Kelly v. US EPA

• Decision Date: 10 February 2000
• Docket Number: No. 99-2496,99-2496
• Citation: 203 F.3d 519
• Parties: (7th Cir. 2000) THOMAS KELLY and JONATHAN PRISK, Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 519

203 F.3d 519 (7th Cir. 2000)

THOMAS KELLY and JONATHAN PRISK, Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee.

No. 99-2496

In the United States Court of Appeals For the Seventh Circuit

Argued January 7, 2000

Decided February 10, 2000

Appeal from the United States District Court for the Western District of Wisconsin. No. 98 C 655-S--John C. Shabaz, Chief Judge.

Before POSNER, Chief Judge, and ROVNER and EVANS, Circuit Judges.

EVANS, Circuit Judge.

A man's home may be his castle, but our society has come to realize that just how an individual property owner uses shared resources such as water, air, and soil affects the rest of the community. Several laws protecting these resources have been enacted, and one of them, the Clean Water Act, is designed to protect this country's dwindling wetlands, a vital part of the ecosystem that purifies the water, helps control flooding, produces food, and provides habitat for birds, fish, animals, and plants. The appellants attempt to trivialize this natural resource and the law that safeguards it, but they offer no coherent rationale why they should get out from under a small sanction imposed upon them for violating the Clean Water Act.

Thomas Kelly owns property adjacent to Lake Koshkonong in Jefferson County, Wisconsin. Lake Koshkonong is part of the Rock River, which eventually empties into the Mississippi River. Kelly's property includes a 3.5-acre "swale," or low-lying marsh. The marshy area performs several ecological functions: absorbing nutrients and purifying the water; allowing a variety of trees and plants to grow; and providing food and shelter for herons, kingfishers, muskrats, pheasants, rabbits, squirrels, red foxes, snipes, ducks, geese and their goslings.

Kelly, though, was more interested in making a buck than saving a duck. He bought the property with the aim of turning it into a subdivision. He built a road, extended utilities, cut down trees, cleaned up garbage, obtained a permit from the county to riprap the shoreline and fill in part of the property, and began filling in the swale. Dale Pfeiffle of the Army Corps of Engineers visited the property in August 1990, observed fill in about 30 percent of the swale, and took note of the land's wetland characteristics. Pfeiffle told Kelly that, in addition to the county permit, he needed a federal permit to discharge fill material into the swale. Later, an application for a permit was mailed to Kelly. Kelly consulted an attorney, who told him he didn't need permission from the feds to continue his development of the land. This was bad advice. Kelly continued filling in the swale without bothering to get a permit. By the time Pfeiffle returned to the property in September 1990, almost 90 percent of the swale contained fill material. Finding that Kelly violated the Clean Water Act by filling in a wetland without a permit, the EPA ordered him to remove the fill and restore the swale to its prior condition. No fine was ordered, and Kelly complied. A friend of his, Jonathan Prisk, did some of the restoration work.

Flooding in the summer of 1993 left brush and root stumps on Kelly's land. He burned what he could and decided to bury the rest. He hired Prisk to dig pits in the swale, bury the debris, and level things off. Prisk asked if a permit was required and suggested burying the debris upland away from the swale, but Kelly told him, in effect, "Don't worry; be happy." This, too, was bad advice. On January 28 and February 1, 1994, Prisk used a backhoe to dig eight pits in the swale, deposit brush, and then cover the pits. William Meyer of the Army Corps of Engineers visited the property on February 1 and saw what Prisk was doing. Meyer and the EPA's Gregory Carlson visited the property again a few days later and observed eight covered pits, large ruts in the soil resembling tire tracks, and clots of earth bereft of vegetation. Carlson estimated that the fill activities had disturbed two of the swale's 3.5 acres and that 800 cubic yards of fill had been dumped in the swale.

