before the environmental appeals board in ... by...ms. durr: environmental appeals board of the...
TRANSCRIPT
![Page 1: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/1.jpg)
1
bull
bull
bull
BEFORE THE ENVIRONMENTAL APPEALS BOARD
uS ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON DC
ORAL ARGUMENT
IN THE MATTER OF
SMITH FARM ENTERPRISES
Docket No CWA-03-2001-0022
LLC CWA Appeal 08-02
No
Tuesday July 20 2010
Administrative Courtroom Room 1152 EPA East Building 1201 Constitution Avenue NW Washington DC
The above-entitled matter came on for hearing pursuant to notice at 1000 am
BEFORE
THE HONORABLE KATHIE A STEIN Environmental Appeals Judge
THE HONORABLE ANNA I WOLGAST Environmental Appeals Judge
THE HONORABLE CHARLES J SHEEHAN Environmental Appeals Judge
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
2
bull
bull
bull
APPEARANCES
o~ Bebalf 0= Snith Far~ E~terprises LLC
HUNTER SIMS JR ESQ of Kaufman amp Ca~oles PC
150 VJes Ma1 Street Suie 2100 Norfolk VA 23510 (757) 624-3272 (757) 6243169 fax
a10 IAJUAclA S WILCHER ESQ
of English Lucas priest amp Owsley 1101 College Street PO Box 77G Bowling Green KY 42102 (270) 781-6500 (270) 782-7782 fax
On Behalf of the Environmental Protection Agency Region III
STEFANA D SfiAHE ESQ of US Environmental Protection Agency
Region III 1650 Arch Street lvail Code 3FC20 Philadelphia PA 19103-2029 (215) 814-2682 (215) 814-2603 fax
ALSO PRESENT
J~4ES BOYD DONNl CAlER-TAL EGRlKA JURR KARYN ~JENDELOWSKI
NEAL R GROSS COURT REPORTERS AND TRANSCAIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTONDC 20005-3701 wwwnealrgrossoom
3
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
P-R-O-C-E-E-D-I-K-G-S
1001 ala
MS DURR Environmental Appeals
Board of the U~ited States Environmental
Protec~ion Agency is now in session for oral
argument in re Smith Farm Enterprises LLC
docket number CJA-03 -2001-0022 CvA appeal
number- 08-02 The hono-able judges Kathie
Stein Anna Wolgast Charles Sheehan
presidirg please tJ2~ off all c 1 pholes ar~d
no recording devices allowed You may be
seated
J~DGE it(OLGAS Good nornirg v-ie ye
here today pursuant to the Boards order of
May 13th in Smith Farm Enterprises and
pursuant to tat ocder each side w~ll have
thirty minutes for argtlment and Smith Farm
play reserve five ninutes for a rebuttal if
Y0l cl1cose AncL counsel ween you make you
argument if you could state your name for the
record And with tha~ r think were ready to
p~oceed
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTOn DC 20005middot3701 wwwneallgroosoom
4
bull 1
2
3
4
5
6
7
8
9
J 0
bull
bull ~~
12
13
14
15
16
17
18
19
20
21
22
MS ~JILCHER Than( you very much
I 7t LaC-uana vilcher ltlith English Lucas
iest and Owsley rile are also represented by
Hunter Sims of Kaufman and Canoles
representing STIli th Farm Enterprises LLC Also
at the table is ~im Boyd who is one of the
owners of Sr1ith Farts we would 111lt8 to
reserve our five minutes for rebuttal please
and I would also ask the Boardls indulgence
since I fro relatively nevl to this very long
cass should I need to confer with Mr Sims or
-ir Boyd durng the course of t1is discussio1
Thank yOJ very ~uch
Im here today because this is
actually a very very important case Its an
inportar~t case boh to ~he -- the Boyd family
bot1 in ers 0 the 8otiona2 and nancia
to11 it has taken over the last eleven years
but also because of the important policy
questions that are presented before this
board especially n the light of the
u~isdi ctional detelfinaions under Rapanos
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwrealrgrosscom
5
bull 1
2
3
4
5
6
7
8
_q
10
bull 11
12
13
14
bull
15
6
17
18
19
20
21
22
which is clearly the subject of our
conversation today
oward that end ve Jlot~d l=-ke to
jcst br~efly call to the Boards attention a
short history of the case going back to 1998
and 1999 when drainage ditches were
constructed on Smt~ Fanrs 1 some wooded
areas dra~ni1g that that land The - shy
beorepound tne proJec~ t-negan anabull was under t aken
Mr Boyd contacted and met with the Army Corps
of asked for ~heir opinion
concerning jurisdictional issues and otter
issues concerning a permit The corps of
Engineers certainly never indicated in any
fashion that there was a problen at that time
jurisdictior~aly consderirg tle wor~ that was
a~ticipated to occur
Of course were here today largely
because the whole jurisdictional issue has
been turned up Ol ts head by Rapanos in 20061
and can certainly say that Ve Vould be in a
very different situation were it back to 1989
NEAL R GROSS COURT REPORTERS AND TRANSCRBERS
323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20oo5-37D1 wwwMlllrgro01HXlffi
6
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
~3
14
15
6
17
18
19
20
21
bull 22
or ~92 or 93 ween I was at tt8 Agency and
dealing with iss~es when then the only thing
that was necessary for the Agency to prove was
that there were waters of ~he United Sta~es
ncluding wetlands that is lands that vere
inundated or satura~ed by surface or ground
water s~ch that ~hey could and ordinarily did
support a prevalence for vegetation typically
adapted to life in saturated soil conditions
We always referred on the Riverside Bayview
case and extended the adjacency of the
wetlands to a navigable water beyond that
such tha any tine thac there were wetla~ds
that they were conside-ed to be
jlrisdictiol1al ard eniorcemalt actior~ woud
have been considered proper
In the Rapanos Case the court
talks abo~t the expanding jurisdiction by the
Corps of Engi~eers and cetainly by
extension to EPA when in many of those
circumstances EPA was pushing the Corps to
expa1d their jurisdiction And the court
NEAL R GROSS COURT REPORTERS AO TRANSCRIBERS
1323 RHODE ISLAND AVE Nw 2(2) 234middot4433 WASHINGTON 00 20005middot3701 WWWllealrgrC$$OO((
7
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
bull
15
6
17
18
19
20
21
22
po s out that tneuro Corps adopted increasingly
broad interpretations of its own regulations
Talked about the migratory bird rule It
talked about how the Corps rad exparded ~ts
own interpretations of the definition of
tributaries to include ephemeral streams ard
c~ose that ran ~hrough drainage Qitc~es And
then the plurality opinion goes on to clarify
that that type of regulation was never
intended to be covered by the Clean raer Act
as waters of the U S SOIDe of the key
JUDGE STEIN Ms Wilcher
JiS ~TIL-CrER Yes
JVDGE STEIN Has any court held
that the plurality test alone determines
jurisdiction
ItS WILCHER I do not believe
that any court has held that the plurality
test alo~e confers jurisdiction
JUDGE STEIN Okay
MS 11 I LCHER I assume that the
court wants to hear about that since it is an
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 23~4433 WASHINGTON DC 20005lt)701 wwwnealrgrosscom
8
1bull 2
3
pound1
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
8
19
20
21
22
impotant part of the decision AQd we can
talk about significant nexus next I if thatS
okay or if you wart me to go to significant
nexus now I be happy to do that
JUDGE STE=N No thats fine you
car talk about the pluralities first but le~
me ask you if we were to find that the
eviQe~ce met as J~dge Xoran oQ~6 the
significant nexus test but for whatever
reason it didnt meet the plura~ities test l
L1en vhat is middotJ~e OJtcorneuro
MS WILCHER Now thats a very
and no one knows In the Fourth Circuit
specifically what the outcome of that -- what
the outcome would De The Rapanos test
unfortunately in an effort to reign in
jurisdicion by the Corps and EPA created
probably as many questions as it did answer
and its created a lot additional
lit~gation So we I re here synpatretic 0
EPAS plight of having to try to figure out
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005lt701 wwwnoolr9f05Sc(JITl
------- --
9
bull 1
2
3
4
5
6
7
a
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
what that meanS l a~d the regulated community
also rying 0 figure oat what it means
becalse it is simply not clear The Marks case
that said that you would select the nost
Earow of the interpretations n a case such
as this might be difficult to apply because
it S hard to figure out itlhat the most 1arrowI
cefinition or application of this case would
be Obviously from Smith Farms standpoint
we would be really delighted shou~d =h~s board
decide to follow the Ilarks opinion and decide
that the Scalia test would be the most
appropiae here bJt vere perfecty preparedl
to address both
JUDGE WOLGAST B~t that is -- but
yot-e assuning trat the narrowest grounds
would then be the pluralities test as opposed
to say I the narrowest ground sin-ply being
tha hey rejeced the Rapanos evicence ald
remanded the case In terms of what -- what
five justices could agree to It Jas simply
ocemand
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW Z02 24-4433 WASHINGTON DC 20005-37)1 WflW J10slrgrosscom
10
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
MS rLCHER rgthat f S rigrLt Thats
right But i s presumed trat the CO-clrt s
reasoni1g ar~d the four -- the opinion of the
four written by Scalia the opinion of
Roberts the opinion of Justice Kennedy all
rreant sameL-hing J and hat is what we are left
to vlork within and -shy
TUDGE SHEEHAN What do you think
cf the governme~ts argument trat either test
can apply as the First and Eighth Circuits
have held
MS WI~CHER well clearly a
nillnber of circuits have held that either test
Itould apply f ard in this case we we
believe that the evidence despicB what the
ALJs have found we believe the evidence
clea~ly shows that under neither test would
this area considered to be jurisdictional
~nder the curre~t interpretatio~ of the Clean
Water Act u~der Rapanos
And I really do think chat
not wanting to lose the forest for the trees
NEAL R GROSS COURT REPORTERS AND TRA1SCAIBER3
1323 RHODE jSlAND AVE NW (202) 2344433 WASHINGTON DC 20005-370~
11
bull 1
2
3
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here the forest -- the big picture is thatI
Rapanos is a dramatic shift in the way
busir~ess as usual has been done aL these
agencies from 1972 ~ntil 2006 It is -shy
in 2001 you had a little deviation here but
its a ilge dfference and what we find in
the brief -- and what we find in the brief of
t1e govermnent in this case is lot much of a
differerce from how the law previously lttas
interpreted and Ill -- Ill just go ahead
aYld address thae ssae and that is that the
the strongest argument it appears that
he government nakes in its brief dealing
with the significant nexus test is that
wetlands are ~rrponart ~1etlards provide
valuable functions and even Rapanos case
notes that the Clean V~ater Ac has been very
important and serves an important public
interests and Section 404 and the wetla~ds
laws i-l particuar provide ar~ irportant public
interest
JUDGE SHE1 Vie11 i 81 c the
NEAL R GROSS COURT REPOATEFlB AND TRANSCRIBERS
1323 RHODE ISLAND AVE fW (2ltJ2) 2344433 WASHINGTON DC 2ltlOOSr01 wwwnoalrgrosscorn
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
~8
bull
19
20
21
22
governments argument that these wetlands I in
particua are important I and can you address
how these wetlands do or do not meet the
Kennedy significant nexus test
fiS WILCHER That woud be t1e
goverlli~ents argument but in this case they
have failed cO co inCroduce by a
preponderance of the evidence ~hat that is
the case
JUJGE WOLGAST Coud you describe
for us what you ~elieve the goverr~ent would
have to show at a minimum to meet Justine
Kernedys significant nexus test in this
context
MS ~iILCHER At a mini~um they
wotd have to show some measure of the effec
that would be had by this wetlands property
upor~ a navigable vater of the Uni ed States
and they have not done so ln ary regard
JUDGE SHEEHIN Wasnt there
abunda1t testimony says the gDve=runent by
expert i1itness Martin and others that there
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAND AVE NW 202 234-4433 WASHNGTOtt DC 20005-3701
13
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
18
19
20
21
22
was such a C oILleci en YOJ f re speakirg very
theoretically Id like if you could to get
specific about what you think the failu~es are
i~ the governments case on the Kennedy test
MS ~VIrJCHER Yes but if you -shy
+_--ne if you look at the gover1TIleuroEt s
argument one of their lengthy arguments is
about the impact 0 denitrification that
VJetlands provide an important deni trification
iss~eJ pointing out that the Chesapeake Bay
tas too rruch nityogen and tbat its important
to keep that out They talk about the fact
that n~toger coues from atrrosphe-ic
deposition They talk about the fact that
microbes in the soil vi22 break hat rtroger
down and then they talk about that once the
nitrogen is broken dmvr it ll be taken up by
the breeze and i If~ay even be given off again
into -- into the air
JDGE STEIN ltJasn f t there
plentiful testimony by government witnesses
and the companys witnesses as to what was
NEAL R GROSS COVRl REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwnoalrgrossCCtn
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 2: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/2.jpg)
2
bull
bull
bull
APPEARANCES
o~ Bebalf 0= Snith Far~ E~terprises LLC
HUNTER SIMS JR ESQ of Kaufman amp Ca~oles PC
150 VJes Ma1 Street Suie 2100 Norfolk VA 23510 (757) 624-3272 (757) 6243169 fax
a10 IAJUAclA S WILCHER ESQ
of English Lucas priest amp Owsley 1101 College Street PO Box 77G Bowling Green KY 42102 (270) 781-6500 (270) 782-7782 fax
On Behalf of the Environmental Protection Agency Region III
STEFANA D SfiAHE ESQ of US Environmental Protection Agency
Region III 1650 Arch Street lvail Code 3FC20 Philadelphia PA 19103-2029 (215) 814-2682 (215) 814-2603 fax
ALSO PRESENT
J~4ES BOYD DONNl CAlER-TAL EGRlKA JURR KARYN ~JENDELOWSKI
NEAL R GROSS COURT REPORTERS AND TRANSCAIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTONDC 20005-3701 wwwnealrgrossoom
3
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
P-R-O-C-E-E-D-I-K-G-S
1001 ala
MS DURR Environmental Appeals
Board of the U~ited States Environmental
Protec~ion Agency is now in session for oral
argument in re Smith Farm Enterprises LLC
docket number CJA-03 -2001-0022 CvA appeal
number- 08-02 The hono-able judges Kathie
Stein Anna Wolgast Charles Sheehan
presidirg please tJ2~ off all c 1 pholes ar~d
no recording devices allowed You may be
seated
J~DGE it(OLGAS Good nornirg v-ie ye
here today pursuant to the Boards order of
May 13th in Smith Farm Enterprises and
pursuant to tat ocder each side w~ll have
thirty minutes for argtlment and Smith Farm
play reserve five ninutes for a rebuttal if
Y0l cl1cose AncL counsel ween you make you
argument if you could state your name for the
record And with tha~ r think were ready to
p~oceed
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTOn DC 20005middot3701 wwwneallgroosoom
4
bull 1
2
3
4
5
6
7
8
9
J 0
bull
bull ~~
12
13
14
15
16
17
18
19
20
21
22
MS ~JILCHER Than( you very much
I 7t LaC-uana vilcher ltlith English Lucas
iest and Owsley rile are also represented by
Hunter Sims of Kaufman and Canoles
representing STIli th Farm Enterprises LLC Also
at the table is ~im Boyd who is one of the
owners of Sr1ith Farts we would 111lt8 to
reserve our five minutes for rebuttal please
and I would also ask the Boardls indulgence
since I fro relatively nevl to this very long
cass should I need to confer with Mr Sims or
-ir Boyd durng the course of t1is discussio1
Thank yOJ very ~uch
Im here today because this is
actually a very very important case Its an
inportar~t case boh to ~he -- the Boyd family
bot1 in ers 0 the 8otiona2 and nancia
to11 it has taken over the last eleven years
but also because of the important policy
questions that are presented before this
board especially n the light of the
u~isdi ctional detelfinaions under Rapanos
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwrealrgrosscom
5
bull 1
2
3
4
5
6
7
8
_q
10
bull 11
12
13
14
bull
15
6
17
18
19
20
21
22
which is clearly the subject of our
conversation today
oward that end ve Jlot~d l=-ke to
jcst br~efly call to the Boards attention a
short history of the case going back to 1998
and 1999 when drainage ditches were
constructed on Smt~ Fanrs 1 some wooded
areas dra~ni1g that that land The - shy
beorepound tne proJec~ t-negan anabull was under t aken
Mr Boyd contacted and met with the Army Corps
of asked for ~heir opinion
concerning jurisdictional issues and otter
issues concerning a permit The corps of
Engineers certainly never indicated in any
fashion that there was a problen at that time
jurisdictior~aly consderirg tle wor~ that was
a~ticipated to occur
Of course were here today largely
because the whole jurisdictional issue has
been turned up Ol ts head by Rapanos in 20061
and can certainly say that Ve Vould be in a
very different situation were it back to 1989
NEAL R GROSS COURT REPORTERS AND TRANSCRBERS
323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20oo5-37D1 wwwMlllrgro01HXlffi
6
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
~3
14
15
6
17
18
19
20
21
bull 22
or ~92 or 93 ween I was at tt8 Agency and
dealing with iss~es when then the only thing
that was necessary for the Agency to prove was
that there were waters of ~he United Sta~es
ncluding wetlands that is lands that vere
inundated or satura~ed by surface or ground
water s~ch that ~hey could and ordinarily did
support a prevalence for vegetation typically
adapted to life in saturated soil conditions
We always referred on the Riverside Bayview
case and extended the adjacency of the
wetlands to a navigable water beyond that
such tha any tine thac there were wetla~ds
that they were conside-ed to be
jlrisdictiol1al ard eniorcemalt actior~ woud
have been considered proper
In the Rapanos Case the court
talks abo~t the expanding jurisdiction by the
Corps of Engi~eers and cetainly by
extension to EPA when in many of those
circumstances EPA was pushing the Corps to
expa1d their jurisdiction And the court
NEAL R GROSS COURT REPORTERS AO TRANSCRIBERS
1323 RHODE ISLAND AVE Nw 2(2) 234middot4433 WASHINGTON 00 20005middot3701 WWWllealrgrC$$OO((
7
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
bull
15
6
17
18
19
20
21
22
po s out that tneuro Corps adopted increasingly
broad interpretations of its own regulations
Talked about the migratory bird rule It
talked about how the Corps rad exparded ~ts
own interpretations of the definition of
tributaries to include ephemeral streams ard
c~ose that ran ~hrough drainage Qitc~es And
then the plurality opinion goes on to clarify
that that type of regulation was never
intended to be covered by the Clean raer Act
as waters of the U S SOIDe of the key
JUDGE STEIN Ms Wilcher
JiS ~TIL-CrER Yes
JVDGE STEIN Has any court held
that the plurality test alone determines
jurisdiction
ItS WILCHER I do not believe
that any court has held that the plurality
test alo~e confers jurisdiction
JUDGE STEIN Okay
MS 11 I LCHER I assume that the
court wants to hear about that since it is an
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 23~4433 WASHINGTON DC 20005lt)701 wwwnealrgrosscom
8
1bull 2
3
pound1
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
8
19
20
21
22
impotant part of the decision AQd we can
talk about significant nexus next I if thatS
okay or if you wart me to go to significant
nexus now I be happy to do that
JUDGE STE=N No thats fine you
car talk about the pluralities first but le~
me ask you if we were to find that the
eviQe~ce met as J~dge Xoran oQ~6 the
significant nexus test but for whatever
reason it didnt meet the plura~ities test l
L1en vhat is middotJ~e OJtcorneuro
MS WILCHER Now thats a very
and no one knows In the Fourth Circuit
specifically what the outcome of that -- what
the outcome would De The Rapanos test
unfortunately in an effort to reign in
jurisdicion by the Corps and EPA created
probably as many questions as it did answer
and its created a lot additional
lit~gation So we I re here synpatretic 0
EPAS plight of having to try to figure out
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005lt701 wwwnoolr9f05Sc(JITl
------- --
9
bull 1
2
3
4
5
6
7
a
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
what that meanS l a~d the regulated community
also rying 0 figure oat what it means
becalse it is simply not clear The Marks case
that said that you would select the nost
Earow of the interpretations n a case such
as this might be difficult to apply because
it S hard to figure out itlhat the most 1arrowI
cefinition or application of this case would
be Obviously from Smith Farms standpoint
we would be really delighted shou~d =h~s board
decide to follow the Ilarks opinion and decide
that the Scalia test would be the most
appropiae here bJt vere perfecty preparedl
to address both
JUDGE WOLGAST B~t that is -- but
yot-e assuning trat the narrowest grounds
would then be the pluralities test as opposed
to say I the narrowest ground sin-ply being
tha hey rejeced the Rapanos evicence ald
remanded the case In terms of what -- what
five justices could agree to It Jas simply
ocemand
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW Z02 24-4433 WASHINGTON DC 20005-37)1 WflW J10slrgrosscom
10
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
MS rLCHER rgthat f S rigrLt Thats
right But i s presumed trat the CO-clrt s
reasoni1g ar~d the four -- the opinion of the
four written by Scalia the opinion of
Roberts the opinion of Justice Kennedy all
rreant sameL-hing J and hat is what we are left
to vlork within and -shy
TUDGE SHEEHAN What do you think
cf the governme~ts argument trat either test
can apply as the First and Eighth Circuits
have held
MS WI~CHER well clearly a
nillnber of circuits have held that either test
Itould apply f ard in this case we we
believe that the evidence despicB what the
ALJs have found we believe the evidence
clea~ly shows that under neither test would
this area considered to be jurisdictional
~nder the curre~t interpretatio~ of the Clean
Water Act u~der Rapanos
And I really do think chat
not wanting to lose the forest for the trees
NEAL R GROSS COURT REPORTERS AND TRA1SCAIBER3
1323 RHODE jSlAND AVE NW (202) 2344433 WASHINGTON DC 20005-370~
11
bull 1
2
3
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here the forest -- the big picture is thatI
Rapanos is a dramatic shift in the way
busir~ess as usual has been done aL these
agencies from 1972 ~ntil 2006 It is -shy
in 2001 you had a little deviation here but
its a ilge dfference and what we find in
the brief -- and what we find in the brief of
t1e govermnent in this case is lot much of a
differerce from how the law previously lttas
interpreted and Ill -- Ill just go ahead
aYld address thae ssae and that is that the
the strongest argument it appears that
he government nakes in its brief dealing
with the significant nexus test is that
wetlands are ~rrponart ~1etlards provide
valuable functions and even Rapanos case
notes that the Clean V~ater Ac has been very
important and serves an important public
interests and Section 404 and the wetla~ds
laws i-l particuar provide ar~ irportant public
interest
JUDGE SHE1 Vie11 i 81 c the
NEAL R GROSS COURT REPOATEFlB AND TRANSCRIBERS
1323 RHODE ISLAND AVE fW (2ltJ2) 2344433 WASHINGTON DC 2ltlOOSr01 wwwnoalrgrosscorn
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
~8
bull
19
20
21
22
governments argument that these wetlands I in
particua are important I and can you address
how these wetlands do or do not meet the
Kennedy significant nexus test
fiS WILCHER That woud be t1e
goverlli~ents argument but in this case they
have failed cO co inCroduce by a
preponderance of the evidence ~hat that is
the case
JUJGE WOLGAST Coud you describe
for us what you ~elieve the goverr~ent would
have to show at a minimum to meet Justine
Kernedys significant nexus test in this
context
MS ~iILCHER At a mini~um they
wotd have to show some measure of the effec
that would be had by this wetlands property
upor~ a navigable vater of the Uni ed States
and they have not done so ln ary regard
JUDGE SHEEHIN Wasnt there
abunda1t testimony says the gDve=runent by
expert i1itness Martin and others that there
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAND AVE NW 202 234-4433 WASHNGTOtt DC 20005-3701
13
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
18
19
20
21
22
was such a C oILleci en YOJ f re speakirg very
theoretically Id like if you could to get
specific about what you think the failu~es are
i~ the governments case on the Kennedy test
MS ~VIrJCHER Yes but if you -shy
+_--ne if you look at the gover1TIleuroEt s
argument one of their lengthy arguments is
about the impact 0 denitrification that
VJetlands provide an important deni trification
iss~eJ pointing out that the Chesapeake Bay
tas too rruch nityogen and tbat its important
to keep that out They talk about the fact
that n~toger coues from atrrosphe-ic
deposition They talk about the fact that
microbes in the soil vi22 break hat rtroger
down and then they talk about that once the
nitrogen is broken dmvr it ll be taken up by
the breeze and i If~ay even be given off again
into -- into the air
JDGE STEIN ltJasn f t there
plentiful testimony by government witnesses
and the companys witnesses as to what was
NEAL R GROSS COVRl REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwnoalrgrossCCtn
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 3: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/3.jpg)
3
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
P-R-O-C-E-E-D-I-K-G-S
1001 ala
MS DURR Environmental Appeals
Board of the U~ited States Environmental
