Filed: February 10, 1998

United States of America,

Plaintiff - Appellee,

versus

James J. Wilson,

Defendant - Appellant.

The Court amends its opinion filed December 23, 1997, as follows:

On page 25, Judge Luttig's concurrence, line 11 -- "section 922" is corrected to read "section 922(g)."

On page 25, Judge Luttig's concurrence, line 12 -- the citation to Brzonkala is corrected to read "___ F.3d at ___."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-4498

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES J. WILSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4503

INTERSTATE GENERAL COMPANY, L.P.;

ST. CHARLES ASSOCIATES, L.P.,

Defendants-Appellants.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4537

JAMES J. WILSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4774

JAMES J. WILSON,

Defendant-Appellant.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Alexander Williams, Jr., District Judge.

(CR-95-390)

Argued: March 3, 1997

Decided: December 23, 1997

Before NIEMEYER and LUTTIG, Circuit Judges, and PAYNE,

United States District Judge for the Eastern District of Virginia,

sitting by designation.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Niemeyer wrote

the opinion for the court in parts I, II, V, and VI and Judge Luttig

joined in parts I and V and Judge Payne joined in parts I, II, V, and

VI. Judge Luttig wrote a separate opinion concurring in the judgment.

Judge Payne wrote a separate opinion.

_________________________________________________________________

COUNSEL

ARGUED: Steven Alan Steinbach, WILLIAMS & CONNOLLY,

Washington, D.C., for Appellants. Jane F. Barrett, Assistant United

States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:

Paula M. Junghans, MARTIN, JUNGHANS, SNYDER & BERN-

STEIN, P.A., Baltimore, Maryland, for Appellant Wilson; Bruce A.

Baird, COVINGTON & BURLING, Washington, D.C., for Appel-

lants Interstate General and St. Charles Associates. Lynne A. Bat-

taglia, United States Attorney, James C. Howard, Assistant United

States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

2

OPINION

NIEMEYER, Circuit Judge, writing for the court on parts I, II, V and

VI:

The defendants in this case were convicted of felony violations of

the Clean Water Act for knowingly discharging fill and excavated

material into wetlands of the United States without a permit. On this

appeal they challenge: (1) the validity of federal regulations purport-

ing to regulate activities that "could affect" interstate commerce; (2)

the district court's application of the Clean Water Act to wetlands that

do not have a "direct or indirect surface connection to other waters of

the United States"; (3) the district court's application of the Clean

Water Act to a practice known as "sidecasting" (depositing excavated

material from wetland drainage ditches next to the ditch); (4) the dis-

trict court's interpretation of the mens rea required for a felony con-

viction under the Act; (5) evidentiary rulings of the district court; and

(6) aspects of their sentences.

Because we conclude that 33 C.F.R. § 328.3(a)(3) (1993) (defining

waters of the United States to include those waters whose degradation

"could affect" interstate commerce) is unauthorized by the Clean

Water Act as limited by the Commerce Clause and therefore is

invalid, and that the district court erred in failing to require mens rea

with respect to each element of an offense defined by the Act, we

reverse and remand for a new trial.

I

In February 1996, after a seven-week trial, a jury convicted James

J. Wilson, Interstate General Co., L.P., and St. Charles Associates,

L.P., on four felony counts charging them with knowingly discharg-

ing fill material and excavated dirt into wetlands on four separate par-

cels without a permit, in violation of the Clean Water Act, 33 U.S.C.

§§ 1319(c)(2)(A) & 1311(a). The district court sentenced Wilson to

21 months imprisonment and 1 year supervised release and fined him

$1 million. It fined the other two defendants $3 million and placed

them on 5 years probation. The court also ordered the defendants to

implement a wetlands restoration and mitigation plan proposed by the

government.

3

Wilson, a land developer with more than 30 years of experience,

was the chief executive officer and chairman of the board of directors

of Interstate General. He was personally responsible for various deci-

sions relevant to the defendants' convictions in this case. Interstate

General was a publicly traded land development company with 340

employees, 2,000 shareholders, and assets of over $100 million. It

was the general partner of St. Charles Associates, a limited partner-

ship that owned the land being developed within the planned commu-

nity of St. Charles, which lies between the Potomac River and the

Chesapeake Bay in Charles County, Maryland. The convictions

involve discharges onto four parcels that are part of St. Charles.

St. Charles currently consists of approximately 4,000 developed

acres and 10,000 housing units with 33,000 residents. At completion,

it is expected to be a 9,100 acre planned community of some 80,000

residents. The community was created under the New Communities

Act of 1968 and developed initially in partnership between Interstate

General and the United States Department of Housing and Urban

Development ("HUD"). The project agreement provides for the cre-

ation of schools, parks, and recreational areas and designates at least

20% of the community to be reserved as "open space." It also pro-

vides for the preservation of 75 acres of wetlands near Zekiah

Swamp. In connection with the initial plan, HUD and Interstate Gen-

eral prepared an environmental impact statement, but that statement

did not reflect any specific development plans for the four parcels

involved in this case nor did it constitute a development permit under

the Clean Water Act.

At trial, the government introduced evidence that during the period

from 1988 to 1993, the defendants attempted to drain at least three of

the four parcels of land involved in this case by digging ditches. The

excavated dirt was deposited next to the ditches-- a process known

as "sidecasting." The government also introduced evidence that the

defendants transported a substantial amount of fill dirt and gravel and

deposited it on three of the parcels; only one parcel involved sidecast-

ing without the addition of fill. The government presented evidence

that all four of these parcels contained wetlands and that the defen-

dants failed to obtain permits from the Army Corps of Engineers, the

agency charged with issuing permits under the relevant section of the

4

Act, 33 U.S.C. § 1344, prior to making efforts to drain and fill the

parcels.

Although the parcels in question were not, because of neighboring

development, located in pristine wilderness areas, the government

presented substantial evidence about the physical characteristics

which identified them as wetlands, including testimonial and photo-

graphic evidence of significant standing water, reports of vegetation

typical to hydrologic soils, and infrared aerial photographs showing

a pattern of stream courses visible under the vegetation. Evidence also

showed that the properties were identified as containing wetlands on

public documents including the National Wetlands Inventory Map

and topographical maps of Charles County and the State of Maryland.

The government demonstrated that water from these lands flowed in

a drainage pattern through ditches, intermittent streams, and creeks,

ultimately joining the Potomac River, a tributary of the Chesapeake

Bay.

The government also produced evidence of the defendants' aware-

ness of the physical conditions of their land. The very development

work underlying the present prosecution involved efforts to improve

the drainage of the areas to make building feasible. Substantial fill

was later added in an attempt to raise the ground level of the parcels.

Some construction work involved repeated reshoring efforts because

of wetness-induced ground shifting and collapse. Evidence was intro-

duced that bids for work at one of the parcels actually contained dif-

ferent price quotations for wet and dry work because of the level of

moisture on parts of the property. And witnesses gave testimony that

despite the attempts at drying the property through ditching and drain-

ing or through the pumping off of standing water, and even after hun-

dreds of truck loads of stone, gravel and other fill had been added to

three of the parcels, wetland-loving plants continued to sprout through

the fill.

Witnesses also testified at trial that a private consulting firm

retained by the defendants informed the defendants that its observa-

tions of conditions on the parcels led it to conclude that the parcels

contained wetlands. The firm recommended seeking permits from the

Army Corps of Engineers before beginning development. The defen-

dants were also contacted by Charles County zoning authorities con-

5

cerned about the possible presence of wetlands in the vicinity of the

new construction projects. Finally, the government presented evi-

dence that even as the defendants complied with an Army Corps of

Engineers order to cease construction on one of the parcels and

remove fill dirt that had already been added, they continued to

develop the other parcels without notifying the Corps or making an

effort to ascertain whether a permit was necessary.

The defendants introduced contradictory evidence suggesting that

whether the four parcels were wetlands under the Clean Water Act

was unclear. They offered evidence which they claim showed that the

Army Corps of Engineers was inconsistent in asserting jurisdiction

over the parcels in question, claiming that the Corps took action on

only one parcel, even though it had been aware for years of the ongo-

ing development. Defendants also introduced an internal Corps mem-

orandum that stated that while the areas in the St. Charles community

have the "necessary parameters . . . to be considered wetlands when

using the Corps Wetland Delineation Manual," "it is not clear to me

that these areas can be interpreted as `waters of the United States'

within the meaning or purview of Section 404." That memo suggested

obtaining guidance from higher authority as to what constitutes "wa-

ters of the United States." The defendants also introduced evidence

indicating their belief that they had legally drained three parcels prior

to introducing fill, and that no fill was discharged into the fourth

which was being drained by the digging of ditches.

Following 15 hours of deliberation, the jury convicted all defen-

dants of the four felony counts. Because of the felony convictions, the

defendants were not convicted of four misdemeanor counts for the

"negligent" violations of the Clean Water Act involving the same par-

cels.

II

The defendants challenge the authority of regulation 33 C.F.R.

§ 328.3(a)(3) (1993) (defining waters of the United States to include

those waters whose degradation "could affect" interstate commerce)

to extend jurisdiction of the Clean Water Act to the four parcels in

question. They also challenge the district court's instructions to the

jury which were based on that regulation. They argue that the regula-

6

tion and instructions exceed not only the authority of the Clean Water

Act (which regulates "waters of the United States" without defining

them), but also the Commerce Clause, U.S. Const. art. I, § 8, cl. 3.

They maintain that in allowing the jury to find a nexus with interstate

commerce based on whether activities "could affect" interstate com-

merce, the court authorized a "limitless view of federal jurisdiction,"

far more expansive than the standard recently summarized in United

States v. Lopez, 514 U.S. 549 (1995).

While the defendants argue that the regulation and jury instructions

are fatally flawed under Lopez because of their invocation of "poten-

tial" uses and effects on commerce, they do not challenge the consti-

tutionality of the Clean Water Act itself.

