                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0035p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________

                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     Nos. 05-5469/5905; 07-5630
          v.
                                                 ,
                                                  >
 GEORGE RUDY CUNDIFF; CHRISTOPHER SETH -
                                                 -
                     Defendants-Appellants. -
 CUNDIFF,
                                                 -
                                                N
                   Appeal from the United States District Court
               for the Western District of Kentucky at Owensboro.
             No. 01-00006—Joseph H. McKinley, Jr., District Judge.
                                   Argued: December 9, 2008
                             Decided and Filed: February 4, 2009
                                                                                                    *
 Before: MARTIN and McKEAGUE, Circuit Judges; COLLIER, Chief District Judge.

                                      _________________

                                            COUNSEL
ARGUED: Leslie E. Nunn, LESLIE E. NUNN, P.C., Cynthiana, Indiana, for
Appellants. Jennifer Scheller Neumann, David Fishback, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Leslie
E. Nunn, LESLIE E. NUNN, P.C., Cynthiana, Indiana, for Appellants. Jennifer Scheller
Neumann, David Fishback, Ellen J. Durkee, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. James Graham Murphy, NATIONAL
WILDLIFE FEDERATION, Montpelier, Vermont, for Amicus Curiae.
                                      _________________

                                            OPINION
                                      _________________

        BOYCE F. MARTIN, JR., Circuit Judge. After eight years of failed negotiations
and ignored orders, the United States sued George Rudy Cundiff (who goes by Rudy)


        *
        The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District of
Tennessee, sitting by designation.


                                                  1
Nos. 05-5469/5905; 07-5630                   United States v. Cundiff, et al.                       Page 2


and his son, Christopher Seth Cundiff (who goes by Seth), seeking injunctive relief and
civil penalties against them for discharging “pollutants” into “waters of the United
States” without a permit in violation of the Clean Water Act. 33 U.S.C. § 1362. The
district court granted summary judgment for the government, imposed injunctive relief
in the form of a restoration plan for the Cundiffs’ wetlands, and imposed a civil penalty
of $225,000. All but $25,000 of that penalty was suspended, however, provided that the
Cundiffs implemented the restoration plan. The district court also dismissed the
Cundiffs’ array of statutory, common law, and constitutional counterclaims. While the
original appeal in this case was pending, the Supreme Court issued its splintered ruling
in Rapanos v. United States, 547 U.S. 715 (2006), which defined the Act’s jurisdiction
over “waters of the United States.” In light of Rapanos, we returned the case to the
district court to reconsider whether jurisdiction was proper over the Cundiffs’ wetlands.
The district court determined that it was because the Cundiffs’ wetlands were in fact
waters of the United States, and the Cundiffs appealed. We affirm the district court on
all grounds.

                                                      I.

           Defendants Rudy and Seth Cundiff own two adjacent tracts of land in
Muhlenberg County, Kentucky. Their properties together sit next to Pond and Caney
Creeks, which are tributaries of the Green River. The Green River, in turn, flows into
the Ohio River. In 1990, Rudy Cundiff bought the southern tract, which contains
roughly eighty-five acres of wetlands and an upland area where his house sits. When
Rudy bought it, portions of the wetlands contained exceptionally acidic orangish to
reddish colored water that had drained out of an abandoned coal mine located on a
neighbor’s nearby property. As a result, locals referred to the Cundiffs’ property as a
putrid eyesore, and this stagnant, discolored water caused the wetlands to become a
festering mosquito haven—though the Cundiffs knew all this when they bought it.1


           1
               Singer-songwriter John Prine has colorfully recounted Muhlenberg County’s sordid ecological
history:
           And daddy won’t you take me back to Muhlenberg County / Down by the Green River where
           Paradise lay / Well, I’m sorry my son, but you’re too late in asking / Mister Peabody’s coal train
           has hauled it away . . . . / Then the coal company came with the world’s largest shovel / And they
Nos. 05-5469/5905; 07-5630              United States v. Cundiff, et al.                       Page 3


Shortly after his purchase, Cundiff began excavating drainage ditches and clearing trees
to make the wetlands suitable for farming.

        In October 1991, federal officials from the Army Corps of Engineers and state
officials from the Kentucky Division of Water observed ditches, artificially filled
wetlands, and mechanically cleared land on the wetlands. The Corps suspected possible
Clean Water Act violations. Rudy had failed to obtain a section 404 permit as required
for such dredging and filling activities, and further inspection revealed that Cundiff had
excavated ditches in the wetlands and placed dredged material into them as filler (known
as “sidecasting”).      Consequently, the Corps sent him a cease-and-desist letter
“specifically prohibiting any further activity involving the placement of excavated or fill
material into these jurisdictional wetlands” without a federal permit.

        Federal and state officials then began meeting with Cundiff in 1992, though they
reached no agreement. Instead, he insisted on converting the wetlands into farmland and
continued to drain and clear the property. The Corps referred the matter to the
Environmental Protection Agency. Over the next several years, Cundiff continued his
draining and ditch digging activities, simply ignoring whatever government directives
came his way. In 1997 he planted wheat on the southern tract, and government officials
observed downed trees in that area. The EPA issued an Order of Compliance informing
him that he had violated the Clean Water Act by depositing fill material into waters of
the United States without authorization, and it directed him to “immediately cease
participating in or causing any additional discharges” of pollutants.

