The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
ORDER RE DEFENDANT'S MOTION TO DISMISS
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.
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").
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 (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