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United States v. Robertson

ELR Citation: 47 ELR 20151
Nos. 16-30178, (9th Cir., 11/27/2017)

The Ninth Circuit upheld the criminal conviction of a Montana resident for violations of the CWA. The resident was sentenced to 18 months in prison and had to pay a $130,000 fine for digging ponds and diverting a creek onto his land in Montana and the neighboring Beaverhead-Deerlodge National Forest, and knowingly discharging the dredged material into a water of the United States without a permit. The resident contended that the government did not establish that there was jurisdiction under the CWA. The government argued that under the "significant nexus" test, it had jurisdiction because the creek was connected to the Jefferson River via tributaries; further, the resident was informed that a permit would be necessary for the action. The court agreed with the government, holding that Justice Kennedy's concurrence in Rapanos v. United States remained binding precedent and is the controlling test for determining CWA jurisdiction.