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No. 08-1376

 

In the Supreme Court of the United States

GEORGE RUDY CUNDIFF AND CHRISTOPHER SETH CUNDIFF, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
JOHN C. CRUDEN
Acting Assistant Attorney
General
ELLEN J. DURKEE
JENNIFER SCHELLER NEUMANN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the wetlands at issue in this case are "waters of the United States" within the meaning of the Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816, as amended by the Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566 (33 U.S.C. 1251 et seq.) (CWA); 33 U.S.C. 1362(7).

2. Whether a determination by the United States Department of Agriculture that petitioners' predecessor-in-interest had begun converting wetlands to farming use before December 23, 1985, eliminated the need to obtain a CWA permit for petitioners' activities.

3. Whether the district court correctly dismissed petitioners' takings counterclaims for lack of jurisdic tion.

In the Supreme Court of the United States

No. 08-1376

GEORGE RUDY CUNDIFF AND CHRISTOPHER SETH CUNDIFF, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-33a) is reported at 555 F.3d 200. The opinion of the district court on statutory coverage (Pet. App. 34a-48a) is re ported at 480 F. Supp. 2d 940. The opinions of the dis trict court finding petitioners liable and dismissing their counterclaims are unreported. The opinion of the dis trict court on the appropriate remedy (Pet. App. 49a- 63a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on February 4, 2009. The petition for a writ of certiorari was filed on May 5, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. Congress enacted the Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816, as amended by the Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566 (33 U.S.C. 1251 et seq.) (CWA or the Act), "to restore and maintain the chemi cal, physical, and biological integrity of the Nation's wa ters." 33 U.S.C. 1251(a). Section 301(a) of the CWA prohibits the "discharge of any pollutant by any person" except in compliance with the Act. 33 U.S.C. 1311(a). "Discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. 1362(12). "Pollutant" is defined to include not only traditional contaminants but also solids such as "dredged spoil, * * * rock, sand [and] cellar dirt." 33 U.S.C. 1362(6). The CWA defines the term "navigable waters" to mean "the waters of the United States, including the territorial seas." 33 U.S.C. 1362(7).

The United States Army Corps of Engineers (Corps) and the United States Environmental Protection Agen cy (EPA) share responsibility for implementing and en forcing the CWA. The Corps and EPA have promul gated substantively equivalent regulatory definitions of the term "waters of the United States." See 33 C.F.R. 328.3(a) (Corps definition); 40 C.F.R. 230.3(s) (EPA definition). Those definitions encompass, inter alia, traditional navigable waters, which include waters susceptible to use in interstate commerce, see 33 C.F.R. 328.3(a)(1), 40 C.F.R. 230.3(s)(1); "[t]ributaries" of tradi tional navigable waters, see 33 C.F.R. 328.3(a)(5), 40 C.F.R. 230.3(s)(5); and wetlands "adjacent" to other covered waters, see 33 C.F.R. 328.3(a)(7), 40 C.F.R. 230.3(s)(7).1

Section 404(a) of the CWA authorizes the Secretary of the Army, acting through the Corps, or a State with an approved program, to issue a permit "for the dis charge of dredged or fill material into the navigable wa ters at specified disposal sites." 33 U.S.C. 1344(a). The Act provides limited exemptions from this permit re quirement. 33 U.S.C. 1344(f)(1). Even when the dis charge of dredged or fill material qualifies for an exemp tion, a permit is still required under the CWA's recap ture provision if the purpose of the discharge is to "bring[] an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced." 33 U.S.C. 1344(f)(2). The United States may bring a civil enforce ment action in district court against any person who vio lates the CWA by discharging dredged or fill material into covered wetlands without a permit. 33 U.S.C. 1319(b) and (d). In such an action, the government may seek injunctive relief and civil penalties. Ibid.

b. This Court has recognized that Congress, in en acting the CWA, "evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its pow ers under the Commerce Clause to regulate at least some waters that would not be deemed 'navigable' under the classical understanding of that term." United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985) (Riverside Bayview); see International Paper Co. v. Ouellette, 479 U.S. 481, 486 n.6 (1987). In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), the Court held that use of "isolated" nonnavigable intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of federal regulatory jurisdiction under the CWA. Id. at 166-174. The Court noted, and did not cast doubt upon, its prior holding in Riverside Bayview that the CWA's coverage extends beyond wa ters that are "navigable" in the traditional sense. See id. at 172.

