Petition for Writ of Certiorari — Moses v. United States (No. 07-1195)

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071195 JAN 09 2008

OFFICE OF THE CLERK

App. No.

_ IN THE SUPREME COURT OF THE

UNITED STATES OF AMERICA

C. LYNN MOSES

Petitioner,

Vv.

UNITED STATES OF AMERICA

Respondent.

ON PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Blake S. Atkin*

William O. Kimball

Joseph H. Pugsley

ATKIN LAW OFFICES, P.C.

837 South 500 West, Suite 200

Bountiful, Utah 84010

Telephone: (801) 533-0300

Facsimile: (801) 533-0380

Attorneys for Petitioner C. LYNN MOSES

*Counsel of Record

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QUESTIONS PRESENTED

Whether the lower court’s holding that there is

Clean Water Act jurisdiction over a flood control

channel created over 100 years ago by an irrigation

diversion, that carries water only when released by

the irrigators who own the water, and which never

carries water for more than two months out of the

year conflicts with this Court’s decision in Rapanos v.

United States, 126 S.Ct. 2208 (2006), the Agencies’

own regulations following Rapanos, and the decision

of the Eleventh Circuit in United States v. Robison,

505 F.3d 1208, 2007 WL 3087419 (11th Cir. 2007).

Whether the lower court’s holding that a

violation of the Clean Water Act can occur when it is

undisputed that maintenance of this flood channel

occurred only when no water was present, there was

only removal of gravel debris from the channel and

no evidence of an introduction of any outside

material into this flood channel and none of the

gravel dislodged through maintenance ever made it

into a navigable water of the United States conflicts

with this Court’s decision in Rapanos v. United

States, 126 S.Ct. 2208 (2006) and the decision of the

Eleventh Circuit in United States v. Robison, 505

F.3d 1208, 2007 WL 3087419 (11th Cir. 2007).

Whether the lower court’s decision upholding

the conviction of Mr. Moses conflicts with the D.C.

Circuit’s decision in National Association of Home

Builders v. U.S. Army Corps of Engineers, 440 F.3d

459, 2006 WL 250234 (D.C. Cir. 2006), finding the

Tulloch II rule (See, 33 C.F.R. § 323.2(d)(2)(i) and 40

C.F.R. § 232.2(2)(i)) under which Mr. Moses was

convicted to be outside the statutory authority of the

Corps of Engineers.

PARTIES TO THE PROCEEDING

Petitioner cS: Lynn Moses was

Defendant/Appellant in this matter.

Respondent United States of America was the

Plaintiff/Appellee in this matter.

TABLE OF CONTENTS

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PETITION FOR A WRIT OF CERTIORARI............... !

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STATEMENT OF JURISDICTION... ee. I

STATUTORY PROVISION INVOLVED..................... 2

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REASONS WHY THE WRIT OF CERTIORARI

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THE NINTH CIRCUIT DECISION IN THIS CASE

IS IN CONFLICT WITH THE ELEVENTH

CIRCUIT ANALYSIS OF CLEAN WATER ACT

CASES FOLLOWING RAPANOG...................064. 2

UNDER THE AGENCIES’ INTERPRETATION

OF THE JURISDICTION OF THE CLEAN

WATER ACT AFTER RAPANOS, JURISDICTION

CANNOT BE ASSERTED OVER THIS

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APPENDIX

Ninth Circuit Court of Appeals Decision

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Ninth Circuit Court of Appeals Order Denying

Petition for Rehearing and Rehearing En Banc....20a

Idaho District Court Judgment in a Criminal Case

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Excerpts of Record

Pgs. 117, 132, 134, 142, 153-154, 194.000. 44a

Clean Water Act Jurisdiction following the U.S.

Supreme Court’s decision in Rapanos v. United

States and Carabell v. United States, dated June 5,

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TABLE OF AUTHORITIES

CASES:

National Ass'n of Home Builders v. U.S. Army Corps

of Eng’rs, 2007 WL 259944 (D.D.C., 2007).....8, 9

Nati a of Home Bui } s

of Engineers, 440 F.3d 459, 2006 WL 250234

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Rapanos v. United States

126 S.Ct. 2208 (U.S., 2006)

Setar acdustent tacsusacckabrechcikavcowecsone 5, 6, 7, 8, 9, 10, 11, 18

United States v. Robison

505 F.3d 1208, 2007 WL 3087419 (11th Cir.

I ee oa 8, 9, 10

United States v. Robison

---F Supp.2d----, 2007 WL 3355112 (N.D.Ala)....8

STATUTES AND REGULATIONS:

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MISCELLANEOUS:

Clean Water Act Jurisdiction following the U.S.

Supreme Court’s decision in Rapanos v. United

States and Carabell v. United States, dated June 5,

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PETITION FOR A WRIT OF CERTIORARI

Petitioner C. Lynn Moses _ respectfully

petitions for a Writ of Certiorari to review the

decision of the United States Court of Appeals for the

Ninth Circuit to affirm the Idaho District Court’s

conviction of Mr. Moses in this case.

OPINIONS BELOW

The decision of the United States Court of

Appeals for the Ninth Circuit (Appendix, infra, pp.

la-19a) is available at 496 F.3d 984 (9th Cir. 2007).

The Idaho District Court Judgment in a Criminal

Case dated June 20, 2006 (App., infra, pp. 21a-36a) is

unreported.

STATEMENT OF JURISDICTION

This action concerns the jurisdictional reach of

the Clean Water Act, 33 U.S.C. § 1251 et seg. The

Idaho District Court had federal question jurisdiction

pursuant to 28 U.S.C. § 1331. This court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

The Judgment in a Criminal Case was entered

on June 20, 2006. (App., infra, pp. 21a-36a).

Defendant's Notice of Appeal was filed on June 27,

2006. The Ninth Circuit Court of Appeals decision

affirming Mr. Moses’ conviction was entered August

3, 2007. (App., infra, pp. 1a-19a). On September 14,

2007, the Ninth Circuit Court of Appeals issued an

Order Denying Petition for Rehearing and Rehearing

En Banc. (App., infra, p. 20a). Petitioner requested

a 30-day extension to file this petition and, on

November 30, 2007, was granted an extension until

January 11, 2008.

STATUTORY PROVISION INVOLVED

This action concerns the jurisdictional reach of

the Clean Water Act, 33 U.S.C. § 1251 et seq.

STATEMENT OF THE CASE

This criminal prosecution, brought pursuant

to 18 U.S.C. §3231, see, App., infra, p. 37a, centered

around maintenance cf a flood channel created over

100 years ago by an irrigation diversion. This flood

channel carries water only when it is released by the

irrigators and carries water for less than two months

out of the year as a flood control mechanism. In

1980, when Mr. Moses became involved, the flood

channel opened into a flood fan. Mr. Moses re-routed

the path into a single channel that could successfully

carry the water into the county’s storm culvert

without flooding the nearby town of Driggs, Idaho

and the development contemplated by Mr. Moses.

Periodic maintenance was required to keep the water

in a single channel by removing gravel deposited by

prior floods. None of the maintenance work was

done when there was water in the channel. No

foreign materials were introduced. There are no

wetlands in the area. None of the gravel disturbed

during the maintenance operations ever migrated to

any navigable water of the United States.! It was the

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1 The Court of Appeals erroneously stated that the gravel

migrated into Teton River, see App., infra, p. 16a. There was no

evidence to support this conclusion. See App., infra, p. 5la-53a:

Now, there are areas downstream that have

problems. There is no question about that. But

those problems are — in large part are this

natural eluvial fan deposit working because as

you start down through the area — and the area

right where I’m drawing a mark which is kind of

periodic maintenance that Mr. Moses was engaged in

during the 2002 - 2003 period for which he was

indicted.

When Mr. Moses undertook control of the

flood channel in 1980, inquiry was made of the Corps

of Engineers by the county. The Corps took the

a curve, the grading at that point is 95.8 feet per

mile; in other words, in one mile the stream

drops 95.8 feet in this little region there.

At the area below the bridge, it gets

down below 40. By the time it gets to the Teton

River it’s six feet per mile. So 95 here, 6 down

at the river. And the river down near the

confluence between the Teton River and the

Teton Creek is totally different. Now, there’s no

way of showing you the picture. But

downstream below an area just off this map the

stream is a nice meander. There’s no gravel

showing. It goes into the Teton River cleanly

without any piles of gravel or anything there.

So what happens is that somewhere

between Mr. Moses’s property, which is right

here, and downstream of the highway, which is

just off this map, the gravels from anywhere

have to stop. So the sand, the gravels, the

materials that you saw in most of those

photographs are course, heavy’ graded

materials. They're not clay. You can see the

rocks. They’re big. And so that material has to

drop somewhere in this vicinity below this point

where it’s 95 feet per mile down to an area down

where it’s about 20 feet per mile, which is below

the highway that goes north, south into Driggs,

and it’s just off this map. You can see Driggs is

here. It’s just off the edge.

position that there was no Clean Water Act

jurisdiction. Periodically, for the next 20 years, Mr.

Moses would be contacted by the Corps of Engineers

and he would remind them that they had no

jurisdiction. That explanation seemed to satisfy

them and they would go away. In 2002, agents of the

Environmental Protection Agency began to assert

jurisdiction over this flood channel that ultimately

resulted in this prosecution.

REASONS WHY THE WRIT OF CERTIORARI

SHOULD BE GRANTED

The EPA, The Corps of Engineers, and the

Ninth Circuit Court of Appeals in this case have

belligerently refused to follow this Court’s recent

admonition in Rapanos v. United States, 126 S. Ct.

2208 (U.S. 2006), that there are limits to the

jurisdictional reach of the Clean Water Act. 7

Back in the early 1980's when Mr. Moses’

maintenance of this flood channel began, the U:S.

Army Corps of Engineers recognized that there were

limits to the jurisdictional reach of the Clean Water

Act. They were presented with the plans of Mr.

Moses to re-route the flood channel and expressly

declined jurisdiction. When the city of Driggs was

flooded a few years later they reiterated their lack of

jurisdiction and washed their hands of the problem.?

2 The Court of Appeals erroneously stated that by 1982 the

Corps had clearly asserted jurisdiction. This was, at best,

disputed at the trial. As late as 1996, Mr. Kagel, a former

agent of the Corps of Engineers, testified that the Corps was

taking a hands-off approach to Mr. Moses’ activities. See App.,

infra, pp. 47a-48a:

Twenty years later, a new group of administrators at

the Corps, in conjunction with the EPA, decided to

assert Clean Water Act jurisdiction over anything

wet throughout the nation and, as part of that

expansive shift in jurisdictional analysis, brought

this criminal prosecution against Mr. Moses for the

same periodic maintenance that he had been

performing for twenty years.

This Court in Rapanos reversed the expansive

trend in Clean Water Act jurisdiction. The Court in

a plurality decision, made it clear that the Clean

Water Act does not apply to everything wet, but to

Q: What did you do?

A: I contacted the office because I thought

they should take some action. And I was trying

to encourage them that some action should be

taken; enforcement action, quite honestly.

Q: When you say you contacted the office,

who did you contact?

A: The chief of regulatory, Mr. Brad Daly.

Q: And what kind of a report did you make

to Mr. Daly?

A: I told him that there was work being

done in the channel that triggered Section 404

and that my recommendation was that we take

some type of action, like a cease and desist or a

letter, an after-the-fact application or

something.

Q: And did you receive a response from Mr.

Daly?

A: Yes, I did.

Q: What was his response?

A: He said that he was going to take no

action and for me to not do any further

investigation, that Mr. Brochu would be

handling that.

“only those relatively permanent, standing or

continuously flowing bodies of water ‘forming

geographic features’ that are described in ordinary

parlance as ‘streamsl|,] . . . oceans, rivers, [and]

lakes.” Rapanos, 126 S. Ct. at 2212. The phrase

does not include “channels through which water

flows intermittently or ephemerally, or channels that

periodically provide drainage for rainfall.” Id. This

flood channel created by an irrigation diversion does

not fit the Pluralities’ definition.

Even if one only considers the concurring

opinion of Justice Kennedy, it is still incumbent on

the United States to show a significant nexus

between the activities of a defendant and the goals of

the Clean Water Act to maintain the physical,

biological, and chemical integrity of waters of the

United States. Unfortunately, the Rapanos decision

came after the trial in this case and the Court of

Appeals made no effort to explain how Mr. Moses’

activities took place in a “water of the United i5tates”

or even how there is a significant nexus between Mr.

Moses’ maintenance activities and protection of the

chemical, biological and physical integrity of a water

of the United States when such maintenance is

undertaken in a dry flood channel that runs only two

months out of the year, has no impact on any

wetland, never introduces foreign materials, and the

gravel being removed never migrates into waters of

the United States. This decision by the Court of

Appeals on this important federal question flies in

the face of, and conflicts with, this Court’s recent

decision in Rapanos v. United States, 126 S. Ct. 2208

(U.S. 2006), and conflicts with at least one decision of

another Court of Appeals. The Eleventh Circuit, in

United States v. Robison, 505 F.3d 1208, 2007 WL

3087419 (11th Cir. 2007), held that a conviction

could not be upheld where the significant nexus

analysis had not been undertaken, even though the

conviction occurred before Rapanos. A memorandum

opinion by the trial court on remand points out the

serious difficulty the lower courts are having in

applying Rapanos and the need for further guidance

by this Court. See United States v. Robison, ---

F.Supp.2d----, 2007 WL 3355112 (N.D. Ala).

