The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it a motion to dismiss filed by defendant Rodriguez. The Court heard oral argument on April 5, 2011, and took the motion under advisement. For the reasons expressed below, the Court will deny the motion.
Defendant Rodriguez is charged with a single count of violating the Clean Water Act for placing dredge or fill material into Tenmile Creek without a required permit. The Indictment alleges that Tenmile Creek and its adjacent wetlands are a tributary of the Boise River, and that the Boise River is "navigable water" governed by the Clean Water Act.
This charge can be traced in more detail through the statutory language. The Clean Water Act (CWA) prohibits the "discharge of any pollutant," see 33 U.S.C. § 1311(a), which is defined as "any addition of any pollutant to navigable waters from any point source." See 33 U.S.C. §1362(12)(A) (emphasis added). The term "navigable waters" means "the waters of the United States." 33 U.S.C. § 1362(7). The term "waters of the United States" means "all waters which are currently used, were used in the past, or may be susceptible for use in interstate or foreign commerce . . . ." See 40 C.F.R. § 122.2.
The Indictment alleges that the Boise River in Ada County is a water of the United States under this definition. See Indictment (Dkt. 1) at ¶ 10. The term "waters of the United States" also includes "[t]ributaries" of those waters and any "wetlands adjacent to such waters." See 40 C.F.R. § 122.2. The Indictment alleges that Tenmile Creek and its adjacent wetlands are a tributary of the Boise River under this definition. See Indictment (Dkt. 1) at ¶ 11.
Rodriguez argues that Tenmile Creek is misnamed, because it is an irrigation drain rather than a free-flowing creek. The source of the water is critical, Rodriguez argues, because when the CWA regulations were published in the Federal Register, the Army Corp of Engineers (ACE) stated in the preamble that it "generally do[es] not consider the following waters to be 'Waters of the United States' . . . (b) Artificially irrigated areas which would revert to upland if the irrigation ceased." See 51 Fed.Reg. 41206, 41217 (November 13, 1986). The ACE followed this up in 2007 with a Regulatory Guidance Letter that quotes this preamble language and concludes that "[t]hus, waters, including wetlands, created as a result of irrigation would not be considered waters of the U.S. even when augmented on occasion by precipitation." Rodriguez also quotes from an ACE Memorandum that was designed to provide guidance on what constituted navigable waters after Rapanos v. United States, 126 S.Ct. 2208 (2006). See http://www.usace. army.mil/CECW/Documents/cecwo/reg/cwa_guide/cwa_juris_2dec08.pdf. In this Memorandum, the ACE states that it "will assert jurisdiction over . . . "[n]on-navigable tributaries . . . that are relatively permanent where the tributaries typically flow year-round or have continuous flow at least seasonally (e.g. typically three months)." Id.
This clarification of the regulatory language renders the CWA inapplicable to Tenmile Creek, Rodriguez argues, because the Creek's source is irrigation water. Rodriguez claims that if the irrigation water ceased, the Creek would not flow at all, much less for three months. Moreover, Rodriguez claims, the Government is estopped from arguing that the source of Tenmile Creek's waters is anything but irrigation because that is the position taken by the Government in earlier litigation -- that all the water in Tenmile Creek was irrigation water.
The prior litigation referred to by Rodriguez was a water rights adjudication in Idaho state court. It was part of the massive Snake River Basin Adjudication, a statutorily-created lawsuit to inventory all surface and ground water rights in the Snake River and its tributaries. Included in the 150,000 water rights claims being adjudicated was a claim by Bradford Shaw, a predecessor in interest of the property at issue here.
Shaw filed his claim in 1990, claiming 1.2 cubic feet per second (cfs.) of water from Tenmile Creek to irrigate 60 acres. See Exhibit F (Dkt. 29). The Department of Water Resources recommended .32 cfs. See Exhibit H, supra. The Boise-Kuna Irrigation District (BKID) filed an objection on a "Standard Form 1 -- Objection." See Exhibit I, supra. This form contained a line of boxes describing various objections such as "Source", "Quantity", and "Priority Date," and invited the filer to "check the appropriate box." The BKID checked the box labeled "Source," and adjacent to the box typed in the following note: "The source should be described as waste waters, and waste waters belong to the [BKID]." Further down the page, in a space designated "Reasons Supporting Objections," the BKID typed,
There has been no lawful appropriation of this right. The description of the source should have been waste water. The waste waters belong to the [BKID] and are not available for private development and appropriation. Further, any attempted development of this right constitutes a trespass against the drains of the [BKID]."
Id. The Government filed a response to the BKID's objection on a "Standard Form 2 -- Response to Objection." On this form were a similar line of boxes describing various responses such as "Source," "Quantity," and "Priority Date." The instructions invited the filer to "check the appropriate box" in "responding to the objections to the following elements." The Government checked the box "Source." Further down the page, the form contained a line stating "I object because" followed by two boxes -- the Government checked the box labeled "[t]his water right should not exist."
The Government did not explain why it objected. There are no typewritten explanations as there were on the BKID ...