       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Rapanos                    No. 02-1377
    ELECTRONIC CITATION: 2003 FED App. 0268P (6th Cir.)
                File Name: 03a0268p.06                    Indiana, for Appellee. Virginia S. Albrecht, Stephen M.
                                                          Nickelsburg, HUNTON & WILLIAMS, Washington, D.C.,
                                                          for Amici Curiae.
UNITED STATES COURT OF APPEALS
                                                                              _________________
              FOR THE SIXTH CIRCUIT
                _________________                                                 OPINION
                                                                              _________________
 UNITED STATES OF AMERICA ,       X
                                   -                        BOYCE F. MARTIN, JR., Chief Circuit Judge. This case
          Plaintiff-Appellant,                            arises from the criminal conviction of John Rapanos for
                                   -
                                   -   No. 02-1377        unlawfully filling wetlands in Michigan in violation of the
            v.                     -                      Clean Water Act, 33 U.S.C. § 1311(a). After the conviction,
                                    >                     an appeal, a denial of certiorari, a second appeal, and a grant
                                   ,                      of certiorari, the Supreme Court remanded the case back to
JOHN A. RAPANOS,                   -
           Defendant-Appellee. -                          us to review in light of Solid Waste Agency of North Cook
                                                          County v. Army Corps of Engineers, 531 U.S. 159 (2001).
                                  N                       We remanded the case to the district court. The district court
       Appeal from the United States District Court       found that, in light of Solid Waste, Rapanos’s land was
     for the Eastern District of Michigan at Bay City.    outside the jurisdiction of the Clean Water Act and the
No. 93-20023—Lawrence P. Zatkoff, Chief District Judge.   charges were dismissed. The United States now appeals this
                                                          decision. For the reasons below, we REVERSE the judgment
                 Argued: June 18, 2003                    of the district court and REINSTATE the convictions.

          Decided and Filed: August 5, 2003                  John Rapanos owns a one hundred and seventy-five-acre
                                                          plot of land in Williams Township, Bay County, Michigan.
  Before: MARTIN, Chief Circuit Judge; NORRIS and         This plot once contained forested wetlands and cleared
             ROGERS, Circuit Judges.                      meadow areas. During the course of this proceeding, the
                                                          wetlands in question have been described as between eleven
                  _________________                       and twenty miles from the nearest navigable-in-fact water.
                                                          The government argues that there is a significant and direct
                       COUNSEL                            link between the wetlands on Rapanos’s land and this
                                                          navigable waterway, rendering the wetlands covered by the
ARGUED: Jennifer J. Peregord, UNITED STATES               Clean Water Act. The wetlands are connected to the
ATTORNEY, Detroit, Michigan, for Appellant. Thomas V.     Labozinski Drain (a one hundred year-old man-made drain)
Wilhelm, Waterford, Michigan, for Appellee. ON BRIEF:     which flows into Hoppler Creek which, in turn, flows into the
Jennifer J. Peregord, UNITED STATES ATTORNEY,             Kawkawlin River, which is navigable. The Kawkawlin
Detroit, Michigan, for Appellant. Thomas V. Wilhelm,      eventually flows into Saginaw Bay and Lake Huron.
Waterford, Michigan, David E. Dearing, Indianapolis,

                            1
No. 02-1377                   United States v. Rapanos      3    4     United States v. Rapanos                      No. 02-1377

   At some unstated time, Rapanos decided to sell this plot of      Rapanos’s first trial ended in a mistrial, and the second trial
land to developers, but in order to make the land more           concluded with a guilty verdict. United States v. Rapanos,
attractive, Rapanos made plans beginning in 1988 to clear the    895 F. Supp. 165, 166 (E.D. Mich. 1995). Rapanos then filed
trees from the land and to eradicate the wetlands that were on   a motion for judgment of acquittal and a new trial. The
the property. In December of 1988, Rapanos’s attorney            district court denied the motion for judgment of acquittal but
approached the Michigan Department of Natural Resources          granted a new trial. Id. at 170. The district court found that,
with the development plan. The Department informed him           although defense counsel did not object to certain questioning
that the land contained wetlands and a permit would be           by the prosecution, the court committed plain error by
necessary for development to begin on the area, advising that    permitting the questioning to proceed. Id. at 168. On appeal
a wetlands consultant be hired to help Rapanos get the permit.   to this court, we held that the line of questioning was not
Rapanos hired a consultant, who found at least forty-nine and    improper and, therefore, the district court did not commit
at most fifty-nine acres of wetlands. After receiving the        plain error. We reversed the court’s grant of a new trial and
report, Rapanos asked the consultant to destroy any paper        remanded for sentencing. United States v. Rapanos, 115 F.3d
evidence of the wetlands on his property and then threatened     367, 374 (6th Cir. 1997).