In instructing the jury based upon 33 C.F.R. § 328.3(a)(3) (1993),

the district court in this case said:

The government must prove that these waters have some

potential connection with interstate commerce. If you find,

ladies and gentlemen, beyond a reasonable doubt that these

waters were or could be used by visitors from other states

for recreational or other purposes, or that fish or shellfish

are or could be taken from these waters and sold in interstate

or foreign commerce, or that these waters were used or

could have been used for industrial purposes by industries

in interstate commerce, or that these waters were subject to

the ebb and flow of the tide or that the use, degradation or

construction [sic] [destruction?] of such waters could affect

interstate commerce, then I instruct you as a matter of law

that the government has established such connection with

interstate commerce and that these waters, including wet-

lands, are waters of [the] United States.

The Clean Water Act prohibits the discharge, without a permit, of

pollutants into "navigable waters." 33 U.S.C. §§ 1311(a),

1362(12)(A). While the regulatory power of Congress over waters

that are navigable in fact is well established, see, e.g., United States

v. Rands, 389 U.S. 121, 122-23 (1967) ("The Commerce Clause con-

fers a unique position upon the Government in connection with navi-

gable waters. `The power to regulate commerce comprehends the

7

control for that purpose, and to the extent necessary, of all the naviga-

ble waters of the United States . . . .'" (quoting Gilman v.

Philadelphia, 70 U.S. (3 Wall.) 713, 724-25 (1866)), the Clean Water

Act defines "navigable waters" as "the waters of the United States,"

33 U.S.C. § 1362(7). Construing the Clean Water Act, the Supreme

Court has indicated that in defining "navigable waters" as "waters of

the United States," Congress intended "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). Accordingly, the power of Congress to regulate the dis-

charge of pollutants into at least some nonnavigable waters is indispu-

table, but the limits of this power are far from clear. As explained in

Lopez, Congress can clearly regulate discharges of pollutants that sub-

stantially affect interstate commerce. See 514 U.S. 549, 558-59

(1995). Presumably, Congress may also regulate the discharge of pol-

lutants into nonnavigable waters to the extent necessary to protect the

use or potential use of navigable waters as channels or instrumentali-

ties of interstate commerce, although the extent of that power is not

entirely clear. Finally, it is arguable that Congress has the power to

regulate the discharge of pollutants into any waters that themselves

flow across state lines, or connect to waters that do so, regardless of

whether such waters are navigable in fact, merely because of the

interstate nature of such waters, although the existence of such a far

reaching power could be drawn into question by the Court's recent

federalism jurisprudence. See, e.g., Printz v. United States, 117 S. Ct.

2365 (1997); Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996);

Lopez, 514 U.S. 549; New York v. United States, 505 U.S. 144 (1992).

However, we need not resolve these difficult questions about the

extent and limits of congressional power to regulate nonnavigable

waters to resolve the issue before us. The regulation challenged here,

33 C.F.R. § 328.3(a)(3) (1993), defines "waters of the United States"

to include:

All other waters such as intrastate lakes, rivers, streams

(including intermittent streams), mud flats, sand flats, wet-

lands, sloughs, prairie potholes, wet meadows, playa lakes,

or natural ponds, the use, degradation or destruction of

which could affect interstate or foreign commerce . . . .

8

(Emphasis added). This regulation purports to extend the coverage of

the Clean Water Act to a variety of waters that are intrastate, nonnavi-

gable, or both, solely on the basis that the use, degradation, or

destruction of such waters could affect interstate commerce. The reg-

ulation requires neither that the regulated activity have a substantial

affect on interstate commerce, nor that the covered waters have any

sort of nexus with navigable, or even interstate, waters. Were this reg-

ulation a statute, duly enacted by Congress, it would present serious

constitutional difficulties, because, at least at first blush, it would

appear to exceed congressional authority under the Commerce

Clause. This regulation is not, however, a statute. Absent a clear indi-

cation to the contrary, we should not lightly presume that merely by

defining "navigable waters" as "the waters of the United States," 33

U.S.C. § 1362(7), Congress authorized the Army Corps of Engineers

to assert its jurisdiction in such a sweeping and constitutionally trou-

bling manner. Even as a matter of statutory construction, one would

expect that the phrase "waters of the United States" when used to

define the phrase "navigable waters" refers to waters which, if not

navigable in fact, are at least interstate or closely related to navigable

or interstate waters. When viewed in light of its statutory authority,

33 C.F.R. § 328.3(a)(3) (1993), which defines "waters of the United

States" to include intrastate waters that need have nothing to do with

navigable or interstate waters, expands the statutory phrase "waters of

the United States" beyond its definitional limit.

Accordingly, we believe that in promulgating 33 C.F.R.

§ 328.3(a)(3) (1993), the Army Corps of Engineers exceeded its con-

gressional authorization under the Clean Water Act, and that, for this

reason, 33 C.F.R. § 328.3(a)(3) (1993) is invalid. For the same reason,

the district court's instruction based upon this regulation is also erro-

neous.

III

The defendants also contend that the district court, in instructing

the jury on the relationship between wetlands and interstate waters,

gratuitously and improperly extended the jurisdiction of the Clean

Water Act beyond its stated limits to any wetland "even without a

direct or indirect surface connection" with interstate waters. They

claim that their property was not adjacent to waters of the United

9

States and that any wetlands that may have been involved were too

remote from navigable waters to be under the jurisdiction of the Clean

Water Act. They observe that the wetlands involved here were "more

than ten miles from the Chesapeake Bay, more than six miles from

the Potomac River, and hundreds of yards from the nearest creeks."

They add that the district court's interpretation of the nexus between

wetlands and interstate waters also exceeds the Commerce Clause's

limitation of governmental power.

The government argues, without addressing the district court's

instruction, that the wetlands involved in this case "were [as a factual

matter] clearly adjacent to streams which flow into the Chesapeake

Bay" and therefore "were properly regulated pursuant to the Com-

merce Clause."

Because of the divergence of these contentions and the presentation

of conflicting evidence at trial, the question of whether the jury was

properly instructed with respect to the scope of the Clean Water Act

is material to whether the jury's factual findings were properly

informed by the law. Although the Clean Water Act itself authorizes

the regulation of only "navigable waters," which are defined as "wa-

ters of the United States," see 33 U.S.C. §§ 1311(a), 1362(12)(A),

1362(7), the Army Corps of Engineers has defined"waters of the

United States" to include wetlands adjacent to waters that otherwise

constitute waters of the United States. 33 C.F.R. § 328.3(7) (1993).

Although the Supreme Court has upheld the validity of 33 C.F.R.

§ 328.3(7) as a reasonable construction of the Clean Water Act, it did

so explicitly in the context of a wetland "that actually abuts on a

navigable waterway." Riverside Bayview Homes, 474 U.S. at 135

(emphasis added).

In instructing the jury in this case, the district court extended the

application of the Clean Water Act substantially beyond the regula-

tions that had been approved in Riverside Bayview Homes, instructing

the jury that waters of the United States included adjacent wetlands

"even without a direct or indirect surface connection to other waters

of the United States." (Emphasis added). This instruction intolerably

stretches the ordinary meaning of the word "adjacent" and the phrase

"waters of the United States" to include wetlands remote from any

interstate or navigable waters. The magnitude of this extension is par-

10

ticularly highlighted when recognizing that the Army Corps of Engi-

neers' statutory mandate extends not to the regulation of "wetlands

adjacent to waters of the United States," but only to the regulation of

"waters of the United States," and that the Corps' regulation of such

wetlands is based solely on its definition of wetlands as "waters of the

United States." Furthermore, as noted above, we should interpret the

Clean Water Act in light of the constitutional difficulties that would

arise by extending the Act's coverage to waters that are connected

closely to neither interstate nor navigable waters, and which do not

otherwise substantially affect interstate commerce. It was thus error

for the district court to have instructed the jury to extend the jurisdic-

tion of the Clean Water Act to wetlands that lack any "direct or indi-

rect surface connection" to interstate waters, navigable waters, or

interstate commerce.

Because we cannot determine as a result of this error whether the

jury properly exercised the jurisdiction of the Clean Water Act, a new

trial is necessary.

IV

The defendants next challenge the district court's jury instruction

that "sidecasting" in a wetland without the introduction of additional

fill material to the wetland violates the Clean Water Act.

The government presented evidence that after the defendants

attempted to drain the wetlands by digging ditches through them, but

while the parcels retained sufficient hallmarks of wetland status to

remain within the jurisdiction of the Army Corps of Engineers, large

quantities of non-native fill materials were trucked onto the parcels in

order to raise the ground level. The government claimed that the

importation of that fill constituted the discharge of pollutants into the

waters of the United States. The defendants did not deny that they

added this fill. Rather, they attempted to show that at the time that fill

was added, the ditching efforts had been successful in drying out the

parcels, destroying their characteristics as waters of the United States,

eliminating the risk of polluting the now-absent water, and thus

removing them from jurisdiction of the Clean Water Act. Resolving

the factual question about the wetland-status of the parcels at the time

11

the fill was added was clearly for the jury, and we do not undertake

to resolve that dispute.

Included in the government's claim that the defendants discharged

pollutants in the waters of the United States, however, is the claim

that the defendants' very effort to drain the parcels involved a dis-

charge of a pollutant into wetlands as prohibited by the Act. The gov-

ernment contended that in digging ditches in a wetland to drain it, the

defendants deposited the excavated dirt next to the ditches and

thereby discharged "a pollutant" into the wetland. The government

acknowledges that if the defendants had removed the excavated dirt

from the wetland, no violation would have resulted from the defen-

dants' ditching efforts, at least under the regulations then in effect,

implicitly acknowledging that the anti-pollution enactment does not

prohibit a non-polluting method of draining a wetland.

In instructing the jury, the district court stated:

The term discharge of dredged material and discharge of fill

material . . . include[s] the addition of fill material into wet-

lands for commercial and residential development, the grad-

ing or leveling of wetlands to remove water and to replace

them with dry land or to change the bottom elevation, and

the sidecasting of dredged material from the construction of

drainage ditches in wetlands.

