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United States v. Gerke Excavating Inc
Citation: Not availableDocket: 04-3941
Court: Court of Appeals for the Seventh Circuit; September 22, 2006; Federal Appellate Court
Original Court Document: View Document
The case involves Gerke Excavating, Inc., accused of violating the Clean Water Act by discharging pollutants into navigable waters from point sources without the required permit. The district court granted summary judgment for the government and imposed a civil penalty, which the Seventh Circuit affirmed. Gerke's petition for certiorari was granted by the Supreme Court, leading to a remand for reconsideration in light of Rapanos v. United States, which addressed federal authority over wetlands. The Supreme Court's decision in Rapanos did not produce a majority opinion, but a plurality sought to limit federal jurisdiction to wetlands with a continuous surface connection to traditional navigable waters, requiring both a permanent water body and a direct connection to the wetland. Justice Kennedy, concurring in the judgment but not in the plurality's reasoning, proposed a broader test for determining jurisdiction under the Clean Water Act, stating that wetlands may be covered if they significantly affect the integrity of navigable waters, either alone or in combination with nearby lands. Justice Kennedy criticized the plurality's limitations and highlighted the importance of the Clean Water Act's protections for public interests. The decision emphasizes the need for lower courts to apply the narrowest ground on which a majority would agree, as outlined in Marks v. United States. Wetlands' impact on water quality must be significant to fall under the definition of 'navigable waters' as per the relevant statute. This interpretation is more restrictive regarding federal authority than the plurality opinion in many instances. Justice Kennedy indicated that the statutory coverage extends to wetlands with any surface-water connection to a stream, potentially stretching beyond traditional federal jurisdiction. In future cases, Justice Kennedy's support for federal authority over wetlands will align with four dissenting Justices, while his opposition to federal authority will typically align with the Rapanos plurality unless faced with an overwhelming dissent. The plurality's strict approach may occasionally align them with the dissenters when Justice Kennedy’s balancing favors landowners, but such instances are expected to be rare. Ultimately, Justice Kennedy's standard, which requires further factual findings not yet made by the district court, will guide the ongoing litigation, necessitating a remand for additional proceedings.