        In 1998 Rudy’s son, Seth, purchased a tract of land located north of Rudy’s
which contains roughly 103 acres of wetlands. (Seth leases this property back to Rudy
for the exact amount of the mortgage payment.) Rudy quickly began excavating and
clearing that property as well, activity of which Seth was aware. In October 1998,
officials from the EPA informed Rudy Cundiff that he needed a permit for this work too.


        tortured the timber and stripped all the land / Well, they dug for their coal ‘til the land was
        forsaken / Then they wrote it all down as the progress of man . . . .
JOHN PRINE, Paradise, on JOHN PRINE (Atlantic Records 1971).
Nos. 05-5469/5905; 07-5630          United States v. Cundiff, et al.               Page 4


Rudy—somewhat surprisingly—said that, though he knew he needed a permit, he
thought the Corps would never grant him one so he planned on digging his ditches
anyway. He eventually completed a two-hundred foot ditch through the wetlands that
extended all the way to Caney Creek, and the dredged material was “sidecast” into the
wetlands to dry them out to make them arable. In 1999, Kentucky officials told Cundiff
that he was destroying wetlands without a permit in violation of state law (he ignored
this too), and the EPA issued additional Orders of Compliance to both Rudy and Seth
Cundiff requiring them to cease their excavation activities and to restore the
unauthorized ditches by refilling them. The Cundiffs responded to these orders as they
had to the others.

       The United States finally sued both Rudy and Seth Cundiff, alleging that they
violated Section 301(a) of the Clean Water Act for discharging pollutants into waters of
the United States without a permit. 33 U.S.C. § 1311(a). The district court granted the
United States’s motion for summary judgment, thus finding the Cundiffs liable, and,
after a bench trial, permanently enjoined them from discharging dredged or fill material
or any other pollutants into waters of the United States (which it concluded that the
Cundiffs’ wetlands were) and imposed a civil penalty of $225,000 but suspended
$200,000 of that pending the Cundiffs’ adequate implementation of the restoration plan.
The defendants appealed, and while that appeal was pending, the Supreme Court decided
Rapanos v. United States, 547 U.S. 715 (2006), which addressed the scope of the term
“waters of the United States” in the Clean Water Act. The parties jointly moved for a
limited remand from this Court so the district court could reconsider whether jurisdiction
over the wetlands was proper, and this Court remanded the case on that question. The
district court concluded that the Cundiffs’ wetlands were “waters of the United States,”
and the Cundiffs now appeal the district court’s: (1) grant of summary judgment in the
government’s favor; (2) imposition of a civil penalty and injunctive relief; and (3) the
dismissal of their counterclaims.
Nos. 05-5469/5905; 07-5630           United States v. Cundiff, et al.                 Page 5


                                             II.

        We review the district court’s legal conclusions de novo, Lindstrom v. A-C Prod.
Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005), and its factual findings for clear error.
Id. The imposition of a monetary penalty and injunctive relief is reviewed for abuse of
discretion. United States v. Midwest Suspension & Brake, 49 F.3d 1197, 1205 (6th Cir.
1995); United States v. Norris, 937 F.3d 286, 288 (6th Cir. 1991). We review the
dismissal of the Cundiffs’ counterclaims de novo. Blakely v. United States, 276 F.3d
853, 863 (6th Cir. 2002).

                                            III.

        Congress enacted the Clean Water Act in 1972 “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
Section 301(a) of the Act prohibits “the discharge of any pollutant by any person” except
in compliance with the Act. 33 U.S.C. § 1311(a). “[D]ischarge of any pollutant” is
broadly defined to mean “any addition of any pollutant to navigable waters from any
point source.” 33 U.S.C. § 1362(12)(A). In turn, “pollutant” is defined to include not
only traditional contaminants, but also solids such as “dredged spoil, . . . rock, sand [and]
cellar dirt.” 33 U.S.C. § 1362(6). The Act defines “navigable waters” to mean “the
waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7).

        The Act also sets up two permit schemes. Section 404(a) authorizes the Secretary
of the Army (through the United States Army Corps of Engineers), or a state with an
approved program, to issue permits “for the discharge of dredged or fill material into the
navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). Section 402
authorizes the Environmental Protection Agency (or a state with an approved program)
to issue a National Pollutant Discharge Elimination System (NPDES) permit for the
discharge of pollutants other than dredged or fill material. 33 U.S.C. § 1342. The Corps
and the EPA share responsibility for implementing and enforcing Section 404. See, e.g.,
33 U.S.C. § 1344(b)-(c).
Nos. 05-5469/5905; 07-5630          United States v. Cundiff, et al.                Page 6


       Although at one time the term “navigable waters” included only waters that were
navigable in fact, The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1871), “navigable
waters” is a defined term in the Act that expressly includes all “waters of the United
States.” 33 U.S.C. § 1362(7). The Supreme Court has repeatedly recognized that, with
this definition, Congress “evidently intended to repudiate limits that had been placed on
federal regulation by earlier water pollution control statutes and to exercise its powers
under the Commerce Clause to regulate at least some waters that would not be deemed
‘navigable’ under the classical understanding of that term.” United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121, 133 (1985). As a result, the Corps and EPA have
put out substantively equivalent regulatory definitions of “waters of the United States,”
compare 33 C.F.R. § 328.3(a), with 40 C.F.R. § 230.3(s), that define it to encompass not
only traditional navigable waters of the kind susceptible to use in interstate commerce,
but also tributaries of traditional navigable waters and wetlands adjacent to covered
waters. See 33 C.F.R. § 328.3(a)(1), 328(3)(a)(5), 328(a)(7).

                A.   Are the Wetlands “Waters of the United States”?

                                      1.   Rapanos

       Rapanos involved two consolidated cases in which the Act had been applied to
actual or proposed discharges of pollutants into wetlands adjacent to nonnavigable
tributaries of traditional navigable waters. 547 U.S. at 729-30. Although there was no
single majority opinion, all the Justices agreed that the statutory phrase “waters of the
United States” encompasses some waters not navigable in the traditional sense. See id.
At 731 (Scalia, J., plurality opinion); id. at 767-68 (Kennedy, J., concurring in the
judgment); id. at 793 (Stevens, J., dissenting). The four-Justice plurality interpreted the
Act to cover “relatively permanent, standing, or continuously flowing bodies of water,”
547 U.S. at 739, that are connected to traditional navigable waters, id. at 742, as well as
wetlands with a continuous surface connection to such water bodies. Id. at 732 n.5
(observing that the Act’s reference to “relatively permanent” waters “d[id] not
necessarily exclude streams, rivers, or lakes that might dry up in extraordinary
Nos. 05-5469/5905; 07-5630          United States v. Cundiff, et al.                Page 7


circumstances, such as drought,” or “seasonal rivers, which contain continuous flow
during some months of the year but no flow during dry months”).