(Emphasis added). The court thus concluded that sidecasting violated

the Clean Water Act. Therefore, the narrow question that the defen-

dants present is whether the redeposit of wet soils excavated during

the digging of a drainage ditch beside the excavation -- i.e. "sidecast-

ing" -- constitutes a discharge of a pollutant in violation of the stat-

ute.

Recognizing the severe impact of the nation's increasing water pol-

lution on public health as well as on industries including fishing, agri-

culture, and outdoor recreation, Congress passed the Clean Water Act

in 1972. The Act is a complex and comprehensive statute designed

"to restore and maintain the chemical, physical, and biological integ-

rity of the Nation's waters." 33 U.S.C. § 1251(a). Because pollution

of the nation's waters is the target of the Act, the Act prohibits the

12

discharge, without a permit, of pollutants into navigable waters. 33

U.S.C. § 1311(a) & § 1362(12)(A). The term "discharge of a pollu-

tant" is defined to mean "any addition of any pollutant to navigable

waters from any point source." 33 U.S.C. § 1362(12)(A) (emphasis

added). Pollutant, in turn, is defined as "dredged spoil, solid waste,

incinerator residue, sewage, garbage, sewage sludge, munitions,

chemical waste, biological materials, radioactive materials, heat,

wrecked or discarded equipment, rock, sand, cellar dirt and industrial,

municipal, and agricultural waste discharged into water." 33 U.S.C.

§ 1362(6).

While the district court instructed the jury somewhat expansively

on the definition of a pollutant, including terms not included in the

statute, such as "fill material, cement, and dredged materials resulting

from excavation, ditching and land clearing operations," we believe

that its instructions in this regard were sufficiently consistent with the

statutory definition of pollutant to enable the jury to conclude prop-

erly that the excavated dirt from drainage ditches was in fact a pollu-

tant. Section 1362(6) includes as a pollutant "dredged spoil,"

"biological materials," "rock," and "sand." While the statutory term

"dredged spoil" carries with it a more pejorative connotation than

does the term that the court used, "dredged material," the two are not

sufficiently different to constitute error. Dictionary definitions of

"spoil" include "material (as refuse earth or rock) excavated usually

in mining, dredging, or excavating," see Webster's Third New Inter-

national Dictionary 2203 (1961), or "earth and rock excavated or

dredged," Merriam Webster's Collegiate Dictionary 1136 (10th ed.

1994). Moreover, the statutory definition of pollutant also includes

biological materials, rock, and sand which, the government argues,

are the elements of the wet soil excavated from the wetland drainage

ditches. Although the government must by proof establish that the dirt

excavated from the wetland in fact falls within the statutory defini-

tion, we are satisfied that dredged materials, including the native soils

excavated by ditching activities, may constitute a pollutant within the

meaning of the Clean Water Act.

The question remains, however, whether "sidecasting," which

moves native wetland a few feet to the side of the ditch being created,

constitutes a "discharge" within the meaning of the statute. The stat-

ute specifically states that "discharge" means "addition." 33 U.S.C.

13

§ 1362(12). While the native soil is removed from the ditch and

redeposited on the immediately adjacent land, the rational interpreta-

tion of the statute leads us to conclude that the movement of native

soil a few feet within a wetland does not constitute the discharge of

that soil into that wetland. The statute requires, in defining discharge

of a pollutant, that the defendants have added dredged spoil to the

wetland, the statutorily regulated water. While sidecasting moves

excavated dirt from one particular locus in the wetland to another, it

does not involve the addition of any material to the wetland. "Addi-

tion" requires the introduction of a new material into the area, or an

increase in the amount of a type of material which is already present.

While soil may be definitionally transformed, through the act of exca-

vation, from a part of the wetland into "dredged spoil," a statutory

pollutant, it is not added to the site. Were we to adopt so expansive

a definition of "discharge" that any movement of soil within a wetland

constitutes "addition," we would not only flaunt the given definition

of "discharge," but we would be criminalizing every artificial distur-

bance of the bottom of any polluted harbor because the disturbance

moved polluted material about. If Congress intended to reach such

conduct, it need simply to redefine the term "discharge." But as the

statute is currently drafted, sidecasting does not involve the addition

of pollutants to a water of the United States. But see Avoyelles Sports-

men's League, Inc. v. Marsh, 715 F.2d 897, 923 (5th Cir. 1983) (hold-

ing that "addition," as included in the definition of "discharge," could

include "redeposit" of dredged material which need not come from an

outside source).

In instructing the jury that sidecasting was prohibited by the Clean

Water Act, we believe that the district court included conduct not pro-

hibited by the Act and the regulations promulgated under it. Sidecast-

ing from ditch-digging in itself effects no addition of a pollutant, and

if the ditching successfully dries out the wetland prior to the addition

of other materials, no violation of the Clean Water Act results because

adding fill to dry land cannot be construed to be polluting the waters

of the United States. But if the ditching is unsuccessful in converting

wetland to non-wetland and fill is added, a violation does result. In

light of the evidence presented in this case, a jury may decide that the

defendants' conduct was culpable, but the error in the jury instruc-

tions requires a new trial.

14

V

The defendants also contend that the district court erred in instruct-

ing the jury about the criminal intent, the "mens rea," required to

prove a felony violation of the Clean Water Act. They argue (1) that

the statute requires a showing that they were aware of the illegality

of their conduct, and (2) that the required mens rea, however it is

defined, must accompany each element of the offense. They note that

the district court's jury instructions comported with neither require-

ment.

The district court charged the jury that the government must prove

each of four elements of the offense beyond a reasonable doubt:

First, that is the defendant knowingly . . . discharged or

caused to be discharged a pollutant.

Second, that the pollutant was [dis]charged from a point

source.

Third, that the pollutant entered a water of the United

States; and fourth, that the discharge was unpermitted.

The court defined an act as "knowingly" done "if it is done voluntarily

and intentionally and not because of ignorance, mistake, accident or

other innocent reason." For each felony count, the court stated,

the government must prove that the defendants knew, one,

that the areas which are the subject of these discharges had

the general characteristics of wetland; and, two, the general

nature of their acts. The government does not have to prove

that the defendants knew the actual legal status of wetlands

or the actual legal status of the materials discharged into

the wetlands. The government does not have to prove that

the defendants knew that they were violating the law when

they committed their acts.

(Emphasis added). Finally, the court instructed on willful blindness,

which it stated could stand in the place of actual knowledge.

15

Determining the mens rea requirement of a felony violation of the

Clean Water Act requires us to make an interpretation based on "con-

struction of the statute and . . . inference of the intent of Congress."

United States v. Balint, 258 U.S. 250, 253 (1922), quoted in Staples

v. United States, 511 U.S. 600, 605 (1994). We thus begin our analy-

sis by looking at the language of 33 U.S.C. § 1319, as well as its place

in the larger statutory structure.

Section 1319(c)(2)(A), making an illegal discharge of a pollutant

a felony if accompanied by the defined mens rea, provides: "Any per-

son who knowingly violates section 1311 . . . shall be punished."

(Emphasis added). Section 1311 makes unlawful "the discharge of

any pollutant" without a permit. And finally, § 1362 defines "dis-

charge of a pollutant" to include "any addition of any pollutant to nav-

igable waters from any point source" and defines "navigable waters"

as "waters of the United States." 33 U.S.C. §§ 1362(7) & (12). Within

that statutory structure, we must determine the nature of intent that the

statute requires for each element of the offense.

On a first reading of the clause, "any person who knowingly

violates section 1311 shall be punished," the order of words suggests

that "knowingly" modifies "violates" so that the clause imposes pun-

ishment only when one violates the statute with knowledge that he is

violating it, i.e. with knowledge of the illegality of his conduct. But

the statute's structure, the architecture of which includes a series of

sections incorporating other sections, its legislative history, and the

body of Supreme Court jurisprudence addressing mens rea of federal

criminal statutes caution that our first reading may not so simply lead

us to the proper interpretation.

Our first concern is a pragmatic one engendered by the overall

structure of the Clean Water Act. The conduct that is made criminal

with the "knowingly violates" language encompasses numerous ele-

ments from other substantive statutory sections. See 33 U.S.C.

§ 1319(c)(2)(A). Each of those substantive sections may also be

enforced with other civil and criminal penalties if the actions pro-

scribed therein are performed with different scienter. See generally 33

U.S.C. § 1319. If Congress intended that the "knowing" mens rea

accompany each element of the offense, as we have previously

assumed is the case, see United States v. Ellen, 961 F.2d 462, 466 n.2

16

(4th Cir. 1992), the task of inserting the alternative mens rea require-

ments for the multiple civil and criminal enforcement provisions

within each substantive prohibition would require confusingly repeti-

tious drafting. A shorthand method of accomplishing the same pur-

pose thus would be to insert "knowingly" in a single place where the

conduct is made criminal, in this case, § 1319(c)(2)(A). See United

States v. International Minerals & Chemical Corp., 402 U.S. 558, 562

(1971) (the phrase "knowingly violates [applicable regulations]" was

"a shorthand designation for specific acts or omissions which violate

the act").

Our second and more profound problem with our first-blush inter-

pretative proposal arises from a recognition of two general common

law principles regarding mens rea. First, in Anglo-American jurispru-

dence, criminal offenses are ordinarily required to have a mens rea.

Staples, 511 U.S. at 605. This supposition is based on "the contention

that an injury can amount to a crime only when inflicted by inten-

tion." Id. (quoting Morissette v. United States, 342 U.S. 246, 250

(1952)). Indeed, statutes requiring no mens rea are generally disfa-

vored. See Staples, 511 U.S. at 606. But a second and deeply-rooted

common law principle is that ignorance of the law provides no

defense to its violation. See Cheek v. United States, 498 U.S. 192, 199

(1991); Barlow v. United States, 32 U.S. (7 Pet.) 404, 411 (1833)

(Story, J.). Thus, while some level of deliberateness is usually

required to impose criminal punishment, it is also usually true that the

defendant need not appreciate the illegality of his conduct. Applying

those principles to a statute similar to the one before us, the Supreme

Court in International Minerals declined "to attribute to Congress the

inaccurate view that [the] Act requires proof of knowledge of the law,

as well as the facts." International Minerals, 402 U.S. at 563. In that

case, the statute -- which provided that whoever"knowingly violates

any such regulation" shall be fined or imprisoned-- was held to be

a "shorthand designation" for knowledge of the specific acts or omis-

sions which violate the Act. Id. at 559, 562. When so viewed, the

Court noted, "the Act . . . does not signal an exception to the rule that

ignorance of the law is no excuse." Id. at 562. Compare Liparota v.

