By Leslie Z. Walker and Janell M. Bogue

Admonishing appellant for 20 years of blatant disregard for the Army Corps of Engineers (“Corps”) and the Clean Water Act (“CWA”), the Ninth Circuit upheld the Idaho district court’s verdict finding appellant criminally liable for violations of the Clean Water Act in U.S. v. Moses (Aug. 3, 2007, No. 06-30379) ___U.S. ___ [2007 U.S.App.LEXIS 18483].
Continue Reading Ninth Circuit Upholds Criminal Penalties for Modification of Intermittent Stream

By Janell M. Bogue and Diane G. Kindermann Henderson

On June 5, 2007, the EPA and the Army Corps of Engineers (“Corps”) jointly issued guidance consistent with the Supreme Court’s decision in Rapanos. This document is entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v. United States (“Guidance”). The issue in Rapanos was whether a wetland or tributary can be defined as a “water of the U.S.” and thus be subject to jurisdiction under the Clean Water Act (“CWA”). Because the Court issued five separate opinions, it was unclear whether certain types of waters were jurisdictional. The guidance document establishes several categories of waters and discusses whether or not the agencies may assert jurisdiction.
Continue Reading EPA and Corps Issue Rapanos Guidance

By Kate J. Hart

In the recent case of San Francisco Baykeeper v. Cargill Salt Division (March 8, 2007) 2007 U.S.App.Lexis 5442, Baykeeper sued Cargill under the citizen suit provision of the Clean Water Act alleging that Cargill unlawfully discharged waste from its salt production operation into the “waters of the United States” without the proper permits. The body of water at issue was a non-navigable, intrastate pond (the “Pond”), which was not a wetland, but that was located adjacent to the Mowry Slough (“Slough”) which is a water of the U.S. Baykeeper never argued that the Pond was a wetland, but instead argued that the Pond’s adjacency to the Slough provided a basis for CWA coverage. There was no evidence that the CWA would otherwise apply. In this case, the Ninth Circuit held that the adjacency of a non-navigable water body to a water of the U.S. does not, by itself, trigger the application of the CWA.
Continue Reading Mere Adjacency STILL Does Not Constitute Clean Water Act Coverage

By Elias E. Guzman

In the recent case Northern California River Watch v. City of Healdsburg (2006) 457 F.3d 1023, the Ninth Circuit offered its first look at “adjacent wetlands” in the post-Rapanos era.
Continue Reading Ninth Circuit Takes a Look at Adjacent Wetlands in its First Post-Rapanos Opinion

By Diane Kindermann Henderson and Elias E. Guzman

Two weeks after the United States Supreme Court rendered its opinion in Rapanos/Carabell, et al. v. United States (2006) 126 S.Ct. 2208, the United States District Court for the Northern District of Texas delivered an opinion in United States v. Chevron Pipe Line Co. (D. Tex. June 28, 2006) 2006 U.S. Dist. LEXIS 47210. The court in Chevron was the first federal district court to apply the Army Corps of Engineers’ jurisdictional authority standards enunciated in Rapanos. In granting summary judgment, the Chevron court opined that the connection of generally dry channels and creek beds does not create a “significant nexus” to a navigable water simply because one fed into the next during the rare times of actual flow.
Continue Reading District Court Struggles with Rapanos in U.S. v. Chevron Pipe Line