Moreover, Mr. Moses was convicted on the

strength of the Tulloch II rule (See, 33 C.F.R.

§ 323.2(d)(2)@), see, App., infra, p. 42a, and 40 C.F.R.

§ 232.2(2)(i), see, App., infra, p. 43a) and the Corps’

attempts to enforce its regulations of fallback from

dredging operations. In Mr. Moses’ case, the

government took the position that there was massive

“fallback” and that it could not have been considered

“incidental fallback,” yet there was no attempt to

quantify the amount of fallback from _ these

operations designed to open the channel and remove

gravel that had washed down in the latest flood.

Indeed, there was not even an instruction on

incidental fallback and thus the jury could not have

made the important determination whether more

than incidental fallback occurred. (App., infra, pp.

55a-56a) The United States District Court, District of

Columbia, on remand from the D.C. Circuit, National

Association of Home Builders v. U.S. Army Corps of

Engineers, 440 F.3d 459, 2006 WL 250234 (D.C. Cir.

2006), recently struck down the Tulloch II

regulation. National Ass’n of Home Builders v. U.S.

Army Corps of Eng’rs, 2007 WL 259944 (D.D.C.,

- 2007). In Mr. Moses’ case, none of the lower courts

would even address this issue. Their decision, when

juxtaposed against the decision in National

Association of Home Builders v. U.S. Army Corps of

Engineers, 440 F.3d 459, 2006 WL 250234 (D.C. Cir.

2006), and National Ass’n of Home Builders v. U.S.

Army Corps of Eng’rs, 2007 WL 259944 (D.D.C.,

2007), create just the type of embarrassing division

in the law which certiorari jurisdiction of this Court

is designed to correct.

THE NINTH CIRCUIT DECISION IN THIS

CASE IS IN CONFLICT WITH THE

ELEVENTH CIRCUIT ANALYSIS OF

CLEAN WATER ACT CASES FOLLOWING

RAPANOS.

Some Appellate Courts that have addressed

Rapanos, and even the EPA and the Corps of

Engineers in their analysis of Rapanos and its

application to facts similar to Mr. Moses cleaning out

the gravel from a channel] that carries water only

intermittently, have concluded that Clean Water Act

jurisdiction does not apply to such activities in such

areas, at least unless they are shown to significantly

impact the physical, biological, or chemical integrity

of the Nations navigable waters. See, e.g., United

States v. Robison, 505 F.3d 1208, 2007 WL 3087419

(11th Cir. 2007). In Robison, the defendants had

regularly dumped chemical pollutants into a creek

that flowed continuously past their plant in violation

of their permit. That creek flowed into another

stream that had been dammed to create a lake from

which flowed a stream that flowed into a navigable

water. The Eleventh Circuit, after determining that

Justice Kennedy’s concurrence in Rapanos was

controlling, reversed the conviction and remanded for

a new trial because the Court had not instructed the

jury on the need to examine whether there was a

significant nexus between the defendants’ activities

and the physical, chemical, or biological integrity of a

navigable water of the United States. The case was

remanded to see whether the Government could

meet that evidentiary standard in a new trial. In

Moses’ case, a judgment of acquittal is called for

since it is undisputed that there is no nexus between

Mr. Moses activities and the physical, chemical and

biological integrity of any navigable waters of the

United States.

Mr. Moses’ activities were all in uplands; no

q wetlands were located in the area. (App., infra, p.

4 45a) No foreign matter was introduced into this

4 storm channel. The undisputed testimony was that

= Mr. Moses’ only activity was removal of gravel that

7 was washed downstream during prior floods and

none of that gravel ever made it into a navigable

stream. (See, footnote 1). Thus, the Ninth Circuit

decision in this case and the Eleventh Circuit

decision in Robison are in direct conflict as to the

correct law to apply in cases such as this.

e Indeed, the Ninth Circuit decision in this case

@ also disregards the Agencies’ own approach post

Rapanos to cases such as this. The Rapanos case

spurred the EPA and the Corps of Engineers to issue

new guidelines for determining jurisdiction over any

Pisa ee Nee dy ea a at ein anes a as

particular area and under those guidelines, the area

Mr. Moses was maintaining would not be considered

a navigable water of the United States.

UNDER THE AGENCIES’

INTERPRETATION OF THE JURISDICTION

OF THE CLEAN WATER ACT AFTER

RAPANOS, JURISDICTION CANNOT BE

ASSERTED OVER THIS AREA.

Jurisdiction under the Clean Water Act could

not be asserted over the flood channel under Rapanos

and the interpretation of Rapanos adopted by the

agencies.

In a recent publication provided to the Ninth

Circuit Court of Appeals and to Moses by the

Government, Clean Water Act Jurisdiction following

the U.S. Supreme Court’s decision in Rapanos v.

United States and Carabell v. United States dated

June 5, 2007, (App., infra, p. 57a-8la) the EPA and

the Corps of Engineers set out the criteria by which a

determination to assert jurisdiction over an

intermittent stream is to be judged. Under their own

criteria, a significant nexus between Mr. Moses’

activity and the physical, biological, or chemical

integrity of a navigable water of the United States is

not to be had.

First, the Agencies set out those features over

which they will not assert jurisdiction. Mr. Moses’

flood control channel fits directly into this

description:

The Agencies generally will not assert

jurisdiction over the following features:

kkk

Ditches excavated wholly in and

draining only uplands and that do not

carry arelatively permanent flow of

water.

(App., infra, p. 58a).

The Agencies defined “relatively permanent

flow of water” as “waters that flow year round or that

have a continuous flow at least seasonally (e.g.,

typically three months).” (App., infra, p. 66a)

This fundamental criterion immediately removes Mr.

Moses’ activities in this flood control channel from

consideration. Mr. Moses’ activities were to clean out

a ditch used to control the flood waters that would

periodically flow through the area in a plane. The

Government stipulated at the trial court level that

there are no wetlands in this area. (App., infra, p.

45a). Therefore, what the evidence showed at trial is

a ditch that drains only uplands. The evidence at

trial was that this channel was used for flood control

purposes for only two months, in the years when

there was any flow at all. (App., infra, pp. 49a-50a).

This upland ditch that does not carry a continuous

flow for at feast three months is viewed by the

agencies as being outside their jurisdiction. (App.,

intra, p. 58a).

If that were not enough, even if the agency

were to consider this channel on a case-by-case basis,

its own criteria would weed out this prosecution.

In order to assert jurisdiction, the agency must

determine that a particular activity or feature has a

significant nexus to the purpose of the Clean Water

Act, which is to preserve the physical, chemical, and

biological integrity of the Nations navigable waters. a

33 U.S.C § 1251, (App., infra, p. 38a). . This a

4 determination is, of course, required by the Kennedy i

4 concurrence in Rapanos. 4

4 It is undisputed that the area where Mr. ‘4

& Moses built this flood control channel is not a 4

= navigable water of the United States. Thus, Mr. 4

Moses’ simple maintenance of the channel had ne ¥

a impact on the physical integrity of a navigable water

a of the United States.

a Likewise, there is no suggestion that Mr.

. Moses introduced any chemical or biological agent

3 whatsoever into the area. Even the minimal trees

: that were used to repair existing log jams were trees

: washed down with the latest flood. Thus, there can

a be no argument that his actions affected the chemical

a or biological integrity of a navigable water of the

United States.

This conclusion becomes more painfully

obvious when the Court considers that the

undisputed evidence at trial was that even the gravel

that Mr. Moses is accused of disturbing through his

annual maintenance of the flood channel never made

it to the Teton River — the navigable river into which

the flood waters of the channel may sometimes

reach.’ Additionally, there is no aquatic environment

in this area, (App., infra, p. 44a), and there are no

wetlands through the area of this flood control

channel. (App., infra, p. 45a).

The conflict between the Ninth Circuit

decision in this case and other appellate court

BE ip ne So

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3 See, supra, footnote 1.

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decisions as well as the wholesale failure of the

Ninth Circuit to address the issues pursuant to the

Agencies’ own criteria, create the type of

embarrassing situation that calls for a Writ of

Certiorari and which has a substantial chance of

resulting in a significant modification of the outcome

in this case.

CONCLUSION

For the above stated reasons, this petition for

a writ of certiorari should be granted.

RESPECTFULLY SUBMITTED this 13 day

of March, 2008.

ATKIN LAW OFFICES, P.C.

Blake S. Atkin q

ATKIN LAW OFFICES, P.C. .

- 837 South 500 West, Suite 200 |

3 Bountiful, Utah 84010 a

a Telephone: (801) 533-0300 :

Facsimile: (801) 533-0380

Attorney for C. LYNN MOSES

496 F.3d 984

United States Court of Appeals

For The Ninth Circuit

UNITED STATES of America, Plaintiff-Appellee,

C. Lynn MOSES, Defendant-Appellant.

No. 06-30379

D.C. No. CR-05-00061-BLW

Opinion

Appeal from the United States District Court for the

| District of Idaho; B. Lynn Winmill, District Judge,

. Presiding.

Argued and Submitted

July 10, 2007 — Seattle, Washington

Filed August 3, 2007

Before: FERDINAND F. FERNANDEZ and KIM

McLANE WARDLAW, Circuit Judges, and LOUIS H.

POLLAK,” District Judge.

FERNANDEZ, Circuit Judge:

Despite numerous warnings over the years, Charles

Lynn Moses continued to do work in the channel of

Teton Creek in Idaho for the purpose of rerouting,

reshaping and otherwise controlling the flow of the

., ee * The Honorable Louis H. Pollak, Senior United States District

i: Judge for the District of Pennsylvania, sitting by designation.

—_— es

a a

waters of the Creek. The government finally

prosecuted him for violating the Clean Water Act

(CWA). See 33 U.S.C. §§ 1251-1387. He was

convicted and sentenced, and now appeals. He claims

that there was no discharge of pollutants into the

waters of the United States. We disagree and affirm.

BACKGROUND

Moses is a real estate broker and developer in

Driggs, Idaho. Beginning in the late 1970s, he

worked on a development known as the Aspens

Subdivision, an approximately 50 acre parcel of land

in Teton County, Idaho, which is located on a flood

plain next to Teton Creek. Because of an irrigation

diversion structure installed in Alta, Wyoming,

upstream of the subdivision, water actually flows in

the portion of Teton Creek adjacent to the

subdivision only during the spring run-off, which

lasts about two months per year. During that time,

water is released from the diversion. When it does

flow, the volume and power of the flow are high, even

torrential. Teton Creek is a tributary of the Teton

River, which flows into the Snake River. Water

continues to flow year-round in Teton Creek above

the diversion, and also from a point below the

subdivision until it reaches the Teton River. There is

no claim that the Snake River, the Teton River, and

Teton Creek, apart from the segment that flows only

during the spring runoff, fail to qualify as waters of

the United States.

Beginning in the 1980s, and continuing for more

than 20 years, Moses has worked to reroute and

reshape Teton Creek, in an attempt: to convert the

original three channels of the Creek into one broader

and deeper channel, which would carry all of the

seasonal flow of water. Over that period, including

during more recent work in 2002, 2003 and 2004,

Moses hired 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.

Beginning in 1982 and on_ several occasions

thereafter, the Army Corps of Engineers (the Corps)

warned Moses that his stream alteration work

required a CWA permit. During a hearing on the

Aspens Subdivision in 1982, the Corps informed

Moses that it did have jurisdiction over the stream,

even though the flow of the stream was intermittent.

In 1995, the Corps issued a cease and desist order

that directed Moses to immediately stop all dredge

and fill operations in Teton Creek. In 1996 and 1997,

the Corps once again wrote to Moses, seeking his

cooperation and explaining its regulations. Moses

essentially ignored all of that.

On two separate occasions in 2002,! Moses hired the

owner of Tupco, Inc., an excavation business to

rebuild and repair log structures, to perform

dredging and filling work, to build a temporary

ramp, and to remove gravel bars in Teton Creek. An

environmental resources specialist with the Corps

saw the work going on within the Creek bed in

September 2002, informed Moses that he needed a

permit to conduct the work, and advised him that the

' The work was performed once before the 2002 runoff and once

after the runoff.

activities could result in civil or criminal penalties.

Moses treated that warning with his usual disdain.

In December 2002, the Corps issued a notice of

violation to Moses, which again informed him of the

need fer a permit and of the potential for criminal

penalties.

Undeterred, in Spring 2003,2 Moses contacted the

excavation business operator for a third time and

asked him to work in Teton Creek. The operator

again “repaired” log structures within the Creek bed,

and moved gravel out of and within the Creek bed.

Several months later, the Environmental Protection

Agency (EPA) issued an administrative compliance

order pursuant to 33 U.S.C. § 1319(a), which directed

Moses to immediately “cease any unauthorized

- discharges of dredged material, fill material, and

other pollutants to any stream bed and banks on the

[slite,” and to submit a work plan for restoring Teton

Creek. Moses did not respond to the EPA's order, and

less than two months later he hired the owner of

Nord Excavating and Paving, Inc., to do more

bulldozing work in Teton Creek. That consisted of

the removal of gravel bars and contouring of the

Creek bed. :

Overall, the work on the Creek bed was substantial.

