following of distorted and convoluted reasoning can one conclude that the Veldhuis property is 'adjacent' and the alleged wetlands had a 'significant nexus' with navigable waters." Id. In response, Region IX begins by reminding us of the sequence of events in this case. The Region filed the complaint on September 30, 1999, initially alleging that Respondent had discharged dredged or fill material into 25.01 acres of wetlands on Fields #3, #4, and #5. The ALJ held a hearing on December 11-12, 2000, and a month later, on January 9, 2001, the U.S. Supreme Court issued SWANCC. The ALJ subsequently directed the parties to brief the question of SWANCC's applicability, if any, to the Veldhuis case. In post-hearing briefs, Respondent argued that all wetlands on his property were isolated and thus excluded from CWA regulation under SWANCC. The Region, for its part, withdrew its allegations regarding 3.16 acres of the original 25.01 acres on the ground that those 3.16 acres were isolated wetlands. The Region maintained at that time, however, that the remaining 21.04 acres of wetlands alleged in the complaint to have been filled by Respondent were tributary and/or adjacent wetlands and thus still subject to CWA regulation, even in the aftermath of SWANCC. See Reply Br. at 26-27. Now, Region IX asserts that it proved by a preponderance of the evidence that the 21.04 acres of wetlands were, in fact, adjacent to and/or tributaries of navigable waters of the United States. Reply Br. at 26-33. The Region also contends that the ALJ thoroughly analyzed the evidence in the record and reached a supportable conclusion on both the facts and the law that should be upheld by the Board. See id. at 33-35. In brief, the ALJ deemed "overly broad" Respondent's interpretation of SWANCC as dramatically restricting federal jurisdiction over waters and wetlands. Init. Dec. at 66. Instead, she interpreted the case to be a narrow holding invalidating the "Migratory Bird Rule," agency guidance intended to clarify the regulatory definition of "waters of the United States" that extended federal jurisdiction to intrastate waters used or potentially used as habitat by migratory birds. Id. at 66-72; see 53 Fed. Reg. 20,764, 20,765 (1988); 51 Fed. Reg. 41,206, 41,217 (1986). Because Region IX had withdrawn the portion of its complaint pertaining to 3.16 acres of wetlands delineated as such on the basis of the Migratory Bird Rule, and because federal jurisdiction over the remaining 21.04 acres of remaining wetlands was premised on other grounds - specifically, on the "adjacency" and "tributary" provisions of the regulations, see supra Part II.A (quoting (continued) We found that Congress' concern for the protection of water quality and Id. (quoting Riverside Bayview, 474 U.S. at 134). 40 C.F.R. § 230.3(s)(5) & (7) and 33 C.F.R. § 328.3(a)(5) & (7)) - the ALJ determined that SWANCC was not applicable to this case. Init. Dec. at 72. Finally, the ALJ concluded that Region IX had established the adjacency of all 21.04 acres of wetlands to tributaries of navigable waters. Id. at 73-80. She held that her finding of adjacency was not precluded by the distances involved, the number of tributary connections, the intermittency of those connections, or the manmade character of some of the tributaries. Id. at 80-87. She therefore rejected Respondent's argument that the federal government had no jurisdiction over the purportedly "isolated" vernal pools and drainage swale wetlands on Fields #3, #4, and #5. We agree that the ALJ conducted a comprehensive review of these issues and see little benefit in reproducing her detailed analysis here. See Init. Dec. at 18-39, 64-87. Indeed, in the absence of a challenge by Respondent to any specific component of the ALJ's analysis with respect to any particular wetland, we see no reason at this juncture to belabor this issue. See 40 C.F.R. § 22.30(f) (Board may adopt findings of fact and conclusions of law contained in initial decision); see also In re Conservation Chem. Co., 2 E.A.D. 66, 67 n.3 (CJO 1985) (“[t]hat an appellate administrative tribunal may adopt the findings, conclusions, and rationale of a subordinate tribunal without restatement is well-settled”). The ALJ determined that the federal government lawfully exercised CWA jurisdiction over 21.04 acres of wetlands on Respondent's property, which consisted of 15.77 acres of drainage swale wetlands that were tributaries to the San Joaquin and Merced Rivers on Fields #3 and #4, 1.81 acres of vernal pool wetlands adjacent to the tributaries to the San Joaquin and Merced Rivers on Fields #3 and #4, and 3.46 acres of vernal pool wetlands adjacent to Sand Creek on Field #5. After conducting our own de novo review of the administrative record, we find that the ALJ properly judged that the preponderance of the evidence in the administrative record supports these findings and that the statutory, regulatory, and case law bears them out. See, e.g., United States v. Rapanos, 339 F.3d 447, 453 (6th Cir. 2003) (federal jurisdiction properly asserted over wetlands adjacent to 100-year-old manmade drain that flows into creek that flows into navigable-in-fact Kawkawlin River, which drains into Saginaw Bay and Lake Huron; distance between wetlands and River is eleven-to-twenty miles); United States v. Rueth Dev. Co., 335 F.3d 598, 604-05 (7th Cir. 2003) (wetlands next to unnamed tributary that flows into several ditches that lead to navigable-in-fact Little Calumet River are adjacent wetlands); United States v. Deaton, 332 F.3d 698, 708-12 (4th Cir. 2003) (federal jurisdiction properly asserted over wetlands adjacent to roadside ditch whose waters flow through various tributaries