United States, 471 U.S. 419, 423 & 425 n.9 (1995) (holding that a

statute providing "who[ ]ever knowingly uses, transfers, acquires,

alters or possesses [food stamps] in a manner not authorized by [the

law]" was subject to a fine and imprisonment requires knowledge that

17

the defendant know possession of food stamps was "unauthorized,"

but stating that this interpretation creates no mistake-of-law defense).

In light of these background rules of common law, we may conclude

that mens rea requires not that a defendant know that his conduct was

illegal, but only that he "know the facts that make his conduct illegal,"

Staples, 511 U.S. at 605, unless Congress clearly specifies otherwise.

And this knowledge must generally be proven with respect to each

element of the offense. See, e.g., United States v. X-citement Video,

Inc., 513 U.S. 64, 78 (1994) (construing a statute prohibiting know-

ingly shipping a visual depiction which involved "the use of a minor

engaging in sexually explicit conduct" to require the defendant's

knowledge that the person depicted was in fact a minor); Ellen, 961

F.2d at 466 n.2.

Finally, our first-blush reading of the phrase "knowingly violates"

is cast into doubt by the legislative history, which suggests that Con-

gress, by amending the statute in 1987, intended to facilitate enforce-

ment of the Clean Water Act and increase the impact of sanctions by

creating a separate felony provision for deliberate, as distinct from

negligent, activity. Before the amendment, the Act imposed a single

set of criminal penalties for "willful or negligent" violations. See 33

U.S.C. § 1319(d)(1) (1986). The 1987 amendments, however, segre-

gated the penalties for negligent violations, making them misdemea-

nors, and added felony provisions for knowing violations. See 33

U.S.C. § 1319(c)(1)(A) ("negligent" violation) & § 1319(c)(2)(A)

("knowing" violation). Thus, before 1987, the statute proscribed

"willful or negligent" violations and after 1987 it proscribed separate

"knowing" and "negligent" violations. In changing from "willful" to

"knowing," we should assume that Congress intended to effect a

change in meaning. See United States v. Hopkins, 53 F.3d 533, 539

(2d Cir. 1995); United States v. Sinskey, 119 F.3d 712, 716 (8th Cir.

1997). Because "willful" generally connotes a conscious performance

of bad acts with an appreciation of their illegality, see Ratzlaf v.

United States, 510 U.S. 135, 141 (1994), we can conclude that Con-

gress intended to provide a different and lesser standard when it used

the word "knowingly." If we construe the word "knowingly" as

requiring that the defendant must appreciate the illegality of his acts,

we obliterate its distinction from the willfulness.

Based upon these interpretative guides, then, we cannot conclude

that Congress intended to require the defendant to know that his con-

18

duct was illegal when it stated that "Any person who knowingly vio-

lates [incorporated statutory sections] . . . shall be punished." The

ready alternative interpretation is that Congress intended that the

defendant have knowledge of each of the elements constituting the

proscribed conduct even if he were unaware of their legal signifi-

cance. This interpretation would not carry with it the corollary that the

defendant's ignorance of his conduct's illegality provides him a

defense, but would afford a defense for a mistake of fact. Thus, if a

defendant thought he was discharging water when he was in fact dis-

charging gasoline, he would not be guilty of knowingly violating the

act which prohibits the discharge of pollutants. See Ahmad v. United

States, 101 F.3d 386, 393 (5th Cir. 1996); see also International

Minerals, 402 U.S. at 563-64.

Accordingly, we hold that the Clean Water Act, 33 U.S.C.

§ 1319(c)(1)(A), requires the government to prove the defendant's

knowledge of facts meeting each essential element of the substantive

offense, see Ellen, 961 F.2d at 466 n.2, but need not prove that the

defendant knew his conduct to be illegal, see International Minerals,

402 U.S. at 563.

Urging us to reach a different conclusion, the defendants argue that

we should be governed by the decision in Liparota v. United States,

471 U.S. 419 (1985), where the Court concluded that in proving a

violation of a food stamp statute, the government had to prove that the

defendant knew that his action or his possession of food stamps was

unauthorized. The Court reached the conclusion there largely

because, if it were not to require such a mens rea, the result would

be to outlaw a number of acts which a reasonable person would very

likely believe were entirely unregulated, including actions that were

wholly accidental. The statute provided that "whoever knowingly

uses, transfers, acquires, alters, or possesses [food stamps] in any

manner not authorized by [the statute] or the regulations" was subject

to a fine and imprisonment. 7 U.S.C. § 2024(b)(1). If the court did not

apply a requirement that the defendant appreciate that his conduct was

unauthorized, the result would render criminal "a nonrecipient of food

stamps who `possessed' stamps because he was mistakenly sent them

through the mail due to an administrative error, `altered' them by tear-

ing them up, and `transferred' them by throwing them away." Id. at

426-27. The Court concluded that the evidence of Congress' intent to

19

create such a harsh regime was too meager to justify the interpreta-

tion. At the same time, however, the Court reiterated its conclusion

that even then it did not provide a mistake-of-law defense, stating that

no defendant could escape culpability by demonstrating that it did not

know it to be illegal to use food stamps in an authorized way. Id. at

425 n.9.

In our case, we believe the several factors we have already dis-

cussed indicate a different congressional intent than that found by the

Court in Liparota, as we too resist the temptation to create a mistake-

of-law defense. As we noted, interpreting the phrase "knowingly vio-

late" to mean violation with knowledge of an act's illegality would

require us to ignore the distinction between a knowing and a willful

violation, a distinction that Congress recognized in amending the law

in 1987. We also note that at the time the penalty provisions of the

Clean Water Act were first written, the Supreme Court had already

held in International Minerals that the use of the same construction

at issue here -- "knowingly violates [applicable regulations]" -- was

"a shorthand designation for specific acts or omissions which violate

the Act." 405 U.S. at 562. Thus, it is logical to conclude that Congress

would have used a similar shorthand designation to incorporate the

mens rea requirement against each of the substantive requirements

found in the incorporated sections of the Clean Water Act without

also intending to create a defense of ignorance of the law.

The defendants argue, however, that International Minerals has no

bearing on this case because it was a case involving a "public wel-

fare" offense. Under this somewhat amorphous exception to general

common law scienter requirements, a threat to public health and

safety posed by an object or activity and the inherent dangerousness

or deleterious nature of the prohibited item are considered sufficient

in themselves to place the defendant on notice of the likelihood of

regulation and thus to excuse the need to prove mens rea with respect

to one or more elements of the offense. Even under this public wel-

fare doctrine, however, true or rigid strict liability does not generally

follow, as ignorance of the facts usually remains a defense. See

Staples, 511 U.S. at 607 n.3. Thus, International Minerals held that

prosecution for transporting sulfuric acid without following proper

regulatory procedures under a statute prohibiting one from "know-

ingly violat[ing] any such regulation" did not establish an ignorance-

20

of-the-law defense by requiring the government to prove the defen-

dant knew of the regulation and appreciated that his conduct violated

it. 402 U.S. at 563-64. Rather, the government would have to prove

that the defendant knew of the operative facts which themselves were

the essential elements of the regulatory violation. Id. The Court thus

preserved mistake-of-fact defenses and did not, at the same time,

create true strict liability. Later cases which did not involve "public

welfare" offenses have required no more than knowledge of the facts.

See, e.g., Staples, 511 U.S. at 606.

The fact that International Minerals involved regulations of an

inherently deleterious substance of a type not involved in the present

prosecution does not undercut our belief that Congress did not here

intend to create a mistake-of-law defense. Even though the materials

involved in this case, fill and native soil from a wetland, may not be

inherently deleterious, the Clean Water Act is, as a general matter,

largely concerned with pollutants that are inherently deleterious. The

legislative history of the Act records Congress' explicit concern with

public health. See S. Rep. No. 92-414 (1972), reprinted in 1972

U.S.C.C.A.N. 3668, 3670-71. And the Act specifically authorized

research to determine the harmful effects of pollutants on the health

or welfare of persons. See 33 U.S.C. § 1254(c). To date, three other

circuits have concluded that the Clean Water Act involves public wel-

fare offenses, recognizing that in each of those cases the pollutants

were inherently deleterious. See Sinskey, 119 F.3d at 716 (meat pack-

ing plant waste water containing large amounts of ammonia nitrate);

Hopkins, 53 F.3d at 534 (waste water containing zinc and other toxic

chemicals); United States v. Weitzenhoff, 35 F.3d 1275, 1284 (9th Cir.

1994) (sewage).

While a statute which in some applications is a public welfare stat-

ute may in other applications be held to require a different mens rea,

see Staples, 511 U.S. at 605, even in the latter situation, the govern-

ment need prove only that the defendant knew the operative facts

which make his action illegal. The government need not prove that

the defendants understood the legal consequences of those facts or

were even aware of the existence of the law granting them signifi-

cance. Compare United States v. Freed, 401 U.S. 601, 609 (1971)

(holding that violation for possession of unregistered hand grenade

under 26 U.S.C. § 5861(d) was public welfare offense and the govern-

21

ment was not required to prove that defendant knew grenade to be

unregistered) with Staples, 511 U.S. at 619 (holding that violation for

possession of unregistered machine gun under 26 U.S.C. § 5861(d)

was not a public welfare offense and the government thus was

required to prove defendant's knowledge of the specific characteris-

tics which qualify the weapon as a statutory machine gun); see also

Hamling v. United States, 418 U.S. 87, 119-121 (1974) (requiring

government to prove that a defendant knew the contents of a mailed

package, but not their legal status as obscene materials); accord

Rosen v. United States, 161 U.S. 29, 32-33 (1896).

