Opinion
This аppeal concerns the scope of the government’s jurisdiction under the federal Clean Water Act (the Act; 33 U.S.C. § 1251 et seq.) to regulate water pollutants. Enacted in 1972, the Act prohibits any person from discharging a pollutant into “navigable waters”—i.e., into “the waters of the United States”—from a “point source” (a discrete conveyance of pollutants) without a permit. (See 33 U.S.C. §§ 1251 et seq., 1311(a), 1342(a), 1362(7), (12), (14).)
In Rapanos v. United States (2006)
FACTUAL AND PROCEDURAL BACKGROUND
Albert Garland appeals from a judgment denying a petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) brought by him (and his company, Tehama Market Associates, LLC—collectively, Garland).
Garland challenges a $250,000 ACL order issued against him in 2007 by the Central Valley Regional Water Quality Control Board (the Board) for permit violations of the Act in February 2004. The violations encompassed a conservatively estimated 641,000 gallons of sediment-laden storm water flowing off the north and east sides of a residential subdivision construction site being developed by Garland.
In October 2007, Garland petitioned for a writ of administrative mandate challenging the ACL order.
In 2009, the trial court, in ruling on that petition, (1) rejected Garland’s principal argument, concluding that the law and sufficient evidence supported the Board’s finding that the ephemeral drainages were “waters of the United States” as tributaries of the Feather River and the Thermalito Afterbay and (2) rejected Garland’s statute of limitations defense, but (3) remanded for further consideration of Garland’s laches defense.
In 2010, the trial court, in ruling on a second petition for administrative mandate brought by Garland after the remand, upheld the Board’s rejection of Garland’s laches claim. Garland timely filed a notice of appeal from this 2010 judgment.
I. The Issue
Garland contends the Board erroneously concluded that he violated the Act by discharging, without a proper permit, sediment-laden waters into ephemeral drainages adjacent to the construction site, based on the Board’s incorrect finding that the drainages themselves were “waters of the United States.”
Specifically, Garland argues that for a watercourse to constitute a “water[] of the United States,” the watercourse either must be a “relatively permanent, standing or continuously flowing bod[y] of water” connected to an interstate navigable water (meeting the test of the four-justice plurality opinion of Rapanos, supra, 547 U.S. at pp. 739, 742 [165 L.Ed.2d at pp. 178, 180] (plur. opn. of Scalia, J., joined by Roberts, C. J., Thomas and Alito, JJ.)) or must have a “ ‘significant nexus’ ” to a navigable water (meeting the test of the result-only concurring opinion in Rapanos from Justice Kennedy (
II. Setting the Legal Stage for the Issue
The stated “objective” of the Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” (§ 1251(a).) To that end, the Act provides that “the discharge of any pollutant by any person shall be unlawful” (§ 1311(a)) without a prоper permit (§ 1342(a)). The “ ‘discharge of a pollutant’ ” is defined broadly to include “any addition of any pollutant [including storm water sediment runoff] to navigable waters from any point source [(a discrete conveyance of pollutants)].” (§ 1362(12), (6) & (14); see North Carolina Shellfish Growers Assn. v. Holly Ridge Associates (E.D.N.C. 2003)
As a regulatory agency under the Act, the Army Corps of Engineers (hereafter, the Corps) has interpreted the statutory phrase “the waters of the United States” to cover all traditionally navigable waters, tributaries of those waters, and wetlands adjacent to those waters or those tributaries. (33 C.F.R. § 328.3(a)(1), (5), (7) (2012); Rapanos, supra, 547 U.S. at pp. 760-761 [
The United States Supreme Court, in a trio of decisions dating from 1985, has itself tackled the interpretation of the statutory phrase, “the waters of the United States”:
(2) In Solid Waste Agenсy of Northern Cook Cty. v. Army Corps Engineers (2001)
(3) And that brings us to Rapanos, supra,
The four-justice dissenting opinion of Justice Stevens in Rapanos answered this question, “Yes.” This opinion upheld the Corps’s regulatory interpretation of “die waters of the United States” specified above. (Rapanos, supra, 547 U.S. at pp. 787-788, 792 [165 L.Ed.2d at pp. 208-209, 211] (dis. opn. of Stevens, J.).) Relying on the Act’s purpose and the Corps’s ecological expertise, this dissenting opinion concluded that these wetlands reasonably could be considered adjacent to tributaries of traditionally navigable waters, and therefore constituted “waters of the United States.” (Ibid. (dis. opn. of Stevens, J.).)