       Justice Kennedy, writing only for himself, interpreted the term to cover wetlands
that “possess a ‘significant nexus’ to waters that are or were navigable in fact or that
could reasonably be so made.” Id. at 759 (Kennedy, J., concurring in the judgment)
(quoting Solid Waste Agency v. United States Army Corps. of Eng’rs., 531 U.S. 159, 167
(2001)). He explained:

       [W]etlands possess the requisite nexus, and thus come within the
       statutory phrase “navigable waters,” if the wetlands, either alone or in
       combination with similarly situated lands in the region, significantly
       affect the chemical, physical, and biological integrity of other covered
       waters more readily understood as “navigable.” When, in contrast,
       wetlands’ effects on water quality are speculative or insubstantial, they
       fall outside the zone fairly encompassed by the statutory term “navigable
       waters.”
Id. at 780. And Justice Kennedy, relying on Riverside Bayview, concluded that the
Corps’ assertion of jurisdiction over “wetlands adjacent to navigable-in-fact waters” may
be met “by showing adjacency alone.” Id. On the other hand, where the wetlands are
adjacent to nonnavigable tributaries, “[a]bsent more specific regulations,” Justice
Kennedy would require the government to “establish a significant nexus on a case-by-
case basis.” Id. He therefore concurred in the judgment vacating the lower court’s
decision and voted to remand the case for more fact-finding on whether the government
could prove the existence of a significant nexus between the wetlands and nearby
navigable-in-fact waters.

       The dissenters, with Justice Stevens writing, would have upheld the
determination that the wetlands at issue were “waters of the United States” as a
reasonable agency interpretation of the Act under Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984). In the dissenters’ view,
any “significant nexus” requirement—insofar as the Act contained one—would be
“categorically satisfied as to wetlands adjacent to navigable waters or their tributaries.”
Rapanos, 547 U.S. at 807-08.
Nos. 05-5469/5905; 07-5630          United States v. Cundiff, et al.                 Page 8


         Parsing any one of Rapanos’s lengthy and technical statutory exegeses is taxing,
but the real difficulty comes in determining which—if any—of the three main opinions
lower courts should look to for guidance. As the Chief Justice observed: “It is
unfortunate that no opinion commands a majority of the Court on precisely how to read
Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated
entities will now have to feel their way on a case-by-case basis.” Id. at 758 (Roberts,
C.J., concurring) (citing Grutter v. Bollinger, 539 U.S. 306, 325 (2003), and Marks v.
United States, 430 U.S. 188 (1977)). The dissent, for its part, offered its view of what
lower courts should do:

         In these cases, however, while both the plurality and Justice Kennedy agree that
         there must be a remand for further proceedings, their respective opinions define
         different tests to be applied on remand. Given that all four Justices who have
         joined this opinion would uphold the Corps' jurisdiction in both of these
         cases—and in all other cases in which either the plurality's or Justice Kennedy's
         test is satisfied—on remand each of the judgments should be reinstated if either
         of those tests is met.
Rapanos, 547 U.S. at 810 (emphasis added). Fortunately, as the following section
explains, jurisdiction is proper here under each of the primary Rapanos opinions and
therefore we do not have to decide here, once and for all, which test controls in all future
cases.

                              2.    Marks-meets-Rapanos

         In Marks v. United States, the Supreme Court instructed that “[w]hen a
fragmented Court decides a case and no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest grounds.” 430 U.S. at
193 (quoting Gregg v. Georgia, 428 U. S. 153, 169 n.15 (1976) (opinion of Stewart,
Powell, and Stevens, JJ.)). But all is not always so rosy. The Supreme Court has oft-
noted Marks’ limitations, stating that it is “more easily stated than applied to the various
opinions supporting the result,” Grutter, 539 U.S. at 325 (2003), and that “[i]t does not
seem useful to pursue the Marks inquiry to the utmost logical possibility when it has so
Nos. 05-5469/5905; 07-5630          United States v. Cundiff, et al.               Page 9


obviously baffled and divided the lower courts that have considered it,” Nichols v.
United States, 511 U.S. 738, 745 (1994) (quotations omitted).

       In its short life, Rapanos has indeed satisfied any “bafflement” requirement. The
first court to decide what opinion was controlling decided to ignore all of them and
instead opted for earlier circuit precedent which it felt was clearer and more readily
applied. United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex.
2006). The Courts of Appeals have not fared much better. The Ninth Circuit has stated
that Justice Kennedy’s test applies in most instances, Northern California River Watch
v. City of Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007), while the Eleventh Circuit
has held that the Act’s coverage may be established only under his test. United States v.
Robison, 505 F.3d 1208, 1219-22 (11th Cir. 2007). By contrast, the First and the Seventh
Circuits, though differing somewhat in their analyses, have followed Justice Stevens’
advice and held that the Act confers jurisdiction whenever either Justice Kennedy’s or
the plurality’s test is met. United States v. Johnson, 467 F.3d 56, 60-66 (1st Cir. 2006);
United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006). This is the
approach the district court here followed, largely in reliance on the First Circuit’s
thoughtful reasoning.