In light of our conclusion that the government need only prove the

defendant's knowledge of the facts meeting each essential element of

the substantive offense and not the fact that defendant knew his con-

duct to be illegal, in order to establish a felony violation of the Clean

Water Act, we hold that it must prove: (1) that the defendant knew

that he was discharging a substance, eliminating a prosecution for

accidental discharges; (2) that the defendant correctly identified the

substance he was discharging, not mistaking it for a different, unpro-

hibited substance; (3) that the defendant knew the method or instru-

mentality used to discharge the pollutants; (4) that the defendant knew

the physical characteristics of the property into which the pollutant

was discharged that identify it as a wetland, such as the presence of

water and water-loving vegetation; (5) that the defendant was aware

of the facts establishing the required link between the wetland and

waters of the United States;* and (6) that the defendant knew he did

not have a permit. This last requirement does not require the govern-

_________________________________________________________________

* These facts might seem to fall into the category of "jurisdictional

facts" which under United States v. Feola, 420 U.S. 671, 676 n.9, 684

(1975), the government need not prove the defendant knew. In Feola,

however, those facts served only the purpose of designating which of two

authorities would prosecute the crime, the underlying crime of assault

being criminal at all times either under state law or, if involving a federal

official, as in that case, under federal law. See Feola, 420 U.S. at 683.

Maryland does, by statute, regulate the discharge of pollutants into cer-

tain waters within its jurisdiction, as well as prohibiting the destruction

of wetlands, see Md. Code Ann., Envir. §§ 4-101 to 4-708; § 16-302, but

as those statutes do not appear to cover the property here in question, we

do not find this situation to be governed by Feola.

22

ment to show that the defendant knew that permits were available or

required. Rather, it, like the other requirements, preserves the avail-

ability of a mistake of fact offense if the defendant has something he

mistakenly believed to be a permit to make the discharges for which

he is being prosecuted.

While we thus reject the defendants' challenge to the district

court's instructions based on the contention that the government must

prove awareness of the illegality of their conduct, we agree that the

instructions did not adequately impose on the government the burden

of proving knowledge with regard to each statutory element. For this

reason, a new trial is required.

VI

Finally, defendants challenge the district court's rulings that

allowed into evidence expert opinions offered by the government on

the proper interpretation of the applicable law but that excluded the

testimony of two former Assistant Attorneys General of the United

States by which the defendants proposed to establish their understand-

ing of the proper interpretation of the law. Because we have already

identified reasons for requiring a new trial, we need not resolve

whether the court's ruling constitutes reversible error. Only because

we believe it will be helpful in connection with a new trial, and might

prevent further appeals, do we address these evidentiary rulings.

In a case involving the application of complex regulations, like this

one, it can be difficult for factual witnesses who are also the individu-

als responsible for enforcing the regulations to testify without at least

referencing the legal framework which motivated and justified their

activities. It can likewise be difficult for the trial court to preserve to

itself the exclusive task of instructing the jury on the law while, at the

same time, allowing expert witnesses to state their findings and to

give their opinions on relevant questions. Nonetheless, the jury must

be instructed on the law by the court and not by the witnesses. As we

have explained in a similar circumstance:

[U]nder our system it is the responsibility-- and the duty

-- of the court to state to the jury the meaning and applica-

bility of the appropriate law, leaving to the jury the task of

23

determining the facts which may or may not bring the chal-

lenged conduct within the scope of the court's instruction as

to the law.

Under circumstances involving domestic law, this court

can conceive of no circumstances which would shift this

burden from the court to the jury, where the jury judgment

would be influenced, if not made, on the basis of expert wit-

ness testimony which would undoubtedly follow the usual

pattern of conflicting expert opinions. Permitting such testi-

mony as to legal conclusions gives cogent meaning to the

"apprehensions that jurors will turn to the expert, rather than

to the judge, for guidance on the applicable law."

* * *

The proffer of expert opinion in many cases raises prob-

lems difficult of resolution by the trial court, where the line

must be drawn between proper expert evidence as to facts,

the inferences to be drawn from those facts, and the opin-

ions of the expert, on the one hand, and testimony as to the

meaning and applicability of the appropriate law, on the

other hand. While sometimes difficult to discern that line,

especially in the heat of trial, it nonetheless must be drawn.

Adalman v. Baker, Watts & Co., 807 F.2d 359, 366 (4th Cir. 1986)

(citations omitted).

We thus conclude that the district court acted well within its discre-

tion in excluding the proffered testimony of the two former Assistant

Attorneys General. With regard to its rulings on the testimony of gov-

ernment expert witnesses, the issue is more difficult, because those

witnesses were also fact witnesses to the conditions of the property

in question and expert witnesses as to techniques for identifying wet-

lands. As regulatory enforcers, their conclusions that a given property

contained wetlands were based not purely upon the scientific notion

of what a wetland is, but also upon the regulatory definition. Never-

theless, we believe that to maintain properly the court's role as the

sole arbiter of the applicable law, the court should have taken steps

to limit those witnesses' testimony generally to facts of history, prac-

24

tices and procedures followed by them in their work, opinions based

on demonstrated expertise, and similar matters, but it should not have

allowed them to give opinions on what the law means or how it is

interpreted.

VII

In summary for the reasons given in parts II and V, we conclude

(1) that 33 C.F.R. § 328(a)(3) (defining, in part, "waters of the United

States") exceeds statutory authority and therefore is invalid; and (2)

that the district court erred in failing to apply the statutory mens rea

to each element of the offense. For these reasons, we order a new

trial. Because we are ordering a new trial, we need not reach the

defendants' sentencing issue.

REVERSED AND REMANDED FOR A NEW TRIAL

LUTTIG, Circuit Judge, concurring in the judgment:

I concur only in the ultimate disposition of this case, and only for

the reasons stated in Part V of Judge Niemeyer's opinion. While I

believe the analysis in Part II of Judge Niemeyer's opinion is con-

vincing, that analysis is directly foreclosed by our court's decision in

Brzonkala v. Virginia Polytechnic & State University, ___ F.3d ___

(4th Cir. Dec. 23, 1997), an opinion which is nowhere discussed by

my colleagues in either of their opinions. In Brzonkala, in stark con-

trast to the majority herein, the court dismisses the decision of the

United States Supreme Court in United States v. Lopez, 514 U.S. 549

(1995), as an aberration, essentially limiting the reach of that opinion

to section 922(g), of Title 18, of the United States Code. See Brzonkala,

___ F.3d at ___ (Luttig, J., dissenting). As long as Brzonkala remains the law

of the Circuit, I believe that we are bound by, and should faithfully

adhere to, that precedent.

PAYNE, District Judge:

I concur with the ultimate disposition of the appeal and with Parts

II, V, and VI of Judge Niemeyer's opinion. However, for the reasons

set forth below, I disagree with Parts III and IV of that opinion.

25

Background

This case, at trial and on appeal, centers on the requirement of the

CWA that one cannot perform certain activities in certain wetlands

without first obtaining a permit from the Corps of Engineers (the

"Corps"). As to that central question, the evidence conclusively

proved that the activities of which the defendants were convicted

occurred while the defendants were dredging and draining wetlands

on a vast scale to make room for a commercial real estate develop-

ment. It is undisputed that, while constructing the project, the defen-

dants discharged great quantities of dredged fill and excavated

material into the wetlands. Further, it is undisputed that the defen-

dants deliberately elected to proceed with their activities without

securing permits for discharging the dredged, excavated and fill mate-

rial into the wetlands. Finally, the proof was that, throughout the

period in which the defendants engaged in the activities of which they

were convicted, they were informed by their own nationally recog-

nized, highly respected expert environmental consultants that CWA

permits from the Corps were required.1

The Adjacency Issue

The focus of Part III of Judge Niemeyer's opinion is the defen-

dants' argument that the wetlands in which the activity of conviction

occurred were not "waters of the United States." If the wetlands at

issue fit that description, the defendants were required by the CWA

to secure a permit from the Corps before making the discharges of

pollutants of which the defendants were convicted.

Whether CWA permits were required for those activities depended

upon whether these wetlands were adjacent to "waters of the United

States" because: (i) the applicable regulations define wetlands which

are adjacent to waters of the United States to be "waters of the United

States;" and (ii) the regulations which supply this definition have been

reviewed and sustained by the Supreme Court of the United States.

The Amended Indictment alleged that, without any permits, the

defendants made discharges of pollutants (dredge material and fill

_________________________________________________________________

1 Joint Appendix, pp. 640, 1471, 1474, 1478, 1492, 1513 (hereafter

cited JA ___).

26

material) into "wetlands adjacent to waters of the United States"

(Count One) or "wetlands adjacent to the headwaters . . . [of creeks

which are] waters of the United States." (Counts Three, Five and

Seven).

Adjacency is a question of fact to be resolved by the jury. To

inform the jury in making this determination, the District Court gave

the following instruction:

Adjacent: The term adjacent means bordering, contiguous

or neighboring. Wetlands separated from other waters of the

United States by manmade dikes or barriers, natural river

berms, beach dunes and the like are adjacent wetlands. The

terms bordering, contiguous or neighboring are not defined

within the regulations. Adjacent wetlands are those which

form the border of or are in reasonable proximity to other

waters of the United States. A wetland may be adjacent even

without a direct or indirect surface connection to other

waters of the United States.

JA 2293-94. In Part III of the opinion, this instruction is found to be

erroneous because of its concluding sentence: "[a] wetland may be

adjacent even without a direct or indirect surface connection to other

waters of the United States."

No one argues that adjacency can exist absent some "direct or indi-

rect" connection between a wetland and another water of the United

States. Hence, the fault in this sentence, if any, must be that it

includes the word "surface."2 Or put another way, Part III concludes

_________________________________________________________________

2 A review of the defendants' briefs and scrutiny of the instructions and

related arguments presented in the District Court causes one to doubt

whether the defendants actually contend that this single sentence renders

defective the instruction on adjacency. Nonetheless, because Part III

views that question as central to the adjacency issue, it will be assumed

that the defendants ascribe to that single sentence the important position

it is given in Part III.