The four-justice plurality opinion of Justice Scalia in Rapanos answered this question, “No.” Applying a dictionary definition of “waters” and expressing skеpticism at federal appellate decisions that had interpreted “the waters of the United States” to include “ephemeral channels and drains as ‘tributaries’ ” (citing as one example, among others, Headwaters, Inc. v. Talent Irrigation Dist. (9th Cir. 2001)
Finally, the third distinct opinion in Rapanos, the result-only concurring opinion of Justice Kennedy, answered this question, “Maybe.” Noting Solid Waste Agency v. Corps’s observation that “ ‘[i]t was the significant nexus between the wetlands and “navigable waters,” ’ . . . ‘that informed our reading of the [Act] in Riverside Bayview,’ ” Justice Kennedy adopted this nexus standard as the guiding criterion in applying the statutory phrase “the waters of the United States” to wetlands and to tributaries. (Rapanos, supra,
HI. Disposing of the Issue
As noted, Garland contends there was insufficient evidence that the ephemeral drainages hеre constituted “waters of the United States” under either Justice Scalia’s plurality test in Rapanos (a relatively permanent body of water connected to traditional interstate navigable waters) or Justice Kennedy’s concurrence test (significant nexus to navigable water), and therefore, there was no jurisdictional basis on which to impose the ACL order against him (including his сompany).
As we shall explain, we can sidestep this issue because the Board imposed the ACL order against Garland on an alternative basis (to whether the ephemeral drainages themselves constituted “waters of the United States”), and this alternative basis finds jurisdictional support even under the Rapanos opinion that most restrictively reads the Act’s jurisdiction (i.e., the four-justiсe plurality opinion of Justice Scalia).
In issuing the ACL order against Garland, the Board indeed found that the ephemeral drainages—into which Garland discharged the construction site storm water runoff—were tributaries to downstream navigable waters, and therefore, these drainages themselves constituted “waters of the United States.”
However, the Board also prоvided “[a]n alternative rationale” for issuing the ACL order against Garland. Said the Board, “An alternative rationale is
The Board’s alternative rationale for issuing the ACL order against Garland is, pardon the expression, on solid ground. Whatever else may be said of the threе legally distinct opinions in Rapanos, this much is clear: The four-justice plurality opinion of Justice Scalia took the narrowest view of the Act’s jurisdiction (Rapanos, supra, 547 U.S. at pp. 746, 756 [165 L.Ed.2d at pp. 182, 188] (plur. opn. of Scalia, J.)); the four-justice dissenting opinion of Justice Stevens took the broadest (547 U.S. at pp. 808-809, 810, fn. 14 [165 L.Ed.2d at pp. 221, 223, fn. 14] (dis. opn. of Stevens, J.)); and the result-only concurring opinion of Justice Kennedy landed sоmewhere in between (
The Rapanos plurality first set the backdrop: “Respondents [(i.e., the parties in Rapanos that argued the Act applied)] and their amici urge that [the plurality’s] restrictions on the scope of ‘navigable waters’[, i.e., the plurality’s narrow reading of ‘the waters of the United States’] will frustrate enforcement against traditional water polluters under [sections] 1311 and 1342 [(the sections of the Act prohibiting the discharge of a pollutant into the waters of the U.S. from a point source without a permit—i.е., the sections at issue in the present opinion)]. . . . [Respondents contend that water polluters will be able to evade the permitting requirement of [section] 1342(a) simply by discharging their pollutants into noncovered intermittent watercourses that lie upstream of covered waters.” (Rapanos, supra, 547 U.S. at pp. 742-743 [
Then the plurality answered this contention: “That is not so. Though we do not decide this issuе, there is no reason to suppose that our construction today significantly affects the enforcement of [section] 1342, inasmuch as lower courts applying [section] 1342 have not characterized intermittent channels as ‘waters of the United States.’ The Act does not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’ § 1362(12)(A) (emphasis added); § 1311(a). Thus, from the time of the [Act’s] enactment,