       Taken literally, Marks instructs lower courts to choose the “narrowest”
concurring opinion and to ignore dissents. Marks, 430 U.S. at 193. But what does
“narrowest” mean? Marks considered an earlier Supreme Court obscenity decision, A
Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General
of Massachusetts, 383 U.S. 413 (1966), where the Court split on whether a particular
work was protected by the First Amendment. In Marks, the Court determined that the
Memoirs plurality’s standard controlled because, while two Justices would have held that
the First Amendment applies equally to all materials—whether obscene, hardcore, or G-
rated, id. at 433 (Douglas, J., concurring); id. at 421 (Black, J., concurring)—the
plurality would have afforded protection only to non-obscene materials, id. at 419-20,
and therefore that concurring opinion was doctrinally the “narrowest.”
Nos. 05-5469/5905; 07-5630          United States v. Cundiff, et al.              Page 10


       The so-called Marks rule in fact derived from the Court’s earlier opinion in
Gregg v. Georgia, 428 U.S. 153 (1976). Gregg had interpreted Furman v. Georgia, 408
U.S. 238 (1972), in which a majority found that Georgia’s death penalty scheme was
unconstitutional. Two Justices believed that the death penalty was per se
unconstitutional, while three others merely stated that it was unconstitutional as then
administered in Georgia. So the Gregg Court stated that “[s]ince five Justices wrote
separately in support of the judgments in Furman, the holding of the Court may be
viewed as that position taken by those Members who concurred in the judgments on the
narrowest grounds . . . .” 428 U.S. at 169 n.15.

       As these cases indicate—and contrary to assertions by the Cundiffs and their
amici—Marks does not imply that the “narrowest” Rapanos opinion is whichever one
restricts jurisdiction the most. But it also makes little sense for the “narrowest” opinion
to be the one that restricts jurisdiction the least, as the government’s amici allege; the
ability to glean what substantive value judgments are buried within concurring, plurality,
and single-Justice opinions would require something like divination to be performed
accurately. Instead, “narrowest” opinion refers to the one which relies on the “least”
doctrinally “far-reaching-common ground” among the Justices in the majority: it is the
concurring opinion that offers the least change to the law. See Johnson v. Bd. of Regents
of the Univ. Of Ga., 263 F.3d 1234, 1247 (11th Cir. 2001); Johnson, 467 F.3d at 63. In
both Memoirs and Furman the controlling opinion was less doctrinally sweeping. The
Memoirs controlling opinion did not agree that obscenity laws per se violated the
Constitution, and the Furman controlling opinion did not agree that the death penalty
was per se unconstitutional.

       Yet problems await. For cases like Furman and Memoirs, Marks’ application is
straightforward. But when “one opinion supporting the judgment does not fit entirely
within a broader circle drawn by the others, Marks is problematic.” King v. Palmer, 771
F.2d 771, 782 (D.C. Cir. 1991) (en banc). Specifically, “Marks is workable—one
opinion can be meaningfully regarded as ‘narrower’ than another—only when one
opinion is a logical subset of other, broader opinions.” Id. at 781. Where no standard put
Nos. 05-5469/5905; 07-5630                 United States v. Cundiff, et al.                      Page 11


forth in a concurring opinion is a logical subset of another concurring opinion (or
opinions) that, together, would equal five votes, Marks breaks down.

         Enter Rapanos. Although “in most cases in which [Justice Kennedy] concludes
that there is no federal authority he will command five votes (himself plus the four
Justices in the Rapanos plurality),” in other cases Justice Kennedy “would vote against
federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the
members of the Rapanos plurality) because there was a slight surface hydrological
connection.” Gerke, 464 F.3d at 725. Indeed, there is quite little common ground
between Justice Kennedy’s and the plurality’s conceptions of jurisdiction under the Act,
and both flatly reject the other’s view. See Rapanos, 547 U.S. at 756 (Scalia, J., plurality
opinion) (“[Justice Kennedy’s] test simply rewrites the statute.”); id. at 778 (Kennedy,
J., concurring) (“[T]he plurality reads nonexistent requirements into the Act.”).2

         Thus, because Rapanos is not easily reconciled with Marks, the question
becomes what to do. Fortunately, we need not reconcile Rapanos with Marks. Here,
jurisdiction is proper under both Justice Kennedy’s and the plurality’s tests (and thus
also the dissent’s). Recently, this Court addressed an analogous situation:

         Because the Supreme Court divided 4-1-4 in [Missouri v. Seibert, 542 U.S. 600
         (2004)], there has been some confusion about whether the plurality or concurring
         opinion controls. Most circuits have assumed that Justice Kennedy's concurrence
         operates as the controlling precedent, though others have raised doubts about
         whether his concurrence actually represents the narrowest grounds for decision.
         We do not need to resolve this issue because regardless of the applicable
         framework Lopez’s statement must be suppressed.
United States v. Pacheco-Lopez, 531 F.3d 420, 427 n.11 (6th Cir. 2008) (citations
omitted). As the next section demonstrates, jurisdiction is proper here under both Justice




         2
           The Pacific Legal Foundation argues that the plurality’s test is a logical subset of Justice
Kennedy’s test. Amicus Br. at 8. But this is unpersuasive. Not only is there a theoretical possibility that
the tests do not align, Johnson, 467 F.3d at 64, the Eleventh Circuit may have addressed such a case.
Robison, 505 F.3d at 1223 (“This case arguably is one in which Justice Scalia’s test may actually be more
likely to result in CWA jurisdiction than Justice Kennedy’s test.”).
Nos. 05-5469/5905; 07-5630               United States v. Cundiff, et al.                     Page 12


Kennedy’s and the plurality’s tests, so we leave ultimate resolution of the Marks-meets-
Rapanos debate to a future case that turns on which test in-fact controls.3

                        3.    Jurisdiction is proper under both tests

         Justice Kennedy’s test. Under this test, the Clean Water Act applies to wetlands
that “possess a significant nexus to waters that are or were navigable in fact or that could
reasonably be so made.” Rapanos, 547 U.S. at 758. This nexus exists “if the wetlands,
either alone or in combination with similarly situated lands in the region, significantly
affect the chemical, physical, and biological integrity of other covered waters more
readily understood as navigable.” Id. at 755. By contrast, “[w]hen . . . wetlands’ effects
on water quality are speculative or insubstantial, they fall outside the zone fairly
encompassed by the statutory terms ‘navigable waters.’” Id. This standard must be met
on a case-by-case basis. Id.