I read the defendants' argument on the adjacency issue to be that, as

a matter of law, these wetlands were too distant from a navigable water

to be adjacent. I agree with the majority that, at least on this record, adja-

cency is a question of fact to be decided by the jury.

27

that there must be a surface connection between a water of the United

States and a wetland in order for the wetland to be adjacent to a water

of the United States. This view seems to rest on a statement in

Riverside Bayview Homes that the wetlands there at issue "actually

abut[ted] on a navigable waterway" (p. 10, supra, citing 474 U.S. at

135) and that, therefore, Riverside Bayview Homes requires a surface

connection as a condition to adjacency. For several reasons, I submit

that this view of Riverside Bayview Homes is amiss of the mark.

First, although the quoted text from Riverside Bayview Homes

mentions that the wetlands at issue actually abutted a navigable water-

way, neither that language nor the decision as a whole equates actual

abuttment on a navigable waterway with adjacency. And, to suggest

that it does is to ignore the remainder of the opinion and its principal

thrust.

In Riverside Bayview Homes, the respondent's property, in fact,

was in a wetland. Part of that wetland actually abutted a navigable

waterway and was frequently inundated by its overflow. However, the

part of respondent's property which spawned the litigation acquired

its wetland qualities not from the inundation by surface water from

the navigable waterway, but from groundwater saturation. Riverside

Bayview Homes, 474 U.S. at 125, 130, n.7. It was, indeed, that part

of the wetland which lay at the core of the opinion on the issue under

review.3 Of course, if there was no inundation of that part of the wet-

land, then there was no surface connection between it and the naviga-

ble waterway. Thus, notwithstanding that one part of the wetland

abutted the navigable waterway, the opinion as a whole refutes the

idea that there must be a surface connection to establish adjacency.

Second, in Riverside Bayview Homes, the Supreme Court empha-

sized that the important jurisdictional connection between waters of

the United States and adjacent wetlands was the hydrologic relation-

ship of the aquatic system at issue, rather than the existence of a sur-

_________________________________________________________________

3 "Our review is limited to the question whether it is reasonable . . . for

the Corps to exercise jurisdiction over wetlands adjacent to but not regu-

larly flooded by, rivers, streams, and other hydrographic features more

conventionally identifiable as `waters.'" Riverside Bayview Homes, 474

U.S. at 131.

28

face connection between the waters of the United States and the

putatively adjacent wetlands. Riverside Bayview Homes, 474 U.S. at

133-35. That, of course, means that a surface connection is not the

sine qua non of adjacency.

Thus, a wetland could be adjacent, for example, where a berm sep-

arated the other waters of the United States from the wetland, assum-

ing, of course, the existence of the requisite relation to the aquatic

system and hydrologic connection. In that event, it is the osmotic con-

nection (not a surface connection) between the two which supplies a

hydrologic nexus sufficient to permit the exercise of federal jurisdic-

tion.

Also, a hydrologic connection could exist where the wetland and

the other waters of the United States are connected by an intermittent

stream which provides a surface connection only at certain times. For

example, in the case of tidal wetlands, a surface connection often

exists only at certain times of day. In the west, there are wetlands

which are connected to the waters of the United States only at certain

times of the year (42 Fed. Reg. 37129 (July 19, 1977)). In neither cir-

cumstance is there always a direct or an indirect surface connection.

Yet, in both circumstances, there is a hydrologic connection.

Those examples appear to fall within the reach of the explanation

in Riverside Bayview Homes that:

This [an adjacent wetland may be defined as waters under

the Act] holds true even for wetlands that are not the result

of flooding or permeation by water having its source in adja-

cent bodies of open water. The Corps has concluded that

wetlands may affect the water quality of adjacent lakes, riv-

ers and streams even when the waters of those bodies do not

actually inundate the wetlands. For example, wetlands that

are not flooded by adjacent waters may still tend to drain

into those waters. In such circumstances, the Corps has con-

cluded that wetlands may serve to filter and purify water

draining into adjacent bodies of water, see 33 CFR

§ 320.4(b)(2)(vii) (1985), and to slow the flow of surface

runoff into lakes, rivers, and streams and thus prevent flood-

ing and erosion, see §§ 320.4(b)(2)(iv) and (v). In addition,

29

adjacent wetlands may "serve significant natural biological

functions, including food chain production, general habitat,

and nesting, spawning, rearing and resting sites for aquatic

. . . species." § 320.4(b)(2)(i). In short, the Corps has con-

cluded that wetlands adjacent to lakes, rivers, streams, and

other bodies of water may function as integral parts of the

aquatic environment even when the moisture creating the

wetlands does not find its source in the adjacent bodies of

water.

Riverside Bayview Homes, 474 U.S. at 134-35 (emphasis added). The

underscored text would be superfluous if adjacency could be found

only upon the existence of a surface connection.

The immediately preceding quotation appeared almost immediately

after the Court quoted with approval the statement that "the landward

limit of Federal jurisdiction under Section 404 must include any

adjacent wetlands that form the border of or are in reasonable prox-

imity to other waters of the United States, as these wetlands are part

of this aquatic system." Riverside Bayview Homes, 474 U.S. 133-34

(citing 42 Fed. Reg. 37128 (1977) (emphasis added)). "Reasonable

proximity" would not require a surface connection as a predicate to

adjacency whereas "border" would require such a connection.

For the foregoing reasons, I respectfully submit that it was not error

to include, in the instruction on adjacency, the sentence: "A wetland

may be adjacent even without a direct or indirect surface connection

to other waters of the United States." This is particularly true consid-

ering, as we must, the instructions on that topic as a whole. In my

view, the instructions on adjacency, taken as a piece, correctly

instructed the jury on what it must find to conclude that a wetlands

is adjacent to waters of the United States.4

_________________________________________________________________

4 However, considering that a new trial will be required for other rea-

sons, I would agree that the jury should be given the definition of adja-

cent which was sanctioned by the Supreme Court in Riverside Bayview

Homes, as augmented by the regulations which the Court there approved,

without any reference to surface connection, direct or indirect. Also, it

would seem appropriate to provide the jury with the meanings of the

terms "bordering," "contiguous" and "neighboring." For that, the second

paragraph of the defendants' Requested Instruction No. 41 would be ade-

quate. JA 2181.

30

The Sidecasting Issue

In Part IV, Judge Niemeyer's opinion concludes that the practice

known as sidecasting does not, as a matter of law, violate the CWA.

For the reasons which follow, I respectfully submit that this interpre-

tation of the CWA is in error.

As to Counts Three, Five and Seven, the proof was that the defen-

dants not only engaged in sidecasting dredge material, but also added

great volumes of fill material. The defendants do not argue that the

addition of fill material is not, or could not be, regulated by the permit

system which is at the core of this case. Hence, as to those three

counts, sidecasting of the material produced by excavating the ditches

in an effort to drain the wetlands was a peripheral issue. Only in

Count One (Parcel L) was the charged offense based solely on side-

casting.

The parties agree that, in this case, sidecasting was accomplished

by placing into the wetlands the material dredged from the bottom of

the wetlands. The nub of the view on sidecasting in Part IV is

reflected in: (1) the statement of the issue as "whether `sidecasting,'

which moves native wetland a few feet to the side of the ditch being

created, constitutes a `discharge' within the meaning of the statute"

(p. 13, supra); and (2) the resolution of the issue by concluding that

"[s]idecasting from ditch digging in itself effects no addition of a pol-

lutant . . . ." (p. 14, supra). I respectfully submit that: (1) the statement

of the issue is not consistent with the reality of the practice known as

sidecasting; and (2) the resolution of the sidecasting issue in Part IV

is at odds with the regulations, to which we must give deference, and

with the plain meaning of the statute.

The analysis, of course, begins with the statutes. In 33 U.S.C.

§ 1362(6), "dredged material" is defined as a pollutant ("pollutant"

includes "dredged spoil . . . biological materials, rock, sand . . . dis-

charged into water"). The "discharge of a pollutant" is statutorily

defined to mean "addition" of a pollutant to navigable waters

("navigable waters" is defined to mean "waters of the United States")

from any point source. 33 U.S.C. § 1362(12). The CWA does not

define "addition," but the usual meaning of the word "add" is "to join,

annex or unite so as to bring about an increase or so as to form one

31

aggregate." Webster's Third International Dictionary (1986). "Addi-

tion" is commonly understood to be the "act or process of adding." Id.

The applicable provisions of the CWA do not use the word "side-

casting," but the controlling regulations, given their plain meaning,

define as the discharge of a pollutant what the parties say is sidecasting.5

The regulations define "dredged material" to mean "material that is

excavated or dredged from waters of the United States." 33 C.F.R.

§ 323.2(c). The "discharge of dredged material" was defined to mean

"any addition of dredged material into the waters of the United

States." (emphasis added). 33 C.F.R. § 323.2(d). Reading these two

sections of the regulation together, it is rather clear that, without a

permit to do so, one may not add into waters of the United States

material that is excavated or dredged from waters of the United States.

Hence, if the wetlands here at issue is a "water of the United States"

(i.e. if the adjacency test is met), then §§ 323.2(c) and (d) clearly pro-

hibit what the parties in this appeal agree to be sidecasting in these

wetlands here at issue without a permit.

Considering that the principal thrust of the defendants' position is

that the applicable regulations do not prohibit sidecasting without a

permit, it is helpful to examine the antecedents of the regulations here

at issue. Also, it is well to recall that these regulations, and the permit-

ting system which they establish, have long been the central compo-

nent of the regulatory scheme to control the discharge of dredged or

fill material into waters of the United States.

Much of the regulatory history is irrelevant here, but it is pertinent

to note that regulation on this topic began on April 3, 1974, when the

Corps published implementing regulations which later were judicially

determined to be too limited to effectuate Congressional purpose.