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. Of

the hundreds of projects surveyed by Dale Miller, a

2 This work was hired before the 2003 high runoff.

government expert, Teton Creek was “probably one

of the more impacted streams” he had observed,

“both in terms of change [at the part in question

here] and also the upstream and downstream effects

that have resulted from that change.” The Creek was

unstable into the bargain.

Finally, in March 2005, a federal grand jury returned

a three-count indictment charging Moses with

feicnious violations of the CWA for knowingly

discharging, aad 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. See 33 U.S.C. §§ 1311(a),

1319(c)(2)(A); 18 U.S.C. § 2. The counts covered

discharges by Moses into Teton Creek in the Aspens

Subdivision area from 2002 to 2004.

A four-day jury trial was held in September of 2005.

On September 14, 2005, after the close of the

government's case, Moses timely moved for a

judgment of acquittal under Rule 29 of the Federal

Rules of Criminal Procedure, which the court denied.

Ultimately, the jury returned a verdict finding Moses

guilty on all counts. In February of 2006, Moses

moved for a new trial pursuant to Rule 33 of the

Federal Rules of Criminal Procedure and attempted

to introduce new evidence to support an estoppel

argument. Moses claimed he had been misled by the

government into believing that his conduct was

lawful. The district court denied the motion. One

month later, Moses filed a second motion for a new

trial. The district court denied that motion also.

On June 30, 2006, the district court sentenced Moses

to 18 months imprisonment on each count, to be

served concurrently, and imposed a $9,000 fine, a

$300 special assessment, and one year of supervised

release. This appeal followed. Moses asserts that the

evidence was not sufficient to support the verdict,

and that he should have been granted a new trial.

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 18

U.S.C. § 3231, and we have jurisdiction pursuant to

28 U.S.C. § 1291.

Because Moses “preserved his sufficiency claim by

moving for a judgment of acquittal, we review his

claim de novo.” United States v. Lyons, 454 F.3d 968,

971 (9th Cir.2006). Evidence is sufficient to support a

conviction, if “ ‘viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt.’ ” Jd. (quoting Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560 (1979)).

We review for abuse of discretion a district court's

denial of a motion for a new trial. See United States

v. Mack, 362 F.3d 597, 600 (9th Cir.2004); United

States v. Sarno, 73 F.3d 1470, 1507 (9th Cir.1995). A

new trial may be granted by the district court when

the “interest of justice so requires.” Fed.R.Crim.P.

33(a); Mack, 362 F.3d at 600.

DISCUSSION

Moses primarily attacks his conviction on the ground

that the evidence does not support a determination

that the portion of Teton Creek that he manipulated

constitutes a water of the United States, and even if

it does, the evidence will not support a determination

that he made a discharge’ into that United States

water. We will take those issues up first. We will

then address his secondary issues, which rely on a

notion that he did not need a permit anyway. As

already indicated, and as we will explain further, we

do not agree with any of his theories.

A. Sufficiency of the Evidence

Moses' sufficiency arguments turn on his claims

about the reach of the CWA. That law was enacted

by Congress in order to “restore and maintain the

chemical, physical, and biological integrity of the

Nation's waters.” 33 U.S.C. § 1251(a). In order to

achieve its objectives, Congress outlawed the

unauthorized “discharge of any pollutant by any

person.” Jd. § 1311(a). That, in turn, means that

Moses could not add “any pollutant to navigable

waters,”"5 which means “the waters of the United

States." As used in the CWA, 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

> 33 U.S.C. § 1362(7).

* 33 U.S.C. § 1362(16).

5 33 U.S.C. § 1362(12); see also id. § 1362(16).

6 33 U.S.C. § 1362(7).

waste discharged into water.” Jd. § 1362(6). Those

facially simple provisions have generated a good deal

of regulatory and judicial attention. Suffice it to say

that while they are designed to bring clarity to the

Nation's waters, they, themselves, are not hyaline.

Moses was not much interested in the subtleties

involved; he should have been before he undertook to

ignore the government's steady trickle of warnings.

(1) Waters of the United States

The first thing that is apparent is that under both

Corps and EPA regulations,’ a body of water need

not, itself, be navigable in order to be one of the

waters of the United States. Even wetlands can come

within that concept. See, eg., United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 131-35,

106 S.Ct. 455, 461-63, 88 L.Ed.2d 419 (1985). The

Corps has issued regulations which define waters of

the United States to mean:

(1) All waters which are currently used, or were used

in the past, or may be susceptible to use in interstate

or foreign commerce, including all waters which are

subject to the ebb and flow of the tide;

(2) All interstate waters including interstate

wetlands;

(3) All other waters such as intrastate lakes, rivers,

streams (including intermittent streams) ...

7 We owe deference to the agencies' interpretations. See San

Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700, 705 (9th

Cir.2007).

(5) Tributaries of waters identified in paragraphs

(a)(1)-(4) of this section...

33 C.F.R. § 328.3(a). EPA regulations are to the same

effect. See 40 C.F.R. § 122.2 (definition of waters of

the United States).

We do not see how one can gainsay the fact that

Teton Creek was at least a tributary in the sense

used by the Corps’ definition before the Creek was

interrupted at Alta, Wyoming. As we have noted, it

flowed interstate and emptied into the Teton River,

which itself emptied into the Snake River.’ That

being so, it is doubtful that a mere man-made

diversion would have turned what was part of the

waters of the United States into something else and,

thus, eliminated it from national concern. Rather,

what the courts have said regarding navigable

waters would seem applicable here. In George v.

Beavark, Inc., 402 F.2d 977, 978 (8th Cir.1968), the

court was faced with a claim that a boat floating on a

man-made lake, which was created by damming the

upper reaches of the White River, was upon

navigable waters of the United States. The court,

with no hesitation, declared: “If the river was

navigable prior to construction of the dam, it

continues to be considered as a navigable stream.” /d.

8 There can be little doubt that a tributary of waters of the

United States is itself a water of the United States. See United

States v. Hubenka, 438 F.3d 1026, 1032 (10th Cir.2006); United

States v. Phillips, 367 F.3d 846, 855-56 (9th Cir.2004).

10a

And in a case where it pointed out that navigability

is not to be appraised on the basis of natural

conditions only,? the Supreme Court went on to state

that “[w]hen once found to be navigable, a waterway

remains so.” 10

Similarly, we do not see how a mere man-made

diversion, however long ago undertaken, could

change Teton Creek from a water of the United

States into something else. If the diversion could not

do that, even the now often-dry portion of Teton

Creek remains a water of the United States just as it

was antediluvially. Of course, we recognize that the

diversion did take place long before the enactment of

the CWA itself. That should not change the analysis.

But, as we will explain, regardless of that purely

historical consideration, present conditions also

dictate that the often-dry portion of Teton Creek is a

water of the United States.

Put most starkly, the question is whether a

seasonally intermittent stream which ultimately

empties into a river that 1s a water of the United

States can, itself, be a water of the United States. In

Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d

526 (9th Cir.2001), we answered that question in the

affirmative, when we held:

9 See United States v. Appalachian Elec. Power Co., 311 U.S.

377, 407, 61 S.Ct. 291, 299, 85 L.Ed. 243 (1940); see also Boone

v. United States, 944 F.2d 1489, 1492-93 & 1493 n. 6 (9th

Cir.1991).

10 Appalachian Elec., 311 U.S. at 408, 61 S.Ct. at 299.

Ila

But 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. at 534. In so doing, we relied upon the following

reflection by the Eleventh Circuit Court of Appeals:

[T]here is no reason to suspect that Congress

intended to exclude from “waters of the United

States” tributaries that flow only intermittently.

Pollutants need not reach interstate bodies of water

immediately or continuously in order to inflict

serious environmental damage.... Rather, as long as

the tributary would flow into the navigable body of

water “during significant rainfall,” it is capable of

spreading environmental damage and is thus a

“water of the United States” under the Act.

United States v. Edson, 108 F.3d 1336, 1342 (11th

Cir.1997) (citations and footnote reference omitted).

Since then, the Supreme Court has revisited this

area, but has not undercut our prior analysis. See

Rapanos v. United States, --- U.S. ----, 126 S.Ct.

2208, 165 L.Ed.2d 159 (2006). In that case, the Court

actually directly dealt with the reach of the CWA

over wetlands,'! but in so doing addressed itself to

11 The scope of the wetlands regulation had been visited by the

Court on two previous occasions. See Solid Waste Agency v.

U.S. Army Corps of Eng'rs, 531 U.S. 159, 171-72, 121 S.Ct. 675,

ira aS

12a

the question of what could be a tributary. Jd., 126 : 4

S.Ct. at 2225. A four justice plurality ultimately

declared:

In sum, on its only plausible interpretation, the

phrase “the waters of the United States” includes

only those relatively permanent, standing or

continuously flowing bodies of water “forming

geographic features” that are described in ordinary

parlance as “streams|,] ... oceans, rivers, [and] lakes.”

The phrase does not include channels through which

water flows intermittently or ephemerally, or

channels that periodically provide drainage for

rainfall. The Corps’ expansive interpretation of the

“the waters of the United States” is thus not “based 3

on a permissible construction of the statute.” 3

Id. 126 S.Ct. at 2225 (citations omitted). But that

absolute sounding statement must be taken in the

context of the plurality's prefatory definitional

statement that “[bly describing ‘waters' as ‘relatively

os permanent, we do not necessarily exclude streams,

a rivers, or lakes that might dry up in extraordinary

circumstances, such as drought. We also do not

necessarily exclude seasonal rivers, which contain

continuous flow during some months of the year but

no flow during dry months....” Jd. 126 S.Ct. at 2221 n.

5. The four dissenting justices did agree that,

be “common sense and common usage demonstrate that ;

4 intermittent streams, like perennial streams, are :

682-83, 148 L.Ed.2d 576 (2001); Riverside Bayview Homes, 474

U.S. at 139, 106 S.Ct. at 465.

: 13a

still streams.” Jd. 126 S.Ct. at 2260 (Stevens, J.,

dissenting).

That left Justice Kennedy in the middle so to speak,

or to put it more legally accurately, that left his

opinion as the controlling rule of law. See N. Cal.

River Watch v. City of Healdsburg, 457 F.3d 1023,

1029 (9th Cir.2006).!2 His opinion surely does not

denigrate or even undercut the concept that a

seasonal stream could be a water of the United

States. In fact, he put it thusly: “(T]he dissent is

correct to observe that an intermittent flow can

constitute a stream, in the sense of a current or

course of water or other fluid, flowing on the earth,

while it is flowing. It follows that the Corps can

reasonably interpret the Act to cover the paths of

such impermanent streams.” Rapanos, 126 S.Ct. at

2243 (Kennedy, J., concurring) (internal quotation

marks and citations omitted). In fact, he considered

the plurality's general principle to be inadequate. As

he said, in language quite apposite to the case at

hand:

The plurality's first requirement — permanent

standing water or continuous flow, at least for a

period of “some months,” — makes little practical

sense in a statute concerned with downstream water

quality. The merest trickle, if continuous, would

count as a “water” subject to federal regulation, while

torrents thundering at irregular intervals through

12 Floth in his brief and at argument, Moses has attempted to

induce us to review and eschew River Watch. As Moses should

know, we cannot do that. See, e.g., Cal. Dept. of Water Res. v.

FERC, 361 F.3d 517, 521 (9th Cir.2004); Murray v. Cable Nat'l

Broad. Co., 86 F.3d 858, 860 (9th Cir.1996).

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otherwise dry channels would not. Though the

plurality seems to presume that such irregular flows

are too insignificant to be of concern in a statute

focused on “waters,” that may not always be true.

Areas in the western parts of the Nation provide

some examples.

Id. 126 S.Ct. at 2242 (citation omitted). Justice

Kennedy went on to hold that what is required is a

showing of a “significant nexus” between wetlands

and navigable waters, and declared that absent more

specific regulations, the nexus must be established

by the Corps “on a case-by-case basis when it seeks

to regulate wetlands based on adjacency to non:

navigable tributaries.” Jd. 126 S.Ct. at 2249.

Therefore, far from undercutting our decision in

Headwaters, the Supreme Court unanimously agreed

that intermittent streams (at least those that are

seasonal) can be waters of the United States. That

being so, we cannot say that the evidence here failed

to sustain the verdict.

The man-made severance of Teton Creek at Alta,

Wyoming, may have made the portion in question

here dry during much of the year, but when the time

of runoff comes, the Creek rises again and becomes a

rampaging torrent that ultimately joins its severed

lower limb and then rushes to the Teton River, the

Snake River, and onward to the Columbia River and

the Pacific Ocean. Indeed, it is that very rush of

water that induced Moses to take action.

In short, on this record Teton Creek constitutes a

water of the United States and, as the Supreme

15a

Court has recognized, regardless of any other

disagreements, “no one contends that federal

jurisdiction appears and evaporates along with the

water in such regularly dry channels.” Jd. 126 S.Ct.

at 2221 n. 6. That glissades to consideration of

Moses’ next claim.

(2) Discharge

Moses' attack on the evidence to support the element

of discharge of a pollutant fares no better. He argues

that he did not run his heavy equipment and engage

in his assault on Teton Creek while the water was

actually rushing between its banks. Thus, he says,

there was no discharge into waters of the United

States. He is wrong.