Protec~ion Agency is now in session for oral
argument in re Smith Farm Enterprises LLC
docket number CJA-03 -2001-0022 CvA appeal
number- 08-02 The hono-able judges Kathie
Stein Anna Wolgast Charles Sheehan
presidirg please tJ2~ off all c 1 pholes ar~d
no recording devices allowed You may be
seated
J~DGE it(OLGAS Good nornirg v-ie ye
here today pursuant to the Boards order of
May 13th in Smith Farm Enterprises and
pursuant to tat ocder each side w~ll have
thirty minutes for argtlment and Smith Farm
play reserve five ninutes for a rebuttal if
Y0l cl1cose AncL counsel ween you make you
argument if you could state your name for the
record And with tha~ r think were ready to
p~oceed
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTOn DC 20005middot3701 wwwneallgroosoom
4
bull 1
2
3
4
5
6
7
8
9
J 0
bull
bull ~~
12
13
14
15
16
17
18
19
20
21
22
MS ~JILCHER Than( you very much
I 7t LaC-uana vilcher ltlith English Lucas
iest and Owsley rile are also represented by
Hunter Sims of Kaufman and Canoles
representing STIli th Farm Enterprises LLC Also
at the table is ~im Boyd who is one of the
owners of Sr1ith Farts we would 111lt8 to
reserve our five minutes for rebuttal please
and I would also ask the Boardls indulgence
since I fro relatively nevl to this very long
cass should I need to confer with Mr Sims or
-ir Boyd durng the course of t1is discussio1
Thank yOJ very ~uch
Im here today because this is
actually a very very important case Its an
inportar~t case boh to ~he -- the Boyd family
bot1 in ers 0 the 8otiona2 and nancia
to11 it has taken over the last eleven years
but also because of the important policy
questions that are presented before this
board especially n the light of the
u~isdi ctional detelfinaions under Rapanos
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwrealrgrosscom
5
bull 1
2
3
4
5
6
7
8
_q
10
bull 11
12
13
14
bull
15
6
17
18
19
20
21
22
which is clearly the subject of our
conversation today
oward that end ve Jlot~d l=-ke to
jcst br~efly call to the Boards attention a
short history of the case going back to 1998
and 1999 when drainage ditches were
constructed on Smt~ Fanrs 1 some wooded
areas dra~ni1g that that land The - shy
beorepound tne proJec~ t-negan anabull was under t aken
Mr Boyd contacted and met with the Army Corps
of asked for ~heir opinion
concerning jurisdictional issues and otter
issues concerning a permit The corps of
Engineers certainly never indicated in any
fashion that there was a problen at that time
jurisdictior~aly consderirg tle wor~ that was
a~ticipated to occur
Of course were here today largely
because the whole jurisdictional issue has
been turned up Ol ts head by Rapanos in 20061
and can certainly say that Ve Vould be in a
very different situation were it back to 1989
NEAL R GROSS COURT REPORTERS AND TRANSCRBERS
323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20oo5-37D1 wwwMlllrgro01HXlffi
6
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
~3
14
15
6
17
18
19
20
21
bull 22
or ~92 or 93 ween I was at tt8 Agency and
dealing with iss~es when then the only thing
that was necessary for the Agency to prove was
that there were waters of ~he United Sta~es
ncluding wetlands that is lands that vere
inundated or satura~ed by surface or ground
water s~ch that ~hey could and ordinarily did
support a prevalence for vegetation typically
adapted to life in saturated soil conditions
We always referred on the Riverside Bayview
case and extended the adjacency of the
wetlands to a navigable water beyond that
such tha any tine thac there were wetla~ds
that they were conside-ed to be
jlrisdictiol1al ard eniorcemalt actior~ woud
have been considered proper
In the Rapanos Case the court
talks abo~t the expanding jurisdiction by the
Corps of Engi~eers and cetainly by
extension to EPA when in many of those
circumstances EPA was pushing the Corps to
expa1d their jurisdiction And the court
NEAL R GROSS COURT REPORTERS AO TRANSCRIBERS
1323 RHODE ISLAND AVE Nw 2(2) 234middot4433 WASHINGTON 00 20005middot3701 WWWllealrgrC$$OO((
7
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
bull
15
6
17
18
19
20
21
22
po s out that tneuro Corps adopted increasingly
broad interpretations of its own regulations
Talked about the migratory bird rule It
talked about how the Corps rad exparded ~ts
own interpretations of the definition of
tributaries to include ephemeral streams ard
c~ose that ran ~hrough drainage Qitc~es And
then the plurality opinion goes on to clarify
that that type of regulation was never
intended to be covered by the Clean raer Act
as waters of the U S SOIDe of the key
JUDGE STEIN Ms Wilcher
JiS ~TIL-CrER Yes
JVDGE STEIN Has any court held
that the plurality test alone determines
jurisdiction
ItS WILCHER I do not believe
that any court has held that the plurality
test alo~e confers jurisdiction
JUDGE STEIN Okay
MS 11 I LCHER I assume that the
court wants to hear about that since it is an
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 23~4433 WASHINGTON DC 20005lt)701 wwwnealrgrosscom
8
1bull 2
3
pound1
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
8
19
20
21
22
impotant part of the decision AQd we can
talk about significant nexus next I if thatS
okay or if you wart me to go to significant
nexus now I be happy to do that
JUDGE STE=N No thats fine you
car talk about the pluralities first but le~
me ask you if we were to find that the
eviQe~ce met as J~dge Xoran oQ~6 the
significant nexus test but for whatever
reason it didnt meet the plura~ities test l
L1en vhat is middotJ~e OJtcorneuro
MS WILCHER Now thats a very
and no one knows In the Fourth Circuit
specifically what the outcome of that -- what
the outcome would De The Rapanos test
unfortunately in an effort to reign in
jurisdicion by the Corps and EPA created
probably as many questions as it did answer
and its created a lot additional
lit~gation So we I re here synpatretic 0
EPAS plight of having to try to figure out
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005lt701 wwwnoolr9f05Sc(JITl
------- --
9
bull 1
2
3
4
5
6
7
a
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
what that meanS l a~d the regulated community
also rying 0 figure oat what it means
becalse it is simply not clear The Marks case
that said that you would select the nost
Earow of the interpretations n a case such
as this might be difficult to apply because
it S hard to figure out itlhat the most 1arrowI
cefinition or application of this case would
be Obviously from Smith Farms standpoint
we would be really delighted shou~d =h~s board
decide to follow the Ilarks opinion and decide
that the Scalia test would be the most
appropiae here bJt vere perfecty preparedl
to address both
JUDGE WOLGAST B~t that is -- but
yot-e assuning trat the narrowest grounds
would then be the pluralities test as opposed
to say I the narrowest ground sin-ply being
tha hey rejeced the Rapanos evicence ald
remanded the case In terms of what -- what
five justices could agree to It Jas simply
ocemand
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW Z02 24-4433 WASHINGTON DC 20005-37)1 WflW J10slrgrosscom
10
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
MS rLCHER rgthat f S rigrLt Thats
right But i s presumed trat the CO-clrt s
reasoni1g ar~d the four -- the opinion of the
four written by Scalia the opinion of
Roberts the opinion of Justice Kennedy all
rreant sameL-hing J and hat is what we are left
to vlork within and -shy
TUDGE SHEEHAN What do you think
cf the governme~ts argument trat either test
can apply as the First and Eighth Circuits
have held
MS WI~CHER well clearly a
nillnber of circuits have held that either test
Itould apply f ard in this case we we
believe that the evidence despicB what the
ALJs have found we believe the evidence
clea~ly shows that under neither test would
this area considered to be jurisdictional
~nder the curre~t interpretatio~ of the Clean
Water Act u~der Rapanos
And I really do think chat
not wanting to lose the forest for the trees
NEAL R GROSS COURT REPORTERS AND TRA1SCAIBER3
1323 RHODE jSlAND AVE NW (202) 2344433 WASHINGTON DC 20005-370~
11
bull 1
2
3
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here the forest -- the big picture is thatI
Rapanos is a dramatic shift in the way
busir~ess as usual has been done aL these
agencies from 1972 ~ntil 2006 It is -shy
in 2001 you had a little deviation here but
its a ilge dfference and what we find in
the brief -- and what we find in the brief of
t1e govermnent in this case is lot much of a
differerce from how the law previously lttas
interpreted and Ill -- Ill just go ahead
aYld address thae ssae and that is that the
the strongest argument it appears that
he government nakes in its brief dealing
with the significant nexus test is that
wetlands are ~rrponart ~1etlards provide
valuable functions and even Rapanos case
notes that the Clean V~ater Ac has been very
important and serves an important public
interests and Section 404 and the wetla~ds
laws i-l particuar provide ar~ irportant public
interest
JUDGE SHE1 Vie11 i 81 c the
NEAL R GROSS COURT REPOATEFlB AND TRANSCRIBERS
1323 RHODE ISLAND AVE fW (2ltJ2) 2344433 WASHINGTON DC 2ltlOOSr01 wwwnoalrgrosscorn
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
~8
bull
19
20
21
22
governments argument that these wetlands I in
particua are important I and can you address
how these wetlands do or do not meet the
Kennedy significant nexus test
fiS WILCHER That woud be t1e
goverlli~ents argument but in this case they
have failed cO co inCroduce by a
preponderance of the evidence ~hat that is
the case
JUJGE WOLGAST Coud you describe
for us what you ~elieve the goverr~ent would
have to show at a minimum to meet Justine
Kernedys significant nexus test in this
context
MS ~iILCHER At a mini~um they
wotd have to show some measure of the effec
that would be had by this wetlands property
upor~ a navigable vater of the Uni ed States
and they have not done so ln ary regard
JUDGE SHEEHIN Wasnt there
abunda1t testimony says the gDve=runent by
expert i1itness Martin and others that there
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAND AVE NW 202 234-4433 WASHNGTOtt DC 20005-3701
13
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
18
19
20
21
22
was such a C oILleci en YOJ f re speakirg very
theoretically Id like if you could to get
specific about what you think the failu~es are
i~ the governments case on the Kennedy test
MS ~VIrJCHER Yes but if you -shy
+_--ne if you look at the gover1TIleuroEt s
argument one of their lengthy arguments is
about the impact 0 denitrification that
VJetlands provide an important deni trification
iss~eJ pointing out that the Chesapeake Bay
tas too rruch nityogen and tbat its important
to keep that out They talk about the fact
that n~toger coues from atrrosphe-ic
deposition They talk about the fact that
microbes in the soil vi22 break hat rtroger
down and then they talk about that once the
nitrogen is broken dmvr it ll be taken up by
the breeze and i If~ay even be given off again
into -- into the air
JDGE STEIN ltJasn f t there
plentiful testimony by government witnesses
and the companys witnesses as to what was
NEAL R GROSS COVRl REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwnoalrgrossCCtn
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 4: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/4.jpg)
4
bull 1
2
3
4
5
6
7
8
9
J 0
bull
bull ~~
12
13
14
15
16
17
18
19
20
21
22
MS ~JILCHER Than( you very much
I 7t LaC-uana vilcher ltlith English Lucas
iest and Owsley rile are also represented by
Hunter Sims of Kaufman and Canoles
representing STIli th Farm Enterprises LLC Also
at the table is ~im Boyd who is one of the
owners of Sr1ith Farts we would 111lt8 to
reserve our five minutes for rebuttal please
and I would also ask the Boardls indulgence
since I fro relatively nevl to this very long
cass should I need to confer with Mr Sims or
-ir Boyd durng the course of t1is discussio1
Thank yOJ very ~uch
Im here today because this is
actually a very very important case Its an
inportar~t case boh to ~he -- the Boyd family
bot1 in ers 0 the 8otiona2 and nancia
to11 it has taken over the last eleven years
but also because of the important policy
questions that are presented before this
board especially n the light of the
u~isdi ctional detelfinaions under Rapanos
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwrealrgrosscom
5
bull 1
2
3
4
5
6
7
8
_q
10
bull 11
12
13
14
bull
15
6
17
18
19
20
21
22
which is clearly the subject of our
conversation today
oward that end ve Jlot~d l=-ke to
jcst br~efly call to the Boards attention a
short history of the case going back to 1998
and 1999 when drainage ditches were
constructed on Smt~ Fanrs 1 some wooded
areas dra~ni1g that that land The - shy
beorepound tne proJec~ t-negan anabull was under t aken
Mr Boyd contacted and met with the Army Corps
of asked for ~heir opinion
concerning jurisdictional issues and otter
issues concerning a permit The corps of
Engineers certainly never indicated in any
fashion that there was a problen at that time
jurisdictior~aly consderirg tle wor~ that was
a~ticipated to occur
Of course were here today largely
because the whole jurisdictional issue has
been turned up Ol ts head by Rapanos in 20061
and can certainly say that Ve Vould be in a
very different situation were it back to 1989
NEAL R GROSS COURT REPORTERS AND TRANSCRBERS
323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20oo5-37D1 wwwMlllrgro01HXlffi
6
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
~3
14
15
6
17
18
19
20
21
bull 22
or ~92 or 93 ween I was at tt8 Agency and
dealing with iss~es when then the only thing
that was necessary for the Agency to prove was
that there were waters of ~he United Sta~es
ncluding wetlands that is lands that vere
inundated or satura~ed by surface or ground
water s~ch that ~hey could and ordinarily did
support a prevalence for vegetation typically
adapted to life in saturated soil conditions
We always referred on the Riverside Bayview
case and extended the adjacency of the
wetlands to a navigable water beyond that
such tha any tine thac there were wetla~ds
that they were conside-ed to be
jlrisdictiol1al ard eniorcemalt actior~ woud
have been considered proper
In the Rapanos Case the court
talks abo~t the expanding jurisdiction by the
Corps of Engi~eers and cetainly by
extension to EPA when in many of those
circumstances EPA was pushing the Corps to
expa1d their jurisdiction And the court
NEAL R GROSS COURT REPORTERS AO TRANSCRIBERS
1323 RHODE ISLAND AVE Nw 2(2) 234middot4433 WASHINGTON 00 20005middot3701 WWWllealrgrC$$OO((
7
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
bull
15
6
17
18
19
20
21
22
po s out that tneuro Corps adopted increasingly
broad interpretations of its own regulations
Talked about the migratory bird rule It
talked about how the Corps rad exparded ~ts
own interpretations of the definition of
tributaries to include ephemeral streams ard
c~ose that ran ~hrough drainage Qitc~es And
then the plurality opinion goes on to clarify
that that type of regulation was never
intended to be covered by the Clean raer Act
as waters of the U S SOIDe of the key
JUDGE STEIN Ms Wilcher
JiS ~TIL-CrER Yes
JVDGE STEIN Has any court held
that the plurality test alone determines
jurisdiction
ItS WILCHER I do not believe
that any court has held that the plurality
test alo~e confers jurisdiction
JUDGE STEIN Okay
MS 11 I LCHER I assume that the
court wants to hear about that since it is an
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 23~4433 WASHINGTON DC 20005lt)701 wwwnealrgrosscom
8
1bull 2
3
pound1
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
8
19
20
21
22
impotant part of the decision AQd we can
talk about significant nexus next I if thatS
okay or if you wart me to go to significant
nexus now I be happy to do that
JUDGE STE=N No thats fine you
car talk about the pluralities first but le~
me ask you if we were to find that the
eviQe~ce met as J~dge Xoran oQ~6 the
significant nexus test but for whatever
reason it didnt meet the plura~ities test l
L1en vhat is middotJ~e OJtcorneuro
MS WILCHER Now thats a very
and no one knows In the Fourth Circuit
specifically what the outcome of that -- what
the outcome would De The Rapanos test
unfortunately in an effort to reign in
jurisdicion by the Corps and EPA created
probably as many questions as it did answer
and its created a lot additional
lit~gation So we I re here synpatretic 0
EPAS plight of having to try to figure out
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005lt701 wwwnoolr9f05Sc(JITl
------- --
9
bull 1
2
3
4
5
6
7
a
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
what that meanS l a~d the regulated community
also rying 0 figure oat what it means
becalse it is simply not clear The Marks case
that said that you would select the nost
Earow of the interpretations n a case such
as this might be difficult to apply because
it S hard to figure out itlhat the most 1arrowI
cefinition or application of this case would
be Obviously from Smith Farms standpoint
we would be really delighted shou~d =h~s board
decide to follow the Ilarks opinion and decide
that the Scalia test would be the most
appropiae here bJt vere perfecty preparedl
to address both
JUDGE WOLGAST B~t that is -- but
yot-e assuning trat the narrowest grounds
would then be the pluralities test as opposed
to say I the narrowest ground sin-ply being
tha hey rejeced the Rapanos evicence ald
remanded the case In terms of what -- what
five justices could agree to It Jas simply
ocemand
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW Z02 24-4433 WASHINGTON DC 20005-37)1 WflW J10slrgrosscom
10
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
MS rLCHER rgthat f S rigrLt Thats
right But i s presumed trat the CO-clrt s
reasoni1g ar~d the four -- the opinion of the
four written by Scalia the opinion of
Roberts the opinion of Justice Kennedy all
rreant sameL-hing J and hat is what we are left
to vlork within and -shy
TUDGE SHEEHAN What do you think
cf the governme~ts argument trat either test
can apply as the First and Eighth Circuits
have held
MS WI~CHER well clearly a
nillnber of circuits have held that either test
Itould apply f ard in this case we we
believe that the evidence despicB what the
ALJs have found we believe the evidence
clea~ly shows that under neither test would
this area considered to be jurisdictional
~nder the curre~t interpretatio~ of the Clean
Water Act u~der Rapanos
And I really do think chat
not wanting to lose the forest for the trees
NEAL R GROSS COURT REPORTERS AND TRA1SCAIBER3
1323 RHODE jSlAND AVE NW (202) 2344433 WASHINGTON DC 20005-370~
11
bull 1
2
3
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here the forest -- the big picture is thatI
Rapanos is a dramatic shift in the way
busir~ess as usual has been done aL these
agencies from 1972 ~ntil 2006 It is -shy
in 2001 you had a little deviation here but
its a ilge dfference and what we find in
the brief -- and what we find in the brief of
t1e govermnent in this case is lot much of a
differerce from how the law previously lttas
interpreted and Ill -- Ill just go ahead
aYld address thae ssae and that is that the
the strongest argument it appears that
he government nakes in its brief dealing
with the significant nexus test is that
wetlands are ~rrponart ~1etlards provide
valuable functions and even Rapanos case
notes that the Clean V~ater Ac has been very
important and serves an important public
interests and Section 404 and the wetla~ds
laws i-l particuar provide ar~ irportant public
interest
JUDGE SHE1 Vie11 i 81 c the
NEAL R GROSS COURT REPOATEFlB AND TRANSCRIBERS
1323 RHODE ISLAND AVE fW (2ltJ2) 2344433 WASHINGTON DC 2ltlOOSr01 wwwnoalrgrosscorn
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
~8
bull
19
20
21
22
governments argument that these wetlands I in
particua are important I and can you address
how these wetlands do or do not meet the
Kennedy significant nexus test
fiS WILCHER That woud be t1e
goverlli~ents argument but in this case they
have failed cO co inCroduce by a
preponderance of the evidence ~hat that is
the case
JUJGE WOLGAST Coud you describe
for us what you ~elieve the goverr~ent would
have to show at a minimum to meet Justine
Kernedys significant nexus test in this
context
MS ~iILCHER At a mini~um they
wotd have to show some measure of the effec
that would be had by this wetlands property
upor~ a navigable vater of the Uni ed States
and they have not done so ln ary regard
JUDGE SHEEHIN Wasnt there
abunda1t testimony says the gDve=runent by
expert i1itness Martin and others that there
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAND AVE NW 202 234-4433 WASHNGTOtt DC 20005-3701
13
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
18
19
20
21
22
was such a C oILleci en YOJ f re speakirg very
theoretically Id like if you could to get
specific about what you think the failu~es are
i~ the governments case on the Kennedy test
MS ~VIrJCHER Yes but if you -shy
+_--ne if you look at the gover1TIleuroEt s
argument one of their lengthy arguments is
about the impact 0 denitrification that
VJetlands provide an important deni trification
iss~eJ pointing out that the Chesapeake Bay
tas too rruch nityogen and tbat its important
to keep that out They talk about the fact
that n~toger coues from atrrosphe-ic
deposition They talk about the fact that
microbes in the soil vi22 break hat rtroger
down and then they talk about that once the
nitrogen is broken dmvr it ll be taken up by
the breeze and i If~ay even be given off again
into -- into the air
JDGE STEIN ltJasn f t there
plentiful testimony by government witnesses
and the companys witnesses as to what was
NEAL R GROSS COVRl REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwnoalrgrossCCtn
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 5: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/5.jpg)
5
bull 1
2
3
4
5
6
7
8
_q
10
bull 11
12
13
14
bull
15
6
17
18
19
20
21
22
which is clearly the subject of our
conversation today
oward that end ve Jlot~d l=-ke to
jcst br~efly call to the Boards attention a
short history of the case going back to 1998
and 1999 when drainage ditches were
constructed on Smt~ Fanrs 1 some wooded
areas dra~ni1g that that land The - shy
beorepound tne proJec~ t-negan anabull was under t aken
Mr Boyd contacted and met with the Army Corps
of asked for ~heir opinion
concerning jurisdictional issues and otter
issues concerning a permit The corps of
Engineers certainly never indicated in any
fashion that there was a problen at that time
jurisdictior~aly consderirg tle wor~ that was
a~ticipated to occur
Of course were here today largely
because the whole jurisdictional issue has
been turned up Ol ts head by Rapanos in 20061
and can certainly say that Ve Vould be in a
very different situation were it back to 1989
NEAL R GROSS COURT REPORTERS AND TRANSCRBERS
323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20oo5-37D1 wwwMlllrgro01HXlffi
6
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
~3
14
15
6
17
18
19
20
21
bull 22
or ~92 or 93 ween I was at tt8 Agency and
dealing with iss~es when then the only thing
that was necessary for the Agency to prove was
that there were waters of ~he United Sta~es
ncluding wetlands that is lands that vere
inundated or satura~ed by surface or ground
water s~ch that ~hey could and ordinarily did
support a prevalence for vegetation typically
adapted to life in saturated soil conditions
We always referred on the Riverside Bayview
case and extended the adjacency of the
wetlands to a navigable water beyond that
such tha any tine thac there were wetla~ds
that they were conside-ed to be
jlrisdictiol1al ard eniorcemalt actior~ woud
have been considered proper
In the Rapanos Case the court
talks abo~t the expanding jurisdiction by the
Corps of Engi~eers and cetainly by
extension to EPA when in many of those
circumstances EPA was pushing the Corps to
expa1d their jurisdiction And the court
NEAL R GROSS COURT REPORTERS AO TRANSCRIBERS
1323 RHODE ISLAND AVE Nw 2(2) 234middot4433 WASHINGTON 00 20005middot3701 WWWllealrgrC$$OO((
7
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
bull
15
6
17
18
19
20
21
22
po s out that tneuro Corps adopted increasingly
broad interpretations of its own regulations
Talked about the migratory bird rule It
talked about how the Corps rad exparded ~ts
own interpretations of the definition of
tributaries to include ephemeral streams ard
c~ose that ran ~hrough drainage Qitc~es And
then the plurality opinion goes on to clarify
that that type of regulation was never
intended to be covered by the Clean raer Act
as waters of the U S SOIDe of the key
JUDGE STEIN Ms Wilcher
JiS ~TIL-CrER Yes
JVDGE STEIN Has any court held
that the plurality test alone determines
jurisdiction
ItS WILCHER I do not believe
that any court has held that the plurality
test alo~e confers jurisdiction
JUDGE STEIN Okay
MS 11 I LCHER I assume that the
court wants to hear about that since it is an
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 23~4433 WASHINGTON DC 20005lt)701 wwwnealrgrosscom
8
1bull 2
3
pound1
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
8
19
20
21
22
impotant part of the decision AQd we can
talk about significant nexus next I if thatS
okay or if you wart me to go to significant
nexus now I be happy to do that
JUDGE STE=N No thats fine you
car talk about the pluralities first but le~
me ask you if we were to find that the
eviQe~ce met as J~dge Xoran oQ~6 the
significant nexus test but for whatever