         The district court found that the Cundiffs’ wetlands have a significant nexus with
the navigable-in-fact Green River, via Pond and Caney Creeks, which are tributaries of
that river. The court credited the government’s expert who testified that the wetlands
perform significant ecological functions in relation to the Green River and the two
creeks, including: temporary and long-term water storage, filtering of the acid runoff and
sediment from the nearby mine, and providing an important habitat for plants and
wildlife. And the court found that the Cundiffs’ alterations—unauthorized ditch digging,
the mechanical clearing of land, and the dredging of material and using it as filler—have
undermined the wetlands’ ability to store water which, in turn, has affected the frequency
and extent of flooding, and increased the flood peaks in the Green River. Thus, it has
“impact[ed] navigation, crop production in bottomlands, downstream bank erosion, and
sedimentation.” United States v. Cundiff, 480 F. Supp. 2d 940, 945 (W.D. Ky. 2007)
(quoting Report of Dr. Lyndon C. Lee, J.A. 172). The district court further credited
another government expert’s testimony who stated that Rudy Cundiff’s ditch digging had


         3
           The Supreme Court recently denied certiorari in two cases presenting this question. United
States v. Robison, 521 F.3d 1319 (11th Cir. 2008), cert. denied sub nom. as United States v. McWane, 77
U.S.L.W. 3324 (2008); United States v. Lucas, 516 F.3d 316 (5th Cir. 2008), cert. denied, 129 S. Ct. 116
(2008).
Nos. 05-5469/5905; 07-5630                United States v. Cundiff, et al.                     Page 13


created channels so that the acid mine runoff would largely bypass his wetlands and
instead flow more directly into Pond and Caney Creek and thus the Green River. It found
that these channels cause “direct and significant impacts to navigation (via sediment
accumulation in the Green River) and to aquatic food webs . . . that are not adapted to
thrive in acid waters and/or sediment-choked environments.” Cundiff, 480 F. Supp. 2d
at 944 (quoting Lee Report). The record supports this conclusion and the district court
found that the government’s witnesses were credible, and so we cannot say that its
conclusion was clearly erroneous.4

         The Cundiffs do not really dispute these findings. Instead, they assert that a
“significant nexus” may only be proved by “laboratory analysis” of soil samples, water
samples, or through other tests. Though no doubt a district court could find such
evidence persuasive, the Cundiffs point to nothing—no expert opinion, no research
report or article, and nothing in any of the various Rapanos opinions—to indicate that
this is the sole method by which a significant nexus may be proved such that the district
court’s finding was inherently improper. So the district court properly concluded that the
government passed Justice Kennedy’s test.

         The Plurality’s test. Under this standard, the government must make two
showings to establish jurisdiction: “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.” Rapanos, 547 U.S. at 742.

         The first question is whether the adjacent property contains a “water of the
United States.” The district court held that jurisdiction was proper under the plurality’s
standard because the South Channel (located on the northern tract of the wetlands), and
Pond and Caney Creeks were all “relatively permanent bodies of water connected to a


         4
          For instance, if one dropped a poison into the Cundiffs’ wetlands, the record indicates that it
would find its way to the two creeks and the Green River, therefore indicating a significant chemical,
physical, or biological connection between the wetlands and the nearby navigable-in-fact waters.
Nos. 05-5469/5905; 07-5630           United States v. Cundiff, et al.               Page 14


traditional interstate navigable water, the Green River.” Cundiff, 480 F. Supp. 2d at 945.
Regarding the South Channel, the district court found that the water flows through the
channel into Pond Creek for all but a few weeks a year, the two creeks are open
waterbodies with significant flowing water, and that both flow into the Green River.
(Pond Creek itself is navigable in part.) So the first prong of the plurality’s test is met.

        The second question is whether the wetlands possess a “continuous surface
connection” with the Green River and its tributaries. The Cundiffs argue that, because
the wetlands are at a different elevation level than the two creeks and it is not readily
apparent that water perpetually flows between them, there is no continuous surface
connection. The district court, observing that Riverside Bayview stated that it is often
ambiguous where the transition between water and dry land exactly exists, 474 U.S. at
132, 135 n. 9, disagreed and held that a continuous surface connection existed.
Specifically, the Court observed that the inquiry was whether it was ambiguous where
land stopped and water began, because otherwise the plurality’s recognition of these
gradual transitions would be “completely eviscerat[ed].” Cundiff, 490 F. Supp. 2d at 947.

        We agree; the Cundiffs’ argument proves too much. Although the term
“continuous surface connection” clearly requires surface flow, it does not mean that only
perpetually flowing creeks satisfy the plurality’s test. Indeed, the Rapanos plurality, in
tipping its hat to Riverside Bayview, fashioned its test to determine when wetlands were
“waters of the United States,” and therefore implicitly recognized that wetlands are
neither navigable-in-fact nor even literally bodies of water. Instead, wetlands are merely
“inundated or saturated” soil that can “support . . . under normal circumstances . . . a
prevalence of vegetation typically adapted for life in saturated soil conditions.” 33
C.F.R. § 328.3(b). In other words, the plurality’s test requires a topical flow of water
between a navigable-in-fact waterway or its tributary with a wetland, and that connection
requires some kind of dampness such that polluting a wetland would have a
proportionate effect on the traditional waterway. If the Cundiffs’ restrictive version of
the plurality’s test was accurate, then the plurality could have saved itself time and effort
by saying that wetlands could never be “waters of the United States” and overruled
Nos. 05-5469/5905; 07-5630                 United States v. Cundiff, et al.                      Page 15


Riverside Bayview’s holding to the contrary. It did not do that; instead, the plurality went
through a lengthy analysis and therefore the standard is broader than the Cundiffs
assert.5