Common sense tells us that, especially if the Corps

retains jurisdiction, as it does,!3 the mere fact that

pollutants are deposited while this part of Teton

Creek is dry cannot make a significant difference.

See Headwaters, 243 F.3d at 533-34; Eidson, 108

F.3d at 1342. To 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.

In addition, the evidence clearly supports a

determination that the result of Moses' efforts was to

create a situation where pollutants — disturbed and

moved materials as well as log structures —

remained in Teton Creek when the water rose within

') See Rapanos, 126 S.Ct. at 2221, n. 6.

16a

it. In fact, those pollutants were intended to do just

that. Even if no new materials were added to the

Creek bed by Moses’ activities, simply dredging up

and redepositing what was already there is sufficient

to run afoul of the CWA. See Borden Ranch P'ship v.

U.S. Army Corps of Eng'rs, 261 F.3d 810, 814 (9th

Cir.2001), affd, 5387 U.S. 99, 123 S.Ct. 599, 154

L.Ed.2d 508 (2002) (affirmance by an equally divided

Court); Rybachek v. U.S. Envtl. Prot. Agency, 904

F.2d 1276, 1285 (9th Cir.1990). Moreover, the

evidence supported a determination that when the

water flowed, materials dislodged by Moses'

operations would be carried downstream into the

lower portion of Teton Creek and on into the Teton

River.

But, argues Moses, even if he did see to the moving of

thousands upon thousands of cubic yards of material,

by taking it from one part of Teton Creek and

depositing it in another location within the Creek,

that was no violation; it was just an incidental

fallback of the material. See 33 C.F.R. §

323.2(d)(2)(i). Was it incidental fallback? To lay the

definition alongside the evidence in this case is to

answer the question. The regulations provide:

Incidental fallback is 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. Examples of incidental fallback

include soil that is disturbed when dirt is shoveled

and the back-spill that comes off a bucket when such

small volume of soil or dirt falls into substantially

the same place from which it was initially removed.

ay s ees

17a

33 C.F.R. § 323.2(d)(2)(ii); see also Nat'l Mining Ass'n

v. U.S. Army Corps of Eng'rs, 145 F.3d 1399, 1403-04

(D.C.Cir.1998) (holding Corps can regulate redeposit,

but must allow for mere incidental fallback). The

evidence here shows massive movement and

redistribution of materials within Teton Creek. Only

a mind committed to a predetermined answer could

see that material redeposit as similar to a small

volume of dirt that happened to fall off a bucket and

back to the approximate place of removal.!4

The claim that there was insufficient evidence of

discharge of pollutants must fail.

B. Claims That No Permit Was Required

After the jury verdict went against him, Moses tried

to recoup by claiming that he did not need a permit

in the first place, and was entitled to entirely ignore

the demands of the EPA and the Corps. He should

have listened.

Moses first points to the exception for discharges for

the purpose of maintenance of currently serviceable

structures. 33 U.S.C. § 1344(f(1)(B). But that

exception has an exception of its own because the

work performed cannot further impair the waters of

14 We have not overlooked Moses’ passing comment that there

should have been an instruction on incidental fallback.

However, because that was not raised at the district court, our

review is for plain error, and on this record he has not shown

any interference with any substantial rights. See United States

v. Tirouda, 394 F.3d 683, 688 (9th Cir.2005).

isa

the United States if the exception is to apply at all.

See id. § 1344(f)(2); see also 33 C.F.R. § 323.4(a)(2).

Exceptions from the CWA must be “analyzed in light

of the Act's purposes” and exceptions must be

construed narrowly. United States v. Akers, 785 F.2d

814, 819 (9th Cir.1986). As the district court pointed

out, Moses’ activities went far beyond anything that

could be called mere maintenance of serviceable

structures. He made great changes to Teton Creek

itseli, which can hardly be called a structure anyway.

And even if some of the log placements within the

Creek were, themselves, structures that could be

repaired, some of those structures were actually built

during 2001, and none of them were built pursuant

to a permit. All in all, while Moses' theory might be

interesting, the evidence is against him. The district

court did not abuse its discretion when it denied a

new trial on this basis.

Nor does Nationwide Permit No. 3, 67 Fed.Reg. 2078

(Jan. 15, 2002) (the Permit), supply the apotropaion

that Moses seeks. In the first place, the Permit was

issued pursuant to the Rivers and Harbors Act. See

33 U.S.C. § 403; see also United States v.

Cumberland Farms of Conn., Inc., 826 F.2d 1151,

1157-59 (1st Cir.1987). It does not apply to activities

covered by the CWA. That was plain in 1980 when

Moses first began his activities in Teton Creek, and it

was plain during the period covered by the

indictment. See id. at 1159-60.

Secondly, even if the Permit did have application

here, it cannot be said that the vast amount of work

on Tetox. Creek took place before the Corps asserted

jurisdiction. At best, the new evidence submitted

yp a et a alli dn eel as oe eee ai = eg ee Pere Fes

19a

with Moses' motion for a new trial would indicate

there is some conflict regarding his 1980 activity, but

there can be no doubt that jurisdiction was asserted

at least as early as 1982. It was surely asserted

during the period covered by the indictment.

The district court did not abuse its discretion when it

determined that a new trial based upon the Permit

was not appropriate.

CONCLUSION

Moses chose to ignore all demands by the EPA and

the Corps that he comply with the Clean Water Act

before he undertook his activities in Teton Creek.

Even if he was convinced that the Corps had

eschewei jurisdiction in 1980, it is not clear why he

thought that gave him a sempiternal right to

continue after jurisdiction was duly asserted. And

while bis sang-!soid (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.

_ The evidence supported the determination that Teton

Creek does constitute a water of the United Sts ‘es

and that Moses did discharge pollutants into it.

Moreover, his actions were not exempt and were not

taken pursuant to Nationwide Permit No. 3.

AFFIRMED.

i a a lh

RAO ARETE f

GEA UATE ILE EEN eS GeO

P; ai *. us

20a

Not For Publication

United States Court of Appeals

For The Ninth Circuit

FILED

Sep 17 2007

Cathy A. Catterson, Clerk

U.S. Court of Appeals

UNITED STATES of America, Plaintiff-Appellee,

C. Lynn MOSES, Defendant-Appellant.

No. 06-30379

D.C. No. CR-05-00061-BLW

ORDER DENYING PETITION FOR REHEARING

AND REHEARING EN BANC

Before: FERNANDEZ and WARDLAW, Circuit

Judges, and POLLAK,! District Judge

The Panel has unanimously voted to deny the

appellant’s petition for rehearing. The petition for

rehearing en banc was circulated to the judges of the

court, and no judge requested a vote for en banc

consideration.

The petition for rehearing and the petition for

rehearing en banc are DENIED.

' The Honorable Louis H. Pollak, Senior United States District

Judge for the District of Pennsylvania, sitting by designation

a a EN he

Rigen s Se

2la

United States District Court

District of Idaho

United States of JUDGEMENT INA

America CRIMINAL CASE

Charles Lynn Case Numbers: 4:05CR00061-

Moses 001

USM Number: 12305-023

Blake Atkin

Defendant’s Attorney

THE DEFENDANT:

Pleaded guilty to counts(s)

Pleaded nolo contendere to count(s)

which was accepted by the court.

X Was found guilty on count(s) one through three of

the indictment

After a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section Nature of Offense Offense

Ended

33 § 1319(c)(2)(A) Violation of Clean 04/30/2004

Water Act

Count

1,2, and 3

eg PRS eS ee EE Ciel RE og FP pia ee ae oN Ce Ry OO Pe ene eS ee ene ee A, ee ghee p>: Pe POR GL ae .

Se mi dE ii oe Bk BRS ae wi Sap AF 1 by ie Mis = ee ar 2 . kp ei ales SN Fa tak fe RT SED eae Re

22a

The Defendant is sentenced as provided in

pages 2 through 7 of this judgment. The sentence is

imposed pursuant to the Sentencing Reform Act of

1984.

The Defendant has been found not guilty on count(s)

__ Count(s) __ is __ are dismissed

on the motion of the United States.

It is ordered that the defendant must notify

the United States attorney for this district within 30

days of any change of name, residence, or mailing

address until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant must

notify the court of the United States attorney of

material changes in economic circumstances.

06/19/2006

Date of Imposition of Judgment

s/ B. Lynn Winmill

Signature of Judge

B. Lynn Winmill, United States District Judge

Name and Title of Judge

s/ 6/20/2006

Date

23a

DEFENDANT: Charles Lynn Moses

CASENUMBER: 4:05CR00061-001

IMPRISONMENT

The defendant is hereby committed to the

custody of the United States Bureau of Prisons tu be

imprisoned for a total term of 18 months on each of

counts 1, 2, and 3, to be served concurrently. COURT

ORDERED STAY OF EXECUTION OF THIS

JUDGMENT UNTIL A DECISION HAS BEEN

MADE ON THE APPEAL.

Defendant shall submit to DNA collection while

incarcerated by the Bureau of Prisons or, absent

collection while imprisoned, then at the direction of

the U.S. Probation Office upon release.

X The court makes the following

recommendations to the Bureau of Prisons:

That the defendant be credited with all time

served, and that the defendant be placed in

the facility at Sheridan, Oregon.

The defendant is remanded to the custody of

the United States Marshal.

The defendant shall surrender to the United

States Marshal for this district:

at a.m. __—séwp.m. on

ee as notified by the United States

Marshal.

24a

The defendant shall surrender for service of

sentence at the institution designated by the

Bureau of Prisons:

before 2 p.m. on

X as notified by the United States

Marshal, and that is consistent with

page 3 of this judgment, and the court’s

separate order entered in this case.

as notified by the Probation or Pretrial

Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered

with a certified copy of this judgment.

United States Marshal

Deputy United States Marshall

SRE et ER MeN Ty WO, ORE

hei rues antag Gat Geo

pete Shite Sa

25a

DEFENDANT: Charles Lynn Moses

CASENUMBER: 4:05CR00061-001

ADDITIONAL IMPRISONMENT TERMS

If no appeal is filed within ten (10) days, the U.S.

Marshal will immediately obtain a report date and so

notify the defendant. If an appeal is filed, and the

defendant’s conviction and sentence is upheld, the

U.S. Marshal will, following the conclusion of all

appeal proceedings, obtain a report date and so

notify the defendant.

26a

DEFENDANT: Charles Lynn Moses

CASENUMBER: 4:05CR00061-001

- SUPERVISED RELEASE

Upon release from imprisonment, the defendant

shall be on supervised release foratermof: 1 year

on each 1,2, and 3, to be served concurrently.

Court finds that the defendant does not pose a high

risk of future substance abuse such as mandatory

drug testing is waived.

The defendant must report to the probation

office in the district to which the defendant is

released or allowed to re-enter within 72 hours of

release from the custody of the Bureau of Prisons, or

re-entry to the United States.

The defendant shall not commit another federal,

state or local crime.

The defendant shall not unlawfully possess a

controlled substance. The defendant shall refrain

from any unlawful use of a controlled substance. The

defendant shall submit to one drug test within 15

days of release from imprisonment on supervised

release and to periodic drug tests thereafter, not to

exceed a maximum number of 3 per month.

X The above drug testing condition is suspended,

based on the court’s determination that the

defendant poses a low risk of future substance

abuse. (Check, if applicable.)

27a

X The defendant shall not posses a firearm,

ammunition, destructive device, or any other

dangerous weapon. (Check, if applicable.)

X The defendant shall cooperate in the collection

of DNA as directed by the probation officer.

(Check, if applicable.)

The defendant shall register with the state sex

offender registration agency in the state where

the defendant resides, works, or is a student,

as directed by the probation officer. (Check, if

applicable.)

The defendant shall participate in an approved

program for domestic violence. (Check, if

applicable.)

If this judgment imposes a fine or restitution,

it is a condition of supervised release that the

defendant pay in accordance with the Schedule of

Payment sheet of this judgment.

The defendant must comply with the standard

conditions that have been adopted by this court as

well as with any additional conditions on the

attached page.

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial

district without the permission of the court or

probation officer;

2) the defendant shall report to the probation

officer and shall submit a truthful and

complete written report within the first five

days of each month;

28a

the defendant shall answer truthfully all

inquiries by the probation officer and follow

the instructions of the probation officer;

the defendant shall support his or her

dependents and meet other family

responsibilities;

the defendant shall work regularly at a lawful

occupation, unless excused by the probation

officer for schooling, training, or other

acceptable reasons;

6) the defendant shall notify the probation officer

at least ten days prior to any change in

residence or employment;

7) the defendant shall refrain from excessive use

of alcohol and shall not purchase, possess, use,

distribute, or administer any controlled

substance or any paraphernalia related to any

controlled substances, except as prescribed by

a physician;

4 8) the defendant shall not frequent places where

4 controlled substances are illegally sold, used,

4 distributed, or administered;

9) the defendant shall not associate with any

persons engaged in criminal activity and shall

a not associate with any person convicted of a

4 felony, unless granted permission to do so by

3 the probation officer;

10) the defendant shall permit a probation officer

to visit him or her at any time at home or else

where and shall permit confiscation of any

contraband observed in plain view of the

probation officer.

g 11) the defendant shall notify the probation officer

4 within seventy-two hours of being arrested or

a questioned by a law enforcement officer;

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29a

the defendant shall not enter into any

agreement to act as an informer or a special

agent of a law enforcement agency without the

permission of the court; and

as directed by the probation officer, the

defendant shall notify third parties of risks

that may be occasioned by the defendant’s

criminal record or personal history or

characteristics and shall permit the probation

officer to make such notifications and to

confirm the defendant’s compliance with such

notification requirement.

