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Ninth Circuit Upholds Criminal Penalties for Modification of Intermittent Stream

August 22, 2007
By Leslie Z. Walker and Janell M. Bogue

Admonishing appellant for 20 years of blatant disregard for the Army Corps of Engineers (“Corps”) and the Clean Water Act (“CWA”), the Ninth Circuit upheld the Idaho district court’s verdict finding appellant criminally liable for violations of the Clean Water Act in U.S. v. Moses (Aug. 3, 2007, No. 06-30379) ___U.S. ___ [2007 U.S.App.LEXIS 18483].

Teton Creek (“Creek”) is a tributary of the Teton River, which flows into the Snake River. In 1970, appellant Moses began working on a development next to Teton Creek. During the majority of the year, water does not flow in the Creek adjacent to the development because of an irrigation diversion upstream. In the spring however, water surges through the Creek next to the development. Water flows continuously year-round in the Creek above the diversion and below the development.

In 1980, Moses began reshaping the Creek to better handle the seasonal flow. He hired heavy equipment operators to recontour and redeposit material to convert the original three channels of the Creek into one broader and deeper channel. The Corps repeatedly warned Moses that the stream alteration work required a CWA permit. From 1982-2002, the Corps issued at least five warnings, including a cease and desist order, a warning that failure to obtain a permit could result in civil or criminal penalties, and a notice of violation. Moses ignored the Corps’ warning and continued to pursue work on the Creek. In 2003, the EPA issued an administrative compliance order directing Moses to immediately cease unauthorized discharges. Moses did not respond and continued to work.

In March 2005, a federal grand jury indicted Moses for “felonious violation of the CWA for knowingly discharging, and causing to be discharged, pollutants from a point source or point sources into waters of the United States without a permit.” The district court sentenced Moses to 18 months imprisonment, one year of supervised release, and imposed over $9,000 in fines and special assessments. Moses appealed, asserting insufficient evidence to support the verdict.

Moses claimed that the portion of the Creek that he manipulated does not constitute a water of the United States for the purposes of the CWA, and even if it did, the evidence did not show that he had made a discharge into that water for the purposes of the CWA. He further claimed that even if he had made a discharge into waters of the United States, the discharge did not require a permit.

Waters of the United States

The court first visited the purpose of the CWA, explaining that it was enacted in order to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The Clean Water Act outlaws the unauthorized “discharge of any pollutant by any person” into the “waters of the United States.” Pollutant means “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sledge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”

The court went on to demonstrate that the part of Teton Creek next to Moses’ property was a water of the United States and therefore subject to the CWA and the Corps’ jurisdiction. Absent the diversion, Teton Creek would be a water of the United States because it flowed interstate and emptied into the Teton River, which itself emptied into the Snake River. The court held that a mere man-made diversion could not convert what was a part of the waters of the United States into something else and, thus, eliminate it from national concern. Further, the court held that the seasonal nature of the Creek could not prevent it from being a water of the United States, referring to Rapanos v. United States, ___ U.S. ___, 126 S. Ct. 2208 (2006), wherein the four justice plurality, the four justice dissent, as well as Justice Kennedy’s concurrence all found that “intermittent streams can be waters of the United States.”

Discharge

Moses claimed that even if the Creek near his development was a water of the United States, he did not need a permit because he worked on the Creek when it was dry, and the movement of material was only incidental fallback. The court rejected Moses’ claim because such an interpretation of the CWA 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.”

The court also rejected Moses’ incidental fallback argument, and said that incidental fallback is defined by the regulations as “the redeposit of small volumes of dredged material that is incidental to excavation activity in waters of the United States when such material falls back to substantially the same place as the initial removal. The court opined that the “massive movement and redistribution of materials within Teton Creek” could only be defined as incidental fallback by “a mind committed to a predetermined answer.”

No Permit Needed

Moses attempted two final arguments. First, he claimed that he did not need a permit because he was merely maintaining a currently serviceable structure, an act exempted from the permit requirement by 33 U.S.C. section 1344 suvdiv. (f)(1)(B). Exceptions from the CWA must be “analyzed in light of the Act’s purposes” and narrowly construed. Here the changes to the Creek were not changes to a structure and thus the exception did not apply. United States v. Akers, 785 F.2d 814, 819 (9th Cir. 1986).

Finally, Moses claimed that his activities were permitted by Nationwide Permit No. 3, authorizing the maintenance of previously authorized, currently serviceable structure or fill. However, the court found that the Nationwide Permit was issued under the Rivers and Harbor, 33 U.S.C. section 403 act and therefore did not apply to activities covered by the CWA, and even if it did, at least a large portion of the work done on Teton Creek was completed after the Corps asserted jurisdiction.

The court therefore affirmed the conviction.