On November 27. the U.S. Court of Appeals for the Ninth Circuit decided an important Clean Water Act (CWA) jurisdictional case, United States. The Ninth Circuit unanimously affirmed the defendant’s criminal convictions for knowingly discharging dredged or fill material from a point source into a “water of the United States” on private property without a permit. At issue was whether the Government proved that these waters were subject to the CWA in accordance with Justice Kennedy’s concurring opinion in Rapanos v. U.S., which set forth the “significant nexus” test for jurisdiction over certain wetlands.

The defendant excavated and constructed several ponds located on federal land and private land in Montana in 2013 and 2014. In doing so, he discharged dredged or fill material into the surrounding wetlands and an adjacent creek, which was a tributary flowing into other tributaries which finally flowed into the Boulder River, a traditional navigable water of the United States. The first trial of the defendant resulted in a hung jury, but the second trial resulted in his conviction.

On appeal, the defendant argued that the Government failed to establish that there was jurisdiction under the CWA, that he lacked fair warning of the scope of CWA jurisdiction, and he also challenged several rulings on evidentiary grounds, and the lower court’s order that he pay restitution.

The Ninth Circuit stated that for there to be CWA jurisdiction, the creek and the wetlands must be “waters of the United States,” consistent with the Supreme Court’s “fractured decision” in Rapanos, which essentially concerned whether wetlands which did not contain or directly abut traditional navigable waters were nonetheless waters of the United States. The Ninth Circuit noted that

“All this paints a rather complex picture, and one where without more it might not be fair to expect a layman of normal intelligence to discern what was the proper standard to determine what are waters of the United States.”

However, for several years now, Justice Kennedy’s concurrence in Rapanos has been the touchstone in the Ninth Circuit to determine CWA jurisdiction, and it was so when the defendant was constructing these ponds. Indeed, he was warned by an Environmental Protection Agency (EPA) agent that he would need a permit to authorize his excavations.

Accordingly, the Ninth Circuit held that the defendant had fair warning that his conduct was criminal. His remaining arguments, based on the effects if any, of the first trial, and the testimony of certain witnesses called by the Government, were similarly unsuccessful and did not establish any abuse of the lower court’s discretionary power.

It is interesting to note that the Pacific Legal Foundation filed an amicus brief supporting the defendant on behalf of the Sacketts and John Duarte, who have figured in some recent prominent CWA jurisdictional disputes.