to fire him and sue if he did not comply. Despite warnings
from the Michigan Department of Natural Resources and the           The district court sentenced Rapanos to three years of
United States Environmental Protection Agency, Rapanos           probation and ordered him to pay $185,000. He appealed his
began destroying the wetlands on his property by filling them    conviction, and the United States cross-appealed his sentence.
with earth and sand.                                             This court affirmed Rapanos’s conviction on direct appeal but
                                                                 remanded to the district court for resentencing. United States
  On November 7, 1989, a search warrant was issued, and the      v. Rapanos, 235 F.3d 256, 261 (6th Cir. 2000). Rapanos filed
executing officers found twenty-nine acres of wetlands on        a petition for writ of certiorari, which the Supreme Court
Rapanos’s property. In April of 1991, the Michigan               granted. The order granting the writ vacated this court’s
Department of Natural Resources asked the United States          judgment and remanded the case to us for further
Environmental Protection Agency to intervene and force           consideration in light of Solid Waste, 531 U.S. 159. Rapanos
compliance from Rapanos. The facts established at trial that     v. United States, 533 U.S. 913 (2001). We remanded the case
Rapanos and his attorney lied in response to the compliance      to the district court for consideration in light of Solid Waste.
order. Subsequently, Rapanos was charged with knowingly          United States v. Rapanos, Nos. 98-2424, 99-1578, 99-1074,
discharging pollutants into the waters of the United States      2001 WL 868006 (6th Cir. July 13, 2001). On remand, the
without a permit, a violation of the Clean Water Act. While      district court set aside Rapanos’s convictions and dismissed
acknowledging that the wetlands were destroyed, Rapanos          the case, finding that Solid Waste had changed the scope of
argues that the area is not subject to the Clean Water Act       federal jurisdiction under the Clean Water Act. The district
because of a lack of federal jurisdiction. He argues the         court found that because the wetlands on Rapanos’s property
wetlands on his property are not part of the “waters of the      were not “directly adjacent to navigable waters,” the
United States” as required by the Act. The Act defines           government could not regulate them. United States v.
“navigable waters” as “waters of the United States.” 33          Rapanos, 190 F. Supp. 2d 1011, 1015-16 (E.D. Mich. 2002).
U.S.C. § 1362(7).                                                The United States appealed this order, which brings this case
                                                                 before us now.
No. 02-1377                   United States v. Rapanos       5    6      United States v. Rapanos                      No. 02-1377

  We review the district court’s statutory and legal              One of the exceptions is that a permit must be issued by the
interpretations de novo. United States v. Markwood, 48 F.3d       Corps of Engineers “for the discharge of dredged or fill
969, 975 (6th Cir. 1995). The two questions at issue are          material into the navigable waters at specified disposal sites.”
whether the district court correctly interpreted the holding of   33 U.S.C. § 1344(a). “Navigable waters” is in turn defined as
Solid Waste and applied it to the facts of this case and          “waters of the United States, including territorial seas,” 33
whether the original jury instructions were correct in light of   U.S.C. § 1362(7), and the Supreme Court has noted that
Solid Waste.                                                      “Congress chose to define waters covered by the Act broadly”
                                                                  in that definition. United States v. Riverside Bayview Homes,
   The controversy in Solid Waste arose from a group of           Inc., 474 U.S. 121, 133 (1985). Although simple in theory,
Chicago suburbs’ efforts to find new landfill areas. 531 U.S.     the application of “waters of the United States” has been
at 162-63. They targeted land that had been a sand and gravel     anything but straightforward.