           Further undermining their argument is the fact that the district court took note of
the South Channel, which provides a largely uninterrupted permanent surface water flow
between the wetlands and traditional waterways. The district court also found that the
existence of additional (and substantial) surface connections between the wetlands and
permanent water bodies “during storm events, bank full periods, and/or ordinary high
flows” provides additional evidence of a continuous surface connection. Cundiff, 480 F.
Supp. 2d at 947. Finally, Cundiff personally went a long way towards creating a
continuous surface connection when he dug or excavated ditches to enhance the acid
mine drainage into the creeks and away from his wetlands; in determining whether the
Act confers jurisdiction, it does not make a difference whether the channel by which
water flows from a wetland to a navigable-in-fact waterway or its tributary was man-
made or formed naturally. Thus, we affirm the district court’s determination that the Act
confers jurisdiction over the Cundiffs’ wetlands because both tests are met.6

                             B.    Summary Judgment Was Proper

           To establish liability under the Act, the government must prove that (1) a person
(2) discharged a pollutant (3) from a point source (4) into waters of the United States
(5) without a permit. 33 U.S.C. §§ 1311(a), 1362(6), 1362(7), 1344(a), 1362(12). The
Cundiffs do not contend that they are not persons (1), nor do they contend that no point



           5
            Moreover, the Cundiffs’ view that any interruption in flow means that jurisdiction under the
plurality’s test is improper would improperly exclude seasonal rivers and other such water bodies whose
surface connection was not perpetual. At oral argument, the Cundiffs’ counsel conceded that seasonal
rivers and like water bodies would be covered by the plurality’s test. See Rapanos, 547 U.S. at 732 n.5
(Scalia, J., plurality opinion) (observing that the Act’s reference to “relatively permanent” waters “d[id]
not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as
drought,” or “seasonal rivers, which contain continuous flow during some months of the year but no flow
during dry months”) (emphasis in original).
           6
           Because the Cundiffs failed to properly raise or develop their Commerce Clause challenge to
jurisdiction under the Act—and such a challenge would be rather tenuous anyway, see, e.g., Gonzalez v.
Raich, 545 U.S. 1 (2005); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1326-27 (6th Cir.
1974); United States v. Gerke Excavating, Inc., 412 F.3d 804 (7th Cir. 2005)—this argument is waived.
Nos. 05-5469/5905; 07-5630                United States v. Cundiff, et al.                     Page 16


source was involved (3), and we have already determined that the wetlands here are
waters of the United States (4). The Cundiffs contend that they have not discharged any
pollutants (2) and, while they concede that they did not have a permit from the Corps,
they assert that their activities fell into one of the relevant exemptions (though not the
“recapture” provision) and thus were not required to have one (5).7

                                 1.    Discharge of a pollutant

         The Clean Water Act defines the “discharge of a pollutant” as “any addition of
any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A).
“Pollutant” includes not only traditional contaminants like “radioactive” or “chemical
waste,” but also basic solids like “dredged spoil, . . . rock, sand [and] cellar dirt.” 33
U.S.C. § 1362(6). Latching onto “addition,” the Cundiffs argue that the regulation
defining a pollutant to include “sidecasting” goes beyond the authority the Act grants.
In other words, they argue that it is unreasonable for the agency to interpret “discharge
of a pollutant” to cover situations not involving the introduction of foreign material into
the area.

         Sidecasting involves the addition of dredged or excavated dirt from a removal
site (here, the ditches the Cundiffs dug), to some disposal site (here, the Cundiffs’ own
wetlands). Sidecasting’s purpose is to fill wetlands to dry them out. Although it is
plausible to read “addition” as covering only completely foreign materials, that reading
is foreclosed because “pollutant” is defined in the Act to specifically include “dredged
spoil”—the Cundiffs would read that term out of the Act. Further, the Act is not
concerned with mere “material,” but instead with the addition of “pollutants”—material
can be benign in one spot and seriously disruptive to the surrounding ecological system
in another. As the Fourth Circuit has stated, once you have dug up something, it becomes



         7
          The Cundiffs also assert that Seth Cundiff should have been dismissed from the lawsuit because,
while he unquestionably owned part of the wetlands, he had leased them back to his father, Rudy Cundiff,
and only Rudy engaged in any of the disputed activities. This argument fails, however, because even
though he leased his tract, Seth Cundiff both owned it and had knowledge of Rudy Cundiff’s activities.
So the district court did not abuse its discretion in denying the motion to dismiss Seth Cundiff from the
lawsuit.
Nos. 05-5469/5905; 07-5630                 United States v. Cundiff, et al.                       Page 17


         “dredged spoil,” a statutory pollutant and a type of material that up until
         then was not present [in the wetlands]. It is of no consequence that what
         is now dredged spoil was previously present on the same property in [a]
         less threatening form . . . . What is important is that once a material was
         excavated from the wetland, its redeposit in the same wetland added a
         pollutant where none had been before.
United States v. Deaton (“Deaton I”), 209 F.3d 331, 335 (4th Cir. 2000); see also
Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 920-21 (5th Cir. 1983). And
even if the statute was ambiguous on whether the prohibition on the “addition” of
pollutants included sidecasting, it is nevertheless a reasonable agency interpretation and
must be accorded deference. Chevron, 467 U.S. at 843.8

         The Cundiffs’ other argument is that, if the regulations are nevertheless valid,
then their dredging, filling, and mechanized landclearing activities nevertheless fall into
the exception to the “discharge of dredged material” for “de minimis, incidental soil
movement occurring during normal dredging operations.” 51 Fed. Reg. 41,206, 41,232
(Nov. 13, 1986), codified at 33 C.F.R. § 323.2(d) (1990). Although this argument was
probably waived, see Thurman v. Yellow Freight Sys., 97 F.3d 833, 835 (6th Cir. 1996),
the assertion that the Cundiffs merely left some fallback incidental to ditch digging
cannot be credited: they actively filled the wetlands with dredged spoil and covered
roughly 5.3 acres of wetlands next to about 11,900 feet of ditches. This goes far beyond
being “de minimis.”9 Thus, they discharged a pollutant under the Act.