Most recently, the Court again construed the CWA term "waters of the United States" in Rapanos v. Uni ted States, 547 U.S. 715 (2006). Rapanos involved two consolidated cases in which the CWA had been applied to actual or proposed pollutant discharges into wetlands adjacent to nonnavigable tributaries of traditional navi gable waters. See id. at 729-730 (plurality opinion). All Members of the Court agreed that the term "waters of the United States" encompasses some waters that are not navigable in the traditional sense. See id. at 731 (plurality opinion); id. at 767-768 (Kennedy, J., concur ring in the judgment); id. at 793 (Stevens, J., dissent ing).

A four-Justice plurality in Rapanos interpreted the term "waters of the United States" as covering "rela tively permanent, standing or continuously flowing bod ies of water," 547 U.S. at 739 (plurality opinion), that are connected to traditional navigable waters, id. at 742, as well as wetlands with a continuous surface connection to such water bodies, ibid.2 Justice Kennedy interpre ted the term to encompass wetlands that "possess a 'sig nificant nexus' to waters that are or were navigable in fact or that could reasonably be so made." Id. at 759 (Kennedy, J., concurring in the judgment) (quoting SWANCC, 531 U.S. at 167); see id. at 779-780. In addi tion, Justice Kennedy concluded that the Corps' asser tion of jurisdiction over "wetlands adjacent to navigable- in-fact waters" may be sustained "by showing adjacency alone." Id. at 780. The four dissenting Justices, who would have affirmed the court of appeals' application of the pertinent regulatory provisions, concluded that the term "waters of the United States" encompasses, inter alia, all tributaries and wetlands that satisfy either the plurality's standard or that of Justice Kennedy. See id. at 810 & n.14 (Stevens, J., dissenting).

2. Petitioners own two tracts of land in Muhlenberg County, Kentucky, that together contain approximately 188 acres of wetlands. Pet. App. 3a, 5a. Those wetlands are adjacent to Pond and Caney Creeks, which are trib utaries of the Green River, a traditional navigable wa ter. Id. at 19a. Shortly after petitioner George Rudy Cundiff (Cundiff) purchased the southern tract in 1990, he began clearing the wetlands of trees, excavating drainage ditches, and placing the dredged spoil and oth er material into the wetlands next to the ditches. Id. at 3a-4a. Cundiff did not obtain a permit from the Corps for his activities. Id. at 4a. The Corps issued a cease- and-desist letter to Cundiff in October 1991. Ibid. De spite additional directives to stop his activities, Cundiff continued to discharge dredged spoil into the wetlands on the southern tract. Id. at 5a.

In 1998, Cundiff's son, petitioner Christopher Seth Cundiff (Seth Cundiff), purchased the tract immediately to the north of his father's property. Pet. App. 5a. With Seth Cundiff's knowledge, Cundiff quickly began exca vating that tract and redepositing the spoil into the wet lands. Ibid. Federal and state officials repeatedly in formed petitioners that they were required to obtain permits for their activities, but petitioners ignored those instructions and continued their activities without a CWA permit. Id. at 5a-6a. In total, petitioners dug ap proximately 11,900 linear feet of ditches on both tracts and redeposited that material into approximately 5.3 acres of wetlands. Id. at 25a. Petitioners' activities pre vented the wetlands at the site from performing their prior functions, such as providing wildlife habitat and filtering and treating contaminants and toxins, including acid mine drainage, before they entered nearby water ways. Id. at 54a.