30a

DEFENDANT: Charles Lynn Moses

CASENUMBER: 4:05CR00061-001

SPECIAL CONDITIONS OF SUPERVISION

Defendant shall pay special assessment and fine

that is imposed by this judgment and that

remains unpaid at the commencement of

supervised release as condition of supervision.

Payments to be made to Clerk of the Court,

District of Idaho, 550 W. Fort St., MSC 0839,

Boise, ID 83724. Defendant shall submit nominal

monthly payments of 10% of gross income, but not

less than $25 per month, during the term of

supervised release, towards any fine and special

assessment that is imposed by this judgment and

that remains unpaid at the commencement of the

term of supervised release. This payment

schedule will be in effect unless further rev ewed

by the Court. A review may take place at any

time and will be based upon a change in the

Defendant’s financial circumstances.

Defendant shall provide the probation officer with

access to any requested financial information.

Defendant shall not incur new credit charges or

open additional lines of credit without the

approval of the probation officer unless the

defendant is in compliance with the installment

payment schedule.

Defendant shall submit to a search of his person,

place of residence, or automobile at the direction

of the U.S. Probation Officer and submit to

seizure of any contraband found therein.

3la

Defendant shall within 90 days of the

commencement of his term of supervised release,

defendant shall publish a notice in the Post-

Pocatello, and Teton Valley News, Driggs,

describing his unauthorized channelization of

Teton Creed, that he was convicted on three

counts of viclating the Clean Water Act, and that

he apologizes to the community for his conduct.

The notice shall be approved by the Probation

Officer before it is published. In the event that

the proposed newspapers decline the defendant’s

editorials, the defendant must pay all costs

associated with publication in another section of

the newspapers. Cost of the notice shall be paid

by the defendant. Defendant must provide the

U.S. Probation officer with confirmation of

publication.

Defendant shall comply with terms of the EPA

Compliance Order Docket No. CWA-10-2004-

0034, no later than 30 days _ following

commencement of the term of supervised release.

Defendant shall take the actions required by the

order, including the schedule set forth in

paragraph 2.2. Defendant preserves his appellate

rights under the order.

Special conditions of supervised release _ shall

supersede any standard condition that is inconsistent

with the special conditions.

32a

DEFENDANT: Charles Lynn Moses

CASENUMBER: 4:05CR00061-001

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary

penalties under the schedule of payments on Sheet 6.

Assessment Fine Restitution

TOTALS $300 $9,000.00 §$

The determination of restitution is deferred

until . An Amended Judgment in a

Criminal Case (AO 245C) will be entered after

such determination.

The defendant must make restitution

(including community restitution) to the

following payees in the amount listed below.

If the defendant makes a partial payment, each

payee shall receive an approximately proportioned

payment, unless specified otherwise in the priority

order or percentage payment column below.

However, pursuant to 18 U.S.C. § 3664 (D, all

nonfederal victims must be paid before the United

States is paid.

Name of Payee Total Loss’ Restitution Ordered

Priority or Percentage

* Findings for the total amount of losses are required under

Chapters 109A, 110, 110A, and 113A of Title 18 for offenses

committed on or after September 13, 1994, but before April 23,

1996.

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33a

TOTALS §$ EEL

- —_

Restitution amount ordered pursuant to plea

agreement $

The defendant must pay interest on restitution

and a fine of more than $2,500, unless the

restitution or fine is paid in full before the

fifteenth day after the date of the judgment,

pursuant to 18 U.S.C. § 3612(f). All of the

payment opitions on Sheet 6 may be subject to

penalties for delinquency and _ default,

pursuant to 18U.S.C. § 3612(g).

The court determined that the defendant does

not have the ability to pay interest and it is

ordered that:

X the interest requirement is waived for

the

X eal restitution.

oe the interest requirement for the

fine __ restitution is

modified as follows:

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34a

DEFENDANT: Charles Lynn Moses

CASENUMBER: 4:05CR00061-001

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay,

payment of the total criminal monetary penalties are

due as follows:

Eee

Lump sum payment of $ due

immediately, balance due

not later than , or

in accordance _C, __D, __E,or

__ F below: or

Payment to begin immediately (may be

combined with _ C, _ D, of _ F

below); or

Payment in equal (e.g.,

weekly,

monthly, quarterly) installments of $

Le over a period of

(e.g., months or

years), to commence (e.g.,

30 or 60 days) after the date of this

judgment; or

Payment in equal (e.g.,

weekly,

monthly, quarterly) installments of $

pen over a period of

(e.g., months or

years), to commence (e.g.,

30 or 60 days) after release from

imprisonment to a term of supervision;

vit inte st ete ne Metical aah hs eS sete: Eira 4 alae

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35a

Payment during the term of supervised

release will commence within

(e.g., 30 or 60 days) after

release from imprisonment. The court

will set the payment plan based on an

assessment of the defendant’s ability to

pay at that time; or

X Special instructions regarding the

payment of criminal monetary

penalties:

$300 special assessment, consisting of

$100 on each of counts 1, 2, and 3, is

due immediately. $9000 fine, consisting

of $3,000 on each of counts 1, 2, and 3, is

due immediately. Payment to be made

to Clerk of the court, District of Idaho,

550 W. Fort St., MSC 039, Boise, ID

83724. Defendant shall submit nominal

payments of not less than $25 per

quarter while incarcerated through the

Inmate Financial Responsibility

Program.

Unless the court has expressly ordered otherwise, if

this judgment imposes imprisonment, payment of

criminal monetary penalties is due during

imprisonment. All criminal monetary penalties,

except those payment made through the Federal

Bureau of Prisons’ Inmate Financial Responsibility

Program, are made to the clerk of the court.

The defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

Joint and Several

Defendant and Co-Defendant Names and Case

Numbers (including defendant number), Total

Amount, Joint and Several Amount, and

corresponding payee, if appropriate.

The defendant shall pay the cost of

prosecution.

The defendant shall pay the following court

cost(s):

The defendant shall forfeit the defendant’s

interest in the following property to the United

States:

Payments shall be applied in the following order: (1)

assessment, (2) restitution principal, (3)

restitution interest, (4) fine principal, (5) fine

interest, (6) community restitution, (7)

penalties, and (8) cots, including cost of

prosecution and court costs.

18 U.S.C. § 3231:

The district courts of the United States shall have

original jurisdiction, exclusive of the courts of the

States, of all offenses against the laws of the United

States.

Nothing in this title shall be held to take away or

impair the jurisdiction of the courts oi the several

States under the laws thereof.

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38a

33 U.S.C. § 1251:

(a) Restoration and maintenance of chemical,

physical and biological integrity of Nation's waters;

national ~goals for achievement of objective

The objective of this chapter is to restore and

maintain the chemical, physical, and biological

integrity of the Nation's waters. In order to achieve

this objective it is hereby declared that, consistent

with the provisions of this chapter--

(1) it is the national goal that the discharge of

pollutants into the navigable waters be eliminated by

1985;

(2) it is the national goal that wherever attainable,

an interim goal of water quality which provides for

the protection and propagation of fish, shellfish, and

wildlife and provides for recreation in and on the

water be achieved by July 1, 1983;

(3) it is the national policy that the discharge of toxic

pollutants in toxic amounts be prohibited;

(4) it is the national policy that Federal financial

assistance be provided to construct publicly owned

waste treatment works;

(5) it is the national policy that areawide waste

treatment management planning processes be

developed and implemented to assure adequate

control of sources of pollutants in each State;

(6) it is the national policy that a major research and

demonstration effort be made to develop technology

39a

necessary to eliminate the discharge of pollutants

into the navigable waters, waters of the contiguous

zone, and the oceans; and

(7) it is the national policy that programs for the

control of nonpoint sources of pollution be developed

and implemented in an expeditious manner so as to

enable the goals of this chapter to be met through the

control of both point and nonpoint sources of

pollution.

(b) Congressional recognition, preservation, and

protection of primary responsibilities and rights of

States

It is the policy of the Congress to recognize, preserve,

and protect the primary responsibilities and rights of

States to prevent, reduce, and eliminate pollution, to

plan the development and use (including restoration,

preservation, and enhancement) of land and water

resources, and to consult with the Administrator in

the exercise of his authority under this chapter. It is

the policy of Congress that the States manage the

construction grant program under this chapter and

implement the permit programs under sections 1342

and 1344 of this title. It is further the policy of the

Congress to support and aid research relating to the

prevention, reduction, and elimination of pollution,

and to provide Federal technical services and

financial aid to State and interstate agencies and

municipalities in connection with the prevention,

reduction, and elimination of _ pollution.

activities with foreign countries

40a

It is further the policy of Congress that the

President, acting through the Secretary of State and

such national and international organizations as he

determines appropriate, shall take such action as

may be necessary to insure that to the fullest extent

possible all foreign countries shall take meaningful

action for the prevention, reduction, and elimination

of pollution in their waters and in international

waters and for the achievement of goals regarding

the elimination of discharge of pollutants and the

improvement of water quality to at least the same

extent as the United States does under its laws.

(a) Administrator of Environmental Protection

Agency to administer chapter

Except as otherwise expressly provided in this

chapter, the Administrator of the Environmental

Protection Agency (hereinafter in this chapter called

“Administrator’) shall administer this chapter.

(e) Public participation in development, revision, and

enforcement of any regulation, etc.

Public participation in the development, revision,

and enforcement of any regulation, standard, effluent

limitation, plan, or program established by the

Administrator or any State under this chapter shall

be provided for, encouraged, and assisted by the

Administrator and the States. The Administrator, in

cooperation with the States, shall develop and

publish regulations specifying minimum guidelines

for public participation in_ such processes.

4la

(f) Procedures utilized for implementing chapter

It is the national policy that to the maximum extent

possible the procedures utilized for implementing

this chapter shall encourage the drastic

minimization of paperwork and interagency decision

procedures, and the best use of available manpower

and funds, so as to prevent needless duplication and

unnecessary delays at all levels of government.

(g) Authority of States over water

It is the policy of Congress that the authority of each

State to allocate quantities of water within its

jurisdiction shall not be superseded, abrogated or

otherwise impaired by this chapter. It is the further

policy of Congress that nothing in this chapter shall

be construed to supersede or abrogate rights to

quantities of water which have been established by

any State. Federal agencies shal! co-operate with

State and local agencies to develop comprehensive

solutions to prevent, reduce and eliminate pollution

in concert with programs for managing water

resources.

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42a

33 C.F.R. § 323.2(d)(2)@:

The Corps and EPA regard the use of mechanized

earth-moving equipment to conduct landclearing,

ditching, channelization, in-stream mining or other

earth-moving activity in waters of the United States

as resulting in a discharge of dredged material

unless project-specific evidence shows that the

activity results in only incidental fallback. This

paragraph (i) does not and is not intended to shift

any burden in any administrative or judicial

proceeding under the CWA.

43a

40 C.F.R. § 232.2(2)(i):

The Corps and EPA regard the use of mechanized

earth-moving equipment to conduct landclearing,

ditching, channelization, in-stream mining or other

earth-moving activity in waters of the United States

as resulting in a discharge of dredged material ag

unless project-specific evidence shows that the ‘za

activity results in only incidental fallback. This a

paragraph (i) does not and is not intended to shift a

any burden in any administrative or judicial

proceeding under the CWA.

44a

E.R. 117

1 this stream, correct, because of its intermittent

2 nature?

3 A: You mean in the reach that we’re

speaking of?

4 Q: Yes.

5 A: Yes, that’s correct.

6 Q: There is really no aquatic wildlife issue

with

7 regard to this stream: is there?

8 A: That’s correct.

9 MR. ATKIN: That’s all I have.

10 THE COURT: Anything else, Mr.

Oesterle?

1i MR. OESTERLE: No, our Honor.

12 THE COURT: You may step down, Mr.

Miller.

13. Thank you.

14 I assume the witness can be excused?

15 MR. ATKIN: Yes, Your Honor.

16 MR. OESTERLE: Yes, Your Honor.

17 THE COURT: Call your next witness. Mr.

Peak,

18 I assume?

19 MR. OESTERLE: Yes, Your Honor.

20 THE COURT: Mr. Peak, will you step

before the

21 clerk and be sworn.

22 CHARLES PEAK,

23 called on behalf of the Government, having

been first

24 duly sworn upon oath, was examined and

testified as

follows:

45a

E.R. 132

1 Sentencing memorandum, has gone way

beyond 2002, 2003,

2 and 2004.

3 And in the presentence report, the probation

4 officer talks about how the Court could

enhance and

5 maybe should enhance the penalty in this case

' based on

6 the fact that there is a 25-year history in this

case.

7 Now, if the Court is - -

8 THE COURT: No. I understand your

position.

9 Again, just so we’re clear, Mr. Breitsameter,

10 the Government is willing to stipulate that

there was

11 no discharge into any wetlands arising out of

this

12 case; correct?