The Rapanos plurality then continued: “In fact, many courts have held that such upstream, intermittently flowing channels themselves constitute ‘point sources’ under the Act. The definition of ‘point source’ includes ‘any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.’ 33 U.S.C. § 1362(14). We have held that the Act ‘makes plain that a point source need not bе the original source of the pollutant; it need only convey the pollutant to “navigable waters.” ’ South Fla. Water Management Dist. v. Miccosukee Tribe,
The Rapanos plurality also addressed a further concern regarding its narrow interpretation of the Act’s jurisdiction: “Respondents also urge that the narrower interpretation of ‘waters’ will impose a more difficult burden of proof in enforcement proceedings under [sections] 1311(a) and 1342(a) [(again, the sections at issue in the present opinion)], by requiring the [relevant administrative] agency to demonstrate the downstream flow of the pollutant along the intermittent channel to traditional ‘waters.’ . . . But, as noted above, the lower courts do not generally rely on characterization of intervening channels as ‘waters of the United States’ in applying [section] 1311 to the traditional pollutants subject to [section] 1342. Moreover, the proof of downstream flow of pollutants required under [section] 1342 [can be satisfied by the presеnce of] a hydrologic connection .... See [U.S. v. Rapanos (6th Cir. 2004)] 376 F.3d[ 629,] 639[ vacated and cause remanded sub nom. Rapanos v. United States, supra,
The “solid ground” we spoke of earlier supporting the Board’s alternative rationale for issuing the ACL order against Garland—i.e., the rationale of discharging pollutants, without a proper permit, into “[non]waters of the United States” that eventually conneсt with a traditional navigable water, sections 1311 and 1342—is based not only on the Rapanos opinion that reads the Act’s jurisdiction in the narrowest way (the plurality opinion), but also on the following three observations.
First, the Rapanos plurality opinion’s phrasing of “any pollutant that naturally washes downstream” does not foreclose the Act from applying to a downstream wash through manmade conveyances, given the language and examples the plurаlity itself sets forth in conjunction with this phrasing. (Rapanos, supra,
Second, Garland makes no effort in his reply brief to respond to the Board’s argument (in its respondent’s brief) of this alternative rationale. In its respondent’s brief, the Board argued that “regardless of whether the [ephemeral] drainages at issue in this case themselves constitute waters of the United States, Garland remains liable for disсharging pollutants into waters of the United States under the alternative [rationale for the ACL order] that the discharge travelled through point sources to waters of the United States.”
Third, and finally, Garland apparently made no effort to counter the Board’s argument regarding the ACL order’s alternative rationale, given Garland’s following highlighted concession in characterizing the issue on appeal, at the outset of his opening brief: “At issue in this appeal is whether ephemeral drainage swales, ditches, and culverts can be found to be ‘waters of the United States’ governed by the federal Clean Water Act, based on nothing more than a finding that the drainages eventually connect with a navigable waterway during high rain[fall] events.”
DISPOSITION
The judgment is affirmed. The Board is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
Raye, R J., and Mauro, J., concurred.
Notes
Undesignated statutory references are to the Act as set forth in title 33 United States Code.
According to the Board, the $250,000 ACL order could have been based on as little as 25,000 gallons of polluted discharge. (Wat. Code, § 13385.)
The Board is wrong in arguing that we have jurisdiction on appeal only to review the trial court’s denial of Garland’s laches claim. Garland could not have appealed the ruling on his first writ petition, as the trial court remanded the matter to the Board to further consider that laches claim. To avoid piecemeal appeals, an appeal—pursuant to the “ ‘one final judgment’ ” rule—“ ‘cannot be takеn from a judgment that fails to complete the disposition of all causes of action between the parties ....’” (Griset v. Fair Political Practices Com. (2001)
At oral argument, counsel for Garland claimed that the Board’s alternative rationale for issuing the ACL order neither constituted a Board finding nor was supported by sufficient evidence. Of course, as we just noted, Garland did not make these claims in his briefing, which was the proper venue for doing so. (See People v. Thompson (2010)