3. The United States brought suit against petition ers, alleging that they had violated Section 301(a) of the CWA by discharging pollutants into waters of the Uni ted States without a permit. Pet. App. 6a. The district court granted the government's motion for summary judgment on liability. Ibid. In granting the motion, the district court rejected petitioners' contention that they were not required to obtain a CWA permit because their predecessor-in-interest had obtained a determination from the United States Department of Agriculture (USDA) that he had begun converting wetlands to farm ing use before December 23, 1985. Mem. Op. and Order, Civ. Action No. 4:01CV-6-M at 9-10 (W.D. Ky. Apr. 24, 2003). The district court explained that "the sole pur pose" of that determination was "to prevent the loss of USDA benefits," and that "the clear language of the" application form for the determination stated that "[t]he granting of [the] request . . . does not remove other legal requirements that may be required under State or Federal waters laws." Id. at 10 (quoting Pets. Resp. Br. Exh. M) (emphasis added by district court).

The district court also dismissed petitioners' coun terclaims against the United States, including their claims that the government's actions constituted a tak ing of petitioners' property without just compensation. Mem. Op. and Order on Mot. to Dismiss Counterclaims, Civ. Action No. 4:01CV-6-M (W.D. Ky. Sep. 12, 2001). The court ruled that it lacked jurisdiction over the takings counterclaims because petitioners sought more than $10,000 in relief. Id. at 4-5 & n.4.

After a bench trial, the court enjoined petitioners from discharging pollutants into waters of the United States, and it ordered petitioners to restore the wet lands on their properties. Pet. App. 49a-63a. The court also imposed a civil penalty of $225,000 against Cundiff, but it suspended $200,000 of that amount on the condi tion that Cundiff adequately implemented the restora tion plan. Id. at 60a-62a.

Petitioners appealed. While the appeal was pending, this Court issued its decision in Rapanos, supra. Pet. App. 6a. The court of appeals remanded the case to al low the district court to reconsider, in light of Rapanos, whether petitioners' wetlands are covered by the CWA. Ibid. On remand, the district court held that the United States may establish CWA jurisdiction over wetlands under either the standard set forth in the Rapanos plu rality opinion or the standard identified in Justice Ken nedy's concurrence. Id. at 41a. The district court found that petitioners' wetlands were covered by the CWA under both standards. Id. at 42a-48a.

4. Petitioners took a second appeal, and the court of appeals affirmed. Pet. App. 1a-33a. The court held that it was unnecessary to decide whether Justice Kennedy's standard or the Rapanos plurality's standard governs CWA coverage because petitioners' wetlands are cov ered "under both Justice Kennedy's and the plurality's tests." Id. at 16a.

The court of appeals also held that petitioners' activi ties do not qualify for any of the exceptions to the CWA's permit requirements. Pet. App. 26a-27a. The court further noted that, even if petitioners' activities had qualified for one of the statutory exemptions, peti tioners "would still have been required to get a permit under the 'recapture provision,' 33 U.S.C. § 1344(f)(2)," because the purpose of their activities was to "'bring[] an area of the navigable waters into a use to which it was not previously subject,' and the 'flow or circulation of navigable waters may be impaired or the reach of such waters reduced.'" Id. at 27a (quoting 33 U.S.C. 1344(f)(2)).

The court of appeals also affirmed the dismissal of petitioners' takings counterclaims. Pet. App. 30a. The court explained that the "Tucker Act gives the Court of Federal Claims exclusive subject matter jurisdiction over takings claims seeking more than $10,000." Ibid. Because petitioners sought more than $10 million for all of their counterclaims and had not limited their takings counterclaims to an amount within the jurisdictional threshold, the court of appeals held that "their takings counterclaims were properly dismissed." Ibid.

ARGUMENT

The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals. Further review is not warranted.

