United States v. Vierstra

• Citation: 803 F.Supp.2d 1166,73 ERC 1566
• Decision Date: 18 March 2011
• Docket Number: Case No. 1:10–cr–204–REB.
• Parties: UNITED STATES, Plaintiff, v. Mike VIERSTRA, Defendant.
• Court: U.S. District Court — District of Idaho

73 ERC 1566

803 F.Supp.2d 1166

UNITED STATES, Plaintiff,

v.Mike VIERSTRA, Defendant.

Case No. 1:10–cr–204–REB.

United States District Court, D. Idaho.

March 18, 2011.

George William Breitsameter, U.S. Attorney's Office, Boise, ID, for Plaintiff.

Allen B. Ellis, Ellis Brown & Sheils, Boise, ID, for Defendant.

ORDER RE DEFENDANT'S MOTION TO DISMISS

RONALD E. BUSH, United States Magistrate Judge.

Currently pending before the Court is Defendant's Motion to Dismiss for Lack of Jurisdiction (Dkt. 37). Having fully reviewed the record and the arguments presented at the March 18, 2011 hearing, the Court enters the following order.

BACKGROUND

Defendant, Mike Vierstra (“Vierstra”) is charged with three counts of negligently discharging a pollutant from a point source into the waters of the United States without a permit in violation of 33 U.S.C. §§ 1311(a) and 1319(c)(1)(A). Superseding Information (Dkt. 7). The Superseding Information alleges that on or about March 25, June 1, and November 4, 2009, Defendant negligently discharged process wastewater from a concentrated animal feeding operation (“CAFO”), into Low Line Canal, a water of the United States, without a permit for the discharge. Id.

Defendant argues that the Superseding Information must be dismissed for lack of jurisdiction, because: (1) the Low Line Canal is not part of the “waters of the United States” and (2) the March and November discharges were into the dry bed of Low Line Canal and there is no evidence that the pollutants were carried downstream. However, as explained more fully below, the Government's allegations, if proven, support a finding that the Low Line Canal is a non-navigable tributary eventually discharging water into a navigable water of the United States. In addition, the Low Line Canal is part of a continuous channel with a distinct, open, and direct surface water connection to and from navigable waters for six to eight months out of the year. Accordingly, even though the canal is man-made, lacks an interstate connection, and the flow is seasonal, the Court finds that the Government has made a preliminary showing in support of jurisdiction. The Government's allegations, if proven, support a finding that the Low Line Canal constitutes “waters of the United States” subject to federal Clean Water Act (“CWA”).

ANALYSIS

The Low Line Canal constitutes “waters of the United States.” Accordingly, federal CWA jurisdiction attaches, whether the channel is carrying water or dry. This is true, even though, in certain situations, the Low Line Canal might also be deemed a point source.

A. The Low Line Canal Constitutes Waters of the United States

The Government's allegations reflect that the Low Line Canal meets the statutory and regulatory definition of “waters of the United States” as a tributary connected to a navigable waterway. Because water flows through its channel seasonally and continuously for a six to eight month irrigation season each year, it meets both the “relatively permanent” and “significant nexus” standards set forth in the plurality and concurrent decisions set forth in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006).

1. The Low Line Canal, as a Non–Navigable Tributary, Constitutes “Navigable Waters” under Statutory and Regulatory Definitions.

The CWA defines the term “navigable waters” as “the waters of the United States, including territorial seas.” 33 U.S.C. § 1362(7). The regulations further define “waters of the United States” as follows:

(a) All waters which are currently used, 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;

(b) All interstate waters, including interstate “wetlands;”

(c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, “wetlands,” sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:

(1) Which are or could be used by interstate or foreign travelers for recreational or other purposes;

(2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

(3) Which are used or could be used for industrial purposes by industries in interstate commerce;

(d) All impoundments of waters otherwise defined as waters of the United States under this definition;

(e) Tributaries of waters identified in paragraphs (a) through (d) of this definition;

(f) The territorial sea; and

(g) “Wetlands” adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) through (f) of this definition.