         8
           Although not cited by either party, it is arguable that National Wildlife Federation v. Consumers
Power Co., 862 F.2d 580, 584 (6th Cir. 1988), would in some ways support the Cundiffs’ assertion that
sidecasting is beyond the agency’s authority. In that case this Court upheld an agency determination by
the EPA that the discharge of pollutants from one body of water to a contiguous one was not an “addition”
because it did not add a foreign pollutant. But Consumers Power is distinguishable because it was about
agency deference to the EPA’s interpretation of “addition,” Catskill Mountains Chapter of Trout
Unlimited, Inc. v. City of New York, 273 F.3d 481, 489-94 (2d Cir. 2001) (distinguishing Consumers
Power)—indeed, the Consumers Power Court referred to the definition it was upholding as “circular.”
Moreover, Consumers Power was about normal dam operations that resulted in changes to water quality,
while this case concerns a defendant who took proactive steps to purposefully alter and fill his wetlands.
         9
          The current form of the regulations exclude “incidental fallback,” 33 C.F.R. § 323.2(d)(3)(iii),
and activities that do not have more than a “de minimis (i.e. inconsequential) effect on the area.” Id. at
§ 323.2(d)(6). The Cundiffs’ activities were neither “incidental” nor “inconsequential.”
Nos. 05-5469/5905; 07-5630          United States v. Cundiff, et al.               Page 18


                               2.    Permit requirement

        Although the Cundiffs do not dispute that they did not have a valid section 404
permit when digging ditches and clearing their wetlands, they nevertheless argue that
their activities fell into one of the statutory exemptions, though not into the “recapture
provision.” See 33 U.S.C. § 1344(f)(1)-(2). Specifically, the Cundiffs argue that their
activities fall into either the farming exception, § 1344(f)(1)(A), or the drainage ditch
maintenance exception, § 1344(f)(1)(C). “The defendants bear the burden of establishing
both that they qualify for one of the exemptions of § 1344(f)(1) and that their actions are
not recaptured by § 1344(f)(2).” Greenfield Mills, Inc. v. Macklin, 361 F.3d 934, 955
(7th Cir. 2004).

        The farming exception exempts from the permit requirement the “discharge of
dredged or fill material” from “normal farming, silviculture, and ranching activities.”
§ 1344(f)(1)(A). As the statute and regulations both require, the disputed activities “must
be part of an established (i.e., on-going) farming, silviculture, or ranching operation” and
they cease to be “established when the area on which it was conducted has been
converted to another use or has lain idle so long that modifications to the hydrological
regime are necessary to resume operations.” 33 C.F.R. § 323.4(a)(1)(ii). The Cundiffs’
wetlands fail both requirements: before the Cundiffs took over and began their
landclearing activities, the land had not been used as a farm for many decades prior and
no one disputes that no farming could take place on the wetlands without significant
changes—the entire point of Rudy Cundiff’s activities was to significantly alter the
wetlands to make them arable. Of course, such activities are not universally
impermissible, but they do require a permit. Thus the farmland exception does not apply.

        Nor does the drainage ditch maintenance exception apply. Section 1344(f)(2)(C)
exempts the discharge of dredged or fill material “for the purpose of construction or
maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage
ditches.” Note the difference in language between the two clauses: while the exemption
applies to the maintenance or construction of farm or stock ponds or irrigation ditches,
it only applies to the maintenance of drainage ditches and not their construction. The
Nos. 05-5469/5905; 07-5630          United States v. Cundiff, et al.              Page 19


regulations make this explicit. 33 C.F.R. § 323.4(a)(3) (observing exemption for “the
maintenance (but not construction) of drainage ditches”). The district court found that
the Cundiffs’ activities were not limited to merely maintaining existing and functioning
ditches, but instead involved both digging brand new ones and excavating ditches that
had no function or ability to function as drainage ditches, and neither can be considered
mere “maintenance.”

         Even if the Cundiffs’ activities fell within either the farming or drainage ditch
maintenance exemptions, they would still have been required to get a permit under the
“recapture provision,” 33 U.S.C. § 1344(f)(2), which states that a permit is still required
whenever a dredging activity has “as its purpose bringing an area of the navigable waters
into a use to which it was not previously subject,” and the “flow or circulation of
navigable waters may be impaired or the reach of such waters reduced.” Id. To fall
within this provision, both elements must be met. See Macklin, 361 F.3d at 949. Here,
Rudy Cundiff freely admitted that he excavated the ditches to convert the wetlands into
being suitable for crop production, and the method by which he attempted to do
so—drying the wetlands out to transform them into farmland—obviously would, if
successful, “impair[]” the “flow or circulation of navigable waters” or “reduce” their
reach. 33 U.S.C. § 1344(f)(2). So, even if the Cundiffs’ activities fell into one of the
exemptions above, they still would have been required to have obtained a permit under
the recapture provision. And because the government has thus satisfied its prima facie
case against the Cundiffs by proving all five required elements, the district court
properly granted summary judgment on their liability.

    C.    The District Court Did Not Abuse Its Discretion in Imposing Remedies

         Remediation orders are reviewed for abuse of discretion. See United States v.
Norris, 937 F.2d 286, 288 (6th Cir. 1991). Courts have considered three factors when
evaluating remediation or restoration proposals: (1) whether the proposal would confer
maximum environmental benefits, (2) whether it is achievable as a practical matter, and
(3) whether it bears an equitable relationship to the degree and kind of wrong to be
remedied. United States v. Deaton (“Deaton II”), 332 F.3d 698, 714 (4th Cir. 2003)
Nos. 05-5469/5905; 07-5630          United States v. Cundiff, et al.               Page 20


(citing cases). Here, the district court analyzed each factor based on the evidence in
rejecting the Cundiffs’ proposals and accepting the government’s proposed restoration
plan. The government’s plan consists primarily of filling in the ditches on the northern
tract, cutting branches in the ditches on the southern tract to restore the wetlands,
planting trees on the southern tract to replace the ones the Cundiffs removed, restoring
previous plant and animal life, and placing riprap (loose rocks assembled as a
foundation) where the northern tract’s ditches enter Caney Creek to prevent erosion.
The Cundiffs’ challenge to the district court’s judgment is largely a quarrel with the
court’s factual findings, which were not clearly erroneous, though they also argue that
the government’s plan will not allow them to see sufficient future profits. The Cundiffs
also claim that what they were already doing would have led to the restoration of the
wetlands.

