464 F.3d 723 (7th Cir. 2006), 04-3941, United States v. Gerke Excavating, Inc.
| Citation | 464 F.3d 723 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. GERKE EXCAVATING, INC., Defendant-Appellant. |
| Case Date | September 22, 2006 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit |
Page 723
Rehearing and Rehearing en Banc Denied Dec. 1, 2006.
Leslie K. Herje (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
Gregory T. Broderick (argued), Sacramento, CA, for Defendant-Appellant.
Before Posner, Easterbrook, and Evans, Circuit Judges.
Per Curiam.
This suit charges that the defendant, Gerke Excavating, violated the Clean Water Act by discharging pollutants into "navigable waters" from "point sources" without having obtained the permit from the Corps of Engineers that is required if the pollutant consists of dredge or fill material. 33 U.S.C. §§ 1311(a), 1362(12). The district judge granted summary judgment for the government and imposed a civil penalty. We affirmed. 412 F.3d 804 (7th Cir. 2005).
Page 724
Gerke filed a petition for certiorari. The Court granted the petition, --- U.S. ----, 126 S.Ct. 2964, 165 L.Ed.2d 947 (2006), and remanded the case to us for further consideration in light of Rapanos v. United States, --- U.S. ----, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), where the Court reversed two judgments by the Sixth Circuit upholding federal authority over wetlands, as had we.
There was, however, no majority opinion in Rapanos. Four Justices, in an opinion supporting reversal, wanted to limit federal authority over "navigable waters" to "those wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and wetlands, are 'adjacent to' such waters and covered by the [Clean Water Act]. Wetlands with only an intermittent, physically remote hydrologic connection to 'waters of the United States' . . . thus lack the necessary connection to covered waters that we described as a 'significant nexus.' Thus, establishing that wetlands such as those at the Rapanos and Carabell sites are covered by the Act requires two findings: First, that the adjacent channel contains a 'wate[r] of the United States,' (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins." Id. at 1226-27 (citations omitted).
Justice Kennedy concurred in the judgment to reverse but not in the plurality...
To continue reading
Request your trial
-
Trump Administration Begins “Round 4” in the Battle Over Clean Water Act Jurisdiction
...Wilcox, 633 F.3d 766 (9th Cir. 2011); United States v. Robison, 505 F.3d 1208 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); United States v. Johnson, 467 F.3d 56 (1st Cir. 2006). [14] See supra note 1 at 80-81, 116-21, 156-60. [15] Supra note 1 at ......
-
President Trump Signs WOTUS Rule's Death Warrant
...633 F.3d 278, 288 (4th Cir. 2011); United States v. Cundiff, 555 F.3d 200, 210 (6th Cir. 2009); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007). In 2008 guidance, EPA and the Corps sta......
-
President Trump Signs WOTUS Rule's Death Warrant
...633 F.3d 278, 288 (4th Cir. 2011); United States v. Cundiff, 555 F.3d 200, 210 (6th Cir. 2009); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. In 2008 guidance, EPA and the Corps stated tha......
-
Finally Finality? The Trump Administration’s Answer to One of Environmental Law’s Most Contested Questions: What Are “Waters of the United States”?
...Wilcox, 633 F.3d 766 (9th Cir. 2011); United States v. Robison, 505 F.3d 1208 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); United States v. Johnson, 467 F.3d 56 (1st Cir. [17] Rule pp. 80, 142. Ankur TohanEndre Szalay...
-
(Ground)waters of the United States: unlawfully excluding tributary groundwater from Clean Water Act jurisdiction.
...of "significant nexus"). (271) 430 U.S. 188(1977). (272) Id. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). (273) 464 F.3d 723 (7th Cir. 2006). (274) Id. at 724. (275) Id. at 724-25. (276) See, e.g., N. Ceil. River Watch v. City of Healdsburg, 496 F.3d 993, 995 (9th Cir. ......
-
Regulation of Wetlands and Waters of the United States
... 4 th Circuit: Precon Development Corp. v. Corps, 633 F.3d 278 (4 th Cir. 2011) 7 th Circuit: United States v. Gerke Excavating, Inc. , 464 F.3d 723 (7 th Cir. 2006) 9 th Circuit: Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9 th Cir. 2007 ) Kennedy Only 11 th......
-
THE CLEAN WATER RULE: NOT DEAD YET.
...supra note 143, at 363. (184) United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006). (185) N. Cal. River Watch v. Wilcox, 633 F.3d 766, 769 (9th Cir. 2011), clarifying N. Cal. River Watch v. City of Healdsb......
-
Treading water while Congress ignores the nation's environment.
...1208 (11th Cir. 2007); No. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006). At least one court would uphold CWA jurisdiction if either the Scalia or Kennedy tests were met. United States v. Johnson, ......