The EPA sought a $6,000 administrative penalty against Prisk and a $4,000 administrative penalty against Kelly for violating the Clean Water Act by filling in a wetland. An administrative hearing was held in 1996 at which Pfeiffle, Meyer, Carlson, Kelly, and a local sportsman named Richard Persson testified. (Prisk did not attend but was represented by his lawyer, who also was representing Kelly.) In August 1998 David A. Ullrich, EPA's acting regional administrator at the time, assessed the requested $4,000 penalty against Kelly and lowered Prisk's penalty to $3,000 because he was viewed as the least culpable of the two. Kelly and Prisk appealed to the district court, but the EPA's decision was upheld.

We review de novo a district court's decision to affirm the decision of the EPA's regional administrator. See Mahler v. U.S. Forest Service, 128 F.3d 578, 582 (7th Cir. 1997). No court will set aside civil penalties assessed by an agency "unless there is not substantial evidence in the record, taken as a whole, to support the finding of a violation." 33 U.S.C. sec. 1319(g)(8). Evidence is substantial if a reasonable mind might accept it as adequate to support a conclusion. Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 261 (7th Cir. 1993).

Congress enacted the Clean Water Act "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. sec. 1251(a). The Act prohibits discharging pollutants into navigable waters without a permit from the Army Corps of Engineers. 33 U.S.C. sec.sec. 1311(a), 1344, 1362(6), (7) and (12). Pollutants include dredged spoil, biological materials, rock, and sand. 33 U.S.C. sec. 1362(6). Navigable waters include wetlands, 33 C.F.R. sec. 328 (see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132-35 (1985); Solid Waste Agency of N. Cook Co. v. U.S. Army Corps of Eng'rs, 191 F.3d 845, 851 (7th Cir. 1999); Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 964 (7th Cir. 1994)), which are "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." 33 C.F.R. sec. 328.3(b).

Kelly and Prisk argue that because they did not knowingly violate the law they did not violate the law. This argument fails for at least three reasons.

First, although Kelly and Prisk's brief makes scattered references to not knowingly violating the statute, it fails to explain their argument that knowledge is required for a violation. Undeveloped arguments are waived. See JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 780-81 (7th Cir. 1999); United States v. Watson, 189 F.3d 496, 500 (7th Cir. 1999).

Second, nothing in the statute makes good faith or a lack of knowledge a defense. Negligence or knowledge is expressly required to trigger the statute's criminal penalties, 33 U.S.C. sec. 1319(c), but no such requirement exists for civil or administrative penalties, 33 U.S.C. sec. 1319(d) and (g). Civil liability under the Clean Water Act, therefore, is strict. See United States v. Winchester Mun. Util., 944 F.2d 301, 304 & n.1 (6th Cir. 1991); United States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979); United States v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir. 1979); Minnehaha Creek Watershed Dist. v. Hoffman, 597 F.2d 617, 627 (8th Cir. 1979).

Third, even if knowledge was required for a violation, the run-in with the feds in 1990 made Kelly (who was ordered to undo the damage) and Prisk (who did some of the actual work of undoing the damage) aware that putting material in the swale was a no-no. Their sob story about being ignorant of the federal regulations might have been credible the first time, but they obviously chose with, at best, their eyes wide shut, to disregard the law the second time around.

Kelly and Prisk also suggest that they did not violate the law because stuffing dead vegetation in the swale caused no environmental harm. Again, there is evidence that their actions caused some damage. But, again, they miss the larger point: The Clean Water Act does not forbid all filling of wetlands--it forbids the filling of wetlands without a permit. "The permit process is the cornerstone of the . . . scheme for cleaning up the nation's waters." United States v. Huebner, 752 F.2d 1235, 1239 (7th Cir. 1985) (internal quotations omitted). The purpose of requiring federal approval beforehand is to prevent or minimize aquatic damage. Kelly's actions might well have received federal approval. (In fiscal year 1994, for example, less than 1 percent of permit applications were denied. See U.S....