        Taking this latter contention first, the district court flatly rejected it, finding
instead that the government’s plan would “confer maximum environmental benefits.”
And while the amount of money that the Cundiffs might receive in the future is generally
included as a factor in equity, the court also found that the Cundiffs’ violations were
“intentional, flagrant, egregious, and openly defiant, so as to militate against any
equitable considerations.” J.A. 51-52. Thus, in light of these findings and the Clean
Water Act’s goal of “restoring and maintaing the chemical, physical, and biological
integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), the district court did not abuse its
discretion in entering the remediation order.

                                            IV.

        The Cundiffs’ counterclaims are rather nebulous, but they roughly fall into three
categories: (A) Constitutional takings-based counterclaims alleging that the
government’s actions constituted an uncompensated taking without due process;
(B) duty-based counterclaims alleging that the federal government owed them a
mandatory duty to mitigate damage to their property caused by the acid water runoff
from the nearby abandoned mine; and (C) tort-based counterclaims alleging liability for
Nos. 05-5469/5905; 07-5630                United States v. Cundiff, et al.                     Page 21


the government’s failure to fix the acid mine runoff or for the government’s conduct in
enforcing the Act. Each fails as a matter of law.

                                  A.     Takings Counterclaims

         The Cundiffs claim that the governments’ actions—either because of the
remediation plan or because of the mine’s drainage onto the Cundiffs’
property—constituted an uncompensated taking without due process under the Fifth
Amendment. The merits of this argument are specious,10 but this claim has a bigger
problem: The Tucker Act gives the Court of Federal Claims exclusive subject matter
jurisdiction over takings claims seeking more than $10,000. 28 U.S.C. § 1491. Although
the Cundiffs are not clear about how much they exactly seek, they seek more than
$10,000,000 altogether. And the Cundiffs never specifically refuted that this
jurisdictional threshold applies, and thus their takings counterclaims were properly
dismissed.

                             B.    Mandatory Duty Counterclaims

         The Cundiffs assert that the federal government owed them a mandatory duty to
prevent or remediate runoff from the mine from seeping onto their property under the
Surface Mining Control and Reclamation Act (“SMCRA”). See 20 U.S.C. § 1270.
Although the SMCRA grants a private right of action against the government for the
failure to perform mandatory duties, id. at § 1270(a)(2); see also 5 U.S.C. § 702
(providing judicial review to persons who have suffered a legal wrong because of an
agency action under the APA), it only authorizes abandoned mine reclamation activities
on properties adversely affected by abandoned mines and “for which there is no
continuing reclamation responsibility under State or other federal laws.” Id. at § 1234.
It furthermore envisions that—while paid for by fees collected from current mine
operators—the mine reclamation projects will be undertaken by state governments. See
id. at § 1201(f). When a state submits a mine reclamation program consistent with the


         10
           It is unlikely that a takings claim would succeed: the damage the Cundiffs complain of results
from the acid mine drainage from the nearby abandoned mine, which is owned by some third party and
has never been owned or operated by the federal government.
Nos. 05-5469/5905; 07-5630          United States v. Cundiff, et al.              Page 22


SMCRA, that state is given the “exclusive responsibility and authority” to implement
it. Id. at § 1235(d). Kentucky has an approved reclamation program, so the responsibility
and authority over remediating pollutants that drain out of abandoned coal mines like the
one near the Cundiffs’ property does not lie with the federal government. Thus, the
Cundiffs’ mandatory duty counterclaims were properly dismissed.

                               C.    Tort Counterclaims

       The Federal Tort Claims Act confers jurisdiction on federal courts to hear cases
only “under circumstances where the United States, if a private person, would be held
liable to the claimant in accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b)(1). The Tort Claims Act thus neither creates causes of
action against the United States nor provides a means of enforcing federal statutory
duties. Rather, it “constitutes consent to suit and is fundamentally limited to cases in
which a private individual [would be liable] under like circumstances.” Myers v. United
States, 17 F.3d 890, 894 (6th Cir. 1994). To succeed, the Cundiffs must therefore show
that they have pleaded facts by which a private individual would be liable under
Kentucky law. They have not.

       The gravamen of the Cundiffs’ argument is that the abandoned coal mine seeps
acid water onto their property so the United States should be liable. But, as observed
above, the United States has never owned nor operated that mine, and there is no
cognizable legal theory in Kentucky by which someone could be sued for failing to stop
fluid from draining out of some third-party’s abandoned coal mine. Insofar as the
Cundiffs assert that though a private individual would not be liable yet nevertheless the
federal government should be, the response is two-fold. First, Kentucky has never
recognized such a lawsuit, and, second, there cannot be a universal common-law duty
on the federal government to clean up anything and everything that adversely affects
someone’s property, even when caused by third-parties. Although the Cundiffs cite a
plethora of cases where liability attached, see, e.g., City of Ashland v. Smith, 340 S.W.2d
208 (Ky. 1960); Louisville & Nashville R.R. v. Bush, 336 S.W.2d 578 (Ky. 1960), Cissell
v. Grimes, 383 S.W.2d 128 (Ky. 1964), in each the liable party either owned the source
Nos. 05-5469/5905; 07-5630         United States v. Cundiff, et al.              Page 23


of the problem or affirmatively created it. Neither is the case here. Thus, the district
properly dismissed the tort counterclaims.

                                           V.

       We AFFIRM the district court’s grant of summary judgment to the government
and assignment of penalties to the Cundiffs, along with the district court’s dismissal of
the Cundiffs’ counterclaims against the government.
