Summary of a Recent
Judicial
Development in
Environmental Law
Seasonally Intermittent Stream Can Be a "Water of the United States"
Eric H. FoyNational AgLaw Center Research Associate
Summary of Decision
In United States v. Moses, 496 F.3d 984 (9th Cir. 2007), the United States Ninth Circuit Court of Appeals affirmed the district court's ruling, which held that the defendant violated the Clean Water Act (CWA) by knowingly discharging pollutants into waters of the United States without a National Pollution Discharge Elimination System (NPDES) permit. In affirming, the instant court held that the creek reshaped and rerouted by the defendant constituted a regulable water body and that the evidence was sufficient to establish that the defendant discharged into creek.
Background
The defendant, an Idaho real estate broker and developer, developed a subdivision on real property located next to Teton Creek (Creek). Id. at 985. Ignoring numerous warnings from the Army Corps of Engineers (USACE), the defendant reshaped and rerouted the creek to facilitate his development. Id. This required the defendant to "hire heavy equipment operators to recontour and redeposit material within the Creek using bulldozers, and to erect log and gravel structures in the Creek using other heavy equipment." Id. at 986. Finally, in September 2002, a member of USACE advised the defendant that he could face civil or criminal penalties for his actions. Id. The agency warned the defendant again in December 2002, but the defendant continued to ignore the warnings. Id. The defendant's work on the Creek was so substantial that on September 2005 a jury convicted him of "felonious violations of the CWA for knowingly discharging, and causing to be discharged, pollutants (including dredged and fill material) from a point source or point sources into waters of the United States without a permit." Id. at 987. The defendant appealed. Id.
Arguments
The defendant claimed that the evidence was insufficient to support the jury verdict and that the court erred in refusing to grant his request for a new trial. Id. Specifically, the defendant "attack[ed] his conviction on the ground that the evidence [did] not support a determination that the portion of Teton Creek that he manipulated constitute[d] a water of the United States, and even if it [did], the evidence [did] not support a determination that he made a discharge . . . ." Id.
Analysis and Holdings
The court first addressed whether the manipulated portion of the Creek was a water of the United States. Id. The key inquiry for the court was "whether a seasonally intermittent stream which ultimately empties into a river that is a water of the United States can, itself, be a water of the United States." Id. at 989. In Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir.2001), the instant court answered affirmatively, explaining that
even if [the alleged polluter] succeeds, at certain times, in preventing the canals from exchanging any water with the local streams and lakes, that does not prevent the canals from being "waters of the United States" for which a permit is necessary. Even tributaries that flow intermittently are "waters of the United States."
Id.
The defendant argued that a man-made severance, which took place before the enactment of the CWA, of Teton Creek at Alta, Wyoming, made the portion he manipulated dry during much of the year; therefore, he argued that it should not be classified as a "water of the United States." Id. at 991. However, the evidence showed that "when the time of runoff [came], the Creek [rose] again and [became] a rampaging torrent that ultimately join[ed] its severed lower limb and then rushe[d] to the Teton River, the Snake River, and onward to the Columbia River and the Pacific Ocean." Id. After reviewing the evidence in the record and applying the Supreme Court's holding in Rapanos v. United States, 547 U.S. 715, (2006), the court held that the Creek constituted a "water of the United States." Id.
The court then addressed whether the defendant had discharged into the Creek. Id. at 991. He argued that the pollutants were deposited when the Creek bed was dry, and therefore there was no discharge. Id. The court disagreed, stating that "[t]o hold otherwise would countenance significant pollution of the waters of the United States as long as the polluter dumped the materials at a place where no water was actually touching them at the time." Id. Because the defendant discharged pollutants into waters of the United States without a permit, the court affirmed the jury verdict. Id. at 993.
The case was decided on August 3, 2007.