NRDC v. Callaway, 392 F. Supp. 685 (D.D.C. 1975). Callaway was

decided on March 27, 1975, and on May 6, 1975, the Corps, pursuant

to judicial instruction, published proposed regulations for comment.

40 Fed. Reg. 19765 (1975). The proposal set forth four alternative

_________________________________________________________________

5 The version of those regulations which were in effect from January

1988 to August 31, 1993 (the inclusive dates of the activity charged in

Counts One, Three, Five and Seven) is found in 33 C.F.R. § 323(c) and

(d), as promulgated in 51 Fed. Reg. 41232, November 13, 1986.

32

proposals, each of which contained definitions of the terms: "naviga-

ble water," "waters of the United States," and "dredged materials." 40

Fed. Reg. 19770, 19772, 19774, 19776 (1975).

Over 4,500 comments were received and analyzed. On July 25,

1975, the Corps published interim final regulations governing the

issuance of permits for discharge activities in navigable waters. 40

Fed. Reg. 31319-31320 (1975). The regulation defined dredged mate-

rial "to include any material that is excavated or dredged from any of

the waters of the United States . . . [as defined] . . . ." 40 Fed. Reg.

31321 (1975) (emphasis added). Also, the regulations defined a new

term: "discharge of dredged material" as to which the preamble to the

new regulations explained:

The term "discharge of dredged material" has been added to

the lists of definitions in an effort to clarify the types of

activities that fall under this term. Under this definition,

therefore, any material which is excavated or dredged from

a navigable water and then reintroduced through a point

source into a navigable water would fall under this term.

The types of activities encompassed by this term would

include the depositing into navigable waters of dredged

material if it is placed alongside of a newly dredged canal

which has been excavated in a wetland area. It would also

include maintenance of these canals if excavated material is

placed in navigable waters. Also included is the runoff or

overflow from a contained land or water disposal area.

40 Fed. Reg. 31321 (1975) (emphasis added).

Because the regulations adopted on July 25, 1975 were "interim

final regulations" (which took effect when issued), the Corps pro-

vided a further comment period of an additional 90 days. Approxi-

mately 2,000 comments were received and the final version of the

regulations was issued on July 19, 1977. 42 Fed. Reg. 37122, 37125

(1977). This iteration became the regulations which, with no signifi-

cant change, are the ones which are at issue in our case.6

_________________________________________________________________

6 The preamble to the 1977 iteration of the regulations contains a good

summary of their course from promulgation in 1974 until 1977. 42 Fed.

33

This history demonstrates that, from the earliest days of the CWA

permit system, the regulations, adopted after extensive comment and

consideration, have prohibited the unpermitted discharge of material

dredged from a water of the United States into a water of the United

States. That, of course, is precisely the description of sidecasting, at

least as it occurred here.

It is true that these early regulations, like the CWA, did not use the

term "sidecasting." However, the November 13, 1986 regulations

implementing a new set of practices and procedures to be followed by

the Corps in reviewing permits for the discharge of dredged or fill

materials into the waters of the United States contains a significant

explanation about whether sidecasting requires a permit. 41 Fed. Reg.

31210 (1986). At that time, the Corps had under consideration a pro-

posed modification of 33 C.F.R. § 323.2(d) (previously § 323.2(j),

i.e., the definition of "discharge of dredged material"). That definition

would create a de minimis exception to the permit requirement for

material which, during normal dredging operations, fell back into a

water of the United States as an unintended, incidental consequence

of the dredging. The proposed definition made clear that de minimis

discharges were not the "discharge of dredged material." Thus, de

minimis discharges would not require a permit.

In its summary of the comments about the proposed de minimis

exception, the Corps explained that: "two commentors expressed

concern over the fact that discharge activities such as the sidecasting

of dredged material might be considered `soil movement' that was

`incidental' to a `normal dredging operation.'" 51 Fed. Reg. 41210

(1986) (emphasis added). Obviously, if that were so, then sidecasting

could be accomplished without a permit because it would fall under

the de minimus exception. The response of the Corps to those com-

_________________________________________________________________

Reg. 37122-124 (1977). There is no need to repeat that summary here,

but it is significant to note that the majority of the comments received

about the July 25, 1975 interim regulations related to the definitions of

the terms "navigable waters," "dredged material," and "fill material." 42

Fed. Reg. 37126 (1977).

The regulations were once again revised in 1982, but these regulations

did not affect the definitions of "dredged material" or the "discharge of

dredged material." 47 Fed. Reg. 31794 (1982).

34

ments is quite instructive. As to incidental fallback material, the

Corps explained that:

Section 404 clearly directs the Corps to regulate the

discharge of dredged material, not the dredging itself.

Dredging operations cannot be performed without some fall-

back. However, if we were to define this fallback as a "dis-

charge of dredged material," we would, in effect, be adding

the regulation of dredging to section 404 which we do not

believe was the intent of Congress. We have consistently

provided guidance to our field offices since 1977 that inci-

dental fallback is not an activity regulated under section

404. The purpose of dredging is to remove material from the

water, not to discharge material into the water. Therefore,

the fallback in a "normal dredging operation" is incidental

to the dredging operation and de minimus when compared

to overall quantities removed.

51 Fed. Reg. 41210 (1986). Then, as to sidecasting, the Corps issued

the following highly significant statement:

However, we wish to also make it clear that this provision

applies only to the incidental fallback occurring during

"normal dredging operations" and not to the disposal of the

dredged material involved. If this material [the material

being dredged] is disposed of in a water of the United

States, by sidecasting or by other means, this disposal will

be considered to be a "discharge of dredged material" and

will be subject to regulation under section 404.

51 Fed. Reg. 41210 (1986) (emphasis added).

The history of the regulations establishes quite clearly that, from

the outset of the implementation of Section 404 throughout the five

year period in which these defendants engaged in sidecasting, the reg-

ulations prohibited the addition into the waters of the United States

any material that was excavated or dredged from the waters of the

United States without a permit to do so. Of course that is precisely

the conduct in which the defendants engaged in this case. If there ever

was any doubt about the matter, it could hardly have existed after

35

November 1986, two years before the commencement of the activity

charged in this case.7

An expert from the Corps confirmed at trial that "discharge of side-

casting material has always been regulated," beginning when the reg-

ulations implementing Section 404 of the statute first took effect.8 JA

557. We are required to show deference to that interpretation so long

as it is consistent with the statute.

That, of course, leaves the question whether the regulations exceed

the scope of the statutory language "addition of a pollutant" in 33

U.S.C. § 1362(12). Or stated otherwise, are the definitions in 33

C.F.R. § 323.2(c) and (d) reasonable interpretations of the CWA by

the agency charged with its enforcement?

The courts, for many years, have interpreted these regulations to

prohibit unpermitted redeposit of dredged material which, of course,

is sidecasting. For example, in Avoyelles Sportsmen's League, Inc. v.

Marsh, 715 F.2d 897, 923-25 (5th Cir. 1983), the Fifth Circuit, using

an earlier, but substantively the same, version of 33 C.F.R. § 323.2(c)

and (d) interpreted the term "addition" as used in 33 U.S.C.

§ 1362(12) to include "redeposit" of material dredged or excavated

from the wetland itself. The Fifth Circuit held:

The word "addition," as used in the definition of the term

"discharge," may reasonably be understood to include "re-

deposit." As the district court recognized, this reading of the

definition is consistent with both the purposes and legisla-

tive history of the statute. The CWA was designed to"re-

store and maintain the chemical, physical and biological

_________________________________________________________________

7 As the defendants point out, on September 24, 1993, the regulations

were revised. 33 C.F.R. § 323.2(d) (1993) and this version specifically

uses the word "redeposit" to augment the word "addition." The defen-

dants contend that this change is proof positive that sidecasting was not

previously an activity requiring a permit. Considering the regulatory his-

tory outlined above, I do not find that argument persuasive.

8 The substance of the 1982 version of the regulations is identical to

those which were in effect in 1986 but they appeared as 33 C.F.R.

§ 323.2(i) and (j) respectively. (47 FR 31810 July 22, 1982).

36

integrity of the Nation's waters," 33 U.S.C. § 1251(a), and

as discussed in Part II, the legislative history indicates that

Congress recognized the importance of protecting wetlands

as a means of reaching the statutory goals. See, e.g., 3

Legislative History, at 869 (remarks of Sen. Muskie)

(quoted by the district court, 473 F. Supp. at 536). There is

ample evidence in the record to support the district court's

conclusion that the landowners' redepositing activities

would significantly alter the character of the wetlands and

limit the vital ecological functions served by the tract.9

Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d at 925.

Although on quite different facts than presented here, the Eleventh

Circuit took the same view of the statutory term "addition" in United

States v. M.C.C. of Florida, Inc., 772 F.2d 1501, 1506 (11th Cir.

1985), vacated and remanded on other grounds, 481 U.S. 1034

(1987), readopted in part and remanded in part on other grounds,

848 F.2d 1133 (11th Cir. 1988). In M.C.C., one of the questions pres-

ented was "whether the redepositing of spoil dredged by the propel-

lers of M.C.C.'s tugs constituted a `discharge of a pollutant,' within

the meaning of the Act." United States v. M.C.C., 772 F.2d at 1506.

The Eleventh Circuit decided that redeposit was the discharge of a

pollutant and, in so doing, the Court rejected the same contention

made here by the defendants and adopted by the majority opinion in

Part IV. Id.

To reach that result, the Eleventh Circuit adopted the construction

of the statutory term "addition" used by the Fifth Circuit in Avoyelles

because redeposit of "spoil dredged up by the tug's propellers onto

the adjacent sea grass beds clearly disturbs the`physical and biologi-

cal integrity' of the subject areas." Id. (citing 33 U.S.C. § 1251).

M.C.C. was remanded by the Supreme Court because of the deci-

sion in Tull v. United States, 481 U.S. 412 (1987), which required a

jury trial on issues of this sort. However, Tull did not affect the sub-

stance of the decision in M.C.C.; and therefore, on remand, the Elev-

_________________________________________________________________

9 See Avoyelles I, 473 F. Supp. at 533-35 (quoting extensively from the

Corps' regulations, 33 C.F.R. Sections 320.4(b)(1), (2), (3), & (4)).