40 C.F.R. § 122.2.

The allegations support a finding that the Low Line Canal falls within the definition of “waters of the United States” as a tributary of the Snake River. 40 C.F.R. § 122.2(e); see Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 533 (9th Cir.2001). A tributary is a “stream which contributes its flow to a larger stream or other body of water.” Headwaters, Inc., 243 F.3d 526 at 533 (citing Random House College Dictionary 1402 (rev. ed. 1980)). The Low Line Canal is part of a tributary system that connects to the Snake River, a navigable water. See Government's Pretrial Memorandum, p. 17 (Dkt. 29).

The Government alleges:

Water in Murtaugh Lake comes from small drainages that flow into the lake as well as the major inflow from the Twin Falls Main Canal which diverts water from the Snake River at Milner Dam. Low Line Canal eventually discharges to Deep Creek, a naturally-occurring, perennial stream which in turn discharges into the Snake River, a traditionally navigable water body. The Snake River supports a broad range of industrial, recreational and wildlife activities. It is also a direct tributary of the Columbia River, a navigable waterway with clear interstate and foreign commerce impacts.

Id. The Government further alleges that the Low Line Canal carries water for about six to eight months each year, depending upon the length of the irrigation season. Id. at p. 24. This evidence is sufficient to support a finding that the Low Line Canal, a non-navigable tributary with a direct surface water connection to navigable waters six to eight months of the years constitutes “waters of the United States” for the purposes of the CWA.

Defendant contends this interpretation of the statutory and regulatory definitions for “navigable waters” is foreclosed by the United States Supreme Court's decision in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). As explained more fully below, the Court's finding is consistent with both the Rapanos plurality decision authored by Justice Scalia and the concurring opinion written by Justice Kennedy.

2. The Low Line Canal is Subject to Federal CWA Jurisdiction under Both the Plurality Opinion or Justice Kennedy's Concurrence in Rapanos.

The Rapanos decision has presented trial courts with two challenges. First, the issue in Rapanos was the scope of the Army Corps of Engineers jurisdiction under the CWA to issue or require dredge and fill permits over certain isolated wetlands located “near ditches or man-made drains that eventually empty into traditional navigable waters.” Id. at 729, 126 S.Ct. 2208. However, in addressing the scope of “navigable waters,” the decision addresses wetlands as well as non-navigable waterways. In addition, the interpretation of “navigable waters” applies to CWA jurisdiction generally, including federal authority over both dredge and fill and discharge permits. Id. at 742, 126 S.Ct. 2208.

The second challenge posed by Rapanos is that no opinion commanded a majority of the Court. (There also was a dissenting opinion authored by Justice Stevens which, as did the plurality opinion, garnered four votes.) While all of the Justices agreed that the term “waters of the United States” encompasses some waters that are not navigable in the traditional sense, see id. at 730–31, 126 S.Ct. 2208 (plurality opinion); id. at 759, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment); id. at 787, 126 S.Ct. 2208; (Stevens, J., dissenting); they disagreed on the scope of the term, which resulted in plurality, concurring, and dissenting opinions.

a. The Plurality Opinion and the “Relatively Permanent” Standard

In the plurality opinion, four justices interpreted the term “waters of the United States” to include “relatively permanent, standing or continuously flowing bodies of water.” Id. at 732, 126 S.Ct. 2208 (quoting Webster's New International Dictionary 2882 (2d ed. 1954)). “The definition refers to water as found in ‘streams,’ ‘oceans,’ ‘rivers,’ ‘lakes,’ and ‘bodies' of water ‘forming geological features.’ ” Id. at 732–33, 126 S.Ct. 2208. The plurality further explained that “these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows.” Id. at 733, 126 S.Ct. 2208.

In determining what “relatively permanent” might mean, the plurality opinion explained that it excludes “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Id. at 739, 126 S.Ct. 2208. At the same time, the plurality made clear that this “do[es] not necessarily exclude streams, rivers, or lakes 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.” Id. at 732, n. 5, 126 S.Ct. 2208 (emphasis in original).

The plurality decision does not contain precise standards for distinguishing between “intermittent” and “seasonal” waterways, stating “we have no occasion in this litigation to decide exactly when the drying-up of a streambed is continuous and frequent...