Wednesday, August 6, 2008

Lynn Moses and the Clean Water Act

Lynn Moses and the Clean Water Act

Bryan Fischer at Idaho Values Alliance is championing Lynn Moses, a Driggs, Idaho developer who has been sentenced to eighteen months in prison for dredging an intermittent stream as part of building a real estate project--and that this work was required by the Driggs city government. I have been trying to make sense of what happened here, because as a general rule, our government doesn't normally send people to prison for things like this.

The Associated Press account that appeared in the June 24, 2008 Casper Star-Tribune doesn't put Moses in a very good light:

BOISE, Idaho -- The U.S. Supreme Court on Monday refused to hear an appeal by an eastern Idaho developer who ignored federal government warnings to stop bulldozing a streambed, clearing the way for him to serve an 18-month prison sentence.

In 2005, Charles Lynn Moses was found guilty in U.S. District Court of felony violations of the federal Clean Water Act. It was the first time in Idaho that a person was convicted of criminal charges under the 1972 law.

Prosecutors alleged that as early as 1982, Moses began a pattern of ignoring U.S. Army Corps of Engineers officials who told him he needed a permit to reshape Teton Creek where it ran through his Aspens subdivision on the outskirts of Driggs in Teton County.

The Environmental Protection Agency accused Moses of polluting a spawning area for Yellowstone cutthroat trout and exacerbating flooding danger by turning Teton Creek into a huge drainage ditch.

"Mr. Moses chose knowingly to destroy a major natural resource, and did it with the full knowledge that it was illegal," said Jim Werntz, director of EPA office in Idaho. His conviction "helps people understand how important it is to protect streams and the wetlands associated with them."

In August, Moses lost an appeal of his conviction before the 9th U.S. Circuit Court of Appeals. Judges didn't accept his arguments that Teton Creek wasn't under the jurisdiction of the United States.
Bryan Fischer's argument is that the Ninth Circuit Court of Appeals erred in insisting that intermittent streams are protected by the Clean Water Act, and therefore, the Army Corps of Engineers had no authority to prohibit Moses from doing this dredging:

Although the director of the EPA in Idaho, Jim Wernitz, asserts that Mr. Moses had damaged “wetlands” associated with the stream, there are no wetlands there! The very word requires that land be, well, wet, but the stream bed is bone dry for at least 10 months out of every year. Wernitz is apparently ignorant of the fact that the Government had previously stipulated that there are no wetlands surrounding the storm channel, nor any “aquatic environment” that could be damaged.
In the plurality opinion of the U.S. Supreme Court in the 2006 Rapanos case, Justice Scalia wrote that the Clean Water Act in fact gives the federal government jurisdiction only over “relatively permanent, standing or continuously flowing bodies of water,” and explicitly added, “[T]he ‘waters of the United States’ does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”
The claim is that the Ninth Circuit ignored the Rapanos plurality's decision (four justices) and focused on Justice Kennedy's decision which concurred in the result, but not the reasoning--and which argued that intermittent streams are protected by the Clean Water Act.

So I spent some time digging around. The Ninth Circuit decision, USA v. Moses, does indeed give Justice Kennedy's concurring opinion precedence over the opinion of the four judges who formed the plurality. The plurality decision is very clear on this:
The Corps' expansive approach might be arguable if the CSA defined "navigable waters" as "water of the United States." But "the waters of the United States" is something else. The use of the definite article ("the") and the plural number ("waters") show plainly that §1362(7) does not refer to water in general. In this form, "the waters" refers more narrowly to water "[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes," or "the flowing or moving masses, as of waves or floods, making up such streams or bodies." Webster's New International Dictionary 2882 (2d ed. 1954) (hereinafter Webster's Second).4 On this definition, "the waters of the United States" include only relatively permanent, standing or flowing bodies of water.5 The definition refers to water as found in "streams," "oceans," "rivers," "lakes," and "bodies" of water "forming geographical features." Ibid. All of these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. Even the least substantial of the definition's terms, namely "streams," connotes a continuous flow of water in a permanent channel--especially when used in company with other terms such as "rivers," "lakes," and "oceans."6 None of these terms encompasses transitory puddles or ephemeral flows of water.
The plurality opinion points out that:
In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as "economics," "aesthetics," "recreation," and "in general, the needs and welfare of the people," 33 CFR §320.4(a) (2004).1 The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915--not counting costs of mitigation or design changes.
Doubtless the "despot" part of this is why Idaho liberals are doing everything but crying that there's no death penalty available for Mr. Moses.

So why didn't the U.S. Supreme Court hear Moses's appeal from the Ninth Circuit decision? This guy is going to prison over this, and it would certainly appear from reading the Rapanos decision that Moses was technically in the right: the creekbed was not within the jurisdiction of the Army Corps of Engineers, a position that they seem to have taken in 1980, but reversed in 1982, and certainly by 1997, when they told Moses to stop work.

When you are dealing with the federal government, remember that you are dealing with people with enormous power. They resent being ignored. They resent being told that you aren't going to obey them. They are rather like an Egyptian pharoah (which makes the defendant's name especially ironic). Under the circumstances, Moses should have responded to the first cease and desist order by stopping work, and filing suit asking the federal courts to straighten this question out--before it became a felony criminal charge.

I am not at all sympathetic to the Army Corps of Engineers and their approach. Read the Rapanos decision for a discussion of how they have continually increased their jurisdiction far beyond what the Clean Water Act of 1972 intended, and how the federal courts have kept trying to rein them in. But fighting with federal bureaucrats has to be done in a manner that does not offend their dignity and sense of self-importance. A suit asking the courts to clarify whether they have the authority to regulate an intermittent stream does not offend them as much as just ignoring their orders.

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