into navigable-in-fact Wicomico River and Chesapeake Bay, thirty-two miles downstream); United States v. Krilich, 303 F.3d 784, 791-92 (7th Cir. 2002) (SWANCC is narrow holding), cert. denied, 123 S. Ct. 1782 (2003); Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 533-34 (9th Cir. 2001) (irrigation canals that carry water to/from streams and lakes are federally regulated tributaries); Driscoll v. Adams, 181 F.3d 1285, 1291 (11th Cir. 1999) (intermittent stream is water of United States), cert. denied, 529 U.S. 1108 (2000). IV. CONCLUSION For the foregoing reasons, we affirm the ALJ's finding that in 1995 and 1997, Respondent discharged dredged or fill material into 21.04 acres of waters of the United States on Fields #3, #4, and #5 without a permit authorizing him to do so. Accordingly, Respondent shall pay the full amount of the civil penalty assessed by the ALJ, $87,930, within sixty (60) days of receipt of this final order. Payment should be made by forwarding a cashier's or certified check payable to the Treasurer, United States of America, at the following address: U.S. Environmental Protection Agency, Region IX Attn: Regional Hearing Clerk So ordered. IN RE BRICKS, INC. CWA Appeal No. 02-09 FINAL DECISION Decided October 28, 2003 Syllabus Bricks, Inc. ("Bricks") appeals an Initial Decision of Administrative Law Judge Carl C. Charneski ("ALJ") assessing a $65,000 penalty against it. The Director of the Water Division, United States Environmental Protection Agency Region V (the "Region"), brought this administrative enforcement action against Bricks for alleged violations of the Clean Water Act (“CWA” or “Act”) § 301(a), 33 U.S.C. § 1311(a). The ALJ concluded that Bricks discharged pollutants (fill material) into "waters of the United States" without first obtaining a permit from the United States Army Corps of Engineers, pursuant to CWA § 404(a), 33 U.S.C. § 1344(a). Specifically, the ALJ found Bricks liable for discharging pollutants into wetlands, which he determined were adjacent to a tributary of a navigable water of the United States. On appeal, Bricks contests both the ALJ's liability and penalty determinations. Although Bricks raises several specific issues on appeal, the central issue is whether the ALJ erroneously concluded that the wetlands at issue in this case are "navigable waters" within the meaning of the CWA. Held: The Region has failed to prove by a preponderance of the evidence that the wetlands at issue in this case are "navigable waters" within the meaning of the Act. Specifically, the Region failed to prove that the wetlands are hydrologically connected to a navigable water or a tributary thereof. The Board, therefore, reverses the Initial Decision and vacates the penalty. Before Environmental Appeals Judges Ronald L. McCallum, Edward E. Reich, and Kathie A. Stein. Opinion of the Board by Judge Stein: I. STATEMENT OF THE CASE Bricks, Inc. ("Bricks") appeals an Initial Decision of Administrative Law Judge Carl C. Charneski (“ALJ”) assessing a $65,000 penalty against it. The Director of the Water Division, United States Environmental Protection Agency Region V (the "Region"), brought this administrative enforcement action against Bricks for alleged violations of the Clean Water Act ("CWA" or "Act") § 301(a), 33 U.S.C. § 1311(a).' See Initial Decision (Oct. 9, 2002) ("Init. Dec."). The ALJ concluded Bricks discharged pollutants (fill material) into "waters of the United States" without first obtaining a permit from the United States Army Corps of Engineers ("Corps"), pursuant to CWA § 404(a), 33 U.S.C. § 1344(a). See Init. Dec. at 1. Specifically, the ALJ found Bricks liable for discharging pollutants into wetlands, which he determined were adjacent to a tributary of a navigable water of the United States. On appeal, Bricks contests both the ALJ's liability and penalty determinations. Although Bricks raises several specific issues on appeal, the central issue we must decide is whether the ALJ erroneously concluded that the wetlands at issue in this case are "navigable waters" within the meaning of the CWA. For the reasons stated below, we hold that the Region failed to meet its burden of establishing that the wetlands are "navigable waters." We therefore reverse the Initial Decision and vacate the penalty. II. PRINCIPLES OF APPLICABLE LAW The Act states that its goal is "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters." CWA § 101(a), 33 U.S.C. § 1251(a); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132 (1985); In re Richner, 10 E.A.D. 617, 619 (EAB 2002). Except as the Act otherwise provides, the Act prohibits discharges of pollutants into navigable waters and subjects violators to civil penalties under CWA § 309, 33 U.S.C. § 1319. In an enforcement proceeding, the Board reviews an ALJ's factual and legal conclusions de novo. 40 C.F.R. § 22.30(f) ("The Environmental Appeals Board shall adopt, modify, or set aside the findings of fact and conclusions of law or discretion contained in the decision or order being reviewed, and shall set forth in the final order the reasons for its actions."); see Richner, 10 E.A.D. at 619; In re City of Marshall, 10 E.A.D. 173, 180 (EAB 2001). 1 Section 301(a) states: "[E]xcept as in compliance with this section * the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). 2 See, e.g., CWA § 404(a), 33 U.S.C. 1344(a) (requiring issuance of a permit for the discharge of dredged or fill material into navigable waters of the United States); CWA § 502(12), 33 U.S.C. § 1362(12) (defining "discharge of pollutant" to include, inter alia, the addition of pollutants to navigable waters from any discrete conveyance known as a "point source"). |