ regulations. Mich. Comp.
Laws § 324.30301(p). Those wetlands that are not
contiguous to the Great Lakes, an inland lake or pond, or a
river or stream, and less than five acres in size, are not subject
to Michigan’s Wetlands Protection Act, unless it is certified
that the area’s preservation is necessary to protect the natural
28 United States v. Rapanos, 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 Defendants argue that it was
error for the district court not to make findings of fact
regarding the Michigan statute’s five-acre limitation, instead
focusing solely on the federal regulations.
While the CWA grants states the authority to establish their
own clean water regulations, Congress clearly intended for
any state program to be at least as broad as the federal
program. See 33 U.S.C. § 1344(h)(1)(A)-(B). The Geomare-
Anderson Wetlands Protection Act is a state statute separate
from the CWA. The CWA’s provision for state involvement
in issuing CWA permits does not delegate authority to the
state to alter application of the CWA and the Corps
specifically notes that “[a]ny approved State Program shall,
at all times, be conducted in accordance with the requirements
of the Act and of this part. While States may impose more
stringent requirements, they may not impose any less
stringent requirements for any purpose.” 40 C.F.R.
§ 233.1(d). Moreover, contrary to the Appellant’s assertions,
permitting a state to issue CWA permits does not foreclose all
federal issuance of CWA permits. See Michigan Peat, 175
F.3d at 427 (a case in which the Corps had ultimate authority
to issue permit when state permit did not address the concerns
of the federal government); 33 U.S.C. § 1344(g)(1) (Corps
still issues permits for waters used in interstate commerce,
including adjacent wetlands).
The CWA explicitly provides that, notwithstanding the
delegation of authority to the states, nothing in Section 1344
is meant to restrict the Corps’ authority to enforce the CWA.
33 U.S.C. § 1344(n). This court has recognized that Section
1344(n) allows the federal government to pursue an action
against an offender regardless of whether the state has
instituted its own enforcement program, noting that under
“the CWA . . . the responsible federal agency retains
oversight power to ensure compliance with federal
standards.” S. Ohio Coal Co. v. Office of Surface Mining,

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No. 03-1489 United States v. Rapanos, et al. 29
Reclamation and Enforcement, 20 F.3d 1418, 1427-28 (6th
Cir. 1994); see also United States v. City of Rock Island, 182
F. Supp. 2d 690, 693-94 (C.D. Ill. 2001); United States v.
Town of Lowell, 637 F. Supp. 254, 257 (N.D. Ind. 1985). The
CWA does not contain any language suggesting that state
implementation of the CWA is “in lieu of” federal
enforcement and thus any delegation of authority to the state
in the CWA does not end a citizen’s responsibility to abide by
the federal laws and regulations. Cf. United States v. City of
Youngstown, 109 F. Supp. 2d 739, 741 (N.D. Ohio 2000).
In short, there is nothing 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 on CWA 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 act. In fact, the statute and the accompanying
regulations make it clear that state enforcement programs
cannot act to weaken the CWA.
Finally, it should be noted that the Corps retains the
ultimate authority to deny a CWA permit, even if Michigan
is inclined to grant one under its delegation of authority.
Michigan’s Administration of Section 404 at 2 (available at
http://www.deq.state.mi.us/documents/deq-lwm-wetlands-4
04admin.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 the sole
authority to authorize the issuance of a permit). In certifying
Michigan’s 404 permitting scheme, Michigan’s Attorney
General wrote that
[t]he Water Resources Commission Act governing
discharge of pollutants into water of this state includes
within its ambit all waters of the State of Michigan. It is,
of course, clear that the . . . Wetlands Act exclude from
their purview certain lakes having an area of less than 5
acres. Even this problem is, in fact, of no practical
30 United States v. Rapanos, et al. No. 03-1489
matter for a number of reasons. First, it is quite
conceivable that a lake under 5 acres would have an
affect on interstate commerce so as to imbue it with the
distinction of being “water of the United States” and thus
subject to the federal permit program.
Thus, Michigan’s permitting program properly recognized
that a site not falling within the ambit of Michigan’s state
program could still be within the jurisdiction of the federal
program.
IV. Collateral Estoppel
The district court found that Mr. Rapanos should be
collaterally estopped from denying liability at the Salzburg
site based on the outcome in the criminal case. Both parties
note the confusion from relying upon collateral estoppel in
this case because (1) the “Salzburg site” referenced in the
criminal trial is not completely analogous to the Salzburg site
in this case and (2) when the district court entered its findings
of fact in 2000, Rapanos had been convicted in his trial and
sentenced, but his appeal was pending, yet when the district
court entered its final judgment in February 2003, Rapanos’
conviction had been vacated by the criminal trial court and
the United States’ appeal to this court was pending. The
United States notes the difficulty inherent in relying upon
collateral estoppel when an appeal is pending.
Regardless, the district court’s conclusion regarding
collateral estoppel was not necessary for its finding that the
Defendants were responsible for CWA violations at the
Salzburg site. As discussed supra, the district court
concluded that the Defendants had discharged fill into the
Salzburg site and that the Salzburg site was subject to CWA
jurisdiction. A judge may rely upon multiple alternative, but
independent rationales for his decision. See Nat’l Satellite
Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 909-10 (6th Cir.
2001) (discussing the effects on collateral estoppel when a
decision is based upon two alternative, but independent

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No. 03-1489 United States v. Rapanos, et al. 31
rationales). In this case, it is unnecessary to determine
whether collateral estoppel was appropriate because the
district court provided alternate rationales for its findings.
V. The Extent of Unauthorized Filling
Finally, the Defendants contend that substantial evidence
did not support the district court’s finding that 54 acres of
wetlands were illegally filled. 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 (covering 54 acres) and not the result of incidental
fallback after examining the evidence and hearing the relevant
testimony. This conclusion is supported by the evidence and
is not clearly erroneous.
CONCLUSION
We AFFIRM the judgment of the district court.

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