mining area from the late 1920's until 1960. Id. at 163. Once
the mining operation was abandoned, a forest began to take           As common sense makes clear, the Clean Water Act cannot
over, and some of the excavation areas collected enough           purport to police only the navigable-in-fact waters in the
water to become permanent and seasonal ponds. Id. When            United States in order to keep those waters clean from
the suburbs wanted to use the land for landfill, the United       pollutants. A pollutant can contaminate non-navigable water
States Army Corps of Engineers objected to this destruction       and pollute the navigable-in-fact waters downstream.
of “waters of the United States.” Id. at 164. The non-            Congress acknowledged this reality when it created the Clean
navigable and isolated ponds were given this designation          Water Act, stating, “Water moves in hydrological cycles and
because the ponds had become the home of migratory birds;         it is essential that discharge of pollutants be controlled at the
the Corps had recently promulgated the “Migratory Bird            source.” S.Rep. No. 92-414, at 77 (1972). As Solid Waste
Rule,” which brought waters that were home to migratory           makes clear, however, the need to protect the navigable
birds under federal jurisdiction, based on the principle that     waters from pollution, as the Clean Water Act intends, does
“millions of Americans cross state lines and spend over a         not require extending the federal government’s jurisdiction
billion dollars to hunt and observe migratory birds.” Id. at      over all non-navigable waters.
166. In Solid Waste, however, the Supreme Court rejected
that basis for Clean Water Act jurisdiction and ruled that the      Wetlands have presented one of the most difficult areas in
Migratory Bird Rule exceeded the limitations of the Clean         which to determine the Clean Water Act’s exact jurisdictional
Water Act. Id. at 174. The ponds were, therefore, not             limitations.    Although wetlands are not traditionally
“waters of the United States,” and the group of suburbs was       navigable-in-fact, they play an important ecological role
allowed to develop the land without federal interference. Id.     where they exist. In 40 C.F.R. § 230.3(s), the regulation
                                                                  specifies protection for wetlands that
   The primary question in the case before us is one of
jurisdiction. Rapanos claims that Solid Waste has redefined           affect interstate or foreign commerce . . . [,] [w]hich are
the jurisdiction of the Clean Water Act to such a degree that         or could be used by interstate or foreign travelers for
his land is no longer under the Act’s protection. We must             recreational or other purposes . . . [,] [f]rom which fish or
first turn to the Act itself. The Clean Water Act prohibits the       shellfish are or could be taken and sold in interstate or
“discharge of any pollutant by any person” except for certain         foreign commerce [, and] [w]hich are or could be used
situations enumerated in the Act itself. 33 U.S.C. § 1311(a).
No. 02-1377                    United States v. Rapanos        7    8    United States v. Rapanos                     No. 02-1377

  for industrial purposes by industries in interstate               “Migratory Bird Rule.” 51 Fed. Reg. 41217 (Nov. 13, 1986)
  commerce.                                                         (was codified at 33 C.F.R. § 328.3). The Court ruled that the
                                                                    Migratory Bird Rule “exceeds the authority granted to the
Additionally, the regulation specifies coverage for                 respondents under § 404(a) of the [Clean Water Act].” Solid
“[w]etlands adjacent to waters” listed above. Id. Essentially,      Waste, 531 U.S. at 174.
any wetlands adjacent to waters that are protected by the
Clean Water Act are also protected. Id.                                Here, Rapanos successfully argued to the district court that
                                                                    Solid Waste drastically changed the scope of power granted
  The Supreme Court first addressed this question of the            by the Clean Water Act. In support of his argument, Rapanos
applicability of the Clean Water Act to wetlands in Riverside       turns to Chief Justice Rehnquist’s frequent use in the majority
Bayview, 474 U.S. 121, a case originally from this circuit. In      opinion of the phrase “wetlands adjacent to water.” Rapanos
that case, a landowner wished to develop his wetlands area for      argues that by the use of this phrasing, the Court required that
a housing development. Id. at 124. The wetlands were                wetlands be directly adjacent to navigable water in order for
located in close proximity to Lake St. Clair, Michigan, a           the wetlands to be covered by the Clean Water Act. Although
navigable-in-fact body of water. Id. The Court held that non-       the wetlands were incidentally directly adjacent to navigable-
navigable wetlands, if adjacent to navigable water, are under       in-fact water in Riverside, this interpretation would mark a
the jurisdiction of the Clean Water Act. Id. at 131. The Court      stark departure from the broad interpretation of the Clean
recognized that the next question before them was whether           Water Act’s scope expressed by the Court in that case. See
“the [Corps’ definition of wetlands] itself is valid as a           Riverside, 474 U.S. 121.