reason it didnt meet the plura~ities test l
L1en vhat is middotJ~e OJtcorneuro
MS WILCHER Now thats a very
and no one knows In the Fourth Circuit
specifically what the outcome of that -- what
the outcome would De The Rapanos test
unfortunately in an effort to reign in
jurisdicion by the Corps and EPA created
probably as many questions as it did answer
and its created a lot additional
lit~gation So we I re here synpatretic 0
EPAS plight of having to try to figure out
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005lt701 wwwnoolr9f05Sc(JITl
------- --
9
bull 1
2
3
4
5
6
7
a
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
what that meanS l a~d the regulated community
also rying 0 figure oat what it means
becalse it is simply not clear The Marks case
that said that you would select the nost
Earow of the interpretations n a case such
as this might be difficult to apply because
it S hard to figure out itlhat the most 1arrowI
cefinition or application of this case would
be Obviously from Smith Farms standpoint
we would be really delighted shou~d =h~s board
decide to follow the Ilarks opinion and decide
that the Scalia test would be the most
appropiae here bJt vere perfecty preparedl
to address both
JUDGE WOLGAST B~t that is -- but
yot-e assuning trat the narrowest grounds
would then be the pluralities test as opposed
to say I the narrowest ground sin-ply being
tha hey rejeced the Rapanos evicence ald
remanded the case In terms of what -- what
five justices could agree to It Jas simply
ocemand
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW Z02 24-4433 WASHINGTON DC 20005-37)1 WflW J10slrgrosscom
10
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
MS rLCHER rgthat f S rigrLt Thats
right But i s presumed trat the CO-clrt s
reasoni1g ar~d the four -- the opinion of the
four written by Scalia the opinion of
Roberts the opinion of Justice Kennedy all
rreant sameL-hing J and hat is what we are left
to vlork within and -shy
TUDGE SHEEHAN What do you think
cf the governme~ts argument trat either test
can apply as the First and Eighth Circuits
have held
MS WI~CHER well clearly a
nillnber of circuits have held that either test
Itould apply f ard in this case we we
believe that the evidence despicB what the
ALJs have found we believe the evidence
clea~ly shows that under neither test would
this area considered to be jurisdictional
~nder the curre~t interpretatio~ of the Clean
Water Act u~der Rapanos
And I really do think chat
not wanting to lose the forest for the trees
NEAL R GROSS COURT REPORTERS AND TRA1SCAIBER3
1323 RHODE jSlAND AVE NW (202) 2344433 WASHINGTON DC 20005-370~
11
bull 1
2
3
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here the forest -- the big picture is thatI
Rapanos is a dramatic shift in the way
busir~ess as usual has been done aL these
agencies from 1972 ~ntil 2006 It is -shy
in 2001 you had a little deviation here but
its a ilge dfference and what we find in
the brief -- and what we find in the brief of
t1e govermnent in this case is lot much of a
differerce from how the law previously lttas
interpreted and Ill -- Ill just go ahead
aYld address thae ssae and that is that the
the strongest argument it appears that
he government nakes in its brief dealing
with the significant nexus test is that
wetlands are ~rrponart ~1etlards provide
valuable functions and even Rapanos case
notes that the Clean V~ater Ac has been very
important and serves an important public
interests and Section 404 and the wetla~ds
laws i-l particuar provide ar~ irportant public
interest
JUDGE SHE1 Vie11 i 81 c the
NEAL R GROSS COURT REPOATEFlB AND TRANSCRIBERS
1323 RHODE ISLAND AVE fW (2ltJ2) 2344433 WASHINGTON DC 2ltlOOSr01 wwwnoalrgrosscorn
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
~8
bull
19
20
21
22
governments argument that these wetlands I in
particua are important I and can you address
how these wetlands do or do not meet the
Kennedy significant nexus test
fiS WILCHER That woud be t1e
goverlli~ents argument but in this case they
have failed cO co inCroduce by a
preponderance of the evidence ~hat that is
the case
JUJGE WOLGAST Coud you describe
for us what you ~elieve the goverr~ent would
have to show at a minimum to meet Justine
Kernedys significant nexus test in this
context
MS ~iILCHER At a mini~um they
wotd have to show some measure of the effec
that would be had by this wetlands property
upor~ a navigable vater of the Uni ed States
and they have not done so ln ary regard
JUDGE SHEEHIN Wasnt there
abunda1t testimony says the gDve=runent by
expert i1itness Martin and others that there
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAND AVE NW 202 234-4433 WASHNGTOtt DC 20005-3701
13
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
18
19
20
21
22
was such a C oILleci en YOJ f re speakirg very
theoretically Id like if you could to get
specific about what you think the failu~es are
i~ the governments case on the Kennedy test
MS ~VIrJCHER Yes but if you -shy
+_--ne if you look at the gover1TIleuroEt s
argument one of their lengthy arguments is
about the impact 0 denitrification that
VJetlands provide an important deni trification
iss~eJ pointing out that the Chesapeake Bay
tas too rruch nityogen and tbat its important
to keep that out They talk about the fact
that n~toger coues from atrrosphe-ic
deposition They talk about the fact that
microbes in the soil vi22 break hat rtroger
down and then they talk about that once the
nitrogen is broken dmvr it ll be taken up by
the breeze and i If~ay even be given off again
into -- into the air
JDGE STEIN ltJasn f t there
plentiful testimony by government witnesses
and the companys witnesses as to what was
NEAL R GROSS COVRl REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwnoalrgrossCCtn
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 6: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/6.jpg)
6
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
~3
14
15
6
17
18
19
20
21
bull 22
or ~92 or 93 ween I was at tt8 Agency and
dealing with iss~es when then the only thing
that was necessary for the Agency to prove was
that there were waters of ~he United Sta~es
ncluding wetlands that is lands that vere
inundated or satura~ed by surface or ground
water s~ch that ~hey could and ordinarily did
support a prevalence for vegetation typically
adapted to life in saturated soil conditions
We always referred on the Riverside Bayview
case and extended the adjacency of the
wetlands to a navigable water beyond that
such tha any tine thac there were wetla~ds
that they were conside-ed to be
jlrisdictiol1al ard eniorcemalt actior~ woud
have been considered proper
In the Rapanos Case the court
talks abo~t the expanding jurisdiction by the
Corps of Engi~eers and cetainly by
extension to EPA when in many of those
circumstances EPA was pushing the Corps to
expa1d their jurisdiction And the court
NEAL R GROSS COURT REPORTERS AO TRANSCRIBERS
1323 RHODE ISLAND AVE Nw 2(2) 234middot4433 WASHINGTON 00 20005middot3701 WWWllealrgrC$$OO((
7
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
bull
15
6
17
18
19
20
21
22
po s out that tneuro Corps adopted increasingly
broad interpretations of its own regulations
Talked about the migratory bird rule It
talked about how the Corps rad exparded ~ts
own interpretations of the definition of
tributaries to include ephemeral streams ard
c~ose that ran ~hrough drainage Qitc~es And
then the plurality opinion goes on to clarify
that that type of regulation was never
intended to be covered by the Clean raer Act
as waters of the U S SOIDe of the key
JUDGE STEIN Ms Wilcher
JiS ~TIL-CrER Yes
JVDGE STEIN Has any court held
that the plurality test alone determines
jurisdiction
ItS WILCHER I do not believe
that any court has held that the plurality
test alo~e confers jurisdiction
JUDGE STEIN Okay
MS 11 I LCHER I assume that the
court wants to hear about that since it is an
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 23~4433 WASHINGTON DC 20005lt)701 wwwnealrgrosscom
8
1bull 2
3
pound1
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
8
19
20
21
22
impotant part of the decision AQd we can
talk about significant nexus next I if thatS
okay or if you wart me to go to significant
nexus now I be happy to do that
JUDGE STE=N No thats fine you
car talk about the pluralities first but le~
me ask you if we were to find that the
eviQe~ce met as J~dge Xoran oQ~6 the
significant nexus test but for whatever
reason it didnt meet the plura~ities test l
L1en vhat is middotJ~e OJtcorneuro
MS WILCHER Now thats a very
and no one knows In the Fourth Circuit
specifically what the outcome of that -- what
the outcome would De The Rapanos test
unfortunately in an effort to reign in
jurisdicion by the Corps and EPA created
probably as many questions as it did answer
and its created a lot additional
lit~gation So we I re here synpatretic 0
EPAS plight of having to try to figure out
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005lt701 wwwnoolr9f05Sc(JITl
------- --
9
bull 1
2
3
4
5
6
7
a
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
what that meanS l a~d the regulated community
also rying 0 figure oat what it means
becalse it is simply not clear The Marks case
that said that you would select the nost
Earow of the interpretations n a case such
as this might be difficult to apply because
it S hard to figure out itlhat the most 1arrowI
cefinition or application of this case would
be Obviously from Smith Farms standpoint
we would be really delighted shou~d =h~s board
decide to follow the Ilarks opinion and decide
that the Scalia test would be the most
appropiae here bJt vere perfecty preparedl
to address both
JUDGE WOLGAST B~t that is -- but
yot-e assuning trat the narrowest grounds
would then be the pluralities test as opposed
to say I the narrowest ground sin-ply being
tha hey rejeced the Rapanos evicence ald
remanded the case In terms of what -- what
five justices could agree to It Jas simply
ocemand
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW Z02 24-4433 WASHINGTON DC 20005-37)1 WflW J10slrgrosscom
10
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
MS rLCHER rgthat f S rigrLt Thats
right But i s presumed trat the CO-clrt s
reasoni1g ar~d the four -- the opinion of the
four written by Scalia the opinion of
Roberts the opinion of Justice Kennedy all
rreant sameL-hing J and hat is what we are left
to vlork within and -shy
TUDGE SHEEHAN What do you think
cf the governme~ts argument trat either test
can apply as the First and Eighth Circuits
have held
MS WI~CHER well clearly a
nillnber of circuits have held that either test
Itould apply f ard in this case we we
believe that the evidence despicB what the
ALJs have found we believe the evidence
clea~ly shows that under neither test would
this area considered to be jurisdictional
~nder the curre~t interpretatio~ of the Clean
Water Act u~der Rapanos
And I really do think chat
not wanting to lose the forest for the trees
NEAL R GROSS COURT REPORTERS AND TRA1SCAIBER3
1323 RHODE jSlAND AVE NW (202) 2344433 WASHINGTON DC 20005-370~
11
bull 1
2
3
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here the forest -- the big picture is thatI
Rapanos is a dramatic shift in the way
busir~ess as usual has been done aL these
agencies from 1972 ~ntil 2006 It is -shy
in 2001 you had a little deviation here but
its a ilge dfference and what we find in
the brief -- and what we find in the brief of
t1e govermnent in this case is lot much of a
differerce from how the law previously lttas
interpreted and Ill -- Ill just go ahead
aYld address thae ssae and that is that the
the strongest argument it appears that
he government nakes in its brief dealing
with the significant nexus test is that
wetlands are ~rrponart ~1etlards provide
valuable functions and even Rapanos case
notes that the Clean V~ater Ac has been very
important and serves an important public
interests and Section 404 and the wetla~ds
laws i-l particuar provide ar~ irportant public
interest
JUDGE SHE1 Vie11 i 81 c the
NEAL R GROSS COURT REPOATEFlB AND TRANSCRIBERS
1323 RHODE ISLAND AVE fW (2ltJ2) 2344433 WASHINGTON DC 2ltlOOSr01 wwwnoalrgrosscorn
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
~8
bull
19
20
21
22
governments argument that these wetlands I in
particua are important I and can you address
how these wetlands do or do not meet the
Kennedy significant nexus test
fiS WILCHER That woud be t1e
goverlli~ents argument but in this case they
have failed cO co inCroduce by a
preponderance of the evidence ~hat that is
the case
JUJGE WOLGAST Coud you describe
for us what you ~elieve the goverr~ent would
have to show at a minimum to meet Justine
Kernedys significant nexus test in this
context
MS ~iILCHER At a mini~um they
wotd have to show some measure of the effec
that would be had by this wetlands property
upor~ a navigable vater of the Uni ed States
and they have not done so ln ary regard
JUDGE SHEEHIN Wasnt there
abunda1t testimony says the gDve=runent by
expert i1itness Martin and others that there
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAND AVE NW 202 234-4433 WASHNGTOtt DC 20005-3701
13
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
18
19
20
21
22
was such a C oILleci en YOJ f re speakirg very
theoretically Id like if you could to get
specific about what you think the failu~es are
i~ the governments case on the Kennedy test
MS ~VIrJCHER Yes but if you -shy
+_--ne if you look at the gover1TIleuroEt s
argument one of their lengthy arguments is
about the impact 0 denitrification that
VJetlands provide an important deni trification
iss~eJ pointing out that the Chesapeake Bay
tas too rruch nityogen and tbat its important
to keep that out They talk about the fact
that n~toger coues from atrrosphe-ic
deposition They talk about the fact that
microbes in the soil vi22 break hat rtroger
down and then they talk about that once the
nitrogen is broken dmvr it ll be taken up by
the breeze and i If~ay even be given off again
into -- into the air
JDGE STEIN ltJasn f t there
plentiful testimony by government witnesses
and the companys witnesses as to what was
NEAL R GROSS COVRl REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwnoalrgrossCCtn
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 7: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/7.jpg)
7
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
bull
15
6
17
18
19
20
21
22
po s out that tneuro Corps adopted increasingly
broad interpretations of its own regulations
Talked about the migratory bird rule It
talked about how the Corps rad exparded ~ts
own interpretations of the definition of
tributaries to include ephemeral streams ard
c~ose that ran ~hrough drainage Qitc~es And
then the plurality opinion goes on to clarify
that that type of regulation was never
intended to be covered by the Clean raer Act
as waters of the U S SOIDe of the key
JUDGE STEIN Ms Wilcher
JiS ~TIL-CrER Yes
JVDGE STEIN Has any court held
that the plurality test alone determines
jurisdiction
ItS WILCHER I do not believe
that any court has held that the plurality
test alo~e confers jurisdiction
JUDGE STEIN Okay
MS 11 I LCHER I assume that the
court wants to hear about that since it is an
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 23~4433 WASHINGTON DC 20005lt)701 wwwnealrgrosscom
8
1bull 2
3
pound1
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
8
19
20
21
22
impotant part of the decision AQd we can
talk about significant nexus next I if thatS
okay or if you wart me to go to significant
nexus now I be happy to do that
JUDGE STE=N No thats fine you
car talk about the pluralities first but le~
me ask you if we were to find that the
eviQe~ce met as J~dge Xoran oQ~6 the
significant nexus test but for whatever
reason it didnt meet the plura~ities test l
L1en vhat is middotJ~e OJtcorneuro
MS WILCHER Now thats a very
and no one knows In the Fourth Circuit
specifically what the outcome of that -- what
the outcome would De The Rapanos test
unfortunately in an effort to reign in
jurisdicion by the Corps and EPA created
probably as many questions as it did answer
and its created a lot additional
lit~gation So we I re here synpatretic 0
EPAS plight of having to try to figure out
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005lt701 wwwnoolr9f05Sc(JITl
------- --
9
bull 1
2
3
4
5
6
7
a
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
what that meanS l a~d the regulated community
also rying 0 figure oat what it means
becalse it is simply not clear The Marks case
that said that you would select the nost
Earow of the interpretations n a case such
as this might be difficult to apply because
it S hard to figure out itlhat the most 1arrowI
cefinition or application of this case would
be Obviously from Smith Farms standpoint
we would be really delighted shou~d =h~s board
decide to follow the Ilarks opinion and decide
that the Scalia test would be the most
appropiae here bJt vere perfecty preparedl
to address both
JUDGE WOLGAST B~t that is -- but
yot-e assuning trat the narrowest grounds
would then be the pluralities test as opposed
to say I the narrowest ground sin-ply being
tha hey rejeced the Rapanos evicence ald
remanded the case In terms of what -- what
five justices could agree to It Jas simply
ocemand
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW Z02 24-4433 WASHINGTON DC 20005-37)1 WflW J10slrgrosscom
10
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
MS rLCHER rgthat f S rigrLt Thats
right But i s presumed trat the CO-clrt s
reasoni1g ar~d the four -- the opinion of the
four written by Scalia the opinion of
Roberts the opinion of Justice Kennedy all
rreant sameL-hing J and hat is what we are left
to vlork within and -shy
TUDGE SHEEHAN What do you think
cf the governme~ts argument trat either test
can apply as the First and Eighth Circuits
have held
MS WI~CHER well clearly a
nillnber of circuits have held that either test
Itould apply f ard in this case we we
believe that the evidence despicB what the
ALJs have found we believe the evidence
clea~ly shows that under neither test would
this area considered to be jurisdictional
~nder the curre~t interpretatio~ of the Clean
Water Act u~der Rapanos
And I really do think chat
not wanting to lose the forest for the trees
NEAL R GROSS COURT REPORTERS AND TRA1SCAIBER3
1323 RHODE jSlAND AVE NW (202) 2344433 WASHINGTON DC 20005-370~
11
bull 1
2
3
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here the forest -- the big picture is thatI
Rapanos is a dramatic shift in the way
busir~ess as usual has been done aL these
agencies from 1972 ~ntil 2006 It is -shy
in 2001 you had a little deviation here but
its a ilge dfference and what we find in
the brief -- and what we find in the brief of
t1e govermnent in this case is lot much of a
differerce from how the law previously lttas
interpreted and Ill -- Ill just go ahead
aYld address thae ssae and that is that the
the strongest argument it appears that
he government nakes in its brief dealing
with the significant nexus test is that
wetlands are ~rrponart ~1etlards provide
valuable functions and even Rapanos case
notes that the Clean V~ater Ac has been very
important and serves an important public
interests and Section 404 and the wetla~ds
laws i-l particuar provide ar~ irportant public
interest
JUDGE SHE1 Vie11 i 81 c the
NEAL R GROSS COURT REPOATEFlB AND TRANSCRIBERS
1323 RHODE ISLAND AVE fW (2ltJ2) 2344433 WASHINGTON DC 2ltlOOSr01 wwwnoalrgrosscorn
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
~8
bull
19
20
21
22
governments argument that these wetlands I in
particua are important I and can you address
how these wetlands do or do not meet the
Kennedy significant nexus test
fiS WILCHER That woud be t1e
goverlli~ents argument but in this case they
have failed cO co inCroduce by a
preponderance of the evidence ~hat that is
the case
JUJGE WOLGAST Coud you describe
for us what you ~elieve the goverr~ent would
have to show at a minimum to meet Justine
Kernedys significant nexus test in this
context
MS ~iILCHER At a mini~um they
wotd have to show some measure of the effec
that would be had by this wetlands property
upor~ a navigable vater of the Uni ed States
and they have not done so ln ary regard
JUDGE SHEEHIN Wasnt there
abunda1t testimony says the gDve=runent by
expert i1itness Martin and others that there
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAND AVE NW 202 234-4433 WASHNGTOtt DC 20005-3701
13
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
18
19
20
21
22
was such a C oILleci en YOJ f re speakirg very
theoretically Id like if you could to get
specific about what you think the failu~es are
i~ the governments case on the Kennedy test
MS ~VIrJCHER Yes but if you -shy
+_--ne if you look at the gover1TIleuroEt s
argument one of their lengthy arguments is
about the impact 0 denitrification that
VJetlands provide an important deni trification
iss~eJ pointing out that the Chesapeake Bay
tas too rruch nityogen and tbat its important
to keep that out They talk about the fact
that n~toger coues from atrrosphe-ic
deposition They talk about the fact that
microbes in the soil vi22 break hat rtroger
down and then they talk about that once the
nitrogen is broken dmvr it ll be taken up by
the breeze and i If~ay even be given off again
into -- into the air
JDGE STEIN ltJasn f t there
plentiful testimony by government witnesses
and the companys witnesses as to what was
NEAL R GROSS COVRl REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwnoalrgrossCCtn
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 8: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/8.jpg)
8
1bull 2
3
pound1
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
8
19
20
21
22
impotant part of the decision AQd we can
talk about significant nexus next I if thatS
okay or if you wart me to go to significant
nexus now I be happy to do that
JUDGE STE=N No thats fine you
car talk about the pluralities first but le~
me ask you if we were to find that the
eviQe~ce met as J~dge Xoran oQ~6 the
significant nexus test but for whatever
reason it didnt meet the plura~ities test l
L1en vhat is middotJ~e OJtcorneuro
MS WILCHER Now thats a very
and no one knows In the Fourth Circuit
specifically what the outcome of that -- what
the outcome would De The Rapanos test
unfortunately in an effort to reign in
jurisdicion by the Corps and EPA created
probably as many questions as it did answer
and its created a lot additional
lit~gation So we I re here synpatretic 0
EPAS plight of having to try to figure out
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005lt701 wwwnoolr9f05Sc(JITl
------- --
9
bull 1
2
3
4
5
6
7
a
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
what that meanS l a~d the regulated community
also rying 0 figure oat what it means
becalse it is simply not clear The Marks case
that said that you would select the nost
Earow of the interpretations n a case such
as this might be difficult to apply because
it S hard to figure out itlhat the most 1arrowI
cefinition or application of this case would
be Obviously from Smith Farms standpoint
we would be really delighted shou~d =h~s board
decide to follow the Ilarks opinion and decide
that the Scalia test would be the most
appropiae here bJt vere perfecty preparedl
to address both
JUDGE WOLGAST B~t that is -- but
yot-e assuning trat the narrowest grounds
would then be the pluralities test as opposed
to say I the narrowest ground sin-ply being
tha hey rejeced the Rapanos evicence ald
remanded the case In terms of what -- what
five justices could agree to It Jas simply
ocemand
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW Z02 24-4433 WASHINGTON DC 20005-37)1 WflW J10slrgrosscom
10
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
MS rLCHER rgthat f S rigrLt Thats
right But i s presumed trat the CO-clrt s
reasoni1g ar~d the four -- the opinion of the
four written by Scalia the opinion of
Roberts the opinion of Justice Kennedy all
rreant sameL-hing J and hat is what we are left
to vlork within and -shy
TUDGE SHEEHAN What do you think
cf the governme~ts argument trat either test
can apply as the First and Eighth Circuits
have held
MS WI~CHER well clearly a
nillnber of circuits have held that either test
Itould apply f ard in this case we we
believe that the evidence despicB what the
ALJs have found we believe the evidence
clea~ly shows that under neither test would
this area considered to be jurisdictional
~nder the curre~t interpretatio~ of the Clean
Water Act u~der Rapanos
And I really do think chat
not wanting to lose the forest for the trees
NEAL R GROSS COURT REPORTERS AND TRA1SCAIBER3
1323 RHODE jSlAND AVE NW (202) 2344433 WASHINGTON DC 20005-370~
11
bull 1
2
3
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here the forest -- the big picture is thatI
Rapanos is a dramatic shift in the way
busir~ess as usual has been done aL these
agencies from 1972 ~ntil 2006 It is -shy
in 2001 you had a little deviation here but
its a ilge dfference and what we find in
the brief -- and what we find in the brief of
t1e govermnent in this case is lot much of a
differerce from how the law previously lttas
interpreted and Ill -- Ill just go ahead
aYld address thae ssae and that is that the
the strongest argument it appears that
he government nakes in its brief dealing
with the significant nexus test is that
wetlands are ~rrponart ~1etlards provide
valuable functions and even Rapanos case
notes that the Clean V~ater Ac has been very
important and serves an important public
interests and Section 404 and the wetla~ds
