United States v. Brink
2011 U.S. Dist. LEXIS 67775
S.D. Tex.2011Background
- United States sues Brink and Kalter for constructing a dam on La Para Creek without a Section 404 permit under the Clean Water Act.
- Court jurisdiction under 28 U.S.C. §§ 1331, 1345 and the CWA (33 U.S.C. § 1251 et seq.).
- Dam construction occurred May–June 2009; initially no concern raised, but USACE later found permit required and ordered removal.
- La Para Creek is a tributary to the Nueces River, and the Creek is contending to be a Waters of the United States under the CWA.
- Second site investigations and agency actions culminated in USACE’s October 2009 removal order; the Government moved for summary judgment on liability and defenses.
- Judge grants Government summary judgment, finds violation of §1344 for discharging fill material without a permit and orders removal to pre-2009 condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether La Para Creek is a Water of the United States | Government: La Para Creek is a tributary of the Nueces and thus within CWA jurisdiction. | Brink/Kalter: Creek is not a water of the United States. | La Para Creek is a Water of the United States under the CWA. |
| Whether Defendants discharged fill material into Waters of the United States | Government: Construction involved placement of concrete fill into the creek. | Brink/Kalter: Exempted activities or not discharging fill under §1344(f)(1). | Yes, Defendants discharged fill material without a §404 permit. |
| Whether §1344(f)(1) exemption applies | Exemption does not apply; activity not part of an established farming/silviculture operation. | Defendants: exemption should apply as upland soil and water conservation/farm activity. | §1344(f)(1) exemption does not apply; no established farming operation shown. |
| Whether defenses of waiver/estoppel and equal protection apply | Government: No affirmative misconduct; no basis for estoppel or waiver; equal protection not violated. | Defendants: Corps delayed informing them, unequal treatment. | Waiver and estoppel fail; no equal protection violation. |
Key Cases Cited
- Rapanos v. United States, 547 U.S. 715 (U.S. 2006) (defines 'waters of the United States' including relatively permanent streams and tributaries with a nexus to navigable waters)
- U.S. v. Moses, 496 F.3d 984 (9th Cir. 2007) (seasonally intermittent streams can be waters of the United States)
- Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001) (clarifies tributary concept under 33 C.F.R. § 328.3(a)(5))
- U.S. v. Zanger, 767 F. Supp. 1030 (N.D. Cal. 1991) (framework for proving CWA liability: jurisdiction, discharge, lack of permit)
- Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897 (5th Cir. 1983) (exemption under § 404(f)(1) is narrow; burden on defendant to prove exemption)
- In re Carsten, 211 B.R. 719 (Bkrtcy. D. Mont. 1997) (recapture provisions of § 404(f)(2) considered)
- U.S. v. Akers, 785 F.2d 814 (9th Cir. 1986) (burden shift for exemption defenses under § 404(f))
- U.S. v. Boccanfuso, 882 F.2d 666 (2d Cir. 1989) (agency conduct and timing not sufficient for estoppel)
- Bailey, 516 F. Supp. 2d 998 (D. Minn. 2007) (equal protection analysis in CWA context; rational basis suffices)