United States of America
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 courts verdict finding appellant criminally liable for violations of the Clean Water Act. 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. 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. The court demonstrated 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 jusrisdiction. 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. Thecourt 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. 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. 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 Acts purposes” and narrowly construed. Here the changes to the Creek were not changes to a structure and thus the exception did not apply. 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.