laws i-l particuar provide ar~ irportant public
interest
JUDGE SHE1 Vie11 i 81 c the
NEAL R GROSS COURT REPOATEFlB AND TRANSCRIBERS
1323 RHODE ISLAND AVE fW (2ltJ2) 2344433 WASHINGTON DC 2ltlOOSr01 wwwnoalrgrosscorn
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
~8
bull
19
20
21
22
governments argument that these wetlands I in
particua are important I and can you address
how these wetlands do or do not meet the
Kennedy significant nexus test
fiS WILCHER That woud be t1e
goverlli~ents argument but in this case they
have failed cO co inCroduce by a
preponderance of the evidence ~hat that is
the case
JUJGE WOLGAST Coud you describe
for us what you ~elieve the goverr~ent would
have to show at a minimum to meet Justine
Kernedys significant nexus test in this
context
MS ~iILCHER At a mini~um they
wotd have to show some measure of the effec
that would be had by this wetlands property
upor~ a navigable vater of the Uni ed States
and they have not done so ln ary regard
JUDGE SHEEHIN Wasnt there
abunda1t testimony says the gDve=runent by
expert i1itness Martin and others that there
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAND AVE NW 202 234-4433 WASHNGTOtt DC 20005-3701
13
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
18
19
20
21
22
was such a C oILleci en YOJ f re speakirg very
theoretically Id like if you could to get
specific about what you think the failu~es are
i~ the governments case on the Kennedy test
MS ~VIrJCHER Yes but if you -shy
+_--ne if you look at the gover1TIleuroEt s
argument one of their lengthy arguments is
about the impact 0 denitrification that
VJetlands provide an important deni trification
iss~eJ pointing out that the Chesapeake Bay
tas too rruch nityogen and tbat its important
to keep that out They talk about the fact
that n~toger coues from atrrosphe-ic
deposition They talk about the fact that
microbes in the soil vi22 break hat rtroger
down and then they talk about that once the
nitrogen is broken dmvr it ll be taken up by
the breeze and i If~ay even be given off again
into -- into the air
JDGE STEIN ltJasn f t there
plentiful testimony by government witnesses
and the companys witnesses as to what was
NEAL R GROSS COVRl REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwnoalrgrossCCtn
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 9: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/9.jpg)
------- --
9
bull 1
2
3
4
5
6
7
a
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
what that meanS l a~d the regulated community
also rying 0 figure oat what it means
becalse it is simply not clear The Marks case
that said that you would select the nost
Earow of the interpretations n a case such
as this might be difficult to apply because
it S hard to figure out itlhat the most 1arrowI
cefinition or application of this case would
be Obviously from Smith Farms standpoint
we would be really delighted shou~d =h~s board
decide to follow the Ilarks opinion and decide
that the Scalia test would be the most
appropiae here bJt vere perfecty preparedl
to address both
JUDGE WOLGAST B~t that is -- but
yot-e assuning trat the narrowest grounds
would then be the pluralities test as opposed
to say I the narrowest ground sin-ply being
tha hey rejeced the Rapanos evicence ald
remanded the case In terms of what -- what
five justices could agree to It Jas simply
ocemand
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW Z02 24-4433 WASHINGTON DC 20005-37)1 WflW J10slrgrosscom
10
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
MS rLCHER rgthat f S rigrLt Thats
right But i s presumed trat the CO-clrt s
reasoni1g ar~d the four -- the opinion of the
four written by Scalia the opinion of
Roberts the opinion of Justice Kennedy all
rreant sameL-hing J and hat is what we are left
to vlork within and -shy
TUDGE SHEEHAN What do you think
cf the governme~ts argument trat either test
can apply as the First and Eighth Circuits
have held
MS WI~CHER well clearly a
nillnber of circuits have held that either test
Itould apply f ard in this case we we
believe that the evidence despicB what the
ALJs have found we believe the evidence
clea~ly shows that under neither test would
this area considered to be jurisdictional
~nder the curre~t interpretatio~ of the Clean
Water Act u~der Rapanos
And I really do think chat
not wanting to lose the forest for the trees
NEAL R GROSS COURT REPORTERS AND TRA1SCAIBER3
1323 RHODE jSlAND AVE NW (202) 2344433 WASHINGTON DC 20005-370~
11
bull 1
2
3
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here the forest -- the big picture is thatI
Rapanos is a dramatic shift in the way
busir~ess as usual has been done aL these
agencies from 1972 ~ntil 2006 It is -shy
in 2001 you had a little deviation here but
its a ilge dfference and what we find in
the brief -- and what we find in the brief of
t1e govermnent in this case is lot much of a
differerce from how the law previously lttas
interpreted and Ill -- Ill just go ahead
aYld address thae ssae and that is that the
the strongest argument it appears that
he government nakes in its brief dealing
with the significant nexus test is that
wetlands are ~rrponart ~1etlards provide
valuable functions and even Rapanos case
notes that the Clean V~ater Ac has been very
important and serves an important public
interests and Section 404 and the wetla~ds
laws i-l particuar provide ar~ irportant public
interest
JUDGE SHE1 Vie11 i 81 c the
NEAL R GROSS COURT REPOATEFlB AND TRANSCRIBERS
1323 RHODE ISLAND AVE fW (2ltJ2) 2344433 WASHINGTON DC 2ltlOOSr01 wwwnoalrgrosscorn
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
~8
bull
19
20
21
22
governments argument that these wetlands I in
particua are important I and can you address
how these wetlands do or do not meet the
Kennedy significant nexus test
fiS WILCHER That woud be t1e
goverlli~ents argument but in this case they
have failed cO co inCroduce by a
preponderance of the evidence ~hat that is
the case
JUJGE WOLGAST Coud you describe
for us what you ~elieve the goverr~ent would
have to show at a minimum to meet Justine
Kernedys significant nexus test in this
context
MS ~iILCHER At a mini~um they
wotd have to show some measure of the effec
that would be had by this wetlands property
upor~ a navigable vater of the Uni ed States
and they have not done so ln ary regard
JUDGE SHEEHIN Wasnt there
abunda1t testimony says the gDve=runent by
expert i1itness Martin and others that there
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAND AVE NW 202 234-4433 WASHNGTOtt DC 20005-3701
13
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
18
19
20
21
22
was such a C oILleci en YOJ f re speakirg very
theoretically Id like if you could to get
specific about what you think the failu~es are
i~ the governments case on the Kennedy test
MS ~VIrJCHER Yes but if you -shy
+_--ne if you look at the gover1TIleuroEt s
argument one of their lengthy arguments is
about the impact 0 denitrification that
VJetlands provide an important deni trification
iss~eJ pointing out that the Chesapeake Bay
tas too rruch nityogen and tbat its important
to keep that out They talk about the fact
that n~toger coues from atrrosphe-ic
deposition They talk about the fact that
microbes in the soil vi22 break hat rtroger
down and then they talk about that once the
nitrogen is broken dmvr it ll be taken up by
the breeze and i If~ay even be given off again
into -- into the air
JDGE STEIN ltJasn f t there
plentiful testimony by government witnesses
and the companys witnesses as to what was
NEAL R GROSS COVRl REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwnoalrgrossCCtn
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 10: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/10.jpg)
10
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
18
19
20
21
22bull
MS rLCHER rgthat f S rigrLt Thats
right But i s presumed trat the CO-clrt s
reasoni1g ar~d the four -- the opinion of the
four written by Scalia the opinion of
Roberts the opinion of Justice Kennedy all
rreant sameL-hing J and hat is what we are left
to vlork within and -shy
TUDGE SHEEHAN What do you think
cf the governme~ts argument trat either test
can apply as the First and Eighth Circuits
have held
MS WI~CHER well clearly a
nillnber of circuits have held that either test
Itould apply f ard in this case we we
believe that the evidence despicB what the
ALJs have found we believe the evidence
clea~ly shows that under neither test would
this area considered to be jurisdictional
~nder the curre~t interpretatio~ of the Clean
Water Act u~der Rapanos
And I really do think chat
not wanting to lose the forest for the trees
NEAL R GROSS COURT REPORTERS AND TRA1SCAIBER3
1323 RHODE jSlAND AVE NW (202) 2344433 WASHINGTON DC 20005-370~
11
bull 1
2
3
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here the forest -- the big picture is thatI
Rapanos is a dramatic shift in the way
busir~ess as usual has been done aL these
agencies from 1972 ~ntil 2006 It is -shy
in 2001 you had a little deviation here but
its a ilge dfference and what we find in
the brief -- and what we find in the brief of
t1e govermnent in this case is lot much of a
differerce from how the law previously lttas
interpreted and Ill -- Ill just go ahead
aYld address thae ssae and that is that the
the strongest argument it appears that
he government nakes in its brief dealing
with the significant nexus test is that
wetlands are ~rrponart ~1etlards provide
valuable functions and even Rapanos case
notes that the Clean V~ater Ac has been very
important and serves an important public
interests and Section 404 and the wetla~ds
laws i-l particuar provide ar~ irportant public
interest
JUDGE SHE1 Vie11 i 81 c the
NEAL R GROSS COURT REPOATEFlB AND TRANSCRIBERS
1323 RHODE ISLAND AVE fW (2ltJ2) 2344433 WASHINGTON DC 2ltlOOSr01 wwwnoalrgrosscorn
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
~8
bull
19
20
21
22
governments argument that these wetlands I in
particua are important I and can you address
how these wetlands do or do not meet the
Kennedy significant nexus test
fiS WILCHER That woud be t1e
goverlli~ents argument but in this case they
have failed cO co inCroduce by a
preponderance of the evidence ~hat that is
the case
JUJGE WOLGAST Coud you describe
for us what you ~elieve the goverr~ent would
have to show at a minimum to meet Justine
Kernedys significant nexus test in this
context
MS ~iILCHER At a mini~um they
wotd have to show some measure of the effec
that would be had by this wetlands property
upor~ a navigable vater of the Uni ed States
and they have not done so ln ary regard
JUDGE SHEEHIN Wasnt there
abunda1t testimony says the gDve=runent by
expert i1itness Martin and others that there
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAND AVE NW 202 234-4433 WASHNGTOtt DC 20005-3701
13
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
18
19
20
21
22
was such a C oILleci en YOJ f re speakirg very
theoretically Id like if you could to get
specific about what you think the failu~es are
i~ the governments case on the Kennedy test
MS ~VIrJCHER Yes but if you -shy
+_--ne if you look at the gover1TIleuroEt s
argument one of their lengthy arguments is
about the impact 0 denitrification that
VJetlands provide an important deni trification
iss~eJ pointing out that the Chesapeake Bay
tas too rruch nityogen and tbat its important
to keep that out They talk about the fact
that n~toger coues from atrrosphe-ic
deposition They talk about the fact that
microbes in the soil vi22 break hat rtroger
down and then they talk about that once the
nitrogen is broken dmvr it ll be taken up by
the breeze and i If~ay even be given off again
into -- into the air
JDGE STEIN ltJasn f t there
plentiful testimony by government witnesses
and the companys witnesses as to what was
NEAL R GROSS COVRl REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwnoalrgrossCCtn
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 11: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/11.jpg)
11
bull 1
2
3
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here the forest -- the big picture is thatI
Rapanos is a dramatic shift in the way
busir~ess as usual has been done aL these
agencies from 1972 ~ntil 2006 It is -shy
in 2001 you had a little deviation here but
its a ilge dfference and what we find in
the brief -- and what we find in the brief of
t1e govermnent in this case is lot much of a
differerce from how the law previously lttas
interpreted and Ill -- Ill just go ahead
aYld address thae ssae and that is that the
the strongest argument it appears that
he government nakes in its brief dealing
with the significant nexus test is that
wetlands are ~rrponart ~1etlards provide
valuable functions and even Rapanos case
notes that the Clean V~ater Ac has been very
important and serves an important public
interests and Section 404 and the wetla~ds
laws i-l particuar provide ar~ irportant public
interest
JUDGE SHE1 Vie11 i 81 c the
NEAL R GROSS COURT REPOATEFlB AND TRANSCRIBERS
1323 RHODE ISLAND AVE fW (2ltJ2) 2344433 WASHINGTON DC 2ltlOOSr01 wwwnoalrgrosscorn
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
~8
bull
19
20
21
22
governments argument that these wetlands I in
particua are important I and can you address
how these wetlands do or do not meet the
Kennedy significant nexus test
fiS WILCHER That woud be t1e
goverlli~ents argument but in this case they
have failed cO co inCroduce by a
preponderance of the evidence ~hat that is
the case
JUJGE WOLGAST Coud you describe
for us what you ~elieve the goverr~ent would
have to show at a minimum to meet Justine
Kernedys significant nexus test in this
context
MS ~iILCHER At a mini~um they
wotd have to show some measure of the effec
that would be had by this wetlands property
upor~ a navigable vater of the Uni ed States
and they have not done so ln ary regard
JUDGE SHEEHIN Wasnt there
abunda1t testimony says the gDve=runent by
expert i1itness Martin and others that there
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAND AVE NW 202 234-4433 WASHNGTOtt DC 20005-3701
13
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
18
19
20
21
22
was such a C oILleci en YOJ f re speakirg very
theoretically Id like if you could to get
specific about what you think the failu~es are
i~ the governments case on the Kennedy test
MS ~VIrJCHER Yes but if you -shy
+_--ne if you look at the gover1TIleuroEt s
argument one of their lengthy arguments is
about the impact 0 denitrification that
VJetlands provide an important deni trification
iss~eJ pointing out that the Chesapeake Bay
tas too rruch nityogen and tbat its important
to keep that out They talk about the fact
that n~toger coues from atrrosphe-ic
deposition They talk about the fact that
microbes in the soil vi22 break hat rtroger
down and then they talk about that once the
nitrogen is broken dmvr it ll be taken up by
the breeze and i If~ay even be given off again
into -- into the air
JDGE STEIN ltJasn f t there
plentiful testimony by government witnesses
and the companys witnesses as to what was
NEAL R GROSS COVRl REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwnoalrgrossCCtn
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 12: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/12.jpg)
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
3
14
15
16
17
~8
bull
19
20
21
22
governments argument that these wetlands I in
particua are important I and can you address
how these wetlands do or do not meet the
Kennedy significant nexus test
fiS WILCHER That woud be t1e
goverlli~ents argument but in this case they
have failed cO co inCroduce by a
preponderance of the evidence ~hat that is
the case
JUJGE WOLGAST Coud you describe
for us what you ~elieve the goverr~ent would
have to show at a minimum to meet Justine
Kernedys significant nexus test in this
context
MS ~iILCHER At a mini~um they
wotd have to show some measure of the effec
that would be had by this wetlands property
upor~ a navigable vater of the Uni ed States
and they have not done so ln ary regard
JUDGE SHEEHIN Wasnt there
abunda1t testimony says the gDve=runent by
expert i1itness Martin and others that there
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAND AVE NW 202 234-4433 WASHNGTOtt DC 20005-3701
13
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
18
19
20
21
22
was such a C oILleci en YOJ f re speakirg very
theoretically Id like if you could to get
specific about what you think the failu~es are
i~ the governments case on the Kennedy test
MS ~VIrJCHER Yes but if you -shy
+_--ne if you look at the gover1TIleuroEt s
argument one of their lengthy arguments is
about the impact 0 denitrification that
VJetlands provide an important deni trification
iss~eJ pointing out that the Chesapeake Bay
tas too rruch nityogen and tbat its important
to keep that out They talk about the fact
that n~toger coues from atrrosphe-ic
deposition They talk about the fact that
microbes in the soil vi22 break hat rtroger
down and then they talk about that once the
nitrogen is broken dmvr it ll be taken up by
the breeze and i If~ay even be given off again
into -- into the air
JDGE STEIN ltJasn f t there
plentiful testimony by government witnesses
and the companys witnesses as to what was
NEAL R GROSS COVRl REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwnoalrgrossCCtn
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 13: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/13.jpg)
13
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
bull
14
15
16
17
18
19
20
21
22
was such a C oILleci en YOJ f re speakirg very
theoretically Id like if you could to get
specific about what you think the failu~es are
i~ the governments case on the Kennedy test
MS ~VIrJCHER Yes but if you -shy
+_--ne if you look at the gover1TIleuroEt s
argument one of their lengthy arguments is
about the impact 0 denitrification that
VJetlands provide an important deni trification
iss~eJ pointing out that the Chesapeake Bay
tas too rruch nityogen and tbat its important
to keep that out They talk about the fact
that n~toger coues from atrrosphe-ic
deposition They talk about the fact that
microbes in the soil vi22 break hat rtroger
down and then they talk about that once the
nitrogen is broken dmvr it ll be taken up by
the breeze and i If~ay even be given off again
into -- into the air
JDGE STEIN ltJasn f t there
plentiful testimony by government witnesses
and the companys witnesses as to what was
NEAL R GROSS COVRl REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005middot3701 wwwnoalrgrossCCtn
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 14: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/14.jpg)
14
bull 1
2
3
4
5
bull
bull
6
7
8
9
0
11
12
13
1~
S
16
17
18
19
20
21
22
occurr~ng specifically at this site I mean
I think the challenge for the compa~y i~ this
appeal 8 that there were credibili ty findings
Chat tiere made by the ALJ as to some of the
testimony by respondents by the companys
wi tnesses and given the Board f 5 standard forJ
crecibility determinations where the 30ard
you knovl historically ove many mar~y years
gives great weight to an ALJ~s finding how is
it ha t we can ove look he ALJ S credibi lity
determinations in the face of countervai~ing
evidence ~hat the ALJ found ~o be credible
(S WILCHER Judge Stel if I
can finish Judge Sheehans question I III ge
right back 0 you on that You were wanting
some specifics and an example of what the
government tried to prove in its case By
go~ng through this whole denitrification
process they nake ~o distinction betwee~ the
value that ris particalar wetlald is making
or any paricular wetland is making I to the
denitrification 0 the Chesapeake Bay
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 2344433 WASHINGTON DC 20005middot3701 WWN11w1rgtOSsoom
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 15: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/15.jpg)
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
16
17
18
19
20
21
22
l5
JUDGE SHEEHAN But the Kennedy
tea says that if wetlands aloLe or in
combination with other wetlands have that
kind of effect
115 WILCHER Wetlands alone or in
corrbinato1 with otrer wetlands or in
combination lith the uplands the arguments
~ha t tbey ace laking wOClld apply equally to
uplands and as the court noted in the Rapanos
decision applying some of these tests as the
government histori cally has applied them to
say that they are jurisdictional sirrply
because hey have value and may be somewhat
miles aay hut may have some connection or
some val~e ~i~es away being speculative in
nature does rot cause it to be
jurisdictional and it sa~d i~ so the en~ire
United States would be considered regulated
llilder tbe Clear~ ater Act
JUDGE SHEEHAN Theres ~~ theres
one and cot to get in the vay of Judge
Steins question but Qne of the exhibitsr
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnea~r0S3com
16
bull 1
2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
Remand Exhibit 937 shows a very honeycombed
tissue through the Srith Farm weta1ds going
ou~ to the two rivers and then to the bay I~
looks sure _ surely to me it looks from this
exhibit and otes as if tl1e wetlands are very
proximate to and affect directly the waters
below Car you address that
KS WILCE2R I wil Those naps
do not show any actual measurable connection
nor do they show a contir1oJS surface
conE6ction r~avigable vrates
JUDGE SHEEHAN Why does it have to
be a surface connection tilly car_ t it be stbshy
surface if theres a hydrological link
MS WILCHER But theres ~o
showir~g of a silD-surface hydroogica liak
either Theres a total lack of evidence of
probative dence i~ th~s case to actualy
tie that paricu=-ar vletland Co a rcavigable
water which by the way you would have to gor
fcom tha wetland to a drair~age ditcr~ anc
went out there and traipsed down the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 0W (202) 234-4433 WASHINGTON DC 200JS3701 wwwnealrgrooscom
I
17
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
before I came here to talk to you about this
but youd have to go fr~~ that -- b~t this ~s
all en the record -- YOlld have to go fron
that area that might be-- that part of it that
might be considered a we~land~ through
drainage di tches t1at are only inerrrit ert
in nature and t1e evidef~ce is clear that
theYre only intermittent in nature including
the USGS blue line dotted lines and then they
would have to go from tlere to Bailey Creek
non- navigable to Drurr Point Creek
non-navigable] then to tributaries of the
westeGl branch of the Elizabeth River I which
is t~e f rst tne you I d hi a ~avigable wate
If go in the opposite
direction they would have to go from drainage
ditches to Quake~ Neck Creek to ~eans Bra~ch
which are tributaries 0 tne ravigable water
the Nansemond River 14d so there there is
no proof that there is a connection
Things could lave been done Tne-e
cOmiddotJld have been dye raclgs there cOlld have
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 wwwraargrossoom
18
1bull 2
3
4
5
6
7
8
9
10
bull 12
bull
13
14
15
16
17
18
19
20
21
22
been a~l kinds of evidence hey could have
taken samples they could have done
quantitative analysis There is no chemical
evidence there is no physical evidence there
is no biological evidence that connecs this
to a navigable water f and therein lies the
problem
JJDGE TO~GAST Justa if I
could follow up on that before we get back to
cred~bility iss~es
MS HLCHER Okay
JUDGE WOLGAST Are you saying that
the fact they floTlI throJgh ditches is a
jurisdictional problem
MS 1tILCHER Not particularly
JUXE vIOLGASI And the1 get ~ ing
back to the testimony that Judge Sheehan was
referring to where JIdge Morar was referring
to the testimony of Mr Rhodes and Mr Martin
that the property provides flood storage flow
moderaion carbOIl sequestration vlater
purification denitrification what I want to
NEAL R GROSS COURT REPORTERS AND TAANSCRHiERS
1323 RHODE ISLAND AVE NW (2)2) 234-4433 WASHINGTON DC 20005middot3701
19
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
16
17
18
19
20
21
22
undsystard aboJt your argument 1s are these
aspects insufficient or would they be
sufficient if in your mind there was more
evidence of the connection of these attributes
to the Nansemond or Elizabeth Rivers
MS iILCHER EPA -- the govenment
cant simply say that wetlands are valuable
because they are-- help prevent flooding and
not show that they would help prevent flooding
in this particular case and that it would
significantly help prevent flooding in t~is
partcular case lrJha ttey have done toe
Drie is to siIply lay down he well-knoJl
attributes a~d valuable functions and values
of wetlands and said therefore this is
having a significant effect on navigable
~ivers Theye is not a co~~ection they have
lot snoltm by a1y credible evidence cause and
effect of any sigrifcant iIEpact tpon thef
navigable rivers
JUDGE SHEEHAN But you make
again a very theoretical argument about the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132$ RHODE ISLAND AVE NW 2(2) 234-4433 WASHINGTON D_C 2OC05-37Cl
20
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
~5
16
17
18
19
20
21
bull 22
fact Chat the goverruuent just argues wetlands
fgelerally but werer t government wi tnesses
crawling allover this property mul iple
times testify~ng at great lengtl lots of
exhibits aerials historc maps and
everythi~g else to show in this case fo~ this
property there was trat link Its hard to
believe with all that 11Bssive Estimony and
getting to ~he credibility issue that he