construction of the term ‘waters of the United States.’” Id.
The Court noted that “Congress chose to define the waters             Riverside Bayview established that it was a reasonable
covered by the Act broadly. . . . [T]he term ‘navigable’ . . . is   application of the Clean Water Act to protect wetlands
of limited import.” Id. at 133. The Court ultimately held that      “adjacent to” navigable waterways. 474 U.S. at 135. Solid
“a definition of ‘waters of the United States’ encompassing all     Waste stated that the Migratory Bird Rule was an
wetlands adjacent to other bodies of water over which the           unreasonable application of the Clean Water Act. 531 U.S. at
Corps has jurisdiction is a permissible interpretation of the       174.
Act.” Id. at 135. In the post-Riverside jurisprudence,
however, the question remains as to how far the jurisdiction           This case is closer to Riverside Bayview than to Solid
may go and remain a “permissible interpretation.”                   Waste. In drawing this conclusion, we find persuasive the
                                                                    Fourth Circuit’s recent decision in United States v. Deaton,
  The Supreme Court’s most recent exploration of the extent         332 F.3d 698 (4th Cir. 2003). In Deaton, the defendants were
of Clean Water Act jurisdiction comes in Solid Waste, 531           charged under the same statute as Rapanos. Id. at 701. In a
U.S. 159.      In that case, the Court recognized that              further similarity, Deaton involved wetlands that drain into a
constitutional limits exist as to how far Congress can extend       ditch which must pass through other waterways to get to
the Clean Water Act’s coverage beyond navigable-in-fact             navigable-in-fact water, just as is the case on Rapanos’s land.
waters. In Solid Waste, the water in question was in                Id. at 702. The Fourth Circuit analyzed the situation in light
permanent and seasonal ponds with no hydrological                   of the Supreme Court’s decision in Solid Waste and held, id.
connection to other waterways. Id. at 163. The United States        at 709 (citations omitted), that
claimed federal jurisdiction over the ponds through the
No. 02-1377                    United States v. Rapanos         9   10   United States v. Rapanos                      No. 02-1377

  [Solid Waste], of course, emphasizes that the [Clean              Rule as exceeding the authority granted to the Army Corps of
  Water Act] is based on Congress’ power over navigable             Engineers by the Clean Water Act, because it found “nothing
  waters, suggesting that covered non-navigable waters are          approaching a clear statement from Congress that it intended
  those with some connection to navigable ones. But we              [the Act] to reach an abandoned sand and gravel pit.” Solid
  cannot tell from the Act the extent to which nonnavigable         Waste, 531 U.S. at 174.
  tributaries are covered. The statutory term “waters of the
  United States” is sufficiently ambiguous to constitute an           The evidence presented in this case suffices to show that
  implied delegation of authority to the Corps; this                the wetlands on Rapanos’s land are adjacent to the Labozinski
  authority permits the Corps to determine which waters             Drain, especially in view of the hydrological connection
  are to be covered within the range suggested by [Solid            between the two. It follows under the analysis in Deaton,
  Waste].                                                           with which we agree, that the Rapanos wetlands are covered
                                                                    by the Clean Water Act. Any contamination of the Rapanos
The court further stated, id. at 712 (citations omitted),           wetlands could affect the Drain, which, in turn could affect
                                                                    navigable-in-fact waters. Therefore, the protection of the
  In Riverside Bayview the Supreme Court concluded that             wetlands on Rapanos’s land is a fair extension of the Clean
  the Corps regulation extending jurisdiction to adjacent           Water Act. Solid Waste requires a “significant nexus between
  wetlands was a reasonable interpretation in part because          the wetlands and ‘navigable waters,’” 531 U.S. at 167, for
  of what [Solid Waste] described as “the significant nexus         there to be jurisdiction under the Clean Water Act. Because
  between the wetlands and ‘navigable waters.’” There is            the wetlands are adjacent to the Drain and there exists a
  also a nexus between a navigable waterway and its                 hydrological connection among the wetlands, the Drain, and
  nonnavigable tributaries. . . . This nexus, in light of the       the Kawkawlin River, we find an ample nexus to establish
  “breadth of congressional concern for protection of water         jurisdiction. Riverside Bayview, 474 U.S. at 133.
