U.S. v. Deaton, No. 02-1442.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Michael
• Citation: 332 F.3d 698
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James S. DEATON; Rebecca Deaton, Defendants-Appellants, The Chesapeake Bay Foundation, Incorporated; State of Maryland, Department of the Environment, Amici Supporting Appellee.
• Docket Number: No. 02-1442.
• Decision Date: 12 June 2003

332 F.3d 698 UNITED STATES of America, Plaintiff-Appellee,
v.
James S. DEATON; Rebecca Deaton, Defendants-Appellants,

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The Chesapeake Bay Foundation, Incorporated; State of Maryland, Department of the Environment, Amici Supporting Appellee. No. 02-1442. United States Court of Appeals, Fourth Circuit. Argued: December 5, 2002. Decided: June 12, 2003.

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COPYRIGHT MATERIAL OMITTED

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ARGUED: Raymond Stevens Smethurst, Jr., Adkins, Potts & Smethurst, L.L.P., Salisbury, Maryland, for Appellants. James Clarke Howard, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Virginia S. Albrecht, Stephen M. Nickelsburg, Hunton & Williams, Washington, D.C.; Duane J. Desiderio, Thomas Jon Ward, National Association of Home Builders, Washington, D.C., for Appellants. Thomas M. DiBiagio, United States Attorney, Thomas L. Sansonetti, Assistant Attorney General, Greer S. Goldman, Ethan G. Shenkman, Environment & Natural Resources Division, United States Department of Justice, Baltimore, Maryland, for Appellee. Roy A. Hoagland, Denise Stranko, The Chesapeake Bay Foundation, Inc., Annapolis, Maryland; Janice L. Goldman-Carter, Edina, Minnesota, for Amicus Curiae Foundation. J. Joseph Curran, Jr., Attorney General of Maryland, Adam D. Snyder, Assistant Attorney General, Baltimore, Maryland, for Amicus Curiae State.

Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge MICHAEL wrote the opinion, in which Judge WILKINSON and Judge LUTTIG joined.

OPINION

MICHAEL, Circuit Judge:

This is the second appeal by James and Rebecca Deaton, who were sued by the government under the Clean Water Act (sometimes, "the CWA" or "the Act"), 33 U.S.C. § 1251 et seq., for failing to obtain a

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permit from the U.S. Army Corps of Engineers (the Corps) before digging a ditch and depositing excavated dirt in wetlands on their property. The Corps asserts jurisdiction because the Deatons' wetlands are adjacent to, and drain into, a roadside ditch whose waters eventually flow into the navigable Wicomico River and Chesapeake Bay. The Deatons' main argument is that the Corps has no authority over the roadside ditch, and thus the agency cannot regulate their wetlands. First, we hold that Congress's power under the Commerce Clause to protect navigable waters allows it to regulate the discharge of pollutants that flow into the ditch. Congress delegated part of this authority to the Corps in the Clean Water Act. The Corps, in turn, has promulgated a regulation, 33 C.F.R. § 328.3(a)(5), that extends CWA jurisdiction to tributaries of navigable waters. This regulation represents a reasonable interpretation of the CWA that is entitled to deference. The Corps interprets its regulation to cover the roadside ditch, and we also defer to that interpretation. Second, we hold that the district court did not err when it decided that the Corps used an appropriate indicator for wetland hydrology (prescribed by its Wetlands Delineation Manual) in designating parts of the Deatons' property as wetlands. Finally, we affirm the district court's remediation order, which requires the Deatons to fill in the ditch and restore their wetlands to their pre-violation condition.

I.

The Delmarva Peninsula separates the Chesapeake Bay from the Atlantic Ocean. Since 1989 the Deatons have owned an undeveloped, twelve-acre parcel of land located roughly in the center of the peninsula, near Parsonsburg in Wicomico County, Maryland. The parcel slopes gently downhill toward a county road, Morris Leonard Road. A drainage ditch runs alongside the road between the pavement and the Deatons' property. The Deatons call the ditch the "Morris Leonard Road ditch," while the Corps calls it the "John Adkins Prong of Perdue Creek." We will call it the "roadside ditch." The parties agree that surface water from the Deatons' property drains into the roadside ditch. They disagree about how much water flows through the ditch, and how consistent the flow is, but they agree on the ditch's course. Water from the roadside ditch takes a winding, thirty-two-mile path to the Chesapeake Bay. At the northwest edge of the Deatons' property, the roadside ditch drains into a culvert under Morris Leonard Road. On the other side of the road, the culvert drains into another ditch, known as the John Adkins Prong of Perdue Creek. Perdue Creek flows into Beaverdam Creek, a natural watercourse with several dams and ponds. Beaverdam Creek is a direct tributary of the Wicomico River, which is navigable. Beaverdam Creek empties into the Wicomico River about eight miles from the Deatons' property. About twenty-five river miles further downstream, the Wicomico River flows into the Chesapeake Bay, a vast body of navigable water.