governrrent doesn~t have a pretty solid case
rat hat nexus sat) sfyilg the Kennedy test
exists
MS WILCHER It is hard to
believe I totally agree It is hard to
believe Tle governmert has had unfettered
aCCess to this property for over a decade and
have failed 0 develop flmr drainage elements
they cant show how illuch flows off the site
they cant show vhat type of sediment runoff
might have occurred at ~he site ~hey ca~tt
show what type of water retention is teld Jy
the site t~ey have been unable to show any
NEAL R GROSS COURT REPOATERS AND TRAASCRIBERS
1323 RHODE SLANDAVE NW WASHINGTONDC 20005-3701 WWWJeargrosscol1
21
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
ecoogical cC1nection 1tith regard to wildlife
there was a Woodcock seen on the site There
is absolutely -- and its amazing to me hat
tr~ere is a void
JUDGE STEIN But isnt the test a
nexus a significant nexus not this
sJbstantial inpacts est that I hear wove]
through some of your statements and T dont
-- when I go back and I look at the Kennedy
opinion you knot] and some of he hings t1at
are cited I dont necessarily see that that
test requires the level of proof that youre
stggesing is reqJired ny hat test So
perhaps you could explain to me based on the
Kennedy opinion how you get from there to the
level of proof Lhat you re a5~ing for f just to
establish jurisdiction
MS WILCHER Certainly
JUDGE STEIN I mean I we re not
here to determire you know penalty or
anything else were here just to figure out
if youre even i~ tbe door
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAr-JD AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701
22
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
MS IILCHER Yes understand
Ie 1 1 what Justice Kennedy said was to talk
abmlt he fJay the Corps nac typically
regulated wetlalds and then to say absent
more speciic regulations however the Corps
must establish a significant nexus on a case
by case bBSS wler it seeks to regulate
wetlands based on adjacency to non-navigable
tributaries and then it goes on to say given
the potential over breath of the Corps yen s
regulations this showing is necessary to
avoid unreasoDable applications of the
statute
The justice wrote I no~ just a
~exus if the COurt had only said there has to
be a nexus then o~e would have a different
burden of proof in this case the court said
a significant nexus and we have to assnne
that a significant nexus is meaningful that
those words mean SOIEethi1g So theres a -- at
least a two-step process One to show that
theres a nexus and the other is to show that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 wwwnoorgrossCOll
23
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
bull 20
21
22
its significant and that is what the record
is devoid 0 in this particular case
JUDGE SlEIN But its not a
significa1t impact its a significant nexus
MS iILCHER Thats right a
significant nexus And the sigrificart rexus
must -- and if YOu read through the rest of
the case it talks abolt hm -- that in order
to regulate land as water there must be some
type of impact on the water
JUDGE SHEEHAN Justice Kennedy
also uses a phrase that think is pertinent
here r he says that the how -- how the proof is
determined has to be done in a practical way
ard i almost sounds as if what you I re
requiing is that the governrrent set up flow
meers or pour a vial of discharge into a
ditch and see if it eventually ends up in the
Chesapeake or do something on a very
impractical scale to prove ~he connectio~
MS WILCHER You know this is a
really important issue The governrrent has to
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4453 WASHINGTON DC 20005-3701 WyenWooalrgrossoom
24
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
6
l7
18
19
20
21
22
do sOIething oJer than to make allegations r
especially in a case where youpoundre dealing with
constitutional issues such as privae property
rights and how one car jse his own property
or hers and in this case I there are lots of
things tha~ EPA historically has done for
ypcal NPDES cases But when you before he
Board on a NPDES case theres at least some
measure If they had had pictures that there
las a plurne comir_g off of this wetlar~d if
theyd done any flow calculations if theyd
had any physical chemical biological
evidence of a nexJS and a signiican- nexus to
the navigable waters which again( are not the
ditches they are the ditches that flow to the
creek that flow 0 the creek that flow 0 the
navigable waters j then it would be a different
case but that is not what has happened in
this case
JUDGE IJOLGAST Well as you say
the goverIl1lent obviously has the burden of
proof i~ a~ eLfo~cerne~t case l but is this the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701
23
bull 1
2
3
4
6
7
8
9
10
bull 11
12
~3
bull
14
15
16
17
18
19
20
21
22
same type of evidence that you thirk a
_a~Qowne~ should Lndertake I mean obviouslY
they have the burden to obtain a permit where
there is potential jurisdiction
I~S ~JILCaER Btt if the person
doesnt obtain a permit ~~ and the government
thinks that theyre i~ error again the
government always has the burden of proof
JUDGE vJOLGAST Right but J 1m
talking about getting a -- yOJ know starding
in the landowners shoes before weve ever
gotten to an enforceme1t case it -- it I
mean I ~h~nk theres some iSS48 with getting
back to the Supreme Court case that one of
he things that were concerned about - at
least lJustice Scalia pointed to was how much
evidence time money it takes to vJOrk
thro~gh ~h~s process and it sou~ds like the
yeLl know r the advocacy here is that there
should be more not less
)15 ~JLC1ER There stou1d be
something dore by the government in thi s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
323 RHODE ISLAND AVE NW WASHINGTON DO 20005-3701 wwwnealrgrosuom
26
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
regayd to actually prove a nexus and a
sgnificant nexus ard in this ease I canr
assuye you Judge Wolgast that the l~downer
has go~e above and beyond the oall of duty
going to the Corps time after ti~e having the
Corps ou to tr~e site and having spent talk
about the time and money and investmert having
his case as understand it having spent
over $800 000 in litiga~ion costs to try to
pr-otect what was legal at tl~e time that it was
aone and so -- so there is a burden
The governme1t has the burden aid
in this case in this par~icular case they
failed to meel it I don I t know why I haven [t
been involved that lor~g ~ would speculate
tl1at by the time he Rapanos case cane along
it V~as jlSt too hard to go back and find the
type of probative evidence that would carry
the cay_
I do not necessaily thirk that
its an impossible tas~ There have been ot~er
cases that ve reviewed aihere the goverrUent
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 200)5middot3701 wwwn0a irgfOSSCOI1l
27
bull 1
2
3
4
5
6
7
B
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
has irtroduced evidence of the poundows tr~e
amount of drainage that has occurred how much
water might be taken up by a wetland area$ but
none of that was done in thi s particular case
and again we can only speculated why that
was the case
JDDGE STIN How does tr_s S~xth
Circuit decision in the Cundl f f matter bear on
your view that the -- you need some sort of
laboratocy araysis to prove h~s7
MS ~VILCHER in that
particular easel you dont have as I ~ecall
the -- the disarce roIT a navigable waer
tha t we have here [ and I think the farther you
are away from a navigable water the harder it
is 0 prove tha~ theres any impact on that
navigable water and in this -- again in this
case they are far away from a navigable
water and I think toe reaSC1 tha~ we don
see the p=oof is because its not there itS
not developable and that is why it is not
Cere Did yOl wart De to ~~
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHI-GTO~ DC 20005-3701 w~wnealrgrossoom
28
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
JUDGE STEIN I do wact you to get
the credibility question
MS bull WILCHER I dian t t want to
forget your - shy
JUDGE STEIN No while we we~e on
this topic why cor t t yOJ addres s the
credibility question
MS vILCHER I think its an
important question IC t S a real important
question and that is simply that s even though
the regtllatior~s do provide that typicaily when
the ALJ hears the witnesses and makes
determinations 0 ~~eir credib~~ity that
typically this Board will defer to that
However in this case a carefctl review of the
record shows that the ALJs just got it wrong
and it is within this Boards prerogative to
look at the -- look at t1e factors tha
that the ALJs used in making their
deterninatior and make a judgreJt aboJt
wl1ether those factors are sufficient
A couple of examples There was a
NEAL R GROSS COURT REPORTERS ANa TRANSCRIBERS
~323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701
29
bull 1
2
3
4
5
6
7
8
9
10
11
bull 12
14
15
16
17
18
19
20
21
bull 22
mar who had Iived OT the farm for h~rty years
who testified that he I d walked over the farm
for thir~y years and testified that in fact
Ithe streams J or the drainage di tches were
intermittent in nature and did not carry water
I - 1 h d - a11 th e trre bull e __ t e JU ge ~n tHe QeClS10n
said well I think hes a nice man I think
hes beholden to the Smi ths f and he was just
Ollt or a wa so totally just discounted his
testimony saying he WBS just out on a walkJ
as if that meant t~at somebodywQuldnt no~ice
DGE ~vOGAST ~ Are yot saying
though that it would have to carry water all
tre time
MS vHLCHER No no But but
it f s clearly -- is Eot a navigable water lor
it is adjacent nor is the wetland adjacent to
a navigable water in this case It flows
anything t~at =lows opound= of t~at a~ea that has
been considered to be wetland by the
goverr-Uent flows -rxough drainage ditches
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHIi-GTQI DC 20005-3101
30
bull 1
2
3
4
5
6
7
8
9
0
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
that are only intermittent in nature and
~herefore are ~ot co~sidered to be navigable
watsYs clea~ly urder the Rapanos decison
JUDGE SHEEHAN But if the man
walking the land said that they were
intermittent and youre saying intermittent
doesnt matter
I~S IgtlILCHER Were saying that -shy
Judge Cha~eski as I recall said tha~ there
was a c01tinuOU5 flow of 5088 kind isnt that
-- d~~lt J~dge Char~eski say that
WOLGAST lrJell Justice
Scalia said that even after that -shy
HS WILCHER Right right
JUDGE WOLGASl That that
seasonal flow could establish jurisdiction
~nder the pluralitoes test
148 t-JILCEER BJt there s not beenj
seascnal flow established -=-n this case Yot
have somebody going out there en particular
days after these ditches have been dug which
we all know alter the flow in drainage after
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NoW WASHINGTONOC 2CgtOOS17(l1
31
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
bull
15
16
17
18
19
20
21
22
the eLi tches are dug ftJaer goes to the lowest
level and so theres going to be more water
draining OU= of there t~a~ ~here would have
been in 1998 and 1999 and that -- that is
clear ~tat ~tere is no ev~de~ce ac the time
this was done they were -- they were anything
but inerYlitten and here l s no j1risdictiola1
connection that they have proven to date
JUDGE ~JOLGAST And what do you
think they would have had to have shown to
show seasonal flow
MS ~IILCHER Well they could
have done something more than go out there
nine times over tbe course of a year rrhey
could have had aerial photographs taken Ihey
cod have -- weil first yOl have the uSGS -shy
you have the USGS maps as showing its
inteYrnittent and theres lierally no
testimony en the record right now to show that
theyre anything but interrrdtent Ot-her than
to say that if somebody goes out there ~ine
Cimes and looks at the flow and sees water
NEAL R GROSS COURT REPORTERS AND TRANSCRI8ERS
1m RHODE IstAND AVEgt NW WASHINGTON DC 20QC53701 wwwfumlrgrosscnm
32
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
1~
15
16
17
18
19
20
21
22
then -- agair~1 keeping ir mind this was years
atel 1_8 dainage d=- tches tver-e dtg ha t were
channeling more water into the old one through
seven drainage areas there B nothing tof
establish what was the~e at ~he time in 1998
a~d 1999
JUDGE VlOLG~rST And I think
isnt this what courts are struggling with in
the sense that its -- its one thing to say
~ts ~~ter~itte~tf b~t is that good enough I
mean I dont you have to figure out just how
much flow in you know what period of time
or the idea that -- I dont -- if someoae
says t~at its intermitte~t Irr not sure that
means its ir~ or out without further evidence
MS WILCHER Right Well that
shows really the that shows arguably a
cQnYlecion Bu how rrlcr =ow is going through
there whether sediment loading is going
through there whether theres an ecological
connection through there all these whethers
lead to whether t~e~e is a sig~ificant nex~s
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (Z02 234-4433 WASHINGTON DC 20005middot3701 wwwneaJrgrosscom
33
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
20
21
bull 22
to a navigable water and if you look at some
of the other cases ~here has been that kiLd of
information introduced and in this case there
is none
JUDGE vJOLG1ST hhat case are you
thinking of
MS vJILCiER I thirki1g maybe
t was the Precon case ir - - in the Eastern
District of Virginia Its on appeal in the
Fourth Circuit I may r~ve been ~hat BJt
I 11 be happy to provide some cases -- a case
or cases later on that show the type of
evidence that tas been introdJced because I
remember reading about them and cant think of
the name right now
TlDGE SHEEIiAN I Vant to go back
for a moment to Judge Stein J s question about
credibility
gtIS CLCHER YOS
JUDGE SHEEHAN So ALJ Moran sat
through days and days of testimony on the
bench a lot of pecple ~n ~~at witness chair
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE (sLAND AVE NW (202j 234-4433 WASHINGTON DC 20005middot370~ wlIwnealrgrosSoom
34
bull 1
2
3
4
5
6
7
8
9
1e
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
Hes there hes on he scere hes
~nterpreting the way the witnesses speak and
their basic credibility which you can only do
face to face in that way Wha~ is it about
what happened there that causes you to think
theres sOne way or some reason for as not to
credit the typ~cal deferehce we would extend
There must be some exception here that we ~eed
0 know about for that to happen
MS WLCHER tAJel1 r ard there are
a few facts that I think would be relevant to
your consideration in that case In the first
instance some of these wi~nesses that the ALJ
deter~ined were not credible --Jere stipJlated
as being expert vtitnesses and hat shows at
least sorre level of credibility in the mind of
the government w th regaro to whetJ~er they
were experts in the field
Second some of the criticisms
in one case a criticism that an ALJ made of an
expert wi tness was that he had not beer~ 0 the
site often enocgh yet vith one of the
NEAL R GROSS COURT REPORTERS AND TRANSCruBERS
1323 RHODE ISLAND AVE NW (202 234middot4433 WASHINGTON DC 20005-3701 vwwooalfgrossoom
35
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
gover~ors -~ goverG~entls expert witnesses
that person had been to the site less times
t1an t1e Srith Farms expert witress A1C SO
there is a confounding sense that in this
particular case for whatever reason if the
experts agreed ~ th r~e goverr_rne1t f they were
credible and that if they di~~t they were
not
It just seems highly unlikely that
every single witness iltroduced by Smith
Far~s and Ive had the pleasure of working
wi th Mr Boyd and it lS just I think
statistically urEkely that one could End
that many unmiddotmiddotmiddotcredible witnesses and in thisf
case I do not believe that they were not
credib2e I believe they were as credible ald
as I mentioned in some cases were stipulated
in beirg expert w~t~esses ~~
JUDGE SHEEHAN So you didnt
believe they were
HS WICHER I did not bel ieve
they were not credible so I believed that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
i323 RHODE ISlAND AVE NW WASHINGTON DC 2COO5~701 wwwneairgrOSluvn
36
bull 1
2
3
4
o
6
7
8
9
0
bull
bull 1l
12
13
14
15
16
17
18
19
20
21
22
they were credible And -- and it is sOIEewhat
confoundirg other than to say that the
closest thing that I could figure out was that
if hey supported t~e governments viev tey
were credible and if they did not support the
governments Vlew I they were not
CJDGE trrOGAST But dien f t Judge
Moran find that -- and to generalize ---- that
the witnesses failed to establish that to the
exent t1ere were weta1ds they -lere isolated
by on-hydric soil lasnt that a central part
of his credibility determination
MS ~vILCHER Well trat S O1e of
the findings that Judge Moran made but in
this paricular case keep in mind its not
Smi Parms tha-c has 0 show that there is a
break or a barrier -- its the government who
has to show that the~e is a con~ection
JUDGE liOLGAST Of
understand Right
HS IIILCHER So theres cerainly
pockets of non-hyd~ic soil in tte area and
NEAL R GROSS COURT REPORTERS AlD TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 VJASHINGTON DC 2ltxJ05-lt370i wIIIwhoalrgrosscOfT)
I
37
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
for SOle reaSCl EPA _ ar~d again this is just
ki~d of amazing to me
spent this long on that EPA did not go out
there and do a typical delneaion of the
site and this is something that is cypically
done Its amazing that EPA did not issue a
cease and desist order as soon as t~ey ~~ew
abouc it There are many things that to me
are amazing about this case that quite
frarky I are he easor that I came nere to
argue it Because lIm a strong believer in
protecting the Clean Water Act and in
protec~ing lteta-ds and you mayor may lOot
know from my history I I bear a lot of scars
from having trIown myself in the body of
wetlands protection bac~ in the days ana I
still believe its an important thing to do
But I also believe its important to follow
~~e rule of law and ~n chis case Mr Boyd
made every effort to follow the rule of law
and I bel ieve he did and when it did not work
out tte way that EPA wanted the law to be
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAD AVE NW (202 23+4433 WASHINGTON QC 20005-3701
38
bull 1
2
3
4
5
6
7
8
9
10
bull 11
bull
13
14
15
6
17
18
19
20
21
22
this enforcement action came forward at a
time -- and had they intervened early on i~
t~is case they cou~d have stopped They knew
months before the work was cOITpleted -- hey
knew months before the work was completed that
there was ditching and draining going on
t~ere and trey did no move in quickly to try
to resolve that case ar~d they could have -shy
they could have stopped most of the so called
harm that they are now alleging but chose not
to do so ~~ey dd ~ot do a deineaLion they
did not inroduce proof that this particular
part of property has a significant nexus to
jurisdictional waters of the United States to
a navigable water of the United States I and
thats the reason I~ he~e
JJDGE VJOLGASI I see your time is
expired if theres no other questions
MS WILCHER Thank you
MS S~J~ET~ Good morning You=
Honors My name is Stefania Shaliat and I
represent Region III in this matter
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1$23 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20xl5middot3701 wwwnealrgrosscom
39
bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
~4
15
16
17
18
19
20
bull 2
22
specifically the complainants who are the
division directors for the Environmental
Assessment a1d Irr~ovation Divisio1 and he
vater Protection Division I at EPA Regio11 III
With me at counsel table Id like to
i~troduce DO1la Carner-Tal f who is regulatory
co-msel for the Nc-folk District Army Corps of
Engineers and Karen ~lendelowskl gt who is with
the office of general cour~sel and also we
have a disirglshed g1e8 1$ d lke to
introd~ce -- si~~ing behind me is Dr Dennis
Whigham with the Smithsonian Environmental
Resea=cr Cente- Your Honors responders have
do~e ~~ if I ca~ get in a couple points -- a
good job of obfuscating what are really very I
very simple facts here The simple facts are
hat these are tllelands perfouuiq docurrenced
functions that are delivered to tributaries
These wetlands are adj acent physically
trose trib-ltaries f ard those
tr lbtacies flow to traditiorally navigable
waters to the West 2600 feet away to the
NEAL R GROSS COURT REPORTERS AND TRA~CRIBERS
1323 RHODE ISLAND AVE NW (2D2i 23~4433 WASHINGTON DC 20005middot3701 wwwnsajrgrosscom
40
1bull 2
3
4
5
6
7
8
9
10
bull 1
bull
13
14
5
16
17
18
19
20
21
22
East 4200 feet away In other words the are
wetlands adjacent to tributaries that low
waki1g clstance to tr-adi ional1y navigable
waters These Vetlfu1ds were jurisdictional
under SWANCC as respondent conceded in Clean
~later Act Appeal mmber 05-05 when respondent
reseved argll1snt on jtrisdicto1 but chose
not to raise it un~il there was a change in
case law They continue to be jurisdictional
under any standard enunciated by he Supreme
Court in Rap~~os The qJan~u~ of proof offeree
by the complaina1ts i1 this matter not only
exceeds preponderance of the evidence it
exceeds any quantum of proof required by
Rapanos In fact t far exceeds it Another
thirg that is obscured in the ar9J11ent here by
the respondents is that up until 2007
respondents had a different set of expert
witnesses It las tlose expert witresses that
coroplainalts stipulated 1heir expertise was
in wetlands identification and the connection
of wetlands to waters of the uniced States
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
132-3 FlHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnsalr9rosscom
41
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
bull
~7
18
19
20
21
22
Ihose witnesses largely agee with
complainac1t I s version of the facts on the
ground ae-d i wasnt until 2007 when
respondents hired a new set of expert
witnesses that any real dispute arose about
what exactly was going on in the site There
was dispute about ithat hat nean f but not
exacly what the physical characteristics of
t21e si te ere
J1DGE WOLGAST Counsel coud you
address Ms wilchers points that while there
may be flow moderation carbon sequestration
there may be some evidence that the government
hasnt shmlTI a nexus between those
characterist~cs and the ~avigable waters
vIS SHAME Sure First of alI
the evi6erce of Je fuYlctions beirg performed
on this S1 te is not speculative There are
photo after photo and testimony after
testimony the governments evidence is based
or established scientific literature that
identifies something called field indicators
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwneargI0$$com
42
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
-- physical characteristcs on the ground -shy
that when identified correlate to a specific
functi~n being formed by the wetland In this
case there are three Tr~e first was fow
noderaiou and one of the physical
characteristics thez-e would be such things as
ponding you see a lot of later being
captured in low levels depressional levels
withir the wetland Tle record conta1s dozens
of photos of that The secord is
denitrification and that is the microbes
llptaking nitrogen in the soil That indicator
is something called modelirg i1 he soil It sI
a red spotch Essentially it IEeans that iron
is there That evidence comes not only from
the complainants but if one were to reviel
the soi 18 expert froIT respordent Dr Parkers
O~ I-fr arlter f s firs expe~t repo-t ir
20C3 he describes modeling in his sails The
third is primary production That is the1
contribution of a food source Taking
transforming organics that a2e in the _- in
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
15
16
17
18
19
20
21
22
nature into a food source in water that then
tralsports that food source dowYlsream to
higher trophic organisms The best evidence of
that actually comes from one of respondents
experts Dr Cahoot 1110 photographed it
leaving the site I cant find the photo at
the marneYlt f blt I 11 describe what he says
Foaing a he confluence of the ditch
leaving the property with ditches along the
property boundary near the railroad This foam
vias also sampled and examined microscopically
--- it contained primary plant debris some
peller ald rllnero-lS sma oil droplets These
oil droplets in my opinion were probably
plant oils derived froI decomposition of the
organic matter in this area That description
correlates perfectly with the description in
the testimony in tZ1e remand hearng about what
primary production s the transport of
particulate and dissolved organics downstream
as a food sOJce So the -Jse 0 the -- t~1e
functions this case are not speculative
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot37(11 wwwnoorgrossooTl
44
bull 1
2
3
4
6
7
8
9
10
bull 11
12
13
bull
15
16
17
18
19
20
21
22
theyre clearly being per-formed theyre
clearly being cocC1ented as beir~g perforrred on
this wetland Theres also evidence of the
hydrologic connection between this wetland
the ibuaries and the downst-eam
trad~tionally r~avigable waers Again that
comes both frOIE complainant ~ s experts as well
as some of respondents experts one of
respondent I s experts described tr_at hydrologic
co~nectio3 as such He descrbed the wetland
as a table tcp on which somebody pours water
the water comes off of that table top into
the ditches and then tansports down to the
taditional1y navigable waers The sane
expert lgtIr Wolf also agreed that the