1. a. Petitioners contend (Pet. 4-20) that the Court should grant review to resolve a conflict among the cir cuits as to the proper application of Rapanos. Although the courts of appeals disagree as to the proper standard under Rapanos for determining whether a wetland is covered by the CWA, this case does not present a suit able opportunity to resolve that conflict. As both courts below correctly determined, petitioners' wetlands are covered by the CWA under any of the competing stan dards. Pet. App. 16a, 48a. The choice among those stan dards therefore would not affect the disposition of this case.

The First Circuit has held that the CWA covers all waters that satisfy either the standard announced by the Rapanos plurality or the "significant nexus" standard described in Justice Kennedy's concurrence. See Uni ted States v. Johnson, 467 F.3d 56, 60-66 (2006), cert. denied, 128 S. Ct. 375 (2007). The Eleventh Circuit, in contrast, has held that CWA coverage may be estab lished only under the standard in Justice Kennedy's Ra panos concurrence. See United States v. Robison, 505 F.3d 1208, 1219-1222 (2007), cert. denied sub nom. Uni ted States v. McWane, Inc., 129 S. Ct. 630 (2008). No court of appeals has adopted petitioners' view (see Pet. 7-9), that the Rapanos plurality opinion sets forth the controlling legal standard.3

This Court recently denied the government's petition for a writ of certiorari in McWane, which asked the Court to resolve the circuit conflict. The government continues to believe that this Court's clarification of the proper application of Rapanos may be warranted in an appropriate case. The present case, however, does not provide a suitable opportunity to decide which of the competing standards controls. The court of appeals con cluded that the evidence established CWA coverage un der both the Rapanos plurality's standard and that of Justice Kennedy, and it expressly declined to choose among the competing standards because that choice would make no difference to the outcome of this case. Pet. App. 16a-17a.

b. Petitioners argue that review should be grant ed because "the United States failed to prove that [peti tioners] had met either the plurality's standard or the standard of Justice Kennedy." Pet. 10. The district court and the court of appeals concluded, however, that both standards were satisified. See Pet. App. 16a-17a, 48a. Petitioners' fact-bound disagreement with the con current determinations of the two lower courts does not warrant this Court's review. See Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275 (1949); United States v. Johnston, 268 U.S. 220, 227 (1925). In any event, petitioners' objections to the rulings below lack merit.

Petitioners contend (10-18) that their wetlands do not satisfy the Rapanos plurality's requirement of a con tinuous surface connection with the adjacent creeks be cause the wetlands are at a higher elevation than the creeks for much of the year. Nothing in the Rapanos plurality opinion, however, requires that wetlands and the traditional navigable waters or tributaries to which the wetlands connect be at the same elevation. Rather, as the court of appeals correctly held, the plurality's standard requires "that the adjacent channel contains a 'wate[r] of the United States,'" a standard clearly met here, and that the wetlands have "a continuous surface connection with that water, making it difficult to deter mine where the 'water' ends and the 'wetland' begins." Pet. App. 19a (quoting Rapanos, 547 U.S. at 742).

The district court found the latter requirement satis fied based on evidence that "there [is] no clear demarca tion between waters and wetlands" at petitioners' site. Pet. App. 47a. The court of appeals agreed with that determination, noting the district court's finding that a channel in petitioners' wetlands "provides a largely un interrupted permanent surface water flow between the wetlands and traditional waterways," id. at 21a, and "that the water flows through the channel into Pond Creek for all but a few weeks a year," id. at 19a. The court of appeals also noted that the district court had found "additional (and substantial) surface connections between the wetlands and permanent water bodies 'dur ing storm events, bank full periods, and/or ordinary high flows,'" which provide "additional evidence" of a contin uous surface connection. Id. at 21a-22a. The connec tions found by the courts below establish CWA coverage of the wetlands under the Rapanos plurality's standard.