13 MR. BREITSAMETER: That’s correct, Your

Honor. ;

14 THE COURT: But you cannot bind the

Government

15 by way of a stipulation that the Government

: perceives

16 _—s discharges into wetlands as being more serious

than

17 discharges into other riparian non-wetland

areas? |

18 MR. BREITSAMETER: To my knowledge,

we have

19 not explored that issue and I am not prepared

TP a epee

4 or) he CR oe

4. Geos. f

ae Se

46a

stipulate to that.

THE COURT: All right. I will allow the

witness to testify factually as to his

understanding of

the Corps of Engineers’ views during the time

period

that he was employed there, and limit it in

that

fashion.

eS ee ee

47a

E.R. 134

not taking any action.

Q: Okay. Did you do anything further?

A: Oh, yes.

Q: What did you do?

A: I contacted the office because I thought

tuey :

6 should take some action. And I was trying to

encourage

7 them that some action should be taken;

enforcement

8 action, quite honestly.

9 Q: When you say you contacted the office,

who did

10 youcontact?

3 Ne. The chief of regulatory, Mr. Brad Daly.

12 @Q: ~ And what kind ofa report did you make

oO kh GW DH =

13. Mr. Daly?

14._—sOA: I told him that there was work being

done in

15 the channel that triggered Section 404 and

that my recommendation was that my

16 recommendation was that we take some type

E of action,

3 17 _—ilike a cease and desist or a letter, an after-the-

a fact

3 18 application or something.

’ 19 Q: And did you receive a response from Mr.

- Daly?

e 20 A: Yes,1 did.

a 21 QQ: ~ What was his response?

4 eee He said that he was going to take no

E action

48a

23 ~—and for me to not do any further investigation,

that

2 Br. Brochu would be handling tkat.

Did you drop the matter at that point?

49a

E.R. 142

1 Q: Other than that you’ve never seen water

2 in the creek? :

3 A: That's correct. |

4 Q: How long and for what period of time

5 does the water run in Teton Creek on average;

do you

6 know?

7 A: Are you talking about within the study

8 area specifically?

9 Q: Well, Teton Creek, and a little above.

10 A: Okay. Well, it’s my impression that

11 ~+water flows year-round upstream from the

Grand Teton

12 Canal diversion. Downstream from that point

there

13 _—s are periods during the irrigation season when

there

14 __— is no flow in Teton Creek downstream from

that

15 __ particular diversion. When we get further

downstream

16 __ there’s what’s called recharge as ground water

comes

17 back into the channel far down in the basin

where the

18 channel will flow water as groundwater

reenters the

19 _— channel.

20 @Q: And that’s significantly below the study

21 area; is that not correct?

22 It is below the study area, yes.

23 Q: So for the vast majority of time the

24 creek in the study area is dry; is it not?

ee)

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E.R. 153

peed

balls on them, and that bridge would be a real

problem to try and pass logs through. So one

of the

problems was to get water and other things

through

that bridge. But you certainly are not going to

pass

gravel through it in any great amount of

quantity.

Now, granted there is some go through.

Now, there are areas downstream that

have problems. There is no question about

that. *But

those problems are - - in large part are this

natural

eluvial fan deposit working because as you

start down

through the area - - and the area right where

I’m

drawing a mark which is kind of a curve, the

grading

at that point is 95.8 feet per mile; in other

words,

in one mile the stream drops 95.8 feet in this

little

region there.

At the area below the bridge, it gets

down below 40. By the time it gets to the

Teton

River it’s six feet per mile. So 95 here, 6 down

the river. And the river down near the

confluence

52a

between the Teton River and the Teton Creek

totally different. Now, there’s no way of

showing

you the picture. But downstream below an

area just

off this map the stream is a nice meander.

There’s

no gravel showing. It goes into the Teton River

cleanly without any piles of gravel or anything

53a

E.R. 154

there.

So what happens is that somewhere

between Mr. Moses’s property, which is right

here,

and downstream of the highway, which is just

off this

map, the gravels from anywhere have to stop.

So the sand, the gravels, the materials that

you saw in most

of those photographs are course, heavy graded

materials. They're not clay. You can see the

rocks,

They’re big. And so that material has to drop

somewhere in this vicinity below this point

where

it’s 95 feet per mile down to an area down

where it’s

about 20 feet per mile, which is below the

highway

that goes north, south into Driggs, and it’s just

off .

this map. You can see Driggs is here. It’s just

off

te edge.

Q. What effect has the activity in his area

had on those downstream people—his

activity—the

activity in his area?

A. Well, what happens is because Mr.

Moses

was taking gravel out, which is clearly

understandable, that he has actually saved—

54a

taking gravel out in this area, he saved that

gravel

from going downstream, in large part. Now

the—

what I saw downstream is the primary

problem is right

at this area where I’m showing. In fact, you

saw it

E.R. 194

can you describe for us what you did in the

creek?

A. Um, yeah. We would—like if there was

gravel bar and different things, and then there

was

these tree jams in there that somebody had

placed in

there, we would dig out next to the tree jam,

deeper on

that end, on the downstream side. And then as

you come

back up stream, it would be shallower, and we

would

take out different gravel bars and different

things and

put the material to the sides.

Q. Okay, If you could be a little more

descriptive for the benefit of the jury. When

you say

“take out,” where was it taken to?

A. Just to the sides of the banks, you know,

on the sides of the bank.

Q. Did it stay within the defined area of

the

creek?

A. Um, some of it got up on to the bank,

you

know, on the flat part of the bank, you know.

But,

yeah, the majority of it stayed, I would say, to

the

56a

sides of the bank, because there would be holes

and

different things, you know, on the sides of the

bank

that we would fill in, in some of it.

Q. Is it fair to say you were contouring,

recontouring the creek bed?

A. Yes.

S7a

CLEAN WATER ACT JURISDICTION

FOLLOWING THE U.S. SUPREME COURT'S

DECISION IN

RAPANOS v. UNITED STATES & CARABELL v.

UNITED STATES

This memorandum provides guidance to EPA

regions and U.S. Army Corps of Engineers [“Corps”]

districts implementing the Supreme Court’s decision

in the consolidated cases Rapanos v. United States

and Carabell v. United States! (herein referred to

simply as “Rapanos”) which address the jurisdiction

over waters of the United States under the Clean

Water Act.2 The chart below summarizes the key

points contained in this memorandum. This

reference tool is not a substitute for the more

complete discussion of issues and guidance furnished

throughout the memorandum.

Summary of Key Points

The agencies will assert jurisdiction over the

following waters:

e Traditional navigable waters

e Wetlands adjacent to traditional navigable

waters

e Non-navigable tributaries of traditional

navigable waters that are _ relatively

permanent where the tributaries typically flow

year-round or have continuous flow at least

seasonally (e.g., typically three months)

e Wetlands that directly abut such tributaries

' 126 S. Ct. 2208 (2006)

2 33 U.S.C. § 1251 et seq.

58a

The agencies will decide jurisdiction over the

following waters based on a fact-specific analysis to

determine whether they have a significant nexus

with a traditional navigable water:

e Non-navigable tributaries that are not

relatively permanent

e Wetlands adjacent to non-navigable

tributaries that are not relatively permanent

e ‘Wetlands adjacent to but that do not directly

abut a relatively permanent non-navigable

tributary.

The agencies generally will not assert jurisdiction

over the following features:

a e Swales or erosional features (e.g. gullies, smail

washes characterized by low volume,

infrequent, or short duration flow)

e Ditches (including roadside ditches) excavated

wholly in and draining only uplands and that

do not carry a relatively permanent flow of

water

The agencies will apply the significant nexus

standard as follows:

i e A significant nexus analysis will assess the

flow characteristics and function of the

tributary itself and the function performed by

all wetlands adjacent to the tributary to

determine if they significantly affect the

chemical, physical, and biological integrity of

downstream traditional navigable waters

e Significant nexus includes consideration of

hydrologic and ecologic factors.

= ee aia iar ae aie 22s Ger oy

TOS es ty Cane Ln ee eR Rig Agere oe Pe

ES Background

3 Congress enacted the Clean Water Act (“CWA”

= or “the Act”) “to restore and maintain the chemical,

59a

physical, and biological integrity of the Nation’s

waters.” One of the mechanisms adopted by

Congress to achieve that purpose is a prohibition on

the discharge of any pollutants, including dredged or

fill material, into “navigable waters” except in

compliance with other specified sections of the Act.4

In most cases, this means compliance with a permit

issued pursuant to CWA §402 or §404. The Act

defines the term “discharge of a pollutant” as “any

addition of any pollutant to navigable waters from

any point sourcel,]”5 and provides that “[t]he term

‘navigable waters’ means the waters of the United

States, including the territorial seas.”6

In Rapanos, the Supreme Court addressed

where the Federal government can apply the Clean

Water Act, specifically by determining whether a

wetland or tributary is a “water of the United

States.” The justices issued five separate opinions in

Rapanos (one plurality opinion, two concurring

opinions, and two dissenting opinions), with no single

opinion commanding a majority of the Court.

The Rapanos Decision

Four justices, in a plurality opinion authored

by Justice Scalia, rejected the argument that the

term “waters of the United States” is limited to only

those waters that are navigable in the traditional

> 33 U.S. C. §1251(a)

* 33 U.S.C. § 1311(a), § 1362(12)(A).

> 33 U.S.C § 1362(12)(A).

® 33 U.S.C. § 1362(7). See also 33 C.F.R. § 328.3(a) and 40

C.F.R. § 230.3(s).

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60a

sense and their abutting wetlands.? However, the

plurality concluded that the agencies’ regulatory

authority should extend only to “relatively

permanent, standing or continuously flowing bodies

of water” connected to traditional navigable waters,

and to “wetlands with a continuous surface

connection to” such relatively permanent waters. 8

Justice Kennedy did not join the plurality’s

opinion but instead authored an opinion concurring

in the judgment vacating and remanding the cases to

the Sixth Circuit Court of Appeals.? Justice Kennedy

agreed with the plurality that the statutory term

“waters of the United States” extends beyond water

bodies that are traditionally considered navigable.!°

Justice Kennedy, however, found the plurality’s

interpretation of the scope of the CWA to be

“inconsistent with the Act’s text, structure, and

purposel,]” and he instead presented a different

standard for evaluating CWA jurisdiction over

wetlands and other water bodies.!! Justice Kennedy

concluded that wetlands are “waters of the United

States” “if the wetlands, either alone or in

"Id. at 2220.

* Id. at 2225-27.

° Id. at 2236-52. While Justice Kennedy concurred in the Court's

decision to vacate and remand the cases to the Sixth Circuit, his

basis for remand was limited to the question of “whether the

specific wetlands at issue possess a significant nexus with

navigable waters.” 126 S. Ct. at 2252. In contrast, the plurality

remanded the cases to determine both “whether the ditches and

drains near each wetland are ‘waters,” and “whether the

wetlands in question are ‘adjacent’ to these ‘waters’ in the sense

of possessing a continuous surface connection....” Id. at 2235.

Id. at 2241.

Td. at 2246.

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6la

combination with similarly situated lands in the

region, significantly affect the chemical, physical,

and biological integrity of the other covered waters

more readily understood as ‘navigable. When, in

contrast, wetlands’ effects on water quality are

speculative or insubstantial, they fall outside the

zone fairly encompassed by the statutory term

‘navigable waters.” !?

Four justices, in a dissenting opinion authored

by Justice Stevens, concluded that EPA’s and the

Corps’ interpretation of “waters of the United States”

was reasonable interpretation of the Clean Water

Act.18

When there is no majority opinion in a

Supreme Court case, controlling legal principles may

be derived from those principles espoused by five or

more justices.'4 Thus, regulatory jurisdiction under

the CWA exists over a water body if either the

'? Id. at 2248. Chief Justice Roberts wrote a separate concurring

opinion explaining his agreement with the plurality. See 126 S.

Ct. at 2235-36.

') Id. at 2252-65. Justice Breyer wrote a separate dissenting

opinion explaining his agreement with Justice Stevens’ dissent.

See 126 S. Ct. at 2266.

'* See Marks v. United States, 430 U.S. 188, 193-94 (1977);

Waters v. Churchill, 511 U.S. 661, 685 (1994) (Souter, J.

concurring) (analyzing the points of agreement between

plurality, concurring, and dissenting opinions to identify the

legal “test...that lower courts should apply,” under Marks, as

the holding of the Court); cf. League of United Latin American

Citizens vs. Perry, 126 S. Ct. 2594, 2607 (2006) (analyzing

concurring and dissenting opinions in a prior case to identify a

legal conclusion of a majority of the Court); Alexander v.

Sandoval, 532 U.S. 275, 281-282 (2001) (same).

62a

plurality’s or Justice Kennedy's standard is

satisfied.5 Since Rapanos, the United States has

filed pleadings in a number of cases interpreting the

decision in this manner.

The agencies are issuing this memorandum in

recognition of the fact that the EPA regions and

Corps districts need guidance to ensure that

jurisdictional determinations, permitting actions,

and other relevant actions are consistent with the

decision and supported by the administrative record.

Therefore, the agencies have evaluated the Rapanos

opinions to identify those waters that are subject to

CWA jurisdiction under the reasoning of a majority

of the justices. This approach is appropriate for a

guidance document. The agencies intend to more

broadly consider jurisdictional issues, including

clarification and definition of key terminology,

through rulemaking or other appropriate policy

process.

