Latest Ninth Circuit Decision Interpreting Rapanos Extends Clean Water Act Jurisdiction to Intermittent Streams

By Aaron Courtney, Marten Law Group

October 10, 2007

In the context of affirming a criminal conviction, the Ninth Circuit has held that a seasonally intermittent stream—dry for 10 months out of the year, but which ultimately empties into a river—constitutes a “water of the United States,” and therefore that adding gravel and other material to the stream—even when it is dry—falls within federal Clean Water Act (“CWA”) jurisdiction. In U.S. v. Moses,[1] the Court affirmed the conviction of an Idaho man who deposited materials into the intermittent stream during the 10-month dry season without a permit. Such activity, the Court held, amounted to the “discharge of pollutants” prohibited by the CWA despite the absence of flowing water during the discharge events.[2]

The case illustrates the Ninth Circuit’s willingness to apply the CWA’s dredge and fill provisions to intermittent streams, and serves as a sobering reminder of the significant penalties that can be assessed under the CWA against property owners, developers, contractors, or others who engage in earth-moving moving activities within such water features. However, the Ninth Circuit did not take the opportunity presented by Moses to discuss in a comprehensive manner how the Court applies the United States Supreme Court’s landmark decision in Rapanos v. United Statesto the interrelated fact patterns presented in Moses and the Court’s two other post-Rapanos decisions from this year—N. Cal. River Watch v. City of Healdsburg and San Francisco Baykeeper v. Cargill Salt Division.[4]

Decades of Discharges and Regulatory Action

The record before the Ninth Circuit revealed that beginning in the 1980s, and continuing for more than 20 years thereafter, the defendant, Charles Moses, used heavy equipment to reroute and reshape Teton Creek, a seasonally intermittent stream that flows two months out of the year into the Teton River and, ultimately, the Snake River .[5] Over approximately two decades, Moses moved tons of gravel and other material, and erected log and rock structures within the seasonally intermittent stream.

As early as 1982 and several times thereafter, U.S. Army Corps of Engineers (“Corps”) officials warned Moses that his work altering Teton Creek required a permit under the CWA. Claiming that his activities were outside the jurisdiction of the Corps, Moses refused to obtain a permit. As a consequence, the Corps ordered Moses in 1995 to stop all dredge and fill operations in the creek. The Corps sent Moses follow-up letters in 1996 and 1997, and issued him a notice of violation (“NOV”) in December 2002.

Despite the repeated warnings of the Corps and the notice of violation, Moses continued to periodically dump material in Teton Creek. Eventually, the Environmental Protection Agency (“EPA”) stepped in and issued Moses a CWA cease and desist order.[6] Even with the involvement of another federal regulatory agency Moses continued to ignore the orders of both agencies and remained adamant in his refusal to apply for a permit under the CWA, all the while continuing to contract for work to be performed in Teton Creek (primarily during no flow periods).

"Overall,” the Court noted, "thousands of cubic yards of gravel and other materials were moved, and the channel was deepened, widened, and greatly disturbed. The disturbance reached both upstream and downstream of the work perpetrated by Moses and his minions."[7]

The Conviction and Defense

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.”[8] 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 two primary defenses. First, he claimed that the portion of the creek that he worked in did not constitute “waters of the United States ” and that the federal agencies lacked jurisdiction to prosecute him. Second, Moses asserted that even if he had caused a discharge into waters of the United States , the discharge did not require a permit because his work within the streambed occurred during periods of no flow.

The Court’s Analysis

Waters of the United States

The Ninth Circuit framed the question as "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 ."[9] In rejecting Moses’ defense, the Court cited its own pre-Rapanos precedent, Headwaters v. Talent Irrigation District, wherein the Ninth Circuit affirmed the view that intermittent tributaries—intermittently flowing irrigation canals—constitute waters of the United States .[10] The Court found additional support in the Supreme Court's discussion of tributaries and intermittent streams in Rapanos, wherein the Supreme Court failed to find majority support for a single test to determine federal jurisdiction under the CWA.[11] Concluding, as it has before, that the controlling test of CWA jurisdiction is Justice Kennedy’s concurring opinion in Rapanos,[12] rather than Justice Scalia’s plurality opinion, the Ninth Circuit summarized Rapanos as not ruling out jurisdiction for “seasonal rivers which contain continuous flow during some months of the year but no flow during dry months,” but rather recognized that “the Corps can reasonably interpret the Act to cover the paths of such impermanent streams.”[13] Accordingly, the Ninth Circuit concluded that the Supreme Court in Rapanos “unanimously agreed that intermittent streams (at least those that are seasonal) can be waters of the United States .”[14]