wetlands on the site were in fact
hydrologically conYlected to the di tches wr~ich
forrr tributaries and lJlere n fact adjacs1t to
them So we also have fUTIction ard we have
transport Now with respect to Ms Wilchers
corrment -shy
JUJGE WOLGAS~ is YoDr
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (202) 234-4433 WASHNGrON DC 20005-3701 W1hW1lOalrgros$com
45
bull 1
2
3
4
5
6
7
8
9
0
bull 11
12
13
14
15
16
17
18
19
20
21
22bull
posi tion on the type of evidence that you
need to show nexus of
characteristics you see on site to the
navigable waters
gt1S SHAtvET My positio1 is tha we
met it exactly and I would refer you to
Justice Kennedys opinion Justice Kenledy
ide~tified the type of functions that he would
consider to form a significant nexus
traditional navigable waters and those are
p~ecisely the functions that were identified
on this site Specifically Justice Ker-nedy
refers to slowirg COt-C of surface runoff r
filtration and purification -- that would be
in on 547 US 773 to 75 He sta~es with respect
to weta1ds f the rationale for the Cleal ~fater
Act regulation is as the Corps as recognized
that vetlands can perforrl cri tica2 functioES
re2-ated to the integrity of other waters
functions such as pollutant trapping -- in
other words l denirifcatior~ -- flood control
flow moderation and ruriOff storage
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLA-D AVE NW 2C2 234middot4433 WASHINGTON DC 2COOS-3701
46
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
Ther-efore the types of functions that we
docrraented as beng performed or this site are
precisely the ypes of unctiors tha Jusice
Ken1edy ide1tified J in his opinion as the
type of functions that form a significant
nexus
JUDGE SHEEHAN In in your
brief on page 46 you say that the Kennedy
Test requiEs weta1ds cont-ibutions to the
physical c1emical or biologic in-egrity of
doOrIlstream waters -- is it nor or Hand Your
brief says or
MS SHAMET The brief says II or -shy
JUDGE SHEEHAN Because if it can
De just one of those -shy
SHA4ET I believe Justice
Kennedy did use and however it is c2ear
that he does not require a function to
contribute to all ~hree factors and chats
clear from the function he identifies
JUDGE SHEEHAN Then why did he say
and
NEAL R GROSS COURT REPOATERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWXlMlrgrosSoom
47
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
MS SHAMET I think he said and II
but he had a comraa and a1d he was -eferring
to a list of examples rather than a standard
i1ith respect to Ms Wilchers cormnent that we
dont have any photographs of pltLnes as I
indicatedf one were to trt 0 R Ex 28 f
which llnfortunatey I can f find right now I
ltlhich is Respondent 1 s Exhibit 28 from the
first hearing in 2003 Dr Cahoon provides a
picture of that plume himself I would also
point out that with respect to
denitriication one wouldnt expect to see a
pInrr -- thats the exact point its to hold
Che nitrogen on the wetland -lot send it
downstream
JUDGE STEIN How is the Rapanos
significant nexus test d_fferent if at all
=rom the nexus i~ Rivervew Rverside
Bayview
MS SHAMEl Riverside Bayvie
assumed a nexus based upon adjacencYi in this
case lJustice Kennedy has asked that we
NEAL R GROSS COIJRT REPORTERS AND TRANSCRIBERS
1323 RHODE SLAD AVE NW (202 234-4433 WASHINGTON DC 200OS-3701
48
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
5
6
7
18
19
20
21
22
actually go forward and establish that the
nexus exists rather than simply assuming itI
based On adjacency
JUDGE SHEEHamp~ on page 41 of your
brief you quote some of the tesciroo1Y of the
first ALJ hearing I which sounds a lit~le more
entative to me tha1 youre souidir_g today
about the substa1tial nexus test being met
The brief~ at page 41 reads that these
wetlands are more likely to perform
denitrification more likely to allow for
suspended settlements -- sediments to settle
out~ more likely to support a different suite
of wildlife species that to me is
lar-guage ~rats ~ot qui~e as powerful as
saying there is a substantial nexus met here
that just sounds -- can yo~ address what seems
to be more diffident language in your brief
than what youre articulating today
MS SHAMET Well as Your Honor
pointed out T the language that you pointed to
in the brief is from the 2003 hearing before
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005middot3701
49
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
tr~e Rapanos case As the Board is avlare J he
EPP~ agreed and argued that the evidence to
satisfy Rapanos had not been fl11y developed
as of 2003 and this precisely why we
requested a remand
JUDGE SHEEHAN But youre cit i ng
it here filed long after Rapanos as if its
still your position
MS SHAME~ I cited a lot of other
evidence as lJell Your Honor incLuding the
testimory of Mr Rhodes he testi~cny of Dr
~fhigham and the testimony the f1Tther
estimony of Hr Mart So while that is a
piece of evidence it is certainly not the
only evidence cited in our brief
JUDGE WOLGAS~ ~o go back to the
point you were making earlier about how the -shy
in essence the three-part test is the same
type of evidence yo~ would look to to
establish sign~ficant nexus ard Justice
Kernedy did seer to speak to hat saying much
the sarre evidence I referring to tre Corps ssect
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NOTQt-J DC 20005middot3701 wwwJ1oalrgrossoom
50
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
4
15
16
17
18
19
20
21
22
delineation manual type evidence should
P8nnit the establishment of a significant
nexus witr navigable wates
particularly if supplemented by further
ev~dence abou~ the significance of the
tributaries to which the wetlands are
cO11ected How does the gove-nment interpret
the latter part of that quote
MS SILllltlECmiddot I think that the
government needs to show and has shown in
this case that there is an ability of those
trihttayies Co conect the wetlands to a
traditionally navigable water in such a way
that the poundtnctions are delivered In this case
we have certainly shown the hydrologic
cO1nect=-o1 some of respondents expe-ts have
agreed with us that that connection exists and
tha there is sufic8Ylt ~hat there is
water exchange there and weve also shown
that heres proxirrity here again these are
walking distance to traditionally navigable
waters this is not the Rapanos case where it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW (2)2) 234-4433 WASHINGTON 0 C 20005-3701 wwwmalrgrossoom
51
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
bull
9
20
21
22
traveled 32 miles So we think we have met
that burden here by sho~Jing the hydrologic
connection and showing that these tributaries
are capable of delivering the function With
respect to cr-edibi=-ity and he points that
Your HOlors asked of AS Wilcher I would just
point out tha~ lTudge lvlorans credibility
determination was based on demeanor and also
on the facts of this case An important fact
to note for insta11ce is in the firstF
r~earing in 2003 respondent I s soils exper
who laid a g=id fOJnc 53 ou 55 sarnples
hydric The only two that were non-hydric had
JUDGE STEIN I couldnt hear you
MS SHApoundT Had 53 Oelt of 55 soil
sa~ples he identified as hydric in the site
soEs or ei ther side In the secord heaocilg
Dr Pierce testified that there was
essentially non-hydric soils everywhere And
on cross-examination he was asked didn t youI
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
~32S RHODE ISLAND AVE bull NW (202) 234-4433- WASHINGTON DC 20005-3701 wwwnampalr~roS$oom
bull 1
2
3
4
5
6
7
8
9
lO
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
52
find any hydric soils and he said oc yeah
I found them I just didnt click on my GS
locator and ider~tify where they were and I
just didn It report them He only reported the
non-hydric soEs That is the kind of thing
that happened that caused Jtdge l-loran 0 find
a lack of c-edibility vvlth respect to 9r
Straw Dr Straws expert report disc1ssed
undulations in the landscape that he
interpreted to mean ere were no wetlands
tlere On the sand he conceded trat there
were no u1dulaions on tr~e landscape -- he had
mis~nterpreted the aeria= photo More
importantly he conceded ~hat he knew about
ha t erroy before the hearing and leverf
corrected it until cross-exa~ination Judge
Moran had ample basis for finding no
credibility on those witnesses
JUDGE SEIN Is it your view tha~
the Board has no authority to overrale an
ALJs credibility determination
MS SHAl-1ET No YOJr Honor the
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW 2(2) 2S4~44S3 WASHINGTON DC 20005-37Q1 wwwnealrrosscom
53
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
Board reviews he case de novo lffuile the
Board certainly defer to the ALJ r s credibili ty
determination what I run saying that in this
case t~ere is no basis for overturn~~g it
JUDGE STEIl If we were to
overturn it -- a credibility determination
what kinds of factors r it your view s1ould 18
be taking into aCCo4nt
MS S~~~ET I would think you
oelld be looking to see whether or not the ALJ
has a rational basis oh gosh I hate to use
legal standards like that -- but some sort of
bass or hich he based his credibiliy
deerrtination that he explained why there was
a lack of credibility and I think in this
case he did so amply
JUDGE SHEEHAJ If Ms v~i 1 cher S
correct characterizing the way testimony
cedibclity went i soanced almost like a
hundred percent credit to government
witnesses and practically zero to
respondens witnesses f tratg acctrate
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHIIGTON DC 20oo5-S701 wtlwnealrgrosscom
54
bull 1
2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
jus stipulat-=-ng 0 trat assumption - - if
t~atfs accu~ate would that be a basis fer not
allcwing deerence to Jdge Morans
credibility determinations if its so
lopsided
ocs SH_~ET In this case I would
say no just simply because in this case we
have a classic battle of the experts I but
oddly enough the ba~~ling experts are al on
respondents side And )hat we have are
experts whD ~estif~ed in 2007 who flat
disagreed wit the testimony of respordent S
experts in 2003 without any atterrpt by the
2007 experts or respondents to reconcie
that testiITony Given that circumstance it sf
not surp-isirg that the experts in 2007 s
testimony were given very litte weight One
of the things that Hs ltJilcher referred 0 was
unfettered access to the site If anyone had
u~fettered access to the site~ it was
respondent and yet there are no photos in the
record showing the streaL~S leaving the site
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1m RHODE ISLAND AVE NW WASHINGTON DC 20005-370 WWJneargromuom
55
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 1
12
13
14
5
16
17
18
19
20
21
22
dry except during a drought
JUDGE VOLGAST But her point was
tha t the goverrunert ~as the bmiddoturden here
MS SHlHEI And the burden -- he
government has met the burden In fact in
this case the preponderance 0 the evidence
literally the only evidence other than
testirrony by the site owner testimony by
someone who walks around a three-hu1dred-acre
site hunting and looki1g for damage in che
fieds which lS what he estified he was
doing there and photographs taken during a
d--ought he oV9rtlhe=Iilg evidence is that the
waters do flow on a regular basis First of
all these waers have been napped the
waters leaving the site -- as flovving water by
USGS for hal f a century
JUDGE vIOLGAST Yo mentioned that
the waters flow on a regular basis Is that a
conir~uols bas~s
MS SHAMET We would say it would
be part of every year Your Honor
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHOOE ISLAND AVE NW (202) 2-34-4433 WASHIGTO DC 20OC5middot3701 wwwnaalr9rosU~F)
56
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
3
14
15
16
17
18
19
20
21
22
JUDGE SHEEHAJ Tlen W1Y 18 that
necessarily continual The Scalia Test now
that veve 901e to continual flow is jilst
that -- there has to be continual flow He
says even the least significant of the lake
river ocealS or streams the four water
bodies the least significant steams has to
have COlticua you
repeatedly say - make other instances that
are to me a lot less cor~fdent t1~an what
Scalia seems to deilland You say page 31 the
drains flow at least part of every yeari page
35 at least SOme portion of every year at
least at least at least it comes up
repeated-ly in YOlr brief vlhich couid be just
one rain event So theres one rain at least
it flows one or two days after the rain aod
thats certainly a far cry I would argue
from continual So can you address the seeming
gap between your statemen~s and what Scalia
seems to demand as far as continual flow
~S SHk1ET Ie would state that
Your
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE NW WASHI~GTO~ DC 200053701 wwwnealrgrOS5x~m
57
bull 1
2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
17
18
19
20
21
bull 22
Justice Sca~ia described re1ativey permanent
wateYs He made pretty clear wrat teose were
He did~t require any specific n~~er of days
of flow -- what he did say was common sense
and common usage distinguished between a wash
and a seasoral river and tha f s in foot1ote
five respondent likes to use the term
intermitten~ a lot but the one thing it is
clear from footnote 5 is that Justice Scalia
does not give the term intermittent any
ocegulatoY import trJhy Because he
specifically decli~ed ~o define it
JUDGE SHEEHAN Why doesnt he give
it regulatory import when at least seven
tirres by ely count in his opinion he says
iEtermi tent waters do not cca11 fy as
jurisdictional -- he even calls it an oxymQron
ac one point
~S SHAMET Even though he does
not -- he declines ~o defihe it He says that
thee are defiritions 0 nterrnttent bu he
sees 10 reason to identify what tlose are
NEAL R GROSS COURT REPORTERS AND TRANSCFlIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-370 wwwnealrgOS$0011
58
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
here I and then he specifically says I We have
no occasion in this litigation to decide
exacty whe1 he cryirg up of a streambed is
continuous and frequent enough to disqualify
tle channel as a water 0 the Cnited States
~jUDGE SHEEI-IAN I know we can t -shy
aobody knows what intermitter~t meaJs with
aOsol~te rigor thas obviously subject to
interpretation But the fact is he
contlnmiddotually rejects intermitten~ waters
whatever that Ireans as jurisdictional a1d
you say intermittent doesnt matter I dont
know how yot can say lat in the face cf al
his statements that intermittent does w~tter
HS SHAMET I think the evidence
dernorstrates pretty clearly that ther-e is
regular flow on a regular basis in these
wateTs A good exaTIple
JUDGE SHEEH1ll~ Im not talking
about the eviderce 1lT talking about the
standard
MS SHAIjET The standard lS that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISlAND AVE 1)11 (2C2) 234-4433 WASHINGTONDC_ 20005middot3101
59
bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
9
20
21
22
there has to be a relatvely pe-mar_ent tvater
It cant be a wash it cant be someLhing that
flows only occasionally only in response co
a very strong rainfall i~ cant be a gutter
It has to be a geographic feature ~~d in this
case we have USGS mapping these as geographic
features conainng Vlaer for over ffty
years which if thatis not relatively
permanent I In not qui te sure what would be
JUDGE SHEEHAN C-ne1 how else - shy
why else -- why is it that you cannot muster
more behind your argument that these are
lowing dyains tha1 just saying at least part
of the year continually You never say its
continual you never say its relatively
permanert ane not interrrittert you seem to
stay away from saying that and it seems
purposeful because it happens so frequently
1 S SHAHET ~J e dont
over~exaggerate our evidence we say what it
is And in this case what we r re saying is Ie
agree hsse styeams dry up for part of ~he
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE IBLAND AVE NW WASHIIGTO DC 20005-3701 wmiddot-nealrgrosScom
60
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
5
16
17
18
19
20
21
bull 22
year VJe f ve never argued that these were
perennial streams because theyre not They
are streams that only flow for part of the
year But part of the year is good enough
1nder Jtstice Scalia f s test These are rot
washes theyre ~ot t ckles When they flow
t1ey flow As Jlldge Mo-an pointed out I the
record is replete wi th photos of these streams
flowing and floling wi th a good arnount ofI
water them Now for exanpJe -shy
JUDGE SHEEHlll Flowing at least
part of the year right
MS SHAME~ Flowirg at least part
of the year If I could get the photo up An
example is ~his series of photos~ if we can
get it up If not Ill jus give tre exhibit
numbers Not a perfect picture This photo was
taken in December 2006 As you can see
theres visible flow in the stream A1d this
is Complainants Exhibit 328 co~plai~ants
Ex-hibit 308 - sarre sreart same location you
can tell by the cross January 07 J still
NEAL R GROSS COURT REPORTERS AND TPANSCRIBERS
~323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701
61
1bull 2
3
4
5
6
7
8
9
10
bull 1
12
13
14
15
16
17
bull
18
19
20
21
22
lt- Low~ng
JUDGE SHEElI1N ~Iha t does tha t
realy prove YOJ cOl-=d go out right after a
rain as apparently happenedi apparently Dr
Whigham went out afte rain irw 07 ard Judge
Moran noted that he was out two days after a
big rain so naturally the drains were full
DJ showing us occasiQral ~-
IS SHAlyenjET If you can show four
sraight lonths of floN f think youre
probaby doing pretty good This is O1e of
respondent I S exhibits This is Dr Straws
photo ta~er_ in February 2007 This s
Respondents Exhibit 57pp
JUDGE VJOLGASI I (IT sory 1 whose
testimony was ~his
MS SHAMET Dr Straws The other
~h~ng that is documeGted -- Im just going to
go ahead and give you April April 2007 still
flow This is Complainants Exhibit 391 and
just ia case were llorried about March e
dont have March 2007 we have March 2003
NEAL R GROSS COURT REPORTERS AND TRANSCRJBEAS
1m RHODE ISlAND AVE NW 202) 234-4433 WASHINGTONOO 20005-3701
62
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
6
17
18
19
20
21
22
JIDGE SHEEHAN What drain is that
MS SHAMET This is Complainants
Exhibit 102L
JUDGE SHEEHAN What drain
MS SHAMET This is the portion of
drait six- seven as it leaves the si-se
crosses unde~~ea~h the railroad tracks to che
west and leaves the site We would also noce
chat in che 2003 hearing it was established
ard Judge ChaYlJeski acc6ped ordinary hig
watermark for the duration of the streams
leaving the site from the time they leave the
site cntil the time they wa~king distance
away hit traditionally navigable waters Now
whIle Justice Scalia said that existence of an
ordinary high waternark in and of itself does
not estabJish jurisdicion it does remair a
fact on the ground that shows the preseTlce of
f~c~J O-1r b~ief did cite in a footnote a
number of cases that describe what an ordinary
high water mark means and what it basically
means is that theres water there on enoJgh
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-$701 wwwnoargrosscom
63
bull 1
2
3
4
z
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
c9
20
21
22
of a regular basis that theres no
vegetation and Dr Straw in poirtig at that
photo 57pp poined out that there was an
ordinary high watermark there e believe that
we 1ave s~ovm t2lougt t~1at eviderce as well is
that theres a regularity of flow through
these water bodies tJi th respect to Ms
~iilcher f s suprise that EA did not issue a
cease and desist order we in fact did we
issued an admif~istrative order n 2000 I
doat have the record citatio~ with me bu~ I
believe it was testified to in the 2003
tearilg In addi tion tlith respec 0 YIs
Wilchers conunent that EPA knew about the
operation before it was completed and didnt
intervere ~rat is also not correct In Culy
of 1999 EPA contacted respondent and
requested a site visit A- that time the work
was not done l6 site visit was scheduled in
-- they did the scheduling In July and the
visit was schedJled in September and in
August respor~dent brought equipment to the
NEAL R GROSS COURT REPORTERS AND TAPNSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
64
bull 1
2
3
4
5
6
7
8
9
10
bull ~1
13
14
15
15
7
18
19
2 G
21
bull 22
site and finished it up to present EPA with a
fai t accompli Couple other points There I s
bee~ a ~w~er of debates i~ t~e b~ie= about
briefs about whether or not there are in
fact wetlands on the sice and whether or not
they extend all the way to the tributaries
First of all ~othi~g in Rapanos altered the
EEe~gy and Water Developmert Appropriations
Act of 1993 Public Law 102377 106 Statutory
at Large 1315 in which Congress directed the
Corps of Eng~leers to use t~e 1987 wetlands
delineation nanual until a replacement manual
was established the courts have
recognized deference to the Corpss 1987
manual as the agencys interpretation of its
OvT regulatiors That manual was applied in
this case That manual when applied in this
case identifies wetlands throughout the site
JUDGE SHEEHAN A~e these -- are
these wetlands these draircs are tl_ey fed by
a1Y other source than rain
MS SHAMET No Your Honor These
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NJ (202) 2-34-4433 WASHIt-GTO~ DC 20005-3701
65
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
wetlands are what are called the top of the
watershed and this is why water flows in two
directions off of this site -- it flows both
west and east because its at the top of the
watershed
JUDGE SHEEHAN So any water on the
site its all rain-fed
MS SHAMET Yes The seasonality
of it however I can be established through
testimony regarding how the plants on this
site interact with that precipitation And
that testimony discusses the relationship
between whats called leap out and
transpiration In other words when the leaves
are on the trees the trees are uptaking water
from the ground -- from the groundwater table
and the groundwater table decreases and
thats why you see lower levels of water in
the summer During the winter when the leaves
are off the trees the trees are not
transpiring yet -- the water table rises and
thats why these are seasonally flowing
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrosscom
66
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
7
8
bull 20
21
22
s~reams and seasoca~ systems
JUDGE SHEEHAN Is there any
testirtony in the record abott the frequency of
the rain If rain is it is the source is
rain something on this property that occurs
f if -y times a year I a hundred t iITes a year t
two ~ines a year
MS SHAME= YOur Honor the
2003 record I believe there was an exhibit
and I apologize that I canZt name the exhibit
number for you right now that idenifies what
a one year storm is f what a three year stOrIT
is~ and l-lha a five year storm is in that
county and I apologize that I cant come up
with the exhibit number for you right now
JUDGE SHEEHAN vlell whats your
recolecion about it irhat it says eve if we
dont know the exhibit right now 111 just
trying to get a bead on how -- whether its
typically dry or typically wet there With
rain
MS SHAI-fET Your Hono f I cant
NEAL R GROSS COURT REPORTERS AND TRANSCAlBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005-3701 wwwnoalrgrossoom
67
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
~7
8
19
20
21
22
recall I believe its under a~ inch -- around
a~ inch bu~ ca~t say foy su~e I look at
a lot of these for a let opound dipoundfeent areas
and I don~t want to get one mixed up with the
other
JUDGE ~]OGAST vTose testimony
we6 you reerrlg to gtThen you were discusslg
seasonality
MS SHAMET That was testimony of
Mr Martin It is at Remand Transcript 1912
~~d Rema~d Transcript 354
JUDGE STEI f he Board we~e to
conclude tha the evidence in this case meets
the Kennedy est is it necessary for theI
Board to consider whether the evidence meets
the plurality test
18 8HAMET Its the posiio1 of
EPA hat satisfying either test will establish
geographic jurisdiction under the Clean Water
Act As the Board noted all courts that have
so held have held tha~ if one meets re
Kennedy Tests then t~ats satised Ir
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 WWWnealrgros$corn
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
14
15
16
17
8
19
20
21
bull 22
68
a~swer actually to one of your questions I
1think Judge Steir there is one case It S an
unreported case out of the District of Hawaii
that has held that the Kennedy Test is lircited
to isolated waters and hat Y0l otherwise
apply to Scalia Test and that is Sierra vs
COJ1ty of Honolulu 2008 us Distcict EX=S
64262 1 and we would just note that that case
is inconsistent with the governing circuit
lali ts tle 9h Circuit and we believe its
inconsistent with Headlesburg and Moses but
you did ask lthether there was any case that
discussed he Sca=--~a test and that is the
only one at least Im aware of To answer
your question we believe t11at satisfying the
Kennedy Iest wOll-~d be sufficient and it would
not be necessary to reach the Scalia Test i
however we do beLeve thas weve satisfied
boh in this case and that ei ther test will do
it All through
JUDGE SHEEHAN Can you poi~t us iL
the record to what may not be a gap but it
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHGTON DC 20005middot3701
69
1bull 2
3
4
~
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
looks like a bit of a gap at least from the
briefs There I s a lot of testimony -- a lot of
discussion in your brief about the history
the history on the site water on the site