Agency Guidelines!6

'5 126 S. Ct. at 2265 (Stevens, J., dissenting) (“Given that all

four justices who have joined this opinion would uphold the

Corps’ jurisdiction in both of these cases—and in all other cases

in which either the plurality’s or Justice Kennedy's test is

satisfied—on remand each of the judgments should be

reinstated if either of those tests is met.”) (emphasis in

original).

document contain legally binding requirements. This guidance

does not substitute for those provisions or regulations, nor is it

a regulation itself. It does not impose legally binding

requirements on EPA, the Corps, or the regulated community,

and may not apply to a particular situation depending on the

circumstances. Any decisions regarding a particular water will

63a

To ensure that jurisdictional determinations,

administrative enforcement actions, and other |

relevant agency actions are consistent with the

Rapanos decision, the agencies in this guidance

address which waters are subject to CWA § 404

jurisdiction.!7 Specifically, this guidance identifies

those waters over which the agencies will assert

jurisdiction categorically and on a case-by-case basis,

based on the reasoning of the Rapanos opinions.!®

be based on the applicable statutes, regulations, and case law.

Therefore, interested persons are free to raise questions about

the appropriateness of the application of this guidance to a

particular situation, and the EPA and/or Corps will consider

whether or not the recommendations or interpretations of this

guidance are appropriate in that situation based on the statues,

regulations, and case law.

'? This guidance focuses only on those provisions of the agencies’

regulations at issue in Rapanos—33 C.F.R. §§ 328.3(a)(1), (a)(5),

and (a)(7); 40 C.F.R. §§ 230.3(s)(1), (s)(5), and (s)(7). This

guidance does not address or affect other subparts of the

agencies’ regulations, or response authorities, relevant to the

scope of jurisdiction under the CWA. In addition, because this

guidance is issued by both the Corps and EPA, which jointly

administer CWA § 404, it does not discuss other provisions of

the CWA, including §§ 311 and 402, that differ in certain

respects from § 404 but share the definition of “waters of the

United States.” Indeed, the plurality opinion in Rapanos noted

that “...there is no reason to suppose that our construction today

significantly affects the enforcement of § 1342...The Act does

not forbid the ‘addition of any pollutant directly to navigable

waters from any point source,’ but rather the ‘addition of any

pollutant to navigable waters.” (emphasis in original) 126 S. Ct.

2208, 2227. EPA is considering whether to provide additional

guidance on these and other provisions of the CWA that may be

affected by the Rapanogs decicion.

'S In 2001, the Supreme Court held that use of “isolated” non-

navigable intrastate waters by migratory birds was not by itself

a cufticient basis for the exercise of federal regulatory

jurisdiction under the CWA. See Solid Waste Agency of

64a

EPA and the Corps will continually assess and

review the application of this guidance to ensure

nationwide consistency, reliability, and predictability

in our administration of the statute.

1. Traditional Navigable Waters (.e., “(a) (1)

Waters”) and Their Adjacent Wetlands

Key Points

e The agencies will assert jurisdiction over

traditional navigable waters, which includes

all the waters described in 33 C.F.R. § 328.3

(a)(1), and 40 C.F.R. § 230.3 (s)(1).

e The agencies will assert jurisdiction over

wetlands adjacent to traditional navigable

waters, including over adjacent wetlands that

do not have a continuous surface connection to

traditional navigable waters.

EPA and the Corps will continue to assert

jurisdiction over “{a]ll waters which are currently

used, or were used in the past, or may be susceptible

to use in interstate or foreign commerce, including all

waters which are subject to the ebb and flow of the

tide.”19 These waters are referred to in this guidance

as traditional navigable waters.

Northern Cook County (SWANCC) v. U.S. Army Corps of

Engineers, 531 U.S. 159 (2001). This guidance does not address

SWANCC, nor does it affect the Joint Memorandum regarding

that decision issued by the General Counsels of EPA and the

Department of the Army on January 10, 2003. See 68 Fed. Reg.

1991, 1995 (Jan. 15, 2003).

'? 33 C.F.R. § 328.3 (a)(1); 40 C.F.R. § 230.3 (s)(1). The “(a)(1)”

waters include all the “navigable waters of the United States,”

defined in 33 C.F.R. Part 329 and by numerous decisions of the

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65a

The agencies will also continue to assert

jurisdiction over wetlands “adjacent” to traditional

navigable waters as defined in the agencies’

regulations. Under EPA and Corps regulations and

as used in this guidance, “adjacent” means

“bordering, contiguous, or neighboring.” Finding a

continuous surface connection is not required to

establish adjacency under this definition. The

Rapanos decision does not affect the scope of

jurisdiction over wetlands that are adjacent to

traditional navigable waters because at least five

justices agreed that such wetlands are “waters of the

United States.”20

2. Relatively Permanent Non-navigable Tributaries

of Traditional Navigable Waters and Wetlanus with

a Continuous Surface Connection with Such

Tributaries

Key Points

e The agencies will assert jurisdiction over non-

navigable tributaries of traditional navigable

waters that are relatively permanent where

the tributaries typically flow year-round or

have continuous flow at least seasonally (e.g.,

typically three months).

federal courts, plus all other waters that are navigable-in-fact

(e.g., the Great Salt Lake, UT and Lake Minnetonka, MN).

20 Id. at 2248 (Justice Kennedy, concurring) (“As aoplied to

wetlands adjacent to navigable-in-fact waters, the Corps’

conclusive standard of jurisdiction rests upon a reasonable

inference of ecologic interconnection, and the assertion of

jurisdiction for those wetlands is sustainable under the Act by

showing adjacency alone.”)

66a

e The agencies will assert jurisdiction over those

adjacent wetlands that have a continuous

surface connection to such tributaries (e.g.,

they are not separated by uplands, a berm,

dike, or similar feature.)

A non-navigable tributary?! of a traditional

navigable water is a non-navigable water body whose

waters flow into a traditional navigable water either

directly or indirectly by means of other tributaries.

Both the plurality opinion and the dissent would

uphold CWA _ jurisdiction over non-navigable

tributaries that are “relatively permanent’—waters

that typically (e.g., except due to drought) flow year-

round or waters that have a continuous flow at least

seasonally (e.g., typically three months).22 Justice

ant tributary includes natural, man-altered, or man-made

water bodies that carry flow directly or indirectly into a

traditional navigable water. Furthermore, a tributary, for the

purpose of this guidance, is the entire reach of the stream that

is of the same order (i.e., from the point of confluence, where

two lower order streams meet to form the tributary,

downstream to the point such tributary enters a higher order

stream). The flow characteristics of a particular tributary will

be evaluated at the farthest downstream limit of such tributary

(i.e., the point the tributary enters a higher order stream). It is

reasonable for the agencies to treat the stream reach as a whole

in light of the Supreme Court’s observation that the phrase

“navigable waters” generally refers to “rivers, streams, and

other hydrographic features.” 126 S. Ct. at 2222 (Justice Scalia,

quoting Riverside Bayview, 474 U.S. at 131). The entire reach

of a stream is a reasonably identifiable hydrographic feature.

The agencies will also use this characterization of tributary

when applying the significant nexus standard under Section 3

of this guidance.

22 See 126 S. Ct. at 2221 n. 5 (Justice Scalia, plurality opinion)

(explaining that “relatively permanent” does not necessarily

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67a

Scalia emphasizes that relatively permanent waters

do not include tributaries “whose flow is ‘coming and

going at intervals...broken, fitful.”23 Therefore,

“relatively permanent” waters do not include

ephemeral tributaries which flow only in response to

precipitation and intermittent streams which do not

typically flow year-round or have continuous flow at

least seasonally. However, CWA jurisdiction over

these waters will be evaluated under the significant

nexus standard described below. The agencies will

assert jurisdiction over relatively permanent non-

navigable tributaries of traditional navigable waters

without legal obligation to make a significant nexus

finding.

In addition, the agencies will assert

jurisdiction over those adjacent wetlands that have a

continuous surface connection with a relatively

permanent, non-navigable tributary, without the

legal obligation to make a significant nexus finding.

As explained above, the plurality opinion and the

dissent agree that such wetlands are jurisdictional.”4

The plurality opinion indicates that “continuous

surface connection” is a “physical connection

requirement,.”25 Therefore, a continuous surface

exclude waters “that might dry up in_ extraordinary

circumstances such as drought” or “seasonal rivers, which

contain continuous flow during some months of the year but no

flow during dry months”).

23 Id. (internal citations omitted).

24 Id. at 2226-27 (Justice Scalia, plurality opinion).

2 Id. at 2232 n.13 (referring to “our physical-connection

requirement’ and later stating that Riverside Bayview does not

reject “the physical-connection requirement”) and 2234

(“Wetlands are ‘waters of the United States’ if they bear the

‘significant nexus’ of physical connection, which makes them as

Seah IES aloes ae A Ee 8 oe Renee aa tM Aes ; pth a ra

68a

connection exists between a wetland and a relatively

permanent tributary where the wetland directly

abuts the tributary (e.g., they are not separated by

uplands, a berm, dike or similar feature).

3. Certain Adjacent Wetlands and Non-navigable

Tributaries That Are Not Relatively Permanent

Key Points

e The agencies will assert jurisdiction over

non-navigable, not relatively permanent

tributaries and their adjacent wetlands

where such tributaries and wetlands have

a significant nexus to a_ traditional

navigable water.

« A significant nexus analysis will assess the

flow characteristics and functions of the

a practical matter indistinguishable from waters of the United

States.”) (emphasis in original). See also 126 S. Ct. at 2230

(“adjacent” means “physically abutting”) and 2229 (citing to

Riverside Bayview as “confirm[ing] that the scope of ambiguity

of ‘the waters of the United States’ is determined by a wetland’s

physical connection to covered waters...”) (emphasis in original).

A continuous surface connection does not require surface water

to be continuously present between the wetland and the

tributary. 33 C.F.R. § 328.3(b) and 40 C.F.R. § 232.2 (defining

wetlands as “those areas that are inundated or saturated by

surface or ground water at a frequency and duration sufficient

to support ... a prevalence of vegetation typically adapted for life

in saturated soil conditions”).

26 While all wetlands that meet the agencies’ definitions are

considered adjacent wetlands, only those adjacent wetlands

that have a continuous surface connection because they directly

abut the tributary (e.g., they are not separated by uplands, a

berm, dike, or similar feature) are considered jurisdictional

under the plurality standard.

69a

tributary itself and the functions performed

by any wetlands adjacent to the tributary

to determine if the significantly affect the

chemical, physical and biological integrity

of downstream traditional navigable

waters.

e “Similarly situated” wetlands include all

wetlands adjacent to the same tributary.

e Significant nexus includes consideration of

hydrologic factors including the following:

o volume, duration, and frequency of

flow, including consideration of

certain physical characteristics of

the tributary.

navigable water

o size of the watershed

e Significant nexus also includes

consideration of ecologic factors including

the following:

o potential of tributaries to carry

pollutants and flood waters to

traditional navigable waters

supports a traditional navigable

water

filter pollutants or store flood waters

traditional navigable waters.

e The following geographic features generally

are not jurisdictional waters:

i in RS Ne ASE! Sere Nii ahin eat a aie eg

70a

o swales or erosional features (e.g.

gullies, small washes characterized

by low volume, infrequent, or short

duration flow)

o ditches (including roadside ditches)

excavated wholly in and draining

only uplands and that do not carry a

relatively permanent flow of water.

The agencies will assert jurisdiction over the

following types of waters when they have a

significant nexus with a traditional navigable water:

(1) non-navigable tributaries that are not relatively

permanent,?’ (2) wetlands adjacent to non-navigable

tributaries that are not relatively permanent, and (3)

wetlands adjacent to, but not directly abutting, a

relatively permanent tributary (e.g., separated from

it by uplands, a berm, dike or similar feature).28 As

described below, the agencies will assess the flow

characteristics and functions of the tributary itself,

together with the functions performed by any

wetlands adjacent to that tributary, to determine

whether collectively they have a significant nexus

with traditional navigable waters.

The agencies’ assertion of jurisdiction over

non-navigable tributaries and adjacent wetlands that

27 For simplicity, the term “tributary” when used alone in this

section refers to non-navigable tributaries that are not

relatively permanent.

28 As described in Section 2 of this guidance, the agencies will

assert jurisdiction, without the need for a significant nexus

finding, over all wetlands that are both adjacent and have a

continuous surface connection to relatively permanent

tributaries. See pp. 6-7, supra.

Tla

have a significant nexus to traditional navigable

waters is supported by five justices. Justice Kennedy

applied the significant nexus standard to the

wetlands at issue in Rapanos and Carabell:

“[Wletlands possess the requisite nexus, and thus

come within the statutory phrase ‘navigable waters,’

if the wetlands, either alone or in combination with

similarly situated lands in the region, significantly

affect the chemical, physical, and biological integrity

of other covered waters more readily understood as

‘navigable.”29 While Justice Kennedy’s opinion

discusses the significant nexus standard primarily in

the context of wetlands adjacent to non-navigable

tributaries®®, his opinion also addresses Clean Water

Act jurisdiction over tributaries themselves. Justice

Kennedy states that, based on the Supreme Court’s

decisions in Riverside Bayview and SWANCC, “the

connection between a non-navigable water or

wetland may be so close, or potentially so close, that

Corps may deem the water or wetland a ‘navigable

29 Id. at 2248. When applying the significant nexus standard to

tributaries and wetlands, it is important to apply it within the

limits of jurisdiction articulated in SWANCC. Ju».ice Kennedy

cites SWANCC with approval and asserts that the significant

nexus standard, rather than being articulated for the first time

in Rapanos, was established in SWANCC. 126 S. Ct. at 2246

(describing SWANCC as “interpreting the Act to require a

significant nexus with navigable waters”). It is clear, therefore,

that Justice Kennedy did not intend for the significant nexus

standard to be applied in a manner that would result in

assertion of jurisdiction over waters that he and the other

justices determined were not jurisdictional in SWANCC.