Discharge

The court characterized its rejection of Moses’ second defense as being based on “common sense:” “The mere fact that pollutants are deposited while … Teton Creek is dry cannot make a significant difference,” “especially when the Corps retains jurisdiction.”[15] The Court refused to hold otherwise 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.”[16] The Court also recognized the fact Moses had “create[d] a situation where pollutants … remained in Teton Creek when the water rose within it,”[17] and “when the water flowed, materials dislodged by Moses’ operations would [also] be carried downstream.”[18]

Lessons Learned Through ‘Courage or Foolhardiness’

The Ninth Circuit concluded by chiding Moses for choosing “to ignore all demands by the EPA and the Corps that he comply with the Clean Water Act … And while his sang-froid (or even contempt) in the face of agency demands may show either courage or foolhardiness, it does not save him from the consequences of his actions.”[19] In addition to serving as a reminder of the potential criminal penalties available to EPA under the CWA, the Moses decision is significant for its application of Rapanos to intermittent streams.

In fact, prior to its ruling in Moses, the Ninth Circuit appeared potentially unwilling to construe Rapanos as applying to such waterways.In a ruling earlier this year, the Ninth Circuit in Cargill actually seemed to be narrowing the scope of Rapanos to only cases involving adjacent wetlands while excluding other bodies of water that might have a nexus with a navigable-in-fact waterway.[20] Specifically, the Cargill opinion stated that in Rapanos, “[n]o Justice, even in dictum, addressed the question whether all waterbodies with a significant nexus to navigable waters are covered by the Act.”[21] With its analysis and holding in Moses, the Ninth Circuit appears to have backed away from drawing such a bright line in applying Justice Kennedy’s test from Rapanos, and displayed a willingness to extend the significant nexus analysis to water features—such as seasonally intermittent streams—other than merely adjacent wetlands.

Nevertheless, the Ninth Circuit failed to explicitly reconcile this case with Cargill. The court also did not take the opportunity to bring further clarity to how it construes Rapanos by discussing the commonalities and distinctions between this case, and the recent Healdsburg and Cargill opinions. This is striking not only due to the interrelated issues presented by each of these cases, but also because earlier this year the Ninth Circuit withdrew the Healdsburg decision in an attempt to clarify it in the context of Cargill[22] (and then filed the revised Healdsburg opinion only three days after it filed the Moses opinion).

Based on Moses, it is safe to assume that in the Ninth Circuit the CWA’s dredge and fill provisions apply to most, if not all, intermittent streams. For other types of waterbodies, however, property owners, contractors, and developers will need to parse the Ninth Circuit’s and the Supreme Court’s CWA opinions to try and figure out whether the water feature is subject to CWA jurisdiction prior to conducting activities that will result in the discharge of fill material therein.

For more information on the Clean Water Act, contact Aaron Courtney in the Marten Law Group’s Portland , Oregon , office or Jeff Kray in the Seattle , Washington , office.

[1] 496 F.3d 984 (9th Cir. 2007).

[2] The CWA prohibits “the discharge of any pollutant” (including “dredged spoil … rock [and] sand”) into “navigable waters,” which in turn means “waters of the United States .” 33 U.S.C. §§ 1311(a), 1262(6), 1362(7), 1362(12), and 1362(16).

[3] 126 S. Ct. 2208 (2006).

[4] 457 F.3d 1023 (9th Cir. 2006) and 481 F.3d 700 (9th Cir. 2007), respectively. For an in-depth discussion of the Ninth Circuit’s failure to bring clarity to how it construes Rapanos, see this newsletter’s September 12, 2007 article Clear as Mud: Newest Ninth Circuit Case Interpreting Rapanos Test for Clean Water Act Jurisdiction Offers Little Clarity.

[5] An upstream, man-made diversion controlled flow in the creek, which at times could be “torrential.”

[6] 33 U.S.C. § 1319(a).

[7] 496 F.3d at 986-987.

[8] Id. at 987.

[9] Id. at 989.

[10] 243 F.3d 526 (9th Cir. 2001).

[11] 126 S. Ct. at 2215.

[12] The court’s conclusion on this point followed Ninth Circuit precedent described in two earlier articles in this newsletter regarding Healdsburg: Clear as Mud: Newest Ninth Circuit Case Interpreting Rapanos Test for Clean Water Act Jurisdiction Offers Little Clarity and Ninth Circuit, In First Case Applying Supreme Court’s Rapanos Decision, Holds NPDES Permit Required for Sewage Discharge to Excavated Pit.

[13] 496 F.3d at 990.

[14] Id. at 991.

[15] Id.

[16] Id.

[17] The court also recognized the long-established interpretation of the statute that “simply dredging up and redepositing what was already there is sufficient to run afoul of the CWA.” Id.

[18] Id.at 993.

[19] Id.

[20] 481 F.3d 700. See also Ninth Circuit Declines to Extend CWA Jurisdiction to “Adjacent Waters” Other Than Wetlands.

[21] Id. at 710.

[22] See this newsletter’s article noted supra note 3

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