for exa~pe a 1953 p~cto s~ows di~ch O~e had
water I a 1937 photo one two and four had
water 1920 f USGS map had five -- ditch five
had water And then so we leap from sixty f
seventy years ago to the present decade
oegirning in 1999 middotJ~el a buner of inspectio1B
occurred mainly in 99 I and there was some
hopscotching and then they e~ded in 2007 So
he~e --- at least from the bries treres a
fairly big gap between the very very historic
taps and photos I and then ~he 1999-on
inspections and That they showed What about
the intervening
HS SHlIiCET - believe tha~ we also
discussed the USGS maps in 1994 which were
the most recent maps prior to activity As
YOUY HO1ort s aware from the Boards decisio1
in Bricks its inCUInbent upon us to show what
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 WVWnealrgrossoom
70
bull 1
2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
2C
21
22
the wates Jere lLlte before the activity f not
after the activity
JUDGE SHEE~~ Right bue the
before here is well before Thats my
~estion I dont see much except for that 94
map
MS SHAMET 1Ind we also used
aeria photography from 1994 and 1995 to
suppla--nent rphere I S been nO evidence in the
record that anything changed between 1994 and
1995 and the acivity in question which
started in I believe December of 98 or
Jaluary cf 1999 Ane I believe responcerts
agreed on the western side of the site in
their expert reper that the configuration
has been co~sistent si~ce 1949 up until the
time of the activity If there are any further
quest iors I woud jus smnnarize again by
pointing out that the facts this case are
veoy very siltple Ttese are wetlands theyre
clearly docJmented as wetlands the
preponderance of the evidence established the~
NEAL R GROSS COURT REPORTERS AND TRANSCfUBERS
323 RHODE ISlAND AVE NW (202) 234-4433 WASHINGTON DC 2OOflS3701
71
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
as wetlands The preponderance of evidence -shy
tle overwhelming preponderance of the evidence
established that Chese wetlands are
performing actual documented functions The
very significant nexlJS that Justice Kennedy
described in h~s opinion The evidence in this
case shows that these wetlands are physically
adjacent to tributaries These are ditches
they are rranmade bu~ wo~d ~ust note that
iJ Ra9a~os itself the ditches were manmade
and no justices voted about that They flow
waking dista1ce to tradi tionally r~avigable
waters and 7hey are jllrisdictional Thank
you
MS v-JILCHER May it please the
cOJgt IrJClnt to t~lank couJsel for -aising the
tabletop analogy necause I forgot to This is
at a divide It is twenty feet above sea
level It 8 a watersted divde lke he
cortinental divide such hat water is flowirg
away it is not at the bottom of anything It
is nQ a marsh it is EDt a bog it is Lot a
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE bull Jw WASHINGTON DC 20005middot3701 WWNneaJrgrosscom
72
bull 1
2
3
4
)
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
swarrcp i1-is is ar~ area where there is no
abili ty for the fJetland to capture and keep
pollutants out of a Y1avigable water because it
lrsef is a the very head of the watershed
And so trying 0 -- f you Jere able to be
there and see that~ you woald understand that
its not got the same type of functions and
values as some area ad) aca1t to below I
cach1g f pYEvertng po=-l-ltion cori1g frou a
10 of upstream areas While thats not
parricularly significant
JUDGE SHEEHIlll Havent yo just
helped ma~e te argumelOt that with gravity
lorking as it 60es any discharge of a
po1hltant up high wotld have made its way dOlJID
low f to a navigable water
MS WILCHER Yes so this is not
a rrounanols area fh=-s is a very slight
slope 11 fact to the naked eye it s almostt
hard to see a slope
JUDGE SHEEHAN Why does flow
matter as significant ~exus goes
NEAL R GROSS COURT REPORTERS AND TRASSCRBEA$
1323 RHODE ISlAND AVE NW (202) 23middotH433 WASHINGTON DC 20005middot3101
73
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
HS VrJCHER We11 the amount of
rur~offf qJie fr-ankly r~at would occur can
matte w~th regacd to that I do want 0
address a few absolutely incorrect things that
were stated and a couple misconceptions Let
me start with the mischaracterization of the
axpert witnesses that were hired in 2007
There seems to be some attempt to imply that
hiri1g differe1t expert witnesses to deal with
wtether this is ju-iscicto1al under Rapanos
is the same as having expert witnesses to
testify whether or not this area met the
former -- the actual definition of a wetland
Theyre two different things You can have a
wetland and it ca1 still not be
jClrisd~ctional So itS our hope that the
Board doesnt misconstrue that to say that by
hiring different fgtxperts you were trying to
get a different result which was not the case
-- its simply that if youre looking at how
much flow what the funcions of values ar-e
its a very differert thing fran sorteone who
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE Nw (202) 234-4433 WASHINGTON DC 20005-3701 wwwnea1rgrosscom
74
bull 1
2
3
4
6
7
8
9
10
bull 1~
12
13
14
15
16
17
18
19
20
21
bull 22
caL go ou~ a~d do the soil samples to
determine whats hydric and whats not
Seco~d jus~ as with regard to the
credibility of the witnesses just as there
were some -- a case perhaps whee ac-I expert
witness misstated something or changed its
rnird 1 so did some of the government I s expert
wi tnesses misstate something that then had to
be co-ected So did the brief that said
that took the word and and changed it to
Or witr regard to what Justice Kennedy hadI
written So I dont think that that in and of
itself has any significarce wi th regard to the
credibility of a witness tihen we are talking
abcu lGVJ fa this land is from a navigable
water counsel has mentioned that it S 2600I I
feet middotrhich is about half a mile or 4200
feet which is close to a mile -- thats not
to reac-t a navigabe water Let us be clear
That is to reach something that is not
necessarily an intermittent area4 EPA
stipulated l the stipulations dated
NEAL R GROSS COURT AEPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE ~w WASHINGTON DC 20005-3701
75
1bull 2
3
4
5
6
7
8
9
10
bull
bull 11
12
13
14
15
16
17
8
19
20
21
22
Septewer 8th 03 that the water body
depicted and ]i5 is nurrbers 37 and 38 that
the water bodies depicted as these drainage
ditches on the site are depicted by the USGS
topa rEap at the 3allary Hill (Phonetic)
quadrangle as a broken blue line and that a
broken bae line denotes an irtermi ttent
stream These are intermittent streams ard as
Justice Sheehan has correctly noted Judge
Scalia says n mary circ1JIstarces that
intermittent streams are not jurisdictional
waters of the U S HmAever if we tun to irlhat
Custice Kennedy says thats rhece we kind of
get into the eitheror what we also find
there is a great discussion by Justice Kennedy
loiClself on 1e Ccrps definition of a
tributary Counsel was referring to the
drainage ditches as t-ibutaries ard Justice
Kennedy makes it c~ear that the corps
definition of tributary that was in effect at
tr~e time this decision was -rritter middotJsing he
high watermark was not appropriate I and would
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW WASHINGTON DC 20005-3701 wwwnealrgrossoom
76
bull 1
2
bull
bull
3
4
5
6
7
8
9
10
11
12
13
14
15
16
7
_8
19
20
21
22
lead in fact to too broad a definition of what
was jurisdictional i~ and of itsef under the
Clean Water Act And theres we dont have
time to read it all but Im sure youve
probably ead it more tirres t~an have
aryay iled also jtst lke to mention tha
qui te frankly the evidence that has been
introduced in this case is the type of
evidence the Cour was r~opng would not be
Csedo prove jurisdictior on such an
important issue and that is its speculative
Its not -- were not arguing that wetlands
arent irrportart J we arent arguing that
wetlands aralt valuabe anc you know in
1990 wed say regulate because we had the
legal authority to do so This again is one
of tlese cases t1at sirrply wishing that 1_e
Q C d h dfe I~upreree o~r~ naa sal some ~~g 1 ~eren~ y
does not make it so This is what the Court
said -- thats the final word on the mater
whatever we decide ~t is bu it S tre firai
word and we c~~t change that regardless ofl
NEAL R GROSS COURT REPORTERS AND TRA-SCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 200)5-370~ wwwnealrgrolllccm
77
1bull 2
3
4
5
6
7
8
9
10
bull 11
12
15
16
17
18
9
20
2
bull 22
how mportant or ho wrong someone may think
that it auld be To other quick points to
mention and that is EPA knew about this work
that was going on in February of 1999 and
that is in Jeff Lapps testimony tn Volume 1
page 167 through 169 so EA did kno Most of
t~e woyk was completed by Aprii or May of that
year before EPA every CaIne out to the site
and it wasnt until 2000 chat a notice of
violation was issued
JUDGE SHEEHamp1 So why does that
matte- That is an enforcement choice EPA makes
every day of the week and its not part of
the record i~ has nothing to do with whether
or not the Kennedy or Scalia or any other test
was met It really doesnt seem to bear on the
legal issues here
11S vIILCHER Fair enough For
purpose of ~his arg~~e~tl for t~e pur~ose of
today youre probaDly right J-luge But i~
does matcer if were talking about typical
practice of EPA and while Im well aware that
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234middot4433 WASHINGTON DC 20005middot3701 wwwooalrgrO$$oom
78
bull 1
2
3
4
5
6
7
8
9
10
bull 11
12
13
14
15
16
17
18
19
20
21
bull 22
theres no requirement to take an enforcemer-t
action in a1ything less trar this period of
statute of limitations if in fact this was as
egregious and as violative and as problematic
as counsel appears to make it seem then EPA
did have every opportlli~ity to stOy that and
in ITany many cases vlhen EP1 sees a clear
violation of the law I they simply issues a
cease and desist order and in a case like
Rapanos in the Rapacos case you have people
who are going out anc taking action and
violating the wetlands law after theyve
received many state and federal cease and
desis orders so the facts of this case are
so di==ere~t from the facts of tha~ case Here
we have someone who was trying to comply with
the law as it was written at the time in my
view he was complying with the law as it was
wri ten at tlat time actG the fact tha EPA
didnt like ~he way the law was written and
what it said and what the courts were
deciding does not give hem authority to come
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASH1NGTON DC 20005middot3701 wwwnealrgrosscom
79
1bull 2
3
4
5
6
7
8
9
1Q
bull
bull 11
12
13
14
15
16
17
18
19
20
21
22
in and regulate after the fact
JUDGE WOLGAST Counsel thank you
youre Olt of if you could make your
final point n just r~e next thirty secords J
I think you saie you had two I may be
mistaken
MS WILCHER Thank you Well we
are talkirg about jurisdictio1 I do think
tha tte overall =-ssJe of equity cotes i1to
play Ar~d knowing -- even krowing what the
jurisdiction was at the time of the activities
undertaken is really kind of an unc I Qar
matter Were still struggling with what
j Clrisdict iOI is Re9rettably toat s always
been t~e problem with this program
problem Igtli th this progral7l is that Corgress did
not give us clear direction and clear guidance
to either EPA or to the Boyds or to anyone
else in the regulative corrmlUnity and I t-hink
that s a factor certainly that the court Iblil
consider ard should corsder I when making a
decision on issues of liability and in this
NEAL R GROSS COURT REPORTERS AND tRANSCRIBERS
~323 RHODE ISLAND AVE NW i202 234-4433 WASHINGTON DC roooS-3701 WWWlI$alrgmssOOffl
80
1bull 2
3
4
5
6
7
8
9
10
bull 12
13
14
15
16
bull
18
19
20
21
22
case we would ask that you do so Thank you
J1DGE voLGAST Thank YOJ Cours
thank yOJ for your arguUent and the case is
now submitted
MS DURR All rise Session of the
Environmenta Appeals Board nmv stands
adjourned
(Whereupon the above-entitled
matter was concluded at 11 16 am)
NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS
1323 RHODE ISLAND AVE NW (202) 234-4433 WASHINGTON DC 20005-3701 wwwnealrgrossoom
bull
bull
_shy
A -
ability 5011 722 able 725 above-entitled 1 17
808 absent 224 absolute 588 absolutely 213
734 abundant 1221 abutting 3920 accepted 62 10 access 20 16 5419
5420 accompli 642 account 538 accurate 5322
542 Act710 1020
111715193712 4064517649 6720763
action 615 381 78211
activities 79 11
7021117 actual 169 714
7313 adapted 69 addition 6313 additional 820 address 9 14 1111
122 167 2S6 411148175619 734
adjacency 6 11 2284721483
adjacent 29 1818 39194024418 718728
adjourned 807 administrative
1136310 adopted 71 advocacy 25 19 aeria131155213
activity 6920 70 1 bull
Page 81
708 aerials 205 affect 166 agencies 11 A Agency 12 21315
35613 agencys 6415 ago 699 agree9212014
4115922 agreed 356 44 15
4925017 7014 ahead 1110 6119 air 1319 ALJ 14412 2812
3320341320 4865310
ALJs 1016 2816 2819
ALJs 14910 5221 532
allegations 241 alleging 38 10 allow4S11 allowed 3 11 allowing 543 alter 3022 altered 647 amazing213372
3769 amount 272 609
731 ample 5217 amply 5316 analogy7117 analysis 1832710 Anna 12139 answer 819 681
6814 anticipated 5 17 anyway 766 apologize 661 014 apparently 61 44 appeal 18 37143
339406 Appeals 11 21 22
12333806
APPEARANCES 21
appears 11 12 785 application 98 applications 22 12 applied 1511
641617 apply 96 101014
158686 applying 15 10 appropriate 9 13
7522 Appropriations
648 April 61 1919777 Arch216 area 1018174
27329203622 4316721818 73127421
areas 58 324 673 7210
arguably 32 17 argue371156IS argued 492 60 1 argues 201 arguing 76 12 13 argument 14 36
31720109 11121216137 1912240716 591272137719 SO3
arguments 137 157
Army 510397 arose415 articulating 48 19 asked 511 4722
51622 asking2116 aspects 192 Assessment 393 assume 721 22 18 assumed4721 assuming 9 16 482 assumption 54 1
back5522 1415 18917219 25142617 3316 37164916
Bailey 1710 Ballary 755 barrier 3617 based2114228
41204721483 5185313
basic 343 basically 6221 basis 2275217
5341113542 551419205817 631
battle 548 battling 549 bay 1310 1422
163 Bayview 610 4719
4720 bead 6619 bear27S 3714
7716 began 59 beginning6910 Behalf2213 beholden 298 believe 717 1015
10161211208 201415351516
Neal R Gross amp Co Inc 202-234-4433
352021371718 37214616634 6312669671 6SIO15186918 701213
believed 3522 believer 37 11 bench 3322 best433 beyond612264 big 1116176914 bioiogical185
24124610 bird 73 bit 69 I blue 179 7567 board 1134 421
910 147248 28144915220 5312671215 67207317 806
Boards31449 541462817 6921
bodies 567637 753
body3715751 bog7122 bottom 7121 boundary4310 Bowling 210 Box29 Boyd 2214612
416510 3512 3719
Boyds 7918 branch 171317 break 1315 3617 breath 22 10 breeze 13 18 Bricks 6922 brief 117713
19134681213 48591822 491556815 6219643693 749
assure 263 atmospheric 13 13 attempt 54 13 738 attention 54 attributes 19414 August 6322 authority 5220
76167822 Avenue 115 avoid 2212 aware4916814
6921 7722 am 117 32 809
B
-----
Page 82
bull briefly 54 5314165467 4012204216 constructed 57circuit 814 278 briefs 644 69213 contacted 51055659621 33 10 68910 complainants 412 broad 72 76 1 6121641718 447602020 6317circuits 10 1013 broken 1317 756 6713 6823812 circumstance 6120622 contained 4312
757 completed 3845 containing 59768197019717 5415 brought 63 22 7319745768 contains 429circumstances 621 6315777 Building 114 context 1214789101415 7510 comply 7816 bunch 6910 continental 71 208013 complying 78 18citation 63 11 burden 22 17 continual 56234cases 2472622 cite 62 19 conceded 405
2421 2538 33211123517 521114 56819215915cited211149915 261112512 continually 58 1 0 62207617787 citing 496 concerned 2515 55345 catching 729 concerning 5 1213 5914clarify 78
business 113 continue 409cause 15161918 classic 548 conclude 67 13 --- _shy caused 526 concluded 809 continuous 1610Clean 7101019
C 3010 5520 584 causes 345 111715193712 conditions 69 Cahoon435479 cease 377639 contribute 46 19 40545166719 confer411 calculations 24 11 contribution 422178913 confers 719763 call 54 264 contributions 469ce1l310 confident 56 10 clear 93 177315 called 41 22 4213 control 4521Center 39 13 4617205729 configuration
65113 conversation 52central 36 11 701574197519787 calls 5717 Corps 51013 619 century 5517 791717 confluence 43 8 Camer-TaI221 confounding 354 621714 818certainly 5 1421 clearly511012
396 2235265639761921183621 36210172917 303
bull Canoles 2444 45176411 7516 49145015532 44125816 Congress 64 1 0 capable 514 56187920 75197021 7916 capture 722 Corpss 2210chair 3322 click 522 connect 50 12 captured 428 challenge 142 connected 4417 49226414close 7418 carbon 18214112 correct 53 18 6316change 408 7622 closest 363 507 careful 28 15 corrected 5216cbanged 70 10 746 connection 13 1Code217 carry261829514 7497410 College 29 15141691113 case411151655 correctly 759channel 585 combination 1536 172019417
61117 935820 channeling 323 2112320318 correlate422157 101411816 correlates 4317characteristics 3218213618come 6614 7822 12691341417 costs 269 418154216 comes 1313 4215 402144410 1618191012 counsel 319 3957 453 50161751343444712 206 0226717 characterizing connects 185 3994110 71165614799 23282425818 7416751778553 18 consider 459coming 2410 729 241922251214 792802Charles 122 39 comma 472 6715792121 2628131316 Charneski 30911 consideration count5715comment4421 27461218 countervailing6210 4746314 3412 281529193019 14 11chemical 183 considered 6 1416common 5745 3335811 3412 county 66146871018151817524124610 community 9 1 342035515 couple 2822 39 14 Chesapeake 13 1 0 7919 2921 302 3615372919 14222319 considering 5 16 642735company 142 3838409424 course412518choice 7712 consistent 70 16 companys 1322 43224722491 31143619choose 319 145 Constitution 115 50111422519 court61722714constitutional 243cbose 38 10 407 complainants 39 1
bull Neal R Gross amp Co Inc 202-234-4433
-------
Page 83
bull 71822159 disagreed 54 12 drain 62146 221517 2514
573616 depicted 75234 drainage 5677 DC 115 deposition 13 14 discbarge 23 17
40117116769 162117616 7618197920
de 531 depressional 428 7214 discounted 299 2017272294
Courtroom I 13 deal 739 derived4315
29223022322 courts 32864 13
dealing 62 1113 describe 1210 437 discussed 528 622Q 32475318
67207821 242 6813 6919
draining 58 313 courts 102
Deans 1717 discusses 65 12described 44910 386
oovered710 debates 643 571716 discussing 677
diseussion 4 12 drains 56125913 crawling 203
debris 4312 describes 42 19 6176420
created 81820 decade 20 16 699 description 43 16 6937515
dispnte4157 dramatic 112 credibility 1437
December 60 18 4317 droplets43 1314disqualify 584 7012 desist 377 639
1410 1810209 dissolved 4320 drought 55 Ill 282713 3318
decide 9111 582 78914 7621 distance2713403 Drum 1711
343163612 despite 1015
5Q21 6213 7112 dry5515922 51575271821
declding 7822 determination 6620
5326131519 decisIon 81 1510 28203612518 distinction 1419
drying 583 54474414
5221 533614278296303 distinguished dug3021311
credible 1412 6921 7521 7922 determinations 3910575
declined 57 12 District 339397 322 19183414357
42214711 duration 6211
35161622 361 declines 5720 2813 544 6837
DJRR22233decomposition determine 2120 ditch 1621 2318 365 4315 742 4386957
bull 803
credit 347 5320 ditches 56 77 176 duty 264 creek 17101117
decreases 6517 determined 2314 dye 1722
241616 defer2814532 3414 17171813 2415
241529422 DCl3 eritical4518
deference 347 determines 715 -- ---- shy
E shy5436414 develop 20 17 3021311322
criticism 3420 define 57 1220 439441317 criticisms 3419
developable 2721 earlier 4917definition 75 98 developed 493 7181075418 early 382cross 6022 7313751620 Development 648 ditching 386 eat 1 14 401 654 crosses 627 deviation 11S dhide 71 181920
cross-examination 761
Eastern 338 shydivision 39234
ecological 21 1 dennltioll1l5721 devices 3 11
51225216 dellghted910 devoid 232 docketl937 cry 5618 3220
effect 1216154 delineation 374 difference 1169 documented 39 17
Cundiff278 3811 501 6412 different 522 4424626118 current 1019 1916197520deUvered 39 18 7021714
effort8l 3720 22162417 4018
CWAlS 37 doing 55 12 61 11 CWA-03-2001-O
5014 47174813 673 egregious 784 delivering 514 73914181922 Donna 221 396 Eighth 10 10110 37 demand 561121 7815 door 2122 either 10913
-~ demeanor 51 3 differently 7618 dotted 179 D
shy
161751196718~- demonstrates dilficnlt96 downstream432 D214 681979185816 diffident 48 18 43204454611 damage 55 10 eitherlr7514denitrification 13amp directed 64 1 0 4715 date31S element 20 17 139141822 direction l716 dozens429 dated 7422 eleven 4 18Dr39114217 day26197713
18224211 4521 7917 Elizabeth 17134354794911
days 3021 1321 directions 653 47124811
1955120 527S 614 332137165617
Dennis 39 11 directly 166 emotional 4 17denotes 757 611217632
bull directors 392
Nea~ R Gross amp Co Inc 202-234-4433
Page 84
5745817 6036ended 6912 farther 27 14evidence 88 9 19 5111 528 7015 60719611020fashion 5 15bull ends2318 101516128 737911 7457 62196367111Energy 648 fax2611181412161718 expertise 4020 7221 7321enforcement 6 15 experts 3418 356 feature 595 177181445
flowing 5516 features 597 24222512381 194182413 435 44789 59136099117712781 February 61 1325117 2618 5016548911 60136116522Engineers 51114 2713153215 541314167318 774 71206193986411 fed 6420 331340134113 expired 38 18
flows 2018 271 English 28 42 4117204215 explain 2114 federal7813 291920225617feet 3922 401 Enterprises 18 22 433443451 explained 53 14 5936523361545 extend 347 646 711874171849210141519
foam 4310 entire 1517 field 3418 4122 49225015556 extended 6 11 Foaming438fields 5511 enunciated 401 0 55713581520 extension 620 foUow911 189 Environmental 11 fifty 597 666 59206356713 extent 36 10
37182012212223213 figure 822927 671570922 eye7219 _ food42214312215334 39212 21213211 363 711267679
F 4321filed 497 806 Ex476 face 1411 3444 footnote 5769 EPAl1462021 exact4713 filtration 4514
5813 6219818196246 final 762021 794 exactly4168456 fact 1312141813 forest 1022 11 13713622 394 financial 417 583
2012934015 forget 284 4926381417 find871167examined4311 441618503 forgot 71 1764167187421 example 1416 2617 3513 368 519555589 form4418459773681222 43647752165818601015
bull 62186396457857197918 7514 465695 7219761783 formed 423 EPAs 822 examples 2822 finding 149 5217 7819791 former 73 13ephemeral 76 findings 143 3614473
factor 7920 forward381481equally 158 fine 85 136 exceeds 40 1314 factors 28 1821 found881016equipment 6322 4015 finish 1414
4619537 14125112522finished 64 1 equity 799 exception 348 facts34113916 four 1034 566 error 257 5215 exchange 50 19 first861010
3916412519 619696especially 421 171431163412exhibit 1615 478 7019781415 Fourth 814 3310 411642418242 601620216114
failed 127 2017 frankly 3710732ESQ24814 47948651106120623 669 2614369 5514647 767essence4918 66101518
failures 133 frequency 663 essentially 42 14 five318 48 921 exhibits 1522 205 Fair7718 frequent 584 5776613697751 21 6112 fairly 6914 frequently 59 18flat 54 11establish 21 17 existence 62 15 fait 642 full 617 2263016325 flood 1820 4521 exists2012482 family416 fully493flooding 198911 36948 1 4920 5017 far27184015 function 423 4419 62176718 flow 18 132020 17expand 622
5618217415 461820514231624111516established 30 19 expanded 74 farm 18223615 functions 11 1641216296413 expanding 618 241630101619
31745162 1914391841176597022713 3022311122expect4712 2912 43224581118establishment 502 3212183921expert 1222 34 15
Farms 47 57 452046135EURIKA222 40241124243421351318 35113616 50147147274522551419event5616 401819414
Farms 99353 7321eventually 23 18 5634812214217184415
bull Neal R Gross amp Co Inc 202-234-4433
Page 85
bull
bull
further3215 49125047017
~__ G_____ ~
_ gap 5620 6822
69114 general 399 generalize 368 generaDy 202 geographic 5956
6719 getting 18 16 209
251013 give 571013 6016
611978227917 given 13 18 146
229541517 glyes l49 g0831110 1620
1723101516 2192617 3113 33163734amp1 491661319 741
goes 7amp 229 311 31 21 7222
going551418 1622653020 312321819 3864166118 7747811
good 313 813 321038203915 58186049 6111
goh5311 gotten 2512 gonrning 689 government 118
1113 121121 132114171511 19620121015 2316222421 2568222612 2622292234 17 35636174113 50710 5320
5535 governments 109
12161346351 36464120747
governors 351 GPS522 gravity 7213 great 149204
7515 Green 210 gridSl12 ground 66 9 18
4134216218 6516
grounds 916 groundwater 6516
6517 gu09 I 0 guidance 7917 gutter 594
H halfS5177417 happen 349 happened 24 18
345 526614 happens 59 18 happy 843311 hard 972071314
26177220 harder 27 15 harm 3810 bate5311 Hawali683 head 520 724 Hbullbulldlesburg 6811 hear 722 217
51 15 bearing 117 4318
47948622 5111195215 6296313
hears 2812 beld 714181011
101320216721 6721 684
help 198911
helped 72 13 high 62101621
63472157522 higher433 higbly359 HiIl7S5 hired 414 737 hiring73918 historic 205 6914 historically 148
IS11246 (dwrySS 3714
6934 hit 1714 6214 hold4713 honeycombed 161 Honolulu 68- 7 Honor4820 4910
5222 5522 6422 66822
honorable 12021 12238
HOllors 3821 391351 6
Honors 6921 hop7316 hoping 769 hopscotching 69 12 huge 116 hundred 5320
666 Hunter 24 44 hunting 5510 hydric 51131718
521 742 hydrologic 4449
5015512 hydrologieal1614
1616 hydrologically
4417 ~~~ ~
I idea3213 identification
4021 identified 422458
451l 4645117 ldentifies4122
462064 1866 11 identify 523 5721 1ll213153822
394 impact 1381919
234102716 Impaets 217 imply 738 impoTl571114 important 4 1516
41981111518 1l 1820 122 13911 2322 2899371718 519761113 771
importantly 5214 impossible 2621 impractical2320 ineh6712 include76 including 65 178
4910 inconsistent 689
6811 incorrect 734 increasingly 7 1 incumbent 6922 indicated 5 14476 indicator 4212 indicators 41 22 indulgence 49 information 333 Innolstion 393 inspections 69 I 0