Petitioners also contend (Pet. 18-20) that the govern ment failed to establish a "significant nexus," within the meaning of Justice Kennedy's concurring opinion in Rapanos, between their wetlands and traditional naviga ble waters. That argument lacks merit. As both the district court and the court of appeals concluded, the wetlands have the requisite "significant nexus" to tradi tional navigable waters because those wetlands "per form significant ecological functions in relation to the Green River" and its tributaries, Pond and Caney Creeks. Pet. App. 17a; see id. at 42a-44a. Those func tions include filtering acid mine runoff and sediment from a nearby abandoned mine, storing water that af fects the "frequency and extent of flooding" on the Green River, and providing an "important habitat for plants and wildlife." Id . at 18a.

Petitioners argue (Pet. 18-20) that the government's evidence was insufficient to establish a significant nexus because the government did not conduct any soil, water, or other laboratory tests. As the court of appeals ex plained, however, laboratory tests are not necessary to establish CWA coverage under Justice Kennedy's stan dard. Pet. App. 19a. Although "a district court could find such evidence persuasive, [petitioners] point to nothing-no expert opinion, no research report or arti cle, and nothing in any of the various Rapanos opin ions-to indicate that [laboratory testing] is the sole method by which a significant nexus may be proved." Ibid.

Petitioners also contend that, under Justice Ken nedy's standard, wetlands are covered by the CWA only if they "significantly affect the chemical, physical, and biological integrity of the other covered waters." Pet. 18 (emphasis added; internal quotation marks omitted). Contrary to that contention, a significant effect on any of those elements would be sufficient to establish a sig nificant nexus. Cf. 33 U.S.C. 1251(a) (objective of Act "is to restore and maintain the chemical, physical, and bio logical integrity of the Nation's waters"). In any event, both the district court and the court of appeals found a significant effect on all three elements. See Pet. App. 17a-19a, 43a-44a.4

2. Petitioners also argue (Pet. 21-23) that they were not required to obtain a CWA permit because the prior owner of their land had obtained a determination from the United States Department of Agriculture (USDA) that conversion of the wetlands to farming use had be gun before December 23, 1985. That argument lacks merit and does not warrant this Court's review.

The Food Security Act of 1985 (FSA), 16 U.S.C. 3821, denies certain benefits to farm program subsidy partici pants who convert wetlands in order to grow crops. See United States v. Brace, 41 F.3d 117, 121 (3d Cir. 1994), cert. denied, 515 U.S. 1158 (1995). The law recognizes, however, that wetlands converted prior to passage of the FSA (December 23, 1985) remain eligible for farm pro gram benefits. 16 U.S.C. 3822(b)(1)(A). Petitioners' predecessor-in-interest obtained a USDA determination that conversion on his property had started before that date. See C.A. App. 1062; Pet. 22.

As the district court correctly held, that determina tion did not obviate the need for petitioners to obtain a CWA permit before discharging dredged or fill material into their wetlands. See Mem. Op. and Order, Civ. Ac tion No. 4:01CV-6-M at 9-10 (W.D. Ky. Apr. 24, 2003). The CWA lists the specific circumstances in which dredged or fill material may be discharged into covered waters without a permit, 33 U.S.C. 1344(f)(1), and the Act does not exempt discharges merely because a land owner has a USDA determination that he began conver sion of wetlands to farming use before December 23, 1985. The statutory and regulatory provisions under which such USDA determinations are issued make clear that the determinations simply exempt the recipi ents from ineligibility "for certain benefits provided by the [USDA] and agencies and instrumentalities of USDA." 7 C.F.R. 12.1(a); see 16 U.S.C. 3821-3822; 7 C.F.R. Pt. 12. The application form filled out by peti tioners' predecessor-in-interest stated that the "grant ing of a [determination] request does not remove other legal requirements that may be required under State or Federal water laws." C.A. App. 1063; see Brace, 41 F.3d at 127.

In any event, petitioners do not contend that the court of appeals' resolution of this issue conflicts with any decision of this Court or another court of appeals. Nor do they assert that the issue is one of general im portance. Petitioners also do not dispute the court of appeals' holding (Pet. App. 27a) that, even if petitioners otherwise qualified for a CWA exemption, they would still have needed a permit because of the CWA's recap ture provision, which requires a permit for discharges of dredged or fill material for the purpose of "bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced." 33 U.S.C. 1344(f)(2). Accordingly, this issue does not warrant the Court's review.

