U.S. v. Moses, No. 06-30379 (9th Cir. 2007)

By Stephanie J. Helfrich

In upholding an 18-month prison sentence, plus monetary fines, under the Clean Water Act (CWA) of an eastern Idaho developer who bulldozed a creek bed, the Ninth Circuit held that 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. The Court further held that deposition of materials into the intermittent stream during the 10-month dry season still constituted a discharge of fill into waters of the United States.

Beginning in the 1980s, defendant Charles Moses had used heavy equipment to re-contour, redeposit dredge material into, and erect log and gravel structures within an intermittent creek adjacent to a residential subdivision he had developed in Teton County, Idaho.  Because of an upstream irrigation diversion structure, the section of the braided Teton Creek at issue only experienced substantial ("even torrential") flow during two months of the year.  As early as 1982 and several times thereafter, U.S. Army Corps of Engineers (Corps) officials told Moses that his work altering Teton Creek required a permit under the CWA.  Moses repeatedly disregarded these warnings and worked to reroute and reshape the creek for more than 20 years, dumping gravel, dirt and logs into the creek and deepening the channel.  In 1995, the Corps ordered Moses to stop all dredge and fill operations in the creek, and follow-up letters were sent to the developer in 1996 and 1997.  Moses failed to apply for permits in 2002, 2003 and 2004, and violated a 2004 EPA cease-and-desist order by dumping dredged material into the creek.  "Overall, the work on the creek bed was substantial," 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."

The defendant claimed that the braided creek bed with an upstream diversion that only conveyed runoff two months of the year was not jurisdictional.  The Court 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," and rejected defendant’s argument.  The Court cited its own line of decision affirming the view that intermittent tributaries are waters of the U.S. (citing Headwaters v. Talent Irrigation Dist. 243 F.3d 526 (9th Cir. 2001), and referenced the U.S. Supreme Court’s Rapanos decision (a wetlands case) discussion of tributaries and intermittent streams.  The Court 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" and concluded that the Supreme Court "unanimously agreed" in Rapanos that intermittent streams (at least those that are seasonal) can be waters of the U.S., and that the Corps can reasonably interpret the CWA to cover the paths of such impermanent streams.

On the question of "discharge" under the CWA, defendant claimed that since his creek bed realignment work, including use of heavy equipment and removal and redeposit of soil in the creek bed, only occurred in the months with no water present in the creek, the activities did not constitute discharge of fill "into waters of the U.S."  The Court rejected this argument as well, indicating that not only would this reasoning negate the purpose of the CWA and encourage deposit of pollutants in dry creek beds, but the evidence supported the conclusion that defendant intended to create a situation where pollutants, including disturbed and moved materials as well as structures, remained within the creek when the water returned, constituting a discharge of pollutants under the CWA.

Defendant also attempted to claim that the "incidental fallback" rule applied and, alternatively, that his activities were subject to Nationwide Permit 3.  Both arguments were quickly rejected by the Court with limited discussion.

For further information please contact Stephanie Helfrich. Stephanie Helfrich is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco office.