6916 instancc3413
5110 instances 569 insufficient 192 integrity 45 19
4610 intended 710 interact 65 11 interest 11 21
interests 1119 intermittent ]768
29S 30166 317 311820321014 578101621 587101214 59167421 757 75811
interpret 507 interpretation
10195896415 interpretations 72
7595 interpreted 111 0
5210 interpreting 342 intervene 6316 intervened 382 intervening 6917 introduce 127
381239611 intrQduced 27 I
33313 3510 768
inundated 66 investment 267 inyolved 2615 iron4214 isolated 3610 685 1e5191111
13102092322 2513 376 638 7611 799
issued 63 10 7710 Issues 51213 62
1810 243 7717 7887922
itU 1317
___ ~-LJ~ J1l2 JAMES 221 January 6022
7013 Jeff775 Jim 46 job 3915
~--~----~--~----~--~Neal R Gross amp Co Inc 202-234-4433
Page 86
bull JR24 judge 1212223
3137121420 858915108 1122121020 1320141314 1512021 1612 18812161718 192121519 233112420
bull
259263277 281529613 3049111215 31932733516 3317203519 36771419 381741104422 46714214716 48449616517 51155261619 53517543552 55185615713 586195910 60711 612515 621410 6419 65666216676 671268221 703721221 759771120 792802
judges 38 judgment 2820 July 112 631620 jurisdiction 6 18
62271619818 2117 254 3016 40762176719 7610 7981114
jurisdictional 422 51219615 1018151217 18143173814 4049 57 17 5811 7113 7310 73167511762
jurisdictionally 516
bull
justice 105 22214 2311 25163012 45771246316 47224920 57 I 5796056215 7157411759 75 131518
justices 921 7111 Justine 12 12
_shy
K shy
Karen 398 KARYN 222 Kathie 120 38 Kaufman 2444 keep 1312 3615
722 keeping 32 I Kennedy 105 124
1341512011 21915222 231145712 464817 4722 4921671422 68416715 7411 75131519 7715
Kennedys 12 13 457
key 711 kind 154 3010
332372525 7513 7912
kinds 181537 knew 3773835
52146314773 know 148 211020
2321251019 26143022 3212 3493714586 581366187614 776
knowing791010 knows81314587 KY21O
_shyL shy
lack 1617 527 5315
laid 5112 LaJuana 2842 lake 565 land 58 239 305
7415 landowner 252
263 landowners 25 11 lands 65 landscape 52912 language48 1518
4821 Lapps 775 Large 6410 largely 518 411 law 119 371920
3722 409649 68107881217 781820
laws 1120 lay 1913 lead 3222 76 1 leap 6513 698 leave 6212 leaves 6268 65 14
6519 leaving 4369
542255166212 left 106 legal2610 5312
76167717 length 204 lengthy 137 level211216312
34167119 levels 4288 65 18 LEXIS687 liability 7922 lies 186 life 69 light421 likes 577 limitations 783 limited 684 line 179 7567
lines 179 link 161416 207 list473 literally 3118 557 literature 41 21 litigation 821 269
582 little 115 486
5417 lived 291 LLC 18 22 36
45 loading 32 19 location 6021 locator 523 long 4 10 26 15
373497 look 136 219
281818331 4919672
looking 53 10 5510 7320
looks 1644 3122 691
lopsided 545 lose 1022 lot 8203322
3714427499 56105786733 6922 72 10
lots 204 245 low 428 7216 lower 6518 lowest3l1 Lucas 2842
M MaiI217 Main 25 making 142021
15828194917 7921
man2917304 manmade 71910 manuaI5016412
6412151617 map 697 706 755
laboratory 27 10
Neal R Gross amp Co 202-234-4433
Inc
mapped 5515 mapping 596 maps 168 205
3117 69151920 March 61 21 2222 mark6221 Marks 9311 marsh 7122 Martin 12221819
4913 6710 massive 208 matter 1717278
307382240 12 4316581214 7222 733 7620 7712217913 809
mean 1412119 222025213 3211 5210
meaningful2219 means 912 3215
421458711 622122
meant 106 2911 417
measurable 169 measure 1216
249 meet 8 10 12312
2614 meets 67 131521 mention 766 773 mentioned 35 17
55187416 met510 88 456
48816511555 73127716
meters 23 17 microbes 1315
4211 microscopically
4311 migratory 73 mile741718 miles 151415 511 mind 193 321
Page 87
bull 504 nll34163615747 17ll14IS 186 note5110628 716 particulate 4320minimum 12 12 is opportunity 78619 1620 241417 688719 pellllity 21 20minutes 3 1718 2713151718 noted 159 616 opposed 9 17 people3322 781048 291719302 6720759 opposite 17 15 percent 532033138153921 oral 14 35 nllscharacterizat Dotes 1117 perennial 602736 4034115446 order31416238notice 1]7 2911 perfeet 60 1737763910789misconceptions 441445410 779 perfectly 9 137l5 orders 78145031321 6214 novo 531
miS(onstrne 7317 4317711272316 NPDES2478 ordinarily 67 perform 4518misinterpreted ordiuary621016741519 number 378
6220634 48105213 near4310 1013 4)6 573 performed 4117misstate 748 necessarily 21 11 62206436611 organic4316
4412462organics 4222misstated 746 2620 562 7421 6615 perfonnlng 39 17mistaken 796 necessary 63 numbers 60 17 4320
714mixed 674 221167146817 organisms 433752 period 32 12782modeling 42 1319 ontcome3111516Neck 1717 numerous433 permanent 57 1olera1l799nlOdcrution )811 noed411 279348 NW 115
~-~~--shy 591916overlook 14tO4112 425 4522 452 permit 5 13 2536moment3317437 --~~ overrule 5220needs 5010
obfuscating 39 15 money 25 17 267 502neither 1017 overturn 536 obscured 40 16months 3845 person 255 352 never 514 79 overturning 534 obtain 2536 pertinent23126110 overwhelming5215591415 obviously 99 2421 Philadelphia 2 17
bull Moran 881818 601 5513 712
252588332036814 phones310new410 414 over~aggerate occasion 582 592052617607616 Phonetlc 755nexus82 j 491114 occasional 61 8 photo411919Morans517543 owner 558124132011 occasionally 593 43652136014morning3l3 2166226l5 j 16 owners 47 occur 517 732 601761136333820 22181922234 Owsley 2843 occurred 2020 6956Mos 6811 2366241313 oxymoron 5717
2726911 -~~~-~-- photographed 435mountainous 72 18 26 12 3222 poccurring 14 1 shy pbotographs 31 ISmove 387 38134114452
PA217occurs 665 4755512multiple 203 4594664717 pag46S 4849oceans 566 photography 708muster 59 11 4718214828
561112776oddly 549I shy phoOs4210 5421 48164920503 -_ N Parkcrs42 1718offered 40 11 6081569157157222
part81174361lnaked 7219 office 399 pbrse2312nice297 3813 508 5522 Dame 320 3315 oh5215311 pbysical184 24 12nine311421 56125913223821 66 1 0 011431314 41842154610nitrogen 131113
Nansemond 1719 0114315 60341213 physically 39 19 1315174212 195 okay 72083 18 II 7713 71 74714
particular 11 20naITow957 old 323 picture 1114710non 1711 122 142021narrowest 9 1618 ouce1316 6017non-hydric 36 11 1619191012naturally 617 operation 63 15 pictures 249362251131821 2322613274naturelS161778 opinion 511 78 piece 49 14 525 27 123020 355 295301431 9 11 10345 Pierce 5120nun-navigable 36153812navigable 6 12 2110154314 plDt4312151712228
particularl) 18151218161119 4574645715
bull plants 65 1 0 Norfolk25397
Neal R Gross amp Co Inc 202-234-4433
Page 88 ______ 0 bull ____bull 68227010 7714play 7910 Precon338 protect 26 1 0 R
recording 3 11please 310 48 prepared 9 13 protecting 37 12 R476 red421471 15 preponderance 3713 railroad 43 10 627 refer 456pleasure 35 11 1284013556 protection 122 13 rain 56 161617 referred 6 10 54 18plentiful 13 21 21535371670227112 614576421 referring 181818plight 822 prerogative 2817 394 6644521
4724922677plume 24 10 47 1 0 prove 63 1417presence 62 18 rainfall 594 75174713 present219641 23202612710 rain-fed 657
refers 4513plumes475 699 27166137610 raise 408 regard 1219 211 pluralities 8610 proven 318presented 420 raising 7116
26134177339173017 presiding 3 1 0 provide 11 1520 ran 77 7431113plurality 781518 presumed 102 1392811 3311 Rapanos 422 520
regarding 65 106716 pretty 20 10 572 provides 1820 617 816 919 regardless 7622 pockets 3622 47958166111 102011216 Region 21315point1711471l prevalence 68 proximate 166 1592616303
382239447134917517 prevent 198911 proximity 5020 4011154716 Regrettably 79 14 55257186821 preventing 729 public 11 1820 491375022 regular 551419794 previously 119 649 6477110 7310
581717 631 pointed 25 16 Priest 2843 purification 1822 781010 regularity 636482121 607 primary 4220 4514 rational 53 II regulate 227239633 431219 purpose 771919 rationale 45 16
7615791pointing 1310 632 purposeful 59 18prior 6920 reach6817 7419 regulated 91 1518 7019 private 243 pursuant 117 314
bull 7420
points 713914 224probably 8 19 316 read 237 7645 regulation 794111515642 43146111 765 pushing 621 reading3314
4517772 P-R-O-C-E-E-D-7720 reads 489 regulations 72policy 4 19 probative 1618 3 1 ready 321
22511 28 11pollen 43 13 PC242618 real 289 415 pollutant4520 P029 6416problem 515187 really 9 10 1021
regulative 79 197215 1814791516 23223217 3915 ___ _L ---shy regulatory 396pollutants 723 problematic 784 61377167912quadrangle 756 571114pollution 729 proceed 3 22 reason 810 2719 Quaker 1717 reign 8 17ponding 427 process 1419 34635537110qualify 5716 rejected 919portion 5613 625 22212518 38165722 quantitative 183 rejects 5810position 45 15 production 4220 reasoning 103 quantum 401114 related 45 19 4986717 4319 rebuttal 318 48 question 813 relationship 6512potential 22 10 program 791516 recall 2712 309
1414 1522282 relatively 4 10 571 254 project 59 671 2879103317 591815pour2317 proof17202112 received 78 13 681570511 relevant 34 11pours4411 21162217 2313 recognized 4517
questions 420 819 remain 6217powerful 48 15 24222582720 6414 38186817018 remand922161practical 23 14 3812401114 recollection 6617
quick 772 43184956710practically 5321 proper616 reconcile 54 14 quickly 387 6711practice 7722 property 12 17 record 321 173 quite 379 4815 remanded 920precipitation 65 11 1820203716 23128163119
599 732 767 remember 3314precisely 45 11 24343813439 429 5422 608 quote485508 repeatedly 56915463494 4310665
bull 63 11 6639
Neal R Gross amp Co Inc 202-234-4433
Page 89
bull 60[26]366] 717replacement 64] 2 Shamat 3821ScaUas 605 side 316 5119 replete 608 66[5]8703 SHAMET214sears 3714
54107014report 4218 5248 7720 38204116455scene 341 46131647120 81err6867015 rights 244 scheduled 631921
significance 5054820499 509reported 524 rigor 58S scheduling 63 20 7413represent 3822 51165222539rise 805 scientific 41 21
significant 8239represented 43 54655421rises 6521 sea7118 1l1412413representing 45 562257195815river 171319566 smaI301619 1916192165S22 5919 6013 requested 495 576 311l576661 226181923 14 6191762256318 rivers 163 19517 seasonality 658 234662413requlre4618573 6422 658 668 1920 67S 2623222 3813required 21 13 662267917Riverside 6 1 0 seasonaUy 6522 459465 47174014 471820 seated 312 6918707 49205025657requirement 78 1 Riverview 47 18 nd 34 194210 Sheehan 122 39 715721122requires 21 12469 108 1l221220Roberts 10 5 5119743
requiring2316 151201612 significantly 1911 Room 1i4 seconds 794 simple 39 6 16 ampltsearch 39 13 rule 73371920 Section 1119 1817 1921 2311
reserve 31848 304331620 7020lllnoff2019 45 13 sediment 20 19 simply 931821reserved 407 351946714214522732 3219
~- 1512197[3flaquoSU)ve 388 sediments 48 12 48449653 17 ___ ~S~ ~respect 4420 4515 2810482547see21112318 5615713586 S2847411 515527 581959106011 7320761778827203817427 sampled431163713 Sims 24 4411 45347125310 6126214 6419
bull sampl 1825112 ingle3510respondent 4056 6566621660186518705
51177414217 5421577 site 1411622 72620 6821 703 72 12 at3320631722 20 182022 212 seeks 227 7221 759 77 11 satisfied 6722 respondents 145 2663422 352Sbeebans 1414seen212
6818 375416918401718414 hlft 112sees 31 225722 satisfy 49354147013 4364416453787 ho 25 11 satisfying 20 11respondents 434 45124625117short 55lect94
671868154489 47S 50 16 54192022558send 47 14 show 121216169 saturated 669 55101662685U 153225410 sense 329354 1610 199206 saying 18 12 29 10 621213 631819 5412611214 2018192122574
29133068 6415186537responders 39 13 222122311119September 6321 48164921 533 65116944response 593 3312361618751 59131721 7014754 778 rest237 4525010 619sequestration
ays 1221 152 result 7319 sitting 391118214112 6922 23133214437retention 2021 series 60 15 showed 6916 situation 522 461213565review28154216 showing 1616 six 626 serves 1118 571520581 reviewed 2622 22113117512 Slxlh277session 35 805 6617 751013 reviews 531 slxty69851354226180123164018
sI2320Rhodes 1819 slight 72 18414 shown 1918 3110 SeaUa9121O44911 411450101519 slope 72 1920 ettle4812
25163013 562 slowing4513right 10121415 settlements 48 12 635 5611205719 small 43132352593014 shows 1017161 seven 324 5714 62 156861317 Smith 18 22 36 2816321717301431193216 626 75107715 31517 457 57 33 153620477 seventy 699 34156218695
bull Neal R Gross amp Co Inc 202-234-4433
Page 90
bull 246251537899 16235310 start 736 talked 7347913 4265418734talkiDg2510 5819 3616 started 7012 sub 1613 7314Smiths 298 subject 51588 582074147721tate 3205622
thiollt321 10821 Smithsonian 3912 7813 submitted 804 798 1331422312soil69131536ll stated 735 substantiaJ217 talks 618 238 2511326203622421213 task 2621statements 218 48816 271419288tell 6022 5116741 56205814 sub~surface 16 16 29773110327soils42171951ll tentative 487states3A 641218 sufficient 193 3314345115119215215 term 577101518381415 282150186816 3512471509solid 2010 4iJ22 4515 585 suggesting 2113 terms 4 17 920 51153915test715198910somebody 29 II statistically 3513 suite 25 4813 581561106823020312144ll slatute 22 13 783 summarize 7018 81691217109 74J2 7717958 somewhat IS 13 1013171114Sttutory 649 summer 6519
12413 134 152 7919361 sty5917 supplement 709 thinkiug 3367soon 377 2011 215712steams 567 supplemented SUA thinks 257sorry6115 21133017469Stefania 2 143821 support 68 365
ort2795312 47174884918 third4220Stein 12039712 4813 thirty 317 2913 sounded 53 19 56260567147 142085 1320 supported 364
794sounding487 6716186846141321519 Suprenle2514 three 424 46 19ouDds23152518 6813161719233 277 28 15 40107618
48617 7715 6612471651155219 sure 164 32 14 three-bundred-abullbullsoufce42214312 testlfied 2923 535 67 12682 4116599672
Steinls 1522 3317 51205411 5511 55943216421664 764
bull so-called 389 stipulated 34 14 6312 tbreepart 49 18surely 164
thrown 3715speak 342 4921 351740207422 sUlface66161O tetify 7312 tic 1619speaking 131 stipulating 54 1 1613144513 testifying 204 time515613species 4814 stipulations 7422 testimony 1221 surprise 638
17142517265specific 133 22 5 stop 786 surprising 5416 1321 1451817 26571016296422573 stopped 3839 18192082910suspeuded 48 12 2915315325specificany 815 storage 1820 311933214119swamp 721 321238217141 391 4512 412043184854522 SWANCC405 621213 6318 5712581 storm 66 121213 4911111213sympathetic 821 70177521764specifics 1416 531854121517straight 61 10 systems 66 1
~shy 78171979311speculate 26 15 55886116Straw 528632 T time 204 31 1422 speculated 275 651012663Straws 528 6112
table 46 395 352571566666769692775speculative 1515 61 17 441112651617411843227611 tests 1510 6722 667765stream 601921 6521 thank41133819 tissue 162spent 2668 373 758
tabletop 71 17 today314 41452splotch 4214 7113167927strembed 583 take 781 5 18 48719stand 5211 streams 76 294 80123 tallten4181317 thooretical1922 7720standard 146 5422 566 5922
182273 31 15 toll 4 1840104735821 602386211 tbeoretically 132 551260186113 tp4411126514theyd 2411115822 66175811
takes 2517 topic 286 thing 62329363standards 53]2 Street 25916 talk 826 13 1214 topltgt 755standing 25 1 0 37174016525strong3711 594
1316171222 57861187322 total 1617standpoint 99 trongest 11 12 266 totaUy 20 14 299 thIngs 17212110 lands 806 struggling 328
bull Neal R Gross amp co Inc 202-234-4433
Page 91
bull tracings 1722 tracks 627 traditional 4510 traditionally 3921
40344614 5013216214 7ll2
traipsed 1622 Transcript 67 10
6711 transforming
4222 transpiration
6514 transpiring 65 21 transport 43 19
4420 transports 432
443 trapping 45 20 traveled 511 Irbullbull 1022 6515
bull 65 152020
tributaries 76 171218229 39182021 402 4451850612 513646718 7518
tributary 75 1720 trickles 606 tried 1417 trophic433 try 822 269 387 trying 92 6619
72573187816 Tuesday 112 turn 310 476
7512 turned 520 twenty7118
two 163 51 1318 5617616652 6676967314 772795 i two-step 2221
type 79201921
bull
102011171218 151916201714 171818621 202123910 27313151719 295141719 311222323 33137123815 394406427 431441112 4516501319 5516566585 59176010 622122637 64865261518 65216719694 69678 71 20 72316741619 7513763
watermark 62 11 62166347522
waters 64 711 16611241417 30338143922 404224115 4461445410 45194611 503 502255141516 551957216 5810186214 685 7017113 7512
watershed 6525 7119724
way 1121521 16202232314 342463722 5013 5318 646 72157820
week 7713 weight 149 5417 well~kDown 1913 Wendelowski 222
398 wentl6225319
615 werent202
west 25 3922 628 654
western 17 13 7014
wet 6620 wetland 142021
161921175 24102732918 2921 4239443 444104714 722731315
wetlands65123 11151519121 12317139152 153561625 19715201224 2283610 3713 3716391719 40242122 4416451618 46948 10 506 50125210645 64111820651 7020217ll37 7612147812
were31321518 821 9132119 21212515308 592161217612 77217913
wet ve2511372 5019563601 6818
whethers 3221 Whigham 3912
4912615 Wilcher 28 412
712131721 812 10112 125 12151351413 15516815 181115196 2013 2118 221 23521 25521 21112838 29163081418 31123216337
2310 2512618 33124518465 4919501727 768
types 46 13 typical 247 347
3747721 typically 68 223
281114375 662020
_shy--_ U unable 2022 unclear 79 12 underneath 627 understand 191
2212683620 726
undertake 252 undertaken 59
7912 undulations 529
5212 unfettered 20 IS
541920 unfortunately 817
477 United 34 64
121815183814 38 154022585
unreasonable 2212
unreported 683 un-credible 35 14 upJands 1579 upstream 72 1 0 uplaking4212
6515 usage 575 use 244 4321
46175311577 6411
2312 USGS 179 3116
31175517596 69719754
usual 113
US 12 215 7ll 6877512
-- _shyV
VA25 valuable 1116
197147614 vo1no1420 1513
IS 15 values 1914 728
7321 vegetation 68 632 version 412 vial2317 view2793646
52195377818 violating 78 12 violation 7710
788 violative 784 Virginia 339 visible 6019 viit 63 18 1921 void214 Volume 775 voted 7111 686 I--~middotmiddotmiddotmiddot~
IL-_ walk29910 wa]ked292 walking 305403
502162137112 walks 559 want 83 1822
27222813 33166747116 733
wanted 3722 wanting 1022
1415 wants 722 wash 575 592 washes 6Q6 Washington 1315 wasnt 12201320
3611413779 water6712710
Nea~ R Gross amp Co 202-234-4433
Inc
Page 92
bull
bull
bull
331934 LO 3521 361321 38 19 51654[81115 72177317718 797
Wilchers4l11 442047453 17 63814
wildlifelll4814 winter 65 19 wishing 76 17 witness 1222
33223421 353 3510 74614
witnesses 13 21 22 1462022812 3421315351 351418369 4019194115 5218532122 7319117448
Wolf4415 Wolgat I 21 39
313 9151210 18812162420 25926329 13 301215319 32733536719 381141L04422 491655218 6U5676192 802
Woodcock 212 wooded 57 word 74 1 0 7620
7622 word 2220 401
45216514 work 5 16 107
25 173721 384 38563187737
working3511 7214
worried 61 21 wouldnt 29 11
4712 wDvcn217
written 104 74 12 752178171920
wrong2816771 wrote 2214
I~y ~~ yeab521 year31145522
5612135914 6)14412j14 66667121213 778
years418148 2913321598 699 --~-~
I ~ Z zero 5321
$800000 269 I--middotmiddotmiddotmiddotmiddotmiddotmiddot~ _ _--O-~ _ 03751 05-05406 076022615 08-011938 - ~----- ~~~
_2~_ ~
1775 1000 I 17 100132 102L623 102371649 106649 1116809 110129 1152114 1201115 13th 315 13156410 15025 1650216 167776 169776 19103-2029217 1912 6710 1920697
38752 19497016 1937696
3916120 1953695 - ~ -~
_ ~ -4--~~1972 114 1987641114 4041119
4148491989522 4200401741719907615 421022101993649
1994691970810 46468 1995108 II 199855 314325
5579 199956314326 5351121663116910 1013 5474515
-774
2== 555112161999-0n 69 15 57pp6114633
620 112 624-316926 20006310779 624-3272 26 2001115 i 6426268820034219479 _ ----48224945111 I 7
~
5413 6122 629 754515 6312669
7572662006 520 114
770296(118 7734515
20074011413 781-6500 2 10
54111461 1319 782-7782 2 11
61226912737 ~ ~ ~ ----
2007s 5416 _~_8--~~ 2008687 8tb 751 2010112 814-2603218 210025 814-26822 18 21521818 - ~~ --~ ~
2351025 260039227416 9tb6810 27021011 n61 284768 9361 -~ -~ 937161 --~~ 94705 3RCl0217 987012 3086021 996911 315611 32511 3286020 355613 35467 II 37752
Neal R Gross amp Co Inc 202-234-4433
93
bull
bull
bull
CERTIFICATE
This lS to certify tha~ ~he foregoi~g transcript
in the matter of Snith Farm 3nterprises ILC
Hon Anna Wolgast E-wironmenta Appeals Judge
Date Jaly 20 2010
Flace Washingson DC
represens the ful and complete proceedings of the
aforementio1cd marter as reported and reduced to
typewriting
NEAL R GROSS COURT REPORTERS AND TRANSCR8ERS
1323 rOOE iSLAND AVE_ NW (202 234-4433 WASHtGON DC 20005-3701 fNWnnalrqft)6Scom
![Page 16: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/16.jpg)
![Page 17: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/17.jpg)
![Page 18: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/18.jpg)
![Page 19: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/19.jpg)
![Page 20: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/20.jpg)
![Page 21: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/21.jpg)
![Page 22: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/22.jpg)
![Page 23: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/23.jpg)
![Page 24: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/24.jpg)
![Page 25: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/25.jpg)
![Page 26: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/26.jpg)
![Page 27: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/27.jpg)
![Page 28: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/28.jpg)
![Page 29: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/29.jpg)
![Page 30: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/30.jpg)
![Page 31: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/31.jpg)
![Page 32: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/32.jpg)
![Page 33: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/33.jpg)
![Page 34: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/34.jpg)
![Page 35: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/35.jpg)
![Page 36: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/36.jpg)
![Page 37: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/37.jpg)
![Page 38: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/38.jpg)
![Page 39: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/39.jpg)
![Page 40: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/40.jpg)
![Page 41: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/41.jpg)
![Page 42: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/42.jpg)
![Page 43: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/43.jpg)
![Page 44: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/44.jpg)
![Page 45: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/45.jpg)
![Page 46: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/46.jpg)
![Page 47: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/47.jpg)
![Page 48: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/48.jpg)
![Page 49: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/49.jpg)
![Page 50: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/50.jpg)
![Page 51: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/51.jpg)
![Page 52: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/52.jpg)
![Page 53: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/53.jpg)
![Page 54: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/54.jpg)
![Page 55: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/55.jpg)
![Page 56: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/56.jpg)
![Page 57: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/57.jpg)
![Page 58: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/58.jpg)
![Page 59: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/59.jpg)
![Page 60: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/60.jpg)
![Page 61: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/61.jpg)
![Page 62: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/62.jpg)
![Page 63: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/63.jpg)
![Page 64: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/64.jpg)
![Page 65: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/65.jpg)
![Page 66: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/66.jpg)
![Page 67: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/67.jpg)
![Page 68: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/68.jpg)
![Page 69: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/69.jpg)
![Page 70: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/70.jpg)
![Page 71: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/71.jpg)
![Page 72: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/72.jpg)
![Page 73: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/73.jpg)
![Page 74: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/74.jpg)
![Page 75: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/75.jpg)
![Page 76: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/76.jpg)
![Page 77: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/77.jpg)
![Page 78: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/78.jpg)
![Page 79: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/79.jpg)
![Page 80: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/80.jpg)
![Page 81: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/81.jpg)
![Page 82: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/82.jpg)
![Page 83: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/83.jpg)
![Page 84: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/84.jpg)
![Page 85: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/85.jpg)
![Page 86: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/86.jpg)
![Page 87: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/87.jpg)
![Page 88: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/88.jpg)
![Page 89: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/89.jpg)
![Page 90: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/90.jpg)
![Page 91: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/91.jpg)
![Page 92: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/92.jpg)
![Page 93: BEFORE THE ENVIRONMENTAL APPEALS BOARD IN ... By...MS. DURR: Environmental Appeals Board of the U~ited States Environmental Protec~ion Agency is now in session for oral argument, in](https://reader035.vdocument.in/reader035/viewer/2022062610/6116d5a141d86255ed38ad1f/html5/thumbnails/93.jpg)