Nothing in this guidance should be interpreted as providing

authority to assert jurisdiction over waters deemed non-

jurisdictional by SWANCC.

30 126 S. Ct. at 2247-50.

72a

water’ under the Act....Absent a significant nexus,

jurisdiction under the Act is lacking.”$! Thus, Justice

Kennedy would limit jurisdiction to those waters that

have a significant nexus with traditional navigable

waters, although his opinion focuses on the specific

factors and functions the agencies should consider in

evaluating significant nexus for adjacent wetlands,

rather than for tributaries.

In considering how to apply the significant

nexus standard, the agencies have focused on the

integral relationship between the _ ecological

characteristics of tributaries and those of their

adjacent wetlands, which determines in part their

contribution to restoring and maintaining the

chemical, physical and biological integrity of the

Nation’s traditional navigable waters. The ecological

relationship between tributaries and their adjacent

wetlands is well documented in the scientific

literature and reflects their physical proximity as

well as _ shared hydrological and _ biological

characteristics. The flow parameters and ecological

functions that Justice Kennedy describes as most

relevant to an evaluation of significant nexus result

from the _ ecological inter-relationship between

tributaries and their adjacent wetlands. For

example, the duration, frequency, and volume of flow

in a tributary, and subsequently the flow in

downstream navigable waters, is directly affected by

the presence of adjacent wetlands that hold

floodwaters, intercept sheet flow from uplands, and

then release waters to tributaries in a more even and

constant manner. Wetlands may also help to

311d. At 2241 (emphasis added).

ae at en tee meen es bmn mee een een MO tn et te nnn ae:

73a

maintain more consistent water temperature in

tributaries, which is important for some aquatic

species. Adjacent wetlands trap and hold pollutants

that may otherwise reach tributaries (and

downstream navigable waters) including sediments,

chemicals, and other pollutants. Tributaries and

their adjacent wetlands provide habitat (e.g., feeding,

nesting, spawning, or rearing young) for many

aquatic species that also live in traditiona! navigable

waters.

When performing a_ significant nexus

analysis,°2 the first step is to determine if the

tributary has any adjacent wetlands. Where a

tributary has no adjacent wetlands, the agencies will

consider the flow characteristics. and functions of

only the tributary itself in determining whether such

tributary has a significant effect on the chemical,

physical and biological integrity of downstream

traditional navigable waters. A _ tributary, as

characterized in Section 2 above, is the entire reach

of the stream that is of the same order (i.e., from the

point of confluence, where two lower order streams

meet to form the tributary, downstream to the point

such tributary enters a higher order stream). For

purposes of demonstrating a connection to traditional

32 In discussing the significant nexus standard, Justice Kennedy

stated: “The required nexus must be assessed in terms of the

statute’s goals and purposes. Congress enacted the [CWA] to

‘restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters’....126 S. Ct. at 2248.

Consistent with Justice Kennedy’s instruction, EPA and the

Corps will apply the significant nexus standard in a manner

that restores and maintains any of these three attributes of

traditional navigable waters.

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74a

navigable waters, it is appropriate and reasonable to

assess the flow characteristics of the tributary at the

point at which water is in fact being contributed to a

higher order tributary or to a traditional navigable

water. If the tributary has adjacent wetlands, the

significant nexus evaluation needs to recognize the

ecological relationship between tributaries and their

adjacent wetlands, and their closely linked role in

protecting the chemical, physical, and biological

integrity of downstream traditional navigable

waters.

Therefore, the agencies will consider the flow

and functions of the tributary together with the

functions performed by all the wetlands adjacent to

that tributary in evaluating whether a significant

nexus is present. Similarly, where evaluating

significant nexus for an adjacent wetland, the

agencies will consider the flow characteristics and

functions performed by the tributary to which the

wetland is adjacent along with the functions

performed by the wetland and all other wetlands

adjacent to that tributary. This approach reflects the

agencies’ interpretation of Justice Kennedy’s term

“similarly situated” to include all wetlands adjacent

to the same tributary. Where it is determined that a

tributary and its adjacent wetlands collectively have

a significant nexus with traditional navigable

waters, the tributary and all of its adjacent wetlands

are jurisdictional. Application of the significant

nexus standard in this way is reasonable because of

its strong scientific foundation—that is, the integral

ecological relationship between a tributary and its —

adjacent wetlands. Interpreting the phrase “similarly

situated” to include all wetlands adjacent to the same

75a

tributary is reasonable because such wetlands are

physically located in a like manner (i.e., lying

adjacent to the same tributary).

Principal considerations when evaluating

significant nexus include the volume, duration, and

frequency of the flow of water in the tributary and

the proximity of the tributary to a traditional

navigable water. In addition to any available

hydrologic information (e.g., gauge data, flood

predictions, historic records of water flow, statistical

data, personal observations/records, etc.), the

agencies may reasonably consider certain physical

characteristics of the tributary to characterize its

flow, and thus help to inform the determination of

whether or not a significant nexus is present between

the tributary and downstream traditional navigable

waters. Physical indicators of flow may include the

presence and characteristics of a reliable ordinary

high water mark (OHWM) with a channel defined by

bed and banks.33 Other physical indicators of flow

may include shelving, wracking, water staining,

sediment sorting, and sour.34 Consideration will also

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33 See 33 C.F.R. § 328.3(e). The OHWM also serves to define the

lateral limit of jurisdiction in a non-navigable tributary where

there are no adjacent wetlands. See 33 C.F.R. § 328.4(c). While

EPA regions and Corps districts must exercise judgment to

identify the OHWM on a case-by-case basis, the Corps’

aA regulations identify the factors to be applied. These regulations

. have recently been further explained in Regulatory Guidance

; Letter (RGL) 05-05 (Dec. 7, 2005). The agencies will apply the

regulations and the RGL and take other steps as needed to

ensure that the OHWM identification factors are applied

consistently nationwide.

34 See, Justice Kennedy’s’ discussion of “physical

characteristics,” 126 S. Ct. at 2248-2249.

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76a

be given to certain relevant contextual factors that

directly influence the hydrology of tributaries

including the size of the tributary’s watershed,

average annual rainfall, average annual winter snow

pack, slope, and channel dimensions.

In addition, the agencies will consider other

relevant factors, including the functions performed

by the tributary together with .the functions

performed by any adjacent wetlands. One such factor

is the extent to which the tributary and adjacent

wetlands have the capacity to carry pollutants (e.g.,

petroleum wastes, toxic wastes, sediment) or flood

waters to traditional navigable waters, or to reduce

the amount of pollutants or flood waters that would

otherwise enter traditional navigable waters.*5 The

agencies will also evaluate ecological functions

performed by the tributary and any adjacent

wetlands which affect downstream traditional

navigable waters, such as the capacity to transfer

nutrients and organic carbon vital to support

downstream foodwebs (e.g., macroinvertebrates

present in headwater streams convert carbon in leaf

litter making it available to species downstream),

habitat services such as providing spawning areas for

recreationaliy or commercially important species in

downstream waters, and the extent to which the

tributary and adjacent wetlands perform functions

35 See, generally, 126 S. Ct. at 2248-53; see also 126 S. Ct. at

2249(“Just as control over the non-navigable parts of a river

may be essential or desirable in the interests of the navigable

portions, so may the key to flood control on a navigable stream

be found in whole or in part in flood control on its

tributaries....”) (citing to Oklahoma ex rel. Phillips v. Guy F.

Atkinson Co., 313 U.S. 508, 524-25(1941)).

a 77a

% related to maintenance of downstream water quality

a such as sediment trapping.

After assessing the flow characteristics and

functions of the tributary and its adjacent wetlands,

the agencies will evaluate whether the tributary and

its adjacent wetlands are likely to have a= effect that

is more than speculative or insubstantial on the

chemical, physical, and biological integrity of a

traditional navigable water. As the distance from the

tributary to the navigable water increases, it will

a become increasingly important to document whether

be the tributary and its adjacent wetlands have a

significant nexus rather than a_ speculative or

insubstantial nexus with a traditional navigable

water.

Accordingly, Corps districts and EPA regions

shall document in the administrative record the

available information regarding whether a tributary

and it adjacent wetlands have a significant nexus

with a traditional navigable water, including the

physical indicators of flow in a particular case and

available information regarding the functions of the

tributary and any adjacent wetlands. The agencies

a will explain their basis for concluding whether or not

4 the tributary and its adjacent wetlands, when

a considered together, have a more than speculative or

insubstantial effect on the chemical, physical, and

biological integrity of a traditional navigable water.

Swales or erosional features (e.g., gullies,

small washes characterized by low volume,

infrequent, or short duration flow) are generally not

waters of the United States because they are not

Se ee ora Reo hae fia sii

78a

5 tributaries or they do not have a significant nexus to

: downstream traditional navigable waters. In

a addition, ditches (including roadside ditches)

excavated wholly in and draining only uplands and

that do not carry a relatively permanent’ flow of

2 water are generally not waters of the United States

because they are not tributaries or they do not have a

significant nexus to downstream traditional

navigable waters.°6 Even when not jurisdictional

waters subject to CWA § 404, these geographic

features (e.g., swales, ditches) may still contribute to

a surface hydrologic connection between an adjacent

wetland and a traditional navigable water. In

addition, these geographic features may function as

point sources (i.e., “discernible, confined, and discrete

conveyances”), such that discharges of pollutants to

other waters through these features could be subject

to other CWA regulations (e.g., CWA §§ 311 and

402).37

Certain ephemeral waters in the arid west are

distinguishable from the geographic features

described above where such ephemeral waters are

tributaries and they have a significant nexus to

downstream traditional navigable waters. For

example, in some cases these ephemeral tributaries

may serve as a transitional area between the upland

environment and the traditional navigable waters.

During and following precipitation events, ephemeral

tributaries collect and transport water and

sometimes sediment from the upper reaches of the

landscape downstream to the traditional navigable

36 See 51 Fed. Rez. 41206, 41217 (Nov. 13, 1986).

37 33 U.S.C. § 1362 (14).

79a

waters. These ephemeral tributaries may provide

habitat for wildlife and aquatic organisms in

downstream traditional navigable waters. These

biological and physical processes may further

support nutrient cycling, sediment retention and

transport, pollutant trapping and filtration, and

improvement of water quality, functions that may

significantly affect the chemical, physical, and

biological integrity of downstream traditional

navigable waters.

Documentation

As described above, the agencies will assert

CWA jurisdiction over the following waters without

the legal obligation to make a significant nexus

determination: traditional navigable waters and

wetlands adjacent thereto, non-navigable tributaries

that are relatively permanent waters, and wetlands

with a continuous surface connection with such

tributaries. The agencies will also decide CWA

jurisdiction over other non-navigable tributaries and

over other wetlands adjacent to non-navigable

tributaries based on a fact-specific analysis to

determine whether they have a significant nexus

with traditional navigable waters. For purposes of

CWA § 404 determinations by the Corps, the Corps

and EPA are developing a revised form to be used by

field regulators for documenting the assertion or

declination of CWA jurisdiction.

Corps districts and EPA regions will ensure

that the information in the record adequately

supports any jurisdictional determination. The

record shall, to the maximum extent practicable,

explain the rationale for the determination, disclose

; 80a

a the data and information relied upon, and, if

i applicable, explain what data or information received

2 greater or lesser weight, and what professional

P judgment or assumptions were used in reaching the

determination. The Corps districts and EPA regions

will also demonstrate and document in the record

that a- particular water either fits within a class

identified above as not requiring a significant nexus

determination, or that the water has a significant

nexus with a traditional navigable water. As a

matter of policy, Corps districts and EPA regions will

include in the record any available information that

documents the existence of a significant nexus

between a relatively permanent tributary that is not

perennial (and its adjacent wetlands if any) and a

traditional navigable water, even though a

significant nexus finding is not required as a matter

of law. |

All pertinent documentation and analyses for

a given jurisdictional determination (including the

revised form) shall be adequately reflected in the

record and clearly demonstrate the bases for

asserting or declining CWA jurisdiction.38 Maps,

t aerial photography, soil surveys, watershed studies,

, local development plans, literature citations, and

references from studies pertinent to the parameters

a being reviewed are examples of information that will

3 assist staff in completing accurate jurisdictional

4 determinations. The level of documentation may vary

among. projects. For example, jurisdictional

38 For jurisdictional determinations and permitting decisions,

such information shall be posted on the appropriate Corps

website for public and interagency information.

determinations for complex projects may require

additional documentation by the project manager.

Beniamin H. Grumb

Benjamin H. Grumbles

Assistant Administrator for Water

U.S. Environmental Protection Agency

s/ John Paul Woodley, Jr.

John Paul Woodley, Jr.

Assistant Secretary of the Army

(Civil Works)

Department of the Army

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.