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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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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.

iv
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,
PIE Ogi ca cadp es Safes Wrccay Gade say caddies scdhcesecbbaceceeks 57a

vi
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

2

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

4

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.

5

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:

6

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.

7

“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

8

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.

9

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

10

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

1]

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:

12

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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

13

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

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3 See, supra, footnote 1.

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4

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,
v.
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
be

a a

2a

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

3a

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.

4a

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.

Sa

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.

="

6a

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

Ta

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).

8a

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).

9a

(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

By

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.

es
ae
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

qe

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

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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

a
with a certified copy of this judgment.

United States Marshal

By

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

1)

2)

3)

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.

4)

5)

3la

Defendant shall within 90 days of the
commencement of his term of supervised release,
defendant shall publish a notice in the Post-
Register, Idaho Falls, Idaho State Journal,
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:

Th WAC tere ON te we Re ee
BOC Oo ie PURO Fo Vie ee a
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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:

A

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;
or

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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.

(c) Congressional policy toward Presidential
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

to

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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
at
the river. And the river down near the
confluence

52a

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

53a

E.R. 154

20
21

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—
by

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

1

2

3

4

5

6

can you describe for us what you did in the
creek?

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

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,
up

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

4

"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).

'© The CWA provisions and regulations described in this
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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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

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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.

© proximity to the traditional
navigable water

o size of the watershed

© average annual rainfall

© average annual winter snow pack

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

© provision of aquatic habitat that
supports a traditional navigable
water

© potential of wetlands to trap and

filter pollutants or store flood waters
© maintenance of water quality in
traditional navigable waters.
e The following geographic features generally
are not jurisdictional waters:

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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).

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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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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)).

Sn

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

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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 sig

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1270%3A1. Public record. Not legal advice.