The Deatons bought the twelve-acre parcel for the purpose of developing a small (five-lot) residential subdivision. There was a problem, however, because much of the property was poorly drained. In particular, there was a large, low, wet area in the middle where water stood in the winter months and after heavy rainfall. Because of the drainage problem, the Wicomico County Health Department denied the Deatons' application for a sewage disposal permit. The Deatons then decided to dig a drainage ditch across the property. A technician from the U.S. Soil Conservation Service (SCS) advised Mr. Deaton,

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however, that a large portion of the property contained nontidal wetlands and that he would need a permit from the Corps before undertaking any ditching work. In early 1990 the Deatons, without seeking a Corps permit, hired a contractor who dug a 1,100-foot ditch that crossed the areas of the property identified as wetlands by the SCS technician. The contractor piled the excavated dirt on either side of the ditch, a practice known as sidecasting.

The Corps learned about the Deatons' ditching project in July 1990 and promptly initiated regulatory action. The details are discussed in our prior opinion, United States v. Deaton, 209 F.3d 331, 333 (4th Cir.2000). In short, the Corps issued a stop-work order to the Deatons, warning them that their placement of fill material in a wetland violated § 404(a) of the Clean Water Act, 33 U.S.C. § 1344(a), and that no further work should be done without a permit. After a period of lengthy, but unsuccessful, negotiations with the Deatons, the government in 1995 filed a civil complaint alleging that the Deatons had violated the Clean Water Act by discharging fill material into regulated wetlands without a permit. The district court ultimately concluded in the first round that sidecasting did not constitute the discharge of a pollutant under the Act and granted summary judgment to the Deatons. We reversed, holding that "the Clean Water Act's definition of discharge as `any addition of any pollutant to navigable waters' encompasses sidecasting in a wetland." Deaton, 209 F.3d at 337 (referring to 33 U.S.C. § 1362(12)). We remanded the case for further proceedings.

Not long after our remand order, the Supreme Court decided Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (SWANCC). SWANCC held that the Corps exceeded its statutory authority under § 404(a) of the Clean Water Act when it interpreted the Act (through 33 C.F.R. § 328.3(a)(3) and the Migratory Bird Rule, 51 Fed.Reg. 41,217 (1986)) to cover an isolated, intrastate gravel pit that was filled with water and used by migratory birds. Id. at 162-63, 174, 121 S.Ct. 675. Because SWANCC provides new guidance for analyzing the Corps's jurisdiction under the Clean Water Act, the Deatons filed a motion on September 10, 2001, asking the district court to reconsider the issue of CWA jurisdiction in this case. The Deatons argued that under SWANCC the Clean Water Act cannot be read to extend Corps jurisdiction to their wetlands or the roadside ditch and that if the Act does extend that far, Congress exceeded its authority under the Commerce Clause, U.S. Const. Art. I, § 8, cl. 3. On January 29, 2002, the district court entered an order denying the motion to reconsider, holding (1) that the Deatons' wetlands are adjacent to the roadside ditch, which is a tributary of navigable waters, (2) that "[b]ecause there is a hydrologic connection between the Deaton wetlands and navigable waters," SWANCC does not bar CWA jurisdiction, and (3) that protecting the Deatons' wetlands is reasonably related to Congress's authority under the Commerce Clause to protect navigable waters as channels of commerce. Five days later, on February 4, 2002, the district court entered a remediation order directing the Deatons to restore their property "to its pre-violation condition and elevation." The Deatons appeal these orders.

II. A.

The Deatons' appeal of the district court's order denying their motion to reconsider Clean Water Act (or Corps) jurisdiction

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presents a question of law that we review de novo. See Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir.1991). We begin with the statutory and regulatory framework for Corps jurisdiction in this case. Section 404(a) of the Clean Water Act requires a permit issued by the Secretary of the Army, through the Corps of Engineers, for the discharge of fill material into "navigable waters." 33 U.S.C. § 1344(a), (d). The Act defines "navigable waters" as "waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). The Corps's jurisdictional regulations define "waters of the United States" to include, among others, (i) traditional navigable waters, that is, "waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce," 33 C.F.R. § 328.3(a)(1), (ii) tributaries of covered waters, including traditional navigable waters, id. § 328.3(a)(5), and (iii) wetlands adjacent to covered waters, including tributaries, id. §...