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United States v. Moses

ELR Citation: 37 ELR 20206
Nos. No. 06-30379, (9th Cir., 08/03/2007)

The Ninth Circuit affirmed a developer's conviction for altering the flow of waters of an intermittent, seasonal creek in violation of the Clean Water Act (CWA). For 20 years, the developer used heavy equipment to re-route and reshape the creek in an attempt to convert the original three channels of the creek into one broader and deeper channel. He did this despite numerous warnings by the U.S. Army Corps of Engineers that he needed a CWA permit. The developer was found guilty of all charges and sentenced to 18 months' imprisonment and was imposed a $9,000 fine, a $300 special assessment, and one-year of supervised release. The developer appealed, arguing that the evidence was insufficient to support the verdict. The court found that intermittent, seasonal streams can be waters of the United States, and the evidence demonstrates that the creek at issue here is jurisdictional. In addition, the developer's movement and redistribution of materials in the creek did not qualify as incidental fallback. Hence, he discharged pollutants into waters of the United States. The developer's activities also went far beyond anything that could be called mere maintenance of serviceable structures. And the actions were not taken pursuant to Nationwide Permit No. 3, which was issued under the Rivers and Harbors Act and does not apply to activities covered by the CWA.