3. Petitioners also argue (Pet. 24-33) that the govern ment's actions with respect to their wetlands effected a taking of their property without just compensation, in violation of the Fifth Amendment to the United States Constitution. Petitioners' takings claim is not properly before this Court. Neither the district court nor the court of appeals addressed the merits of that claim. In stead, the district court dismissed the claim for lack of jurisdiction, Mem. Op. and Order on Mot. to Dismiss Counterclaims, Civ. Action No. 4:01CV-6-M at 4-5 (W.D. Ky. Sep. 12, 2001), and the court of appeals affirmed that dismissal, Pet. App. 30a.

The court of appeals' resolution of the jurisdictional question is correct. The Tucker Act vests the United States Court of Federal Claims with jurisdiction over takings claims against the United States without regard to the amount in controversy. 28 U.S.C. 1491(a)(1); see Jan's Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1304 (Fed. Cir. 2008). Federal district courts have concur rent jurisdiction over any such claims "not exceeding $10,000 in amount." 28 U.S.C. 1346(a)(2). Because peti tioners sought more than $10,000 on their takings claim, the district court lacked jurisdiction over that claim. Pet. App. 30a.

Petitioners do not discuss, much less dispute, the jur isdictional rulings of the courts below. Accordingly, peti tioners' takings claim does not warrant this Court's re view.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
JOHN C. CRUDEN
Acting Assistant Attorney
General
ELLEN J. DURKEE
JENNIFER SCHELLER NEUMANN
Attorneys

JULY 2009

1 To avoid confusion between the term "navigable waters" as defined in the CWA, see 33 U.S.C. 1362(7), and the traditional use of the term "navigable waters" to describe waters that are, have been, or could be used for interstate or foreign commerce, see 33 C.F.R. 328.3(a)(1), this brief will refer to the latter as "traditional navigable waters."

2 The Rapanos plurality noted that its reference to "relatively perm anent" waters "d[id] not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought," or "seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months." 547 U.S. at 732 n.5.

3 Three other courts of appeals, in addition to the Sixth Circuit in this case, have discussed the question without definitively resolving it. See United States v. Lucas, 516 F.3d 316, 326-327 (5th Cir.), cert. denied, 129 S. Ct. 116 (2008); Northern Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 1000-1001 (9th Cir. 2007), cert. denied, 128 S. Ct. 1225 (2008); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006), cert. denied, 128 S. Ct. 45 (2007).

4 Petitioners assert (Pet. 13-14, 19-20) that the decision below con flicts with Simsbury-Avon Preservation Society v. Metacon Gun Club, Inc., 472 F. Supp. 2d 219 (D. Conn. 2007) (Simsbury), appeal pending, No. 07-0795CV (2d Cir.). A conflict between the decision below and a district court decision would not warrant this Court's review. See S. Ct. R. 10. In any event, there is no conflict. Contrary to petitioner's con tention (Pet. 13-14), the district court in Simsbury did not adopt petitioners' proposed rule that wetlands and adjacent waters must be at the same elevation to have a continuous surface connection. The court found insufficient evidence of a continuous surface connection be cause the flow between the wetlands and the adjacent water was "inter mittent." Simsbury, 472 F. Supp. 2d at 228-229 (citation omitted). Here, in contrast, the courts below found "a largely uninterrupted per manent surface water flow." Pet. App. 21a. Contrary to petitioners' contention (Pet. 19-20), the district court in Simsbury did not hold that a party seeking to establish a "significant nexus" between wetlands and adjacent waters must introduce laboratory tests. Although the court relied on laboratory "data from testing on lead concentrations," 472 F. Supp. 2d at 229, it nowhere suggested that laboratory tests are the only permissible evidence of a "significant nexus."