  quality and aquatic ecosystems,” is sufficient to allow the
  Corps to determine reasonably that its jurisdiction over            We now turn to the second question before us, regarding
  the whole tributary system of any navigable waterway is           the disputed jury instruction. The instruction reads as
  warranted. The regulation, as the Corps reads it, reflects        follows:
  a reasonable interpretation of the Clean Water Act. The
  Act thus reaches to the roadside ditch and its adjacent             The term waters of the United States includes waters
  wetlands.                                                           such as lakes, rivers, streams, including intermittent
                                                                      streams or wetlands. The use, degradation, or destruction
  Because we find the Fourth Circuit’s reasoning persuasive,          of, which could affect interstate or foreign commerce,
we disagree with the broad interpretation of Solid Waste taken        including any such water from which fish or shellfish are
by the district court in this case, Rapanos, 190 F. Supp.2d at        or could be taken and sold in interstate commerce.
1016, and, instead, agree with Deaton, 332 F.3d 698 at 708-9.            The definition of waters of the United States also
Although the Solid Waste opinion limits the application of the        includes tributaries of the waters . . . just identified, and
Clean Water Act, the Court did not go as far as Rapanos               wetlands adjacent to waters of the United States.
argues, restricting the Act’s coverage to only wetlands
directly abutting navigable water. Instead, the Solid Waste           Rapanos did not object to the jury instruction; in fact, he
Court, in a narrow holding, invalidated the Migratory Bird          specifically requested them. Our review of the instruction is
No. 02-1377                   United States v. Rapanos      11    12   United States v. Rapanos                   No. 02-1377

therefore for plain error. Fed R. Crim. P. 52(b). We have         REMANDED to the district court for resentencing based on
stated in United States v. Jones, 108 F.3d 668, 670 (6th Cir.     a total offense level of twelve. See Rapanos, 235 F.3d at 261.
1997) (citations omitted), that
  [O]ur inquiry under Rule 52(b) consists of the following
  four distinct, though interrelated, analyses: (1) whether
  an error occurred in the district court; (2) if error
  occurred, whether the error was plain; (3) if the error was
  plain, whether the plain error affected substantial rights;
  and (4) "even if all three factors exist, we must then
  consider whether to exercise our discretionary power
  under Rule 52(b), or in other words, we must decide
  whether the plain error affecting substantial rights
  seriously affected the fairness, integrity or public
  reputation of judicial proceedings."
  In this case, we need only go so far as the first part of the
Rule 52(b) inquiry as set forth in Jones. Because the Solid
Waste holding was limited in the way we have described,
there was no error in the jury instructions. Solid Waste
invalidated the “Migratory Bird Rule” but it did not invalidate
the agency’s regulations upon which the jury instruction was
based. See 33 C.F.R. § 328(a)(3).
  Moreover, even if the jury instruction could be interpreted
to have permitted the jury to find that the wetlands at issue
were covered because the “affect commerce” language
somehow permits an inference like that rejected in Solid
Waste, there is no indication that such an error affected
substantial rights in this case. There was no evidence of
migratory bird activity in Rapanos’s wetlands. Therefore, the
jury could not have based its decision on impermissible
grounds, and Rapanos’s substantial rights could not have been
affected.
  For the foregoing reasons, we REVERSE the decision of
the district court and REINSTATE the conviction. 28 U.S.C.
§ 2106. In light of our previous ruling, the case is hereby
