UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 14, 2006
Decided June 6, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-3199
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the
Western District of Wisconsin
v.
No. 03 C 75
PAUL A. HEINRICH,
Defendant-Appellant. John C. Shabaz, Judge.
ORDER
Paul Heinrich owns nine and a half acres of land on Little Star Lake in
northern Wisconsin. A licensed pilot, Heinrich uses the property to operate a
business offering “scenic seaplane rides.” Most of his land is a white cedar swamp
wetland subject to state and federal regulations.
Heinrich’s problems began when he decided he wanted to build a road from
the lake upland to an aircraft hangar on his property. Starting in 1996, he began
making inquiries of various officials with the Wisconsin Department of Natural
Resources (WDNR) and the Army Corps of Engineers. At first he was honest about
needing to build the road to move his seaplane. When he was told he would be
unlikely to get the necessary permits, Heinrich changed his story and said he
planned to build a “logging road,” which is subject to fewer restrictions. But a
No. 05-3199 2
Corps official who visited the property in May 1997 told Heinrich that idea also was
unlikely to fly.
In August 1997, Heinrich chose to go ahead and build the road anyway,
misrepresenting to his contractor that he had the necessary approvals. Two years
later, officials received a complaint, and the federal EPA began investigating.
Heinrich continued to characterize the project as a “logging road” on his
“silviculture hobby farm.” The EPA ordered Heinrich to restore the wetlands, and
when he didn’t, the agency issued a notice of violation. The government eventually
filed suit to enforce the order. The district court, after granting summary judgment
for the government, imposed a monetary penalty and issued a remedial order.
Heinrich appeals, and we review the statutory interpretation behind the district
court’s summary judgment decision de novo. United States v. B&W Inv. Props., 38
F.3d 362, 366 (7th Cir. 1994).
Heinrich’s seaplane access road met the criteria of a Corps nationwide permit
that was in effect at the time, known as “NWP 26,” which allowed small projects
like his with minimal environmental impacts to proceed without advance federal
approval. See 33 U.S.C. § 1344(e). However, under NWP 26, projects like
Heinrich’s still needed a state water quality certification. See 33 C.F.R. § 330.4(c).
Heinrich’s defense boils down to two arguments: that Wisconsin waived its
right to require water quality certification for NWP 26 projects, or that because of
bureaucratic snafus between the Corps and the WDNR, he did not get proper notice
that certification was required. We must reject both arguments.
Federal regulations require that a state evaluate a Corps nationwide permit
for compliance with its water quality standards. 33 C.F.R. § 330.4(c)(1). If a state
denies blanket water quality certification for a particular NWP, or if the Corps
deems the conditions imposed by a state to be the equivalent of a denial, then
individuals seeking to proceed under a NWP must obtain individual water quality
certifications.
Heinrich contends that Wisconsin waived its right to require individual water
quality certifications because it did not submit valid paperwork to the Corps in time
for a February 11, 1997, deadline applicable to NWPs in effect for the year 1997.
The record indicates that the Corps received a FAXed copy of Wisconsin’s water
quality decision on the deadline, though Heinrich disputes whether the state
properly followed its own procedures to make the decision legally effective by that
date. At the latest, it appears the decision would have become effective on March
29, 1997, after the state comment period closed. The Corps did not reject the state’s
submission as untimely.
No. 05-3199 3
Heinrich did not raise his state procedural arguments in the district court,
and so we decline to address them on appeal. See Republic Tobacco Co. v. N. Atl.
Trading Co., 381 F.3d 717, 728 (7th Cir. 2004) (“We have long refused to consider
arguments that were not presented to the district court in response to summary
judgment motions. Appellate review is not designed to serve as an unsuccessful
party's second bite at the apple--an opportunity to raise issues and arguments that
were not brought forth below.” (Internal citations and quotation marks omitted.)).
Suffice it to say that while Wisconsin may or may not have blown a deadline set by
the Corps, the Clean Water Act, which is the controlling statute here, imposes a
penalty of waiver only if a state fails to act “within a reasonable period of time
(which shall not exceed one year).” 33 U.S.C. § 1341(a)(1). Since the Corps issued
its request for state certifications on December 13, 1996, and Wisconsin’s
certification was effective at the latest on March 29, 1997, the state was within the
one-year statutory time frame. Heinrich cannot escape liability for his wetlands
violation by arguing in retrospect that the State waived certification.
Although the Corps accepted the state’s decision as timely, it determined on
April 30, 1997, that the substance of Wisconsin’s decision was inconsistent with the
Corps’ regulations, and the decision was thus interpreted as a denial of NWP
certification. This meant that each applicant seeking to use NWP 26 in the state
would have to obtain an individual state water quality certification. Heinrich
believes the requirement should not have been applied to him because there was no
official public notice, to him or anyone else, that the Corps had interpreted the
state’s decision as a denial of blanket certification and thus that individual water
quality certifications would be needed.
The relevant regulation says only (and rather vaguely) that Corps district
engineers “will take appropriate measures to inform the public of which activities,
waterbodies, or regions require an individual . . . water quality certification before
authorization by NWP.” 33 C.F.R. § 330.4(c)(4). We might agree with Heinrich that
Corps officials should have done more to let those potentially affected by the
Wisconsin decision know that they had to get individual certifications. But we
cannot find that the Corps’ failure to do so violated any statute or regulation
requiring notice by publication.
By contrast, the regulations are clear that an individual water quality
certification is required where a state has denied blanket certification under a
particular NWP. 33 C.F.R. § 330.4(c)(6). Nowhere do the regulations indicate that
landowners are entitled to assume that blanket certification is in effect unless
they’re specifically told otherwise. Yet Heinrich, who has reminded us throughout
his brief and oral argument that he is a practicing attorney, seems to assume that
he had a legal right to go forward with his access road simply because no one ever
No. 05-3199 4
told him he couldn’t. Rather than looking in vain for post-hoc justifications, he
should have read the appropriate regulations more carefully and inquired about the
status of state water quality certification requirements before he cavalierly moved
forward with his project. The record indicates that Heinrich had contacts with
various officials who probably could have steered him in the right direction and
saved him an expensive violation--if he hadn’t created confusion by trying to flim-
flam them into believing that his seaplane access road was actually a “logging
road,” the requirements for which are covered by different policies.
Heinrich also seeks to have the government’s suit against him dismissed
because he was not personally served with the EPA compliance order. (He got it by
certified mail.) As legal authority, he cites cases dealing with statutory
requirements concerning notice of a citizen’s intent to sue to enforce a government
regulation, see Hallstrom v. Tillamook County, 493 U.S. 20 (1989), or over a
government official’s failure to perform some act or duty, see Greene v. Reilly, 956
F.2d 593 (6th Cir. 1992). But these cases have nothing to do with the mode by
which an EPA administrative order is served. While the Clean Water Act specifies
that such orders “shall be by personal service,” 33 U.S.C. § 1319(a)(5), the record
shows that Heinrich received the order, responded to it without objecting to the
mode of service, and was not prejudiced by the absence of personal service. The
district court did not err in finding that Heinrich thus waived strict compliance with
the personal service requirement. See United States v. Myslajek, 568 F.2d 55, 57
(8th Cir. 1977).
Finally, Heinrich argues that the $75,000 penalty he was assessed, along
with an order to restore his wetlands to their previous condition, were “draconian
and an abuse of discretion.” Our own review of the record satisfies us that the
district court properly considered the relief requested by the government and
Heinrich’s objections to it.
The judgment of the district court is AFFIRMED.