37

enth Circuit affirmatively readopted all other aspects of its original

decision, including its interpretation of the term "addition." United

States v. M.C.C. of Fla., Inc., 848 F.2d 1133-34 (11th Cir. 1988).10

The Ninth Circuit followed Avoyelles and M.C.C. in Rybachek v.

EPA, 904 F.2d 1276, 1285 (9th Cir. 1990). In Rybachek, the Ninth

Circuit was confronted with a gold mining practice by which miners

"extracted dirt and gravel in and around waterways" and "dischar-

ge[d] the dirt and other non-gold material into the water" after extract-

ing the gold. That practice, of course, is the functional equivalent of

the practice of sidecasting. The Ninth Circuit held:

The term "pollutant" thus encompasses the materials segre-

gated from gold in placer mining. Congress defined"dis-

charge" as any "addition [ ] to navigable waters from any

point source." 33 U.S.C. § 1362(12) (1982). Because, under

this scenario, the material discharged is coming not from the

streambed itself, but from outside it, this clearly constitutes

an "addition."

And on the other hand, even if the material discharged origi-

nally comes from the streambed itself, such resuspension

may be interpreted to be an addition of a pollutant under the

Act. See Avoyelles Sportsmen's League, Inc. v. Marsh, 715

F.2d 897, 923 (5th Cir. 1983) (stating that "[t]he word `addi-

tion,' as used in the definition of the term `discharge,' may

reasonably be understood to include `redeposit'"), later pro-

ceeding, 786 F.2d 631 (5th Cir. 1986) (concerning attor-

neys' fees); United States v. M.C.C. of Florida, Inc., 772

F.2d 1501, 1506 (11th Cir. 1985) (action of digging up sedi-

ment and redepositing it on sea bottom by boat propellers

constitutes an addition of pollutants), vacated and remanded

_________________________________________________________________

10 Both parties petitioned for rehearing which was granted to relieve

one party of responsibility for costs but was otherwise denied. United

States v. M.C.C. of Florida, Inc., 863 F.2d 802 (11th Cir. 1989). Follow-

ing remand to the district court the case was once again appealed to the

Eleventh Circuit in United States v. M.C.C. of Florida, Inc., 967 F.2d

1559 (11th Cir. 1992). That decision did not affect the earlier interpreta-

tion of the term "addition" to mean redeposit.

38

on other grounds, 481 U.S. 1034, 107 S. Ct. 1968, 95

L.Ed.2d 809 (1987), readopted in part and remanded on

other grounds, 848 F.2d 1133 (11th Cir. 1988) (interpreting

Supreme Court's action as affecting only a different part of

the original opinion), reh'g granted in other part, 863 F.2d

802 (11th Cir. 1989). We will follow the lead of the Fifth

and Eleventh Circuits and defer to the EPA's interpretation

of the word "addition" in the Clean Water Act. See Chevron

U.S.A. Inc., 467 U.S. at 844, 104 S. Ct. at 2782; see also

National Crushed Stone Ass'n, 449 U.S. at 83, 101 S. Ct. at

307 (stating that "this Court shows great deference to the

interpretation given the statute by the officers or agency

charged with its administration") (quotation omitted).

Rybachek v. EPA, 904 F.2d at 1285.11

As the regulatory history explains and as was true here, dredging

or excavating, whether in the bed of a river or in a wetland, involves

disturbing the soils into which the excavation or dredge reaches.

When the extracted material is moved, its contents are released in the

waters into which that material is placed (whether deep water as in

a river channel or shallow water as in the wetlands at issue here). The

contents of the excavated or dredged material then becomes a part of

the receiving water to which the extracted material is added. And, the

formerly buried material (from the excavation or dredge) is united

with the nearby surface of the bottom or wetland where it is deposited

following excavation or dredging.

Hence, according to the usual meaning of the term "addition," the

sub-surface material extracted by the excavation or dredging is added

to the water and to the surface material into which the sub-surface

material is deposited upon the act of sidecasting. Whether that which

is thusly discharged is highly toxic kepone laying a few inches

beneath the silted over bed of the James River or perhaps not so toxic

_________________________________________________________________

11 Support for the government's interpretation of the applicable regula-

tions is also provided by United States v. Heubner, 752 F.2d 1235, 1241-

42 (7th Cir. 1985), by United States v. Brace, 41 F.3d 117 (3d Cir. 1994),

and by United States v. Pozsgai, 999 F.2d 719 (3d Cir. 1993). However,

none of these three decisions is directly on point.

39

fertilizer, biological material, rocks, or sand from the bottom of a wet-

land, a pollutant is added to the waters. Here, there is evidence from

which the jury could have found that much, if not all, of the sidecast-

ing occurred while there was water in the wetlands because much, if

not all of, the sidecasting occurred during the effort to drain the wet-

lands for development. There, of course, is evidence on the other side

of that issue.

Part IV of Judge Niemeyer's opinion avoids conflict with the regu-

lations and with the plain meaning of the statutory term "addition" by

redefining sidecasting as something which it is not-- a practice

"which moves native wetland a few feet to the side of the ditch being

created." (p. 13, supra). That, however, is not sidecasting because

sidecasting involves not the movement of wetland, but the movement

of dirt excavated from the wetland and placing it into the water which

covers the floor of the wetland nearby the excavation and onto the

floor of the wetland at the point of deposit. In so doing, Part IV mis-

apprehends the real issue because, under 33 U.S.C. § 1362(12), the

necessary determination is not whether sidecasting moves a native

wetland but whether the practice of excavating and movement adds

a pollutant to the waters of the United States. Sidecasting, I respect-

fully suggest, does precisely that.

To illustrate the point, we should assume, for simplicity, that the

wetland here is a water of the United States (i.e., that the adjacency

test is met) and that the method of excavation is the use of a backhoe

(the method used by the defendants). To accomplish the excavation,

the bucket of the backhoe scoops up all the surface and sub-surface

soils and their contents. When the excavating bucket is emptied by

dumping its contents in the wetlands alongside the excavated hole,

there are two results: (1) some of the soils, surface and sub-surface

and whatever is in them, are released into the water; and (2) some of

the excavated soils are joined with the surface soil at the place of

deposit alongside the excavated hole. The flow of water continues

slowly to release some more of the soil and its contents. Other parts

of the dredged material becomes joined with the floor of the wetland

at the point of deposit. Even if we assume that the soils are free of

any chemical or biological contaminants, they are nonetheless pollu-

tants under the statute and the regulations and they are released into

the water. If, as is often true, the soil contains chemicals or biological

40

contaminants, they too are released into the water. In either event,

pollutants have been added to the waters of the United States.12

In this case, the excavation occurred in a wetland which, in some

parts, had water as deep as one to two feet and, in other parts, water

that was not nearly so deep. I see no material difference if the process

occurs in a wetland which, at the time of excavation, is in one of its

periodic dry states, assuming, of course, that the wetland qualifies as

a water of the United States.13 Nor, if the water of the United States

in which the excavation occurred was a lake with a lowered water

level created during the generation of electricity or a tidal wetland or

river at ebb tide, would the result be different. In any of those circum-

stances, if the place of excavation qualifies as a water of the United

States, temporary fluctuations in the hydrologic relationship in the

aquatic system would not convert the proscribed activity into a legiti-

mate one.

The focus of Part IV of Judge Niemeyer's opinion is on the per-

ceived rather innocuous nature of the soil, but that, I think, is not rele-

vant because the statute defines dredge spoil and excavated soils as

pollutants, and for good reason. The beds of rivers and streams and

the bottoms of wetlands can, and often do, contain chemical and bio-

logical pollutants that are covered over by silt so that, even if the sur-

face soil is innocuous (and even if it were not a pollutant by statute),

the contents of the sub-surface soil is dangerous if disturbed.

For example, at the location where Allied Chemical Corp. dis-

charged kepone into the James River years ago, excavation now by

the use of sidecasting could result in the release of a toxic chemical

(kepone) into the waters of the United States (the James River). This

_________________________________________________________________

12 Part IV, correctly I think, concludes that the district court did not err

in defining the term "pollutant" to include dredge spoil, soil, chemical

and biological material.

13 The defendants presented evidence that some of the wetlands had

been drained before the sidecasting occurred. The jury was entitled to

reject that view because the government offered evidence to the contrary,

but I do not see that as an issue in any event because the defendants used

sidecasting to effectuate the draining, and some of that took place during

the period at issue.

41

is but one example of daily reality in the environmental regulatory

world. The regulatory agencies are far better equipped to deal with

these circumstances than are the courts; and, for that reason, the

courts are required to defer to reasonable judgments made by regula-

tory agencies within the scope of the charter which Congress has

given them. With respect, that is what I would do here.

Another indicia of the flaw in the analytical structure of Part IV is

found in the use of the term "native wetland" to describe what is

moved by sidecasting. A wetland is defined as:

(c) The term "wetlands" means those areas that are inun-

dated or saturated by surface or ground water at a frequency

and duration sufficient to support, and that under normal cir-

cumstances do support, a prevalence of vegetation typically

adapted for life in saturated soil conditions. Wetlands gener-

ally include swamps, marshes, bogs and similar areas.

33 C.F.R. § 323.2(c). The Supreme Court sustained that definition as

valid in Riverside Bayview Homes. Under the regulation, a wetland is

defined as an area with certain characteristics. It is not a material (soil

or otherwise) which is susceptible of being moved.

If Part IV had accepted the definition of sidecasting established by

the record, the statute and the regulations, the analytical flaw in Part

IV would be obvious because sidecasting involves the placing of

dredged material from a water of the United States into a water of the

United States (which, of course, is a discharge and that which is dis-

charged is dredged material which is a pollutant). By redefining side-

casting, however, Part IV is able to avoid coming to grips with the

plain meaning of the controlling terms.

For the foregoing reasons, I would conclude that sidecasting is a

proscribed activity within the meaning of "addition" under 33 U